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Prosecutor: The History, Duties, and Responsibilities in Georgia, and Other Foreign Countries

Prosecutor: The History, Duties, and Responsibilities in Georgia, and Other Foreign Countries 2022 – 30(44) DOI: 10.2478/jles-2022-0015 PROSECUTOR: THE HISTORY, DUTIES, AND RESPONSIBILITIES IN GEORGIA, AND OTHER FOREIGN COUNTRIES Shota Tkeshelashvili Grigol Robakidze University, Georgia E-mail: shota.tkeshelashvili@gmail.com (Received: July 2022; Accepted: September 2022; Published: November 2022) Abstract: The prosecutor is an individual who on behalf of the Government carries on criminal prosecution against the guilty person and in the court with the mandate of society and supports the State Prosecution. The main aim of the prosecutor is the find out such objective and indisputable evidence, which will help the court to make the right and fair decision. The present article according to the qualitative research method focuses on the history, stages of development, and current functions of the prosecutors. Based on this, it became clear how effective and productive the prosecutor's participation in the court is and, in general, how independent the prosecutor is in the performance of his or her functions and what are similarities and differences in different countries prosecutor’s independence, roles, and responsibilities. As the study highlighted the International Prosecutor should have exclusively such rights, as investigation and implementation of criminal persecution against specific persons. Apart from these restrictions imposed by the legislation, of course, substantive importance is given to the global situation in the world during the prosecutor's activities. Keywords: Prosecutor; Criminal Court; Prosecution. 1. Introduction The origins of the prosecution as a state prosecution date back to the time of the Roman Empire, although the birthplace of this body is considered to be France, where the prosecution has been in existence for more than seven years. In England, this institution was established in the 15th century, where the functions of the prosecutor's office were performed to some extent by the director of public prosecution. (Abashidze, 2012) The prosecutor is a representative of the prosecutor’s office, who on the one hand ensures the implementation of state charges during the trial and also supervises the Corresponding author: Shota Tkeshelashvili. E-mail: shota.tkeshelashvili@gmail.com Copyright © 2022 The Author(s). Published by VGWU Press This is an Open Access article distributed under the terms of the Creative Commons BY 4.0 license (Creative Commons — Attribution 4.0 International — CC BY 4.0) which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) effective performance of the law. The prosecutor’s institute itself started in medieval France and then spread to other countries and continents. At present, this institute is almost everywhere, but though with different powers, which will be discussed later (Buneci, 2021). In July of 1998, in the city of Rome, the States a total number of which were 120 countries decided to create the International Criminal Court. The creation of the International Criminal Court does not automatically cause the removal of the judiciary from the National Courts, since the interference and activation of the International Court occur after that when it will be clear that a particular State does not want or cannot pursue criminal prosecution against criminals. Accordingly, the role of the state prosecutor and his authority in the International Criminal Court is very interesting. The competence area of the prosecutor, studying the quality of imperative of the decision taken by him and understanding the functions is important because this will enable us to determine what the characteristics of the international prosecution are supported by the prosecutor at the international level. On this basis, it will be clear, how effective and productive the prosecutor's participation in the International Criminal Court is and in general, how independent the state prosecutor is in exercising its functions. 2. Materials and Methods The research was conducted using materials provided by laws, policies, reports, books, official websites, and scientific articles to highlight the importance, function, and role of prosecutors in the juridical system. 3. Main Text 3.1 At the early beginnings of Prosecution The prosecutor’s “profession” started in medieval France, approximately in the 14th century and the mentioned position was created on demand of French Parliament Members. The fundament of the prosecutor’s institute is due to the procedures of the French court of the Middle Ages. The famous French prosecutor Jean-Louis Nadal explains well and obviously the meaning of the following institute: “Historically, the specificity of criminal prosecution, both as a criminal prosecution body and as a defender of individual liberties, comes from the wisdom of the sea ordinances of Philip the Fair of March 23, 1303, laying down the king’s oath formula in defense of the people stating that the accuser must also be responsible for the search for truth and the correct application of the law”. (Nadal, 2006) Between 1620 and 1790, the US criminal justice system deviated from British tradition. The British used a system of private prosecution, and individuals hired lawyers to prosecute crimes. After the American Revolutionary War, some felt that the concept of law enforcement was adopted in France, but 75 years before the Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) French influence was felt when French institutions were favored and British institutions were unpopular. State officials were enforcing the law in the United States. A comprehensive study of the historical origins of law enforcement in the United States, published in 1976, concluded that the US Prosecutor’s Office evolved in response to a combination of factors and effects. (Jacoby, 1997). 3.2 The stages of development of the prosecution system in Georgia According to the Organic Law of Georgia on Prosecutor's Office (article 24): 1. The prosecutor exercises his authority on behalf of the state and at the same time, he bears the burden of proof. 2. After the approval of the superior prosecutor approval, a prosecutor has the right to remove or mitigate the charge, but of course, he/she must substantiate this. 3. The prosecutor must participate in the trial. 4. In all three instances, the prosecutor exercises his powers following with the criminal procedure legislation Table 1. The stages of development of the prosecution system in Georgia YEAR CHANGES Resolution of The State Prosecutor’s Office of the Georgian SSR was November 11, established. The Statute on the Prosecutor’s Office was approved based Resolution of on the Introduction of the Prosecutor’s Office. It was November 11, governed by the People’s Commissar for Justice as the Republic Prosecutor. After the restoration of the Independence of Georgia, the prosecutor general of Georgia was exercising the highest overseeing over the accurate and uniform implementation of laws on the territory of Georgia. The Prosecutor General of the Republic of Georgia was 1991 year appointed by the Supreme Council of the Republic of Georgia. During this period, the Prosecutor’s Office remained a Soviet-style entity, as Republican legislative acts were not adopted and the competence, structure, and procedure of the Prosecutor’s Office were regulated by the legislation of the USSR. The State Council of Georgia has approved a temporary regulation on the Prosecutor’s Office of the Republic of June 17, 1992 Georgia. The amendment to this regulation significantly limited the rights of the prosecutor’s office. The prosecutor’s Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) office was deprived of the function of general supervision. The Prosecutor’s Office of Georgia was a unified, centralized, independent body, headed by the Prosecutor General, who was appointed by the State Council. He was accountable to the State Council. The Prosecutor’s Office of Georgia was carrying out criminal prosecution, supervising the investigation, completing the sentence, was supporting the state charge. Constitution of Prosecutor General was appointed by the Parliament upon Georgia of the nomination of the President of Georgia, for a five-year August 24, 1995 term, with a majority of its members. The subordinate prosecutors were appointed by the Prosecutor General. The Advisory Body of the Prosecutor General was represented by the Prosecutor General’s Board. Prosecutor General’s Office of Georgia, Chief Military Prosecutor’s Office of Georgia, Transport Prosecutor’s Office of Georgia, the Prosecutor’s Offices of the Autonomous Republics of Abkhazia and Adjara, Tbilisi Prosecutor’s Office, District Prosecutor’s Offices, Regional 1995 year Military and Transport Prosecutor’s Offices, District (City) Prosecutor’s Offices and Penitentiary Prosecutor’s Office. The system ‘of prosecution functioned in ’his form until 2004. As a result of changes and reorganization in 2004, military, transport, penitentiary, and city prosecutor’s offices were abolished. The Constitution of Georgia was amended and with this February 6, 2004 change, the Prosecutor’s Office was transformed into a completely independent unified body. The system of prosecution was headed by the Minister of Justice. The Chief Prosecutor’s Office was headed by the Chief Prosecutor who was nominated by the Minister of Justice and was appointed and dismissed by the President of October 21, 2008 Georgia in 2008-2013. Prosecution system – Chief Prosecutor’s Office, Prosecutor’s Offices of the Autonomous Republics of Abkhazia and Adjara, Tbilisi Prosecutor’s Office, District Prosecutor’s Offices, Regional Prosecutor’s Offices. The function of criminal prosecution was removed from the 2013 year Minister of Justice and transferred to the General Prosecutor; Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) The decision to select, appoint and dismiss the General 2015 year Prosecutor is made by a collegial body – the Prosecutorial Council. An Advisory Board has been established to discuss issues of 2016 year incentives and disciplinary liability for employees of the Prosecutor’s Office of Georgia. In 2018, the independence of the prosecutor’s office was recognized by the country’s supreme law – the constitution. As a result, it was separated from the Ministry of Justice and became a fully independent agency. Title of Office – Chief Prosecutor’s Office – changed to Prosecutor General’s Office, and the position of Chief Prosecutor – changed to Prosecutor General. Legislative changes have affected the Prosecutorial Council – the main function of which is to ensure the independence, transparency, and effectiveness of the Prosecutor’s Office. The Chairman of the Prosecutorial Council is elected by the members of the Council. November 30, The Prosecutorial Council conducts consultations, elects a 2018 candidate for the Prosecutor General’s Office, and submits it to the Parliament of Georgia for approval. The Prosecutorial Council hears a report on the activities of the Prosecutor’s Office and issues appropriate recommendations. As a result of the legislative changes, the rights and responsibilities of the Prosecutor General have increased. The Prosecutor General is responsible for the overall management of the prosecution system; is the first prosecutor in criminal cases; The Prosecutor General is accountable to Parliament. Parliamentary control over the activities of the Prosecutor’s Office has been strengthened. Source: Author, according to the discussed literature (Prosecutor’s office of Georgia, Davitashvili and the report on Monitoring the Implementation of the Strategy and Action Plan of the Prosecutor’s Office of Georgia for 2018-2019). 3.3 Functions of the Public Prosecutor As per the definition contained in Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the Role of public arraignment in the law enforcement framework, public prosecutors are explained as: “Public authorities Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system” (European judicial systems CEPEJ Evaluation Report). A prosecutor is an independent person during his / her activities and he/she does not receive instructions and indications from the Government, International Organizations, and/or other external sources. The Composition of the Chancellery consists of the Prosecutor, the Head of each Branch appointed by the Prosecutor, and other qualified personnel to provide the Office work. The Prosecutor is appointed by the Security Council after the appointment of the Secretary-General for a four-year term. The prosecutor shall be elected by the absolute majority of the votes of the Assembly members of the States Parties by secret ballot. The Office of the Prosecutor, next time OTP includes a small number of employees serving both branches. The office staff is appointed by the Secretary-General based on the recommendation of the Prosecutor. (Understanding the International Criminal Court) The function of the Prosecutor is to investigate and support the State Prosecution in the Court against those persons, who by his deepest conviction, are responsible for committing crimes. However, it is possible that the people whom the Prosecutor is investigating at the same time were in the Peace negotiations. Such a case was reported in Uganda. At this time, statements and requests may be made towards the Prosecutor’s address, so that he should refuse investigation or litigation to establish peace. However, establishing peace should not be in place for a mandate of justice. The above-mentioned should be regulated in the context of the political mandate, such as the United Nations Security Council, which, within the scope of Article 16 of the Rome Statute, has enough authority to suspend investigations and proceedings within one year. The functions of the Prosecutor are limited in this regard. According to Article 53 of the Rome Statute, the Prosecutor may stop persecution if it is in the interests of justice. The interests of justice differ from the interests of peace, but they may have many common grounds and goals. Based on the Rome Statute, the Court must carry out an objective justice, consequently, only negotiations concerning the establishment of peace between the Parties, in any case, are not sufficient to stop criminal persecution. (The International Criminal Court) At least, it will supposedly require the Peace Agreement with the Mechanisms of solid accountability of persons under security. Strict Accountability Here, of course, does not mean ordinary reconciliation and non-compliance ceremonies. In case, when the State goes ahead and subsequently imposes jurisdiction of its Criminal Law, in the form of a real domestic legal prosecution of offenders, then ICC is no longer subject to the jurisdiction because the Rome Statute grants priority to Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Domestic Prosecutors based on the principle of “Complementarity”. (The International Criminal Court) The Prosecutor’s Office, as noted above, acts as an Independent Body within the Court. The Office is responsible for the reception of the referral and obtaining and processing relevant information on the commission of the crime, carrying out criminal prosecution on the offenses that have been judged by the International Court. The office, as it was noted, is headed by a prosecutor who fully guides the office activities, its administrative resources, and contingent. As noted above, the Prosecutor is assisted by one or more deputies who have the right to carry out any authority envisaged by the Regulations. The Prosecutor and the Prosecutor’s Deputies should be representatives of different nationalities. Neither the Prosecutor nor his Deputies have the right to carry out such activities that may influence their independence, quality of support of the prosecution, or their objectivity. They also do not have the right to carry out other professional activities. The Presidium has the right to dismiss a Prosecutor or his / her deputy from carrying out authority in specific cases. Neither the prosecutor nor the deputy may attend the assessment of the issue from the side of the Presidium where they talk about impartiality and impartiality. Also, they are subject to disqualification if at the national level they were involved in the investigation of this case or implementation of criminal persecution. Any issue, which shall decide whether the prosecutor or the deputy prosecutor is disqualified, the Chamber of Appeals shall decide. 1) The person towards whom the proceedings are being held is entitled to put the issue on the disqualification of the prosecutor or the deputy prosecutor, any of the above which we have discussed above. 2) The prosecutor or the deputy prosecutor, has the right to present their opinions and comments on these issues. The Prosecutor is authorized to appoint an advisor who is authorized to conduct relevant legal expertise. Former Yugoslav International Criminal Tribunal Office of the Prosecutor of ICTY has investigated many serious crimes that occurred in Europe after the Second World War, such as Genocide, which took place in Srebrenica in 1995. They were convicted in the mentioned case and both civil and military personnel were in contact with committing the mentioned crime (Office of the Prosecutor). Prosecutors “are officials of the State Government who, on behalf of the public and in accordance with their interests, ensure the implementation of the law when it is sanctioned by the Criminal Law, as well as taking into consideration the rights of individuals as well as the effectiveness of the criminal justice system (Human Rights Guidelines for Prosecutors). In all Systems of Criminal Justice, the Prosecutors: • Decide to initiate or continue persecution; • Carry out the charge before the Court; • Can file a suit against all or some of the decisions made by the judiciary. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) In some Systems of Criminal Justice, the Prosecutors also: • Implement national policy in the field of Criminal Law, in case of necessity, adapt in accordance with regional and local reality; • Directly conduct an investigation or supervise the investigation process • Take care that the victims get effective assistance; • Decide on the use of alternative measures of persecution; • And so on (Human Rights Guidelines for Prosecutors). 4. Discussion 4.1 The role of prosecutors in criminal proceedings The role of the prosecutor is very different from the functions of the Judge. The role of the prosecutor is important as well as while considering a criminal case in court, while at the part beginning of the investigation too. Besides this, according to the laws and practice prosecutor actively supervises the process of investigation and enforcement of court decisions. The prosecutor is required to ensure the protection of human honor and dignity and protect his/her basic rights and freedom (Human Rights Guidelines for Prosecutors). The investigation carried out by the prosecutor and identification of Suspects by him has substantial importance, as competently implementation of functions by the prosecutor imposed on him, in the end, will be proportionally reflected on the activities of the International Criminal Court. In this regard, it is important to consider the issue of Sudanese, which was the first case when the ICC prosecutor was handed a criminal case by the United Nations Security Council. The Prosecutor, during his duties in the mentioned case, suffered a lot of criticism and resistance (Turava, 2015). 4.2 The Independence of Prosecutors According to the European judicial systems, CEPEJ Evaluation Report 31 of 47 member states have declared the public prosecutor independent and the same situation is in two observer states, in 2010 this number was 28. It should be mentioned, that in Luxembourg, the draft version of constitutional law has been under preparation, which will support the independence of the prosecutors (European judicial systems CEPEJ Evaluation Report). Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Figure 1. The status of the public prosecutors, 2018 year Source: European judicial systems CEPEJ Evaluation Report According to the Performance of the Prosecution Services in Latvia: A Comparative Study In a majority of benchmarked OECD countries the prosecution is an independent institution according to statutory law passed by parliament, as it is in Georgia too. Figure 2. Independence basis for prosecutors in OECD benchmarking countries Source: The performance of the Prosecution Services in Latvia: A Comparative Study The report of the Venice Commission, which is about the independence of the prosecution service also highlights the importance of the qualities of the prosecutors. Because the prosecutor acts on behalf of the society they should have a higher standard than a litigant in a civil matter, and due to the severe repercussions of a criminal conviction, and having duties to act impartially as well as acting fairly the commission focuses to employ the suitable individuals, who have a positive Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) character, as requires a judge and have all required procedures, what ensures promotion and appointment (European Comision for Democracy through Law). Of course, the prosecutor, whom government gives the state grants the right to speak on behalf of the state and society, needs more qualification, hard enthusiasm, and to have the ability to work in site-note circumstances. Thus it is logical, that the person, working in the following position must have such attributes of behavior and signs, regards what society will consider him as a qualified representative and will trust. Table 2. Prosecution systems, Prosecutors and their independence in Different Countries Sweden The Swedish Prosecution Authority (SPA) is an independent organization. It is an autonomous agency accountable to the Government and it is independent both from the police and the courts. Autonomy is guaranteed by the Swedish Constitution. The Swedish Prosecution Authority, like all government agencies within the Swedish judicial system, falls within the area of responsibility of the Ministry of Justice. (Performance of the Prosecution Services in Latvia: A Comparative Study) A prosecutor has three main tasks: To lead investigations; To file a prosecution; To appear in court. (Swedish Prosecution Authority) Netherlands The prosecution service in the Netherlands (Openbaar Ministerie) has a special autonomous position. It is part of the judicial organization, but not of the judiciary. The prosecution service is separate from the Ministry of Justice, but there is a (limited) hierarchical relationship with the minister of Justice. The prosecution service reports and is accountable to the government through the Ministry of Justice. Prosecutors are in theory not independent, as the minister of justice has the power to give instructions to the prosecution service in certain cases, be it under strict conditions. Denmark The Prosecution Service in Denmark is under the responsibility of and subordinated to the Minister of Justice, along with the Police and the Prison Service. The Procedural Code provides in Article 98 that the Minister of Justice may intervene in individual cases and require any of the prosecutors to commence or desist from proceedings. Portugal Public prosecutors are judicial officials, who form part of, and are subject to, a hierarchy, and who may not be transferred, suspended, retired, or removed from office except in the cases provided for by law. The powers to appoint, assign, Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) discipline, transfer, and promote public prosecutors pertain to the High Council of the Public Prosecution Service. Finland In Finland, the prosecution is an independent part of the judicial system. Its functions are to impose criminal responsibility and punishment defined by law. The National Prosecutor's Office is part of the Ministry of Justice. However, neither the Ministry of Justice, nor any other government body, have authority over the internal matters of the prosecution service, or over individual prosecutions. A prosecutor’s independence and autonomy mean that no one can give orders to a prosecutor on how he/she should decide on an individual, pending criminal case. Italy The Prosecution Service is an independent institution. Each public prosecutor is also independent. Such independence is guaranteed by the Constitution. Public prosecutors are magistrates, as they belong – together with judges – to the judiciary. Their independence is safeguarded by the Consiglio Superiore della Magistratura (CSM – the High Council for the Judiciary). The latter has full authority on appointments, transfers, careers, and discipline of judges and public prosecutors. The High Council for the Judiciary is mostly composed of the magistrate (judges and public prosecutors) who are elected by vote of all the judges and public prosecutors. Their independence is further guaranteed by their non-removability and guarantee of tenure. After the end of world II war, the Prosecutor’s Office was part of the court system and, based on continental European law, it performed quasi-judicial functions. At th the end of the 20 century under the influence of Anglo-American law, a new criminal law was adopted in Italy, and after this, the Prosecutor’s Office, in the process of investigation collects all types of evidence, including both evidence, that prove guilt and evidence that justify the guilt. But in practice, the obligation to collect justifying evidence has a formal nature. In the process of investigation, the prosecutor cannot make a quick and effective summary decision on the case, without the participation of the court. But besides that in the legislation, there are mechanisms, similar to the plea agreement, that gives the ability to the prosecutor to finish the case proceedings in time. Georgia The Prosecutor’s Office is an independent body, it is centralized and subjects only to the law. It is now allowed in any way to interfere in its activities. The prosecutor’s office is only accountable to the Parliament of Georgia. He/she proceeds procedural guidance of the investigation, starts criminal prosecution, and guarantees the support of the state prosecution in court (Organic Law of Georgia on Prosecutor's Office). Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Moldova In Moldova, the Prosecutor’s Office is a public institution, which is part of the judicial structure, it guarantees during criminal proceedings the rule of law,and protection of the rights and legitimate interests of individuals. In Moldova, the prosecutor is a public entity, who in his activities relies on the Constitution of the country and International Legislation. The prosecutor has the right to request the information and ask for the appropriate documents, from the legal entities, and also from appropriate organizations. They have the right to ask for an appropriate explanation regarding a specific case, both from public and private organizations. Besides that, they have the right in the process of investigation, without a court decision, to carry on measures provided by procedural legislation in the offices and institutions of state or private organizations. Romania The public ministry of Romania is a public entity and is the part of Judicial system, which represents the interests of society and guarantees uniform enforcement of the law. It defends the rights and freedoms of citizens. In criminal cases provide prosecution in court. Provides prosecution in criminal cases in court. According to the Constitution of Romania, the prosecutor’s office proceeds with the procedural supervision of the law enforcement structures. Their main duties are: - To carry out criminal prosecution in the cases provided by the law and in case of need to be able to resolve conflicts with alternative methods; - To supervise and control the activities of the judicial police and activities of other structures; - According to the law to request the consideration of criminal cases from the side of the court; - According to the law cases to present them to file a civil lawsuit; - To take part in the court sessions; - In case of having an appropriate basis, to appeal the decisions made by the court; - To provide the defense of the rights and legal interests of minors and persons subject to certain prohibitions; - To fight against the criminal and to prevent the crime, with the coordination of the Ministry of Justice, proceed with the relevant criminal law politics; - To ensure the control of law enforcement in places of pre-trial detention; - To proceed with the other activities provided by the law (Committee of Europe). France The prosecutor carries on the criminal prosecution and uses such alternative sanctions as are appropriate to the personality of the accused. He/she supervises Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) the activities of the police and the investigation process of criminal cases. The head of the Prosecutor's Office is the Chief Prosecutor. The Chief Prosecutor is not under the subordination of the Minister of Justice. On the other hand, deputy chief prosecutors have complete carte blanche in their activities. One of the main functions of the Prosecutor’s Office is to ensure compliance of legislation with public interests and to establish control over its correct and uniform performance. They must also ensure the unity of precedent law both in the Court of Cassation and in the court of other instances. The Prosecutor’s Office follows the three main principles: subordination, indivisibility, and unchallengeable legitimacy. Also, it should be mentioned, that the prosecutors and Judges study in the same training and same schools (The French legal system). Germany The Prosecution’s Office, which is in Germany at the present time, is a young institution, which is more or less similar to the model of the Prosecution’s Office, which is in France (The Public Prosecution Office in Germany: Legal Status, Functions and Organization). The Federal Prosecution’s Office in Germany represents the main governing body of the prosecutor's office system (General bundesanwaltschaft, GBA), which guarantees criminal prosecution and prosecution support in court in particularly important cases, such are for example international crimes, crimes against state security, etc. (European Center for Constitutional and Human Rights (ECCHR). In Germany, the prosecutors are public entities and at the beginning, they are initially appointed for a probationary period, then up to 3 – 5 years, and after that, it is possible to appoint them for an unlimited period. They are having all financial and social guarantees which are provided in the status of the prosecutor (How public prosecutors work in Germany). Source: Author, according to the data sources given in the text and collected from Performance of the Prosecution Services in Latvia: A Comparative Study The state prosecutor in some countries, for example in France and Netherlands, can use such information and evidence, which he/she has not presented in the court at the beginning, in case he has received it lately and he could not have information about this before. Of course, while presenting such kind of evidence the principle of competition between the parties should not be violated. The precedential law of France, demands from the prosecutor, that his written view, must be accessible to the participants of the process before the court session for some time before. The court has the right to postpone the process, in order to give the time to the parties to use the rights and get introduced to it. Besides that the state prosecutor in the first place should have the important issues reflecting public order and interests, for example, demand to use the international legislation in legal proceedings, beyond if Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) the other participants of the process are requesting it or not. For example, to request the use of international legislation in legal proceedings, regardless of whether other participants in the process request it or not (The role of public prosecutors outside the criminal justice system). Unlike Georgian law, the law of England and Wales, as well as the law of the United States, does not authorize a prosecutor to instruct an investigative body to take any action or to conduct an investigation directly. The prosecutor is not involved in defining the investigative strategy either. In this system, the prosecutor has the power of legal advice only in a specific case, upon the request of the investigative body. However, the results of the consultation are of a recommendatory nature and, therefore, are not binding on the investigative body. In these countries, the police have the discretion to initiate an investigation independently, which is not considered a prosecution, and have the authority to investigate in full. Consequently, the responsibility for the investigation of any case is divided not between the investigator and the prosecutor, but directly within the investigative body - the direct investigator of the case and the investigator with relatively high status. The investigative body is independently independent of the prosecutor's office in ensuring the safety of victims and the process of obtaining evidence (Harris, 2012). In Sweden, there are Public Prosecutors (incl. Chief Public Prosecutors), a Director of Public Prosecution, and the Prosecutor General, Sweden has no state or district public prosecutors or the like but according to Organic Law of Georgia on the Prosecutor's Office, we have the Prosecutor General, the Prosecutors of the Autonomous Republics of Abkhazia and Adjara, the Prosecutor of Tbilisi, a district prosecutor and a regional prosecutor. To see, more clearly the differences between the responsibilities and duties of prosecutors, table 3 was created. The given table demonstrates the responsibilities and duties of Pubic Prosecutors generally and in Georgia. Table 3. The responsibilities and duties of prosecutors during the investigation The Duties and the Powers of The Duties and the Powers of Public Prosecutors Prosecutors in Georgia (A) Study and collect the evidence; (A) Carry out criminal prosecution; (B) Request statements and (B) Offer procedural insight into interrogation of witnesses, victims, investigations to make certain criminal and individuals under investigation prosecution; process; (C) Carry out full-scale investigations in (C) Gain advancement of any State, the case provided for by legislation; Intergovernmental Organization, or (D) Supervise those activities of Mechanism as per their mandate operative and investigative bodies that and/or authority; fall under the prosecutorial capabilities Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) (D) Conclude such Agreements or presented by the legislation of Georgia Contracts that don't go against this rule on Operative-Researched Activities; and might be expected to work with (E) Support public prosecutions in a participation with the state, court; intergovernmental association, or (F) Implementation of operational and individual; investigative actions; (E) Agree, that at any phase of the (G) Coordination of crime fighting and preliminary procedures, the prosecutor crime prevention; will keep confidentiality and will not (H) To participate, as a plaintiff, on disclose the information and the behalf of the State, in civil proceedings documents that he/she will be granted; on transferring to the State illegal and (F) Take proper measures or undocumented property and property solicitation suitable measures to resulting from property owned by a guarantee classification of data, racket group, racketeering, a racketeer, a insurance of any individual, or saving human trafficker, an official, a member the proof; of the criminal world, an illegal narcotic (G) Conducts an investigation process drugs distributor, or an individual to generate the reality, to be able to convicted under Article 194(3)(c) of the examine everything and evidence for Criminal Code of Georgia. identifying if criminal responsibility is manufactured beneath this statute, as well since he can equally investigate the confirmed guilty and innocent; (H) Takes appropriate measures to guarantee effective investigations and criminal requested by the prosecution of judicial jurisdiction and as well to protect the interests and personal circumstances of victims and witnesses, including age, gender reasons as defined in paragraph 3 of Article 7, and health status, he/she as well take into account the specifications of the crime, particularly in the event, it is linked to sexual physical violence, gender violence or violence against children. Source: Author, according to the discussed literature and Organic Law of Georgia on the Prosecutor’s Office; The Law of Rome of the Cosmopolitan Criminal Court Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) As the demonstrated table shows, Georgian Organic Law is very close to the guidelines and requirements of the public prosecutors and has too much in common. There can be mentioned in their role in the investigations, where they are the main figures and take appropriate measures to ensure effective investigations and criminal prosecution of judicial jurisdiction and to protect the interests and personal circumstances of victims and witnesses, including age, and gender factors. In order to become a prosecutor, a citizen may be appointed to the office of prosecutor or investigator when she/he meets the following requirements. Table 4. Eligibility to become Prosecutor Prosecutor in International Association of Public Prosecutor Georgia Prosecutors • The applicant should • Have a higher • Individuals selected as have accomplished legal degree. prosecutors must be individuals significantly more than a • Study the of integrity and ability, with UG degree in regulation if language of court appropriate training and he/ she wants to become a proceedings. qualifications. Prosecutor. • Pass the exam • States shall ensure that: • Individuals who have of prosecutors, • (a) The criteria for the completed a Postgraduate judges, or selection of prosecutors shall degree in Law are as well lawyers. include guarantees against recruited for the job as a • Take the oath appointments based on bias or result LLM graduates can of the prosecutor's prejudice, which shall exclude also incorporate for office employee. discrimination against persons becoming a Prosecutor. • Have on account of race, color, sex, • The applicant must professional skills language, religion, political or have eliminated each of and high moral other opinions, national, social, the exams of his/ her principles. or ethnic origin, property, birth, degree and should have a • Ability to economic or other Status, except great aggregate score of at perform the duties that the requirement of least 50- 55%. of a prosecutor citizenship of the respective • Remarkable /prosecution country of the candidate for the communication skills. investigator in prosecutor's office should not be • Remarkable terms of physical considered discriminatory; intellectual abilities. health. • For prosecutors to be able to • Capability to analyze, • Having passed perform their professional absorb, and understand an internship duties independently and follow large amounts of details. program in the these standards, prosecutors • Skills to make a good prosecutor's must be protected from arbitrary presentation. office. actions by governments. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) • Ability to write clearly • Employment and promotion and concisely. are based on objective factors, • Ability to handle namely professional pressure, unlimited qualifications, ability, integrity, working hours, performance, and experience, demanding deadlines, and and decided following impartial great responsibility. procedures and fair. • Attention to details. • Have a good knowledge of the regulation. • Litigation and transaction expertise. • Updated with a whole new event and news. • Imaginative problem- solving ability. • Good proofreading skills. • Wise approach. • It is mandatory to have some work experience as an intern in the position of a prosecutor. Candidates should have completed some internships in established agencies in similar roles. Source: According to Career as a Prosecutor, the Prosecutor's Office of Georgia and Criminal Justice Handbook Series As the research shows the requirements to become a prosecutor, really follow one framework, have not got important differences, and mostly have similarities e.g. law degree, passing exam, professional skills, etc. What about the statistics according to the information provided by the Prosecutor's Office, as of December 2018, 420 prosecutors were employed in the Prosecutor's Office of Georgia (Strategy and Action Plan of the Prosecutor's Office of Georgia Interim performance monitoring report) and in 2019 there were 413 prosecutors in Georgia, so their number is not growing rapidly and is in accordance with the order Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) of the Prosecutor General of Georgia – On the approval of the evaluation system of prosecutors and prosecutors' investigators. 5. Conclusions In conclusion, it can be said, that in the process of implementing justice, the prosecutor has the most important role, thus it is vitally important for this structure to have the opportunity to function independently and not to be a part of any institution. In the international criminal court, there are some questions about the full independence of the prosecutor, because the Chancellery of the Prosecutor's Office is part of the international court and that’s why even taking a procedural decision, such as conducting an investigation due to a committed crime, requires the approval of the court. The court also oversees the issue of initiation of criminal prosecution after obtaining relevant evidence from the prosecutor's side. A different situation is in the countries which we have discussed, where the prosecution’s office is a fully independent body and in the process of making decisions, it is not limited by different departmental controls. There should be mentioned the example of Georgia too, where were implemented many important reforms in this regard in order to increase the development, independence, transparency, and efficiency of the Prosecutor's Office. As a result, the institutional independence of the Prosecutor's Office was determined by the Constitution of Georgia and it was established as an independent state structure, which made the Prosecutor's Office work even more effectively. To summarize, as we mentioned above, it is clear and unambiguous the role of prosecutors and meaning in the process of administration of justice and if we want Prosecutor’s Office to work effectively and transparently, it should be less dependent on any other institutions. This will help it to respond quickly and efficiently to the challenges, that Prosecutor’s Office faces. Acknowledgments The author thanks the anonymous reviewers and editor for their valuable contribution. Funding This research received no specific grant from any funding agency in the public, commercial, or not–for–profit sectors. Author Contributions The entire article was written by Shota Tkeshelashvili. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Disclosure Statement The author has not any competing financial, professional, or personal interests from other parties. References 1. Abashidze, G., (2012). Prosecutor at the investigation stage. Tbilisi: Universal, p. 20. 2. Harris, D., (2012). The Interaction and Relationship Between Prosecutors and Police Officers in the United States, and how this Affects Police Reform Efforts. Luna, E., Wade, M. and Bojańczyk, A. The Prosecutor in Transnational Perspective. New York, Oxford University Press, pp. 54–66. 3. Jacoby J.E., (1997). American Prosecutor in Historical Context. Prosecutor, 31(3), pp. 33–38. 4. Nadal, J.L., (2006). Allocution d’ouverture de Monsieur J.L. Nadal. Procureur Général près la Cour de cassation. In Cycle de conférences de procédure pénale Cour de cassation. Paris. 5. Turava, M., (2015), Principles of International Criminal Law. Tbilisi, Publishing House: “Meridiani”. 6. ***Buneci, B., (2021). The History of the Prosecutor. Retrieved from http://rais.education/wp-content/uploads/2021/03/0033.pdf [Accessed 5 June, 2022]. 7. ***Caianiello M., (2012). The prosecutor in transnational perspective. Oxford University Press. Retrieved from https://oxford.universitypressscholarship.com/view/10.1093/acprof:osobl/9780199844807.0 01.0001/acprof-9780199844807-chapter-18 [Accessed 5 June, 2022]. 8. ***Council of Europe. Retrieved from https://rm.coe.int/organisation-of-the-public- ministry-in-romania/168077636a. 9. ***CRIMINAL JUSTICE HANDBOOK SERIES. International Association of Prosecutors. Retrieved from https://www.unodc.org/documents/justice-and-prison-reform/14-07304_ebook.pdf [Accessed 5 June, 2022]. 10. ***Davitashvili N., (2020). Discretionary powers of the prosecutor (at the stage of criminal prosecution). Retrieved from http://openscience.ge/bitstream/1/1983/1/Samagistro%20Davithashvili.pdf [Accessed 5 June, 2022]. 11. ***European judicial systems CEPEJ Evaluation Report. 2020 Evaluation cycle (2018 data). Council of Europe. Retrieved from https://rm.coe.int/evaluation-report-part-1- english/16809fc058 [Accessed 5 June, 2022]. 12. ***European Center for Constitutional and Human Rights (ECCHR). Retrieved from https://www.ecchr.eu/en/glossary/german-federal-public- prosecutor/#:~:text=The%20Office%20of%20the%20German,and%20crimes%20concernin g%20state%20security. [Accessed 5 June, 2022]. 13. ***EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION). Retrieved from https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL- UDT(2011)008- Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) e#:~:text=Prosecutorial%20independence%2C%20like%20judicial%20independence,indep endence%20of%20the%20individual%20prosecutor. [Accessed 5 June, 2022]. 14. ***How public prosecutors work in Germany. Retrieved from https://www.deutschland.de/. 15. ***Human Rights Guidelines for Prosecutors. Retrieved from http://www.nplg.gov.ge/greenstone3/library/collection/samartal/document/HASH01b68d5b c5d1c8f2d54ffa2e;jsessionid=78EAD20B62214680BE219531AE42ABCF [Accessed 5 June, 2022]. 16. ***Ministry of Justice of France. Retrieved from http://www.justice.gouv.fr/multilinguisme-12198/english-12200/justice-in-france- 22126.html [Accessed 5 June, 2022]. 17. ***Office of the Prosecutor. Retrieved from http://www.icty.org/en/about/office-of-the-prosecutor [Accessed 5 June, 2022]. 18. ***ORGANIC LAW OF GEORGIA ON THE PROSECUTOR’S OFFICE. Retrieved from https://matsne.gov.ge/en/document/view/4382740?publication=2 [Accessed 5 June, 2022]. 19. ***Prosecutor’s office of Georgia. Retrieved from https://pog.gov.ge/en/history [Accessed 5 June, 2022]. 20. ***Structure of the ISS. Retrieved from https://www.aba-icc.org/about-the-icc/structure-of-the-icc/ [Accessed 5 June, 2022]. 21. ***The Rome Statute of the International Criminal Court, received at the Diplomatic Conference of the Authorized Representatives of the United Nations, the year of 1998, Retrieved from http://www.supremecourt.ge/files/upload-file/pdf/aqtebi-axali2.pdf [Accessed 5 June, 2022]. 22. ***THE ROLE OF PUBLIC PROSECUTION IN THE CRIMINAL JUSTICE SYSTEM. Adopted by the Committee of Ministers of the Council of Europe Retrieved from https://rm.coe.int/16804be55a [Accessed 5 June, 2022]. 23. ***The role of public prosecutors outside the criminal justice system Retrieved from https://rm.coe.int/16807096c5 [Accessed 5 June, 2022]. 24. ***The PARLIAMENT OF THE REPUBLIC OF MOLDOVA LAW on the Public Prosecution Service. Retrieved from www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2019)041-e [Accessed 5 June, 2022]. 25. ***THE PUBLIC PROSECUTION OFFICE IN GERMANY : LEGAL STATUS, FUNCTIONS AND ORGANIZATION. Retrieved from https://unafei.or.jp/publications/pdf/RS_No60/No60_10VE_Siegismund2.pdf [Accessed 5 June, 2022]. 26. ***The international Criminal Court. Retrieved from https://www.hrw.org/legacy/backgrounder/africa/icc0904/icc0904.pdf [Accessed 5 June, 2022]. 27. ***The Report on Monitoring the Implementation of the Strategy and Action Plan of the Prosecutor's Office of Georgia for 2018-2019. Retrieved from https://idfi.ge/public/upload/IDFI_2019/PrIME/PSG%20AP%20Monitoring%20Report%2 02017-2018_%20GEO_V04-compressed.pdf [Accessed 5 June, 2022]. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) 28. *** The French legal system. https://www.justice.gouv.fr/art_pix/french_legal_system.pdf [Accessed 17 August, 2022]. 29. ***Performance of the Prosecution Services in Latvia : A Comparative Study Retrieved from https://www.oecd-ilibrary.org/sites/24b9b0a1- en/index.html?itemId=/content/component/24b9b0a1-en#section-d1e2290 [Accessed 5 June, 2022]. 30. ***Strategy and Action Plan of the Prosecutor's Office of Georgia Interim performance monitoring report. Retrieved from https://idfi.ge/public/upload/IDFI_2019/PrIME/PSG%20AP%20Monitoring%20Report%2 02017-2018_%20GEO_V04-compressed.pdf [Accessed 5 June, 2022]. 31. ***Swedish Prosecution Authority. Retrieved from https://www.aklagare.se/en/the-role-of-a-prosecutor/ [Accessed 5 June, 2022]. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Legal Studies de Gruyter

Prosecutor: The History, Duties, and Responsibilities in Georgia, and Other Foreign Countries

Tkeshelashvili, Shota
Journal of Legal Studies , Volume 30 (44): 21 – Dec 1, 2022
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© 2022 Shota Tkeshelashvili et al., published by Sciendo
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2022 – 30(44) DOI: 10.2478/jles-2022-0015 PROSECUTOR: THE HISTORY, DUTIES, AND RESPONSIBILITIES IN GEORGIA, AND OTHER FOREIGN COUNTRIES Shota Tkeshelashvili Grigol Robakidze University, Georgia E-mail: shota.tkeshelashvili@gmail.com (Received: July 2022; Accepted: September 2022; Published: November 2022) Abstract: The prosecutor is an individual who on behalf of the Government carries on criminal prosecution against the guilty person and in the court with the mandate of society and supports the State Prosecution. The main aim of the prosecutor is the find out such objective and indisputable evidence, which will help the court to make the right and fair decision. The present article according to the qualitative research method focuses on the history, stages of development, and current functions of the prosecutors. Based on this, it became clear how effective and productive the prosecutor's participation in the court is and, in general, how independent the prosecutor is in the performance of his or her functions and what are similarities and differences in different countries prosecutor’s independence, roles, and responsibilities. As the study highlighted the International Prosecutor should have exclusively such rights, as investigation and implementation of criminal persecution against specific persons. Apart from these restrictions imposed by the legislation, of course, substantive importance is given to the global situation in the world during the prosecutor's activities. Keywords: Prosecutor; Criminal Court; Prosecution. 1. Introduction The origins of the prosecution as a state prosecution date back to the time of the Roman Empire, although the birthplace of this body is considered to be France, where the prosecution has been in existence for more than seven years. In England, this institution was established in the 15th century, where the functions of the prosecutor's office were performed to some extent by the director of public prosecution. (Abashidze, 2012) The prosecutor is a representative of the prosecutor’s office, who on the one hand ensures the implementation of state charges during the trial and also supervises the Corresponding author: Shota Tkeshelashvili. E-mail: shota.tkeshelashvili@gmail.com Copyright © 2022 The Author(s). Published by VGWU Press This is an Open Access article distributed under the terms of the Creative Commons BY 4.0 license (Creative Commons — Attribution 4.0 International — CC BY 4.0) which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) effective performance of the law. The prosecutor’s institute itself started in medieval France and then spread to other countries and continents. At present, this institute is almost everywhere, but though with different powers, which will be discussed later (Buneci, 2021). In July of 1998, in the city of Rome, the States a total number of which were 120 countries decided to create the International Criminal Court. The creation of the International Criminal Court does not automatically cause the removal of the judiciary from the National Courts, since the interference and activation of the International Court occur after that when it will be clear that a particular State does not want or cannot pursue criminal prosecution against criminals. Accordingly, the role of the state prosecutor and his authority in the International Criminal Court is very interesting. The competence area of the prosecutor, studying the quality of imperative of the decision taken by him and understanding the functions is important because this will enable us to determine what the characteristics of the international prosecution are supported by the prosecutor at the international level. On this basis, it will be clear, how effective and productive the prosecutor's participation in the International Criminal Court is and in general, how independent the state prosecutor is in exercising its functions. 2. Materials and Methods The research was conducted using materials provided by laws, policies, reports, books, official websites, and scientific articles to highlight the importance, function, and role of prosecutors in the juridical system. 3. Main Text 3.1 At the early beginnings of Prosecution The prosecutor’s “profession” started in medieval France, approximately in the 14th century and the mentioned position was created on demand of French Parliament Members. The fundament of the prosecutor’s institute is due to the procedures of the French court of the Middle Ages. The famous French prosecutor Jean-Louis Nadal explains well and obviously the meaning of the following institute: “Historically, the specificity of criminal prosecution, both as a criminal prosecution body and as a defender of individual liberties, comes from the wisdom of the sea ordinances of Philip the Fair of March 23, 1303, laying down the king’s oath formula in defense of the people stating that the accuser must also be responsible for the search for truth and the correct application of the law”. (Nadal, 2006) Between 1620 and 1790, the US criminal justice system deviated from British tradition. The British used a system of private prosecution, and individuals hired lawyers to prosecute crimes. After the American Revolutionary War, some felt that the concept of law enforcement was adopted in France, but 75 years before the Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) French influence was felt when French institutions were favored and British institutions were unpopular. State officials were enforcing the law in the United States. A comprehensive study of the historical origins of law enforcement in the United States, published in 1976, concluded that the US Prosecutor’s Office evolved in response to a combination of factors and effects. (Jacoby, 1997). 3.2 The stages of development of the prosecution system in Georgia According to the Organic Law of Georgia on Prosecutor's Office (article 24): 1. The prosecutor exercises his authority on behalf of the state and at the same time, he bears the burden of proof. 2. After the approval of the superior prosecutor approval, a prosecutor has the right to remove or mitigate the charge, but of course, he/she must substantiate this. 3. The prosecutor must participate in the trial. 4. In all three instances, the prosecutor exercises his powers following with the criminal procedure legislation Table 1. The stages of development of the prosecution system in Georgia YEAR CHANGES Resolution of The State Prosecutor’s Office of the Georgian SSR was November 11, established. The Statute on the Prosecutor’s Office was approved based Resolution of on the Introduction of the Prosecutor’s Office. It was November 11, governed by the People’s Commissar for Justice as the Republic Prosecutor. After the restoration of the Independence of Georgia, the prosecutor general of Georgia was exercising the highest overseeing over the accurate and uniform implementation of laws on the territory of Georgia. The Prosecutor General of the Republic of Georgia was 1991 year appointed by the Supreme Council of the Republic of Georgia. During this period, the Prosecutor’s Office remained a Soviet-style entity, as Republican legislative acts were not adopted and the competence, structure, and procedure of the Prosecutor’s Office were regulated by the legislation of the USSR. The State Council of Georgia has approved a temporary regulation on the Prosecutor’s Office of the Republic of June 17, 1992 Georgia. The amendment to this regulation significantly limited the rights of the prosecutor’s office. The prosecutor’s Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) office was deprived of the function of general supervision. The Prosecutor’s Office of Georgia was a unified, centralized, independent body, headed by the Prosecutor General, who was appointed by the State Council. He was accountable to the State Council. The Prosecutor’s Office of Georgia was carrying out criminal prosecution, supervising the investigation, completing the sentence, was supporting the state charge. Constitution of Prosecutor General was appointed by the Parliament upon Georgia of the nomination of the President of Georgia, for a five-year August 24, 1995 term, with a majority of its members. The subordinate prosecutors were appointed by the Prosecutor General. The Advisory Body of the Prosecutor General was represented by the Prosecutor General’s Board. Prosecutor General’s Office of Georgia, Chief Military Prosecutor’s Office of Georgia, Transport Prosecutor’s Office of Georgia, the Prosecutor’s Offices of the Autonomous Republics of Abkhazia and Adjara, Tbilisi Prosecutor’s Office, District Prosecutor’s Offices, Regional 1995 year Military and Transport Prosecutor’s Offices, District (City) Prosecutor’s Offices and Penitentiary Prosecutor’s Office. The system ‘of prosecution functioned in ’his form until 2004. As a result of changes and reorganization in 2004, military, transport, penitentiary, and city prosecutor’s offices were abolished. The Constitution of Georgia was amended and with this February 6, 2004 change, the Prosecutor’s Office was transformed into a completely independent unified body. The system of prosecution was headed by the Minister of Justice. The Chief Prosecutor’s Office was headed by the Chief Prosecutor who was nominated by the Minister of Justice and was appointed and dismissed by the President of October 21, 2008 Georgia in 2008-2013. Prosecution system – Chief Prosecutor’s Office, Prosecutor’s Offices of the Autonomous Republics of Abkhazia and Adjara, Tbilisi Prosecutor’s Office, District Prosecutor’s Offices, Regional Prosecutor’s Offices. The function of criminal prosecution was removed from the 2013 year Minister of Justice and transferred to the General Prosecutor; Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) The decision to select, appoint and dismiss the General 2015 year Prosecutor is made by a collegial body – the Prosecutorial Council. An Advisory Board has been established to discuss issues of 2016 year incentives and disciplinary liability for employees of the Prosecutor’s Office of Georgia. In 2018, the independence of the prosecutor’s office was recognized by the country’s supreme law – the constitution. As a result, it was separated from the Ministry of Justice and became a fully independent agency. Title of Office – Chief Prosecutor’s Office – changed to Prosecutor General’s Office, and the position of Chief Prosecutor – changed to Prosecutor General. Legislative changes have affected the Prosecutorial Council – the main function of which is to ensure the independence, transparency, and effectiveness of the Prosecutor’s Office. The Chairman of the Prosecutorial Council is elected by the members of the Council. November 30, The Prosecutorial Council conducts consultations, elects a 2018 candidate for the Prosecutor General’s Office, and submits it to the Parliament of Georgia for approval. The Prosecutorial Council hears a report on the activities of the Prosecutor’s Office and issues appropriate recommendations. As a result of the legislative changes, the rights and responsibilities of the Prosecutor General have increased. The Prosecutor General is responsible for the overall management of the prosecution system; is the first prosecutor in criminal cases; The Prosecutor General is accountable to Parliament. Parliamentary control over the activities of the Prosecutor’s Office has been strengthened. Source: Author, according to the discussed literature (Prosecutor’s office of Georgia, Davitashvili and the report on Monitoring the Implementation of the Strategy and Action Plan of the Prosecutor’s Office of Georgia for 2018-2019). 3.3 Functions of the Public Prosecutor As per the definition contained in Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the Role of public arraignment in the law enforcement framework, public prosecutors are explained as: “Public authorities Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system” (European judicial systems CEPEJ Evaluation Report). A prosecutor is an independent person during his / her activities and he/she does not receive instructions and indications from the Government, International Organizations, and/or other external sources. The Composition of the Chancellery consists of the Prosecutor, the Head of each Branch appointed by the Prosecutor, and other qualified personnel to provide the Office work. The Prosecutor is appointed by the Security Council after the appointment of the Secretary-General for a four-year term. The prosecutor shall be elected by the absolute majority of the votes of the Assembly members of the States Parties by secret ballot. The Office of the Prosecutor, next time OTP includes a small number of employees serving both branches. The office staff is appointed by the Secretary-General based on the recommendation of the Prosecutor. (Understanding the International Criminal Court) The function of the Prosecutor is to investigate and support the State Prosecution in the Court against those persons, who by his deepest conviction, are responsible for committing crimes. However, it is possible that the people whom the Prosecutor is investigating at the same time were in the Peace negotiations. Such a case was reported in Uganda. At this time, statements and requests may be made towards the Prosecutor’s address, so that he should refuse investigation or litigation to establish peace. However, establishing peace should not be in place for a mandate of justice. The above-mentioned should be regulated in the context of the political mandate, such as the United Nations Security Council, which, within the scope of Article 16 of the Rome Statute, has enough authority to suspend investigations and proceedings within one year. The functions of the Prosecutor are limited in this regard. According to Article 53 of the Rome Statute, the Prosecutor may stop persecution if it is in the interests of justice. The interests of justice differ from the interests of peace, but they may have many common grounds and goals. Based on the Rome Statute, the Court must carry out an objective justice, consequently, only negotiations concerning the establishment of peace between the Parties, in any case, are not sufficient to stop criminal persecution. (The International Criminal Court) At least, it will supposedly require the Peace Agreement with the Mechanisms of solid accountability of persons under security. Strict Accountability Here, of course, does not mean ordinary reconciliation and non-compliance ceremonies. In case, when the State goes ahead and subsequently imposes jurisdiction of its Criminal Law, in the form of a real domestic legal prosecution of offenders, then ICC is no longer subject to the jurisdiction because the Rome Statute grants priority to Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Domestic Prosecutors based on the principle of “Complementarity”. (The International Criminal Court) The Prosecutor’s Office, as noted above, acts as an Independent Body within the Court. The Office is responsible for the reception of the referral and obtaining and processing relevant information on the commission of the crime, carrying out criminal prosecution on the offenses that have been judged by the International Court. The office, as it was noted, is headed by a prosecutor who fully guides the office activities, its administrative resources, and contingent. As noted above, the Prosecutor is assisted by one or more deputies who have the right to carry out any authority envisaged by the Regulations. The Prosecutor and the Prosecutor’s Deputies should be representatives of different nationalities. Neither the Prosecutor nor his Deputies have the right to carry out such activities that may influence their independence, quality of support of the prosecution, or their objectivity. They also do not have the right to carry out other professional activities. The Presidium has the right to dismiss a Prosecutor or his / her deputy from carrying out authority in specific cases. Neither the prosecutor nor the deputy may attend the assessment of the issue from the side of the Presidium where they talk about impartiality and impartiality. Also, they are subject to disqualification if at the national level they were involved in the investigation of this case or implementation of criminal persecution. Any issue, which shall decide whether the prosecutor or the deputy prosecutor is disqualified, the Chamber of Appeals shall decide. 1) The person towards whom the proceedings are being held is entitled to put the issue on the disqualification of the prosecutor or the deputy prosecutor, any of the above which we have discussed above. 2) The prosecutor or the deputy prosecutor, has the right to present their opinions and comments on these issues. The Prosecutor is authorized to appoint an advisor who is authorized to conduct relevant legal expertise. Former Yugoslav International Criminal Tribunal Office of the Prosecutor of ICTY has investigated many serious crimes that occurred in Europe after the Second World War, such as Genocide, which took place in Srebrenica in 1995. They were convicted in the mentioned case and both civil and military personnel were in contact with committing the mentioned crime (Office of the Prosecutor). Prosecutors “are officials of the State Government who, on behalf of the public and in accordance with their interests, ensure the implementation of the law when it is sanctioned by the Criminal Law, as well as taking into consideration the rights of individuals as well as the effectiveness of the criminal justice system (Human Rights Guidelines for Prosecutors). In all Systems of Criminal Justice, the Prosecutors: • Decide to initiate or continue persecution; • Carry out the charge before the Court; • Can file a suit against all or some of the decisions made by the judiciary. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) In some Systems of Criminal Justice, the Prosecutors also: • Implement national policy in the field of Criminal Law, in case of necessity, adapt in accordance with regional and local reality; • Directly conduct an investigation or supervise the investigation process • Take care that the victims get effective assistance; • Decide on the use of alternative measures of persecution; • And so on (Human Rights Guidelines for Prosecutors). 4. Discussion 4.1 The role of prosecutors in criminal proceedings The role of the prosecutor is very different from the functions of the Judge. The role of the prosecutor is important as well as while considering a criminal case in court, while at the part beginning of the investigation too. Besides this, according to the laws and practice prosecutor actively supervises the process of investigation and enforcement of court decisions. The prosecutor is required to ensure the protection of human honor and dignity and protect his/her basic rights and freedom (Human Rights Guidelines for Prosecutors). The investigation carried out by the prosecutor and identification of Suspects by him has substantial importance, as competently implementation of functions by the prosecutor imposed on him, in the end, will be proportionally reflected on the activities of the International Criminal Court. In this regard, it is important to consider the issue of Sudanese, which was the first case when the ICC prosecutor was handed a criminal case by the United Nations Security Council. The Prosecutor, during his duties in the mentioned case, suffered a lot of criticism and resistance (Turava, 2015). 4.2 The Independence of Prosecutors According to the European judicial systems, CEPEJ Evaluation Report 31 of 47 member states have declared the public prosecutor independent and the same situation is in two observer states, in 2010 this number was 28. It should be mentioned, that in Luxembourg, the draft version of constitutional law has been under preparation, which will support the independence of the prosecutors (European judicial systems CEPEJ Evaluation Report). Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Figure 1. The status of the public prosecutors, 2018 year Source: European judicial systems CEPEJ Evaluation Report According to the Performance of the Prosecution Services in Latvia: A Comparative Study In a majority of benchmarked OECD countries the prosecution is an independent institution according to statutory law passed by parliament, as it is in Georgia too. Figure 2. Independence basis for prosecutors in OECD benchmarking countries Source: The performance of the Prosecution Services in Latvia: A Comparative Study The report of the Venice Commission, which is about the independence of the prosecution service also highlights the importance of the qualities of the prosecutors. Because the prosecutor acts on behalf of the society they should have a higher standard than a litigant in a civil matter, and due to the severe repercussions of a criminal conviction, and having duties to act impartially as well as acting fairly the commission focuses to employ the suitable individuals, who have a positive Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) character, as requires a judge and have all required procedures, what ensures promotion and appointment (European Comision for Democracy through Law). Of course, the prosecutor, whom government gives the state grants the right to speak on behalf of the state and society, needs more qualification, hard enthusiasm, and to have the ability to work in site-note circumstances. Thus it is logical, that the person, working in the following position must have such attributes of behavior and signs, regards what society will consider him as a qualified representative and will trust. Table 2. Prosecution systems, Prosecutors and their independence in Different Countries Sweden The Swedish Prosecution Authority (SPA) is an independent organization. It is an autonomous agency accountable to the Government and it is independent both from the police and the courts. Autonomy is guaranteed by the Swedish Constitution. The Swedish Prosecution Authority, like all government agencies within the Swedish judicial system, falls within the area of responsibility of the Ministry of Justice. (Performance of the Prosecution Services in Latvia: A Comparative Study) A prosecutor has three main tasks: To lead investigations; To file a prosecution; To appear in court. (Swedish Prosecution Authority) Netherlands The prosecution service in the Netherlands (Openbaar Ministerie) has a special autonomous position. It is part of the judicial organization, but not of the judiciary. The prosecution service is separate from the Ministry of Justice, but there is a (limited) hierarchical relationship with the minister of Justice. The prosecution service reports and is accountable to the government through the Ministry of Justice. Prosecutors are in theory not independent, as the minister of justice has the power to give instructions to the prosecution service in certain cases, be it under strict conditions. Denmark The Prosecution Service in Denmark is under the responsibility of and subordinated to the Minister of Justice, along with the Police and the Prison Service. The Procedural Code provides in Article 98 that the Minister of Justice may intervene in individual cases and require any of the prosecutors to commence or desist from proceedings. Portugal Public prosecutors are judicial officials, who form part of, and are subject to, a hierarchy, and who may not be transferred, suspended, retired, or removed from office except in the cases provided for by law. The powers to appoint, assign, Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) discipline, transfer, and promote public prosecutors pertain to the High Council of the Public Prosecution Service. Finland In Finland, the prosecution is an independent part of the judicial system. Its functions are to impose criminal responsibility and punishment defined by law. The National Prosecutor's Office is part of the Ministry of Justice. However, neither the Ministry of Justice, nor any other government body, have authority over the internal matters of the prosecution service, or over individual prosecutions. A prosecutor’s independence and autonomy mean that no one can give orders to a prosecutor on how he/she should decide on an individual, pending criminal case. Italy The Prosecution Service is an independent institution. Each public prosecutor is also independent. Such independence is guaranteed by the Constitution. Public prosecutors are magistrates, as they belong – together with judges – to the judiciary. Their independence is safeguarded by the Consiglio Superiore della Magistratura (CSM – the High Council for the Judiciary). The latter has full authority on appointments, transfers, careers, and discipline of judges and public prosecutors. The High Council for the Judiciary is mostly composed of the magistrate (judges and public prosecutors) who are elected by vote of all the judges and public prosecutors. Their independence is further guaranteed by their non-removability and guarantee of tenure. After the end of world II war, the Prosecutor’s Office was part of the court system and, based on continental European law, it performed quasi-judicial functions. At th the end of the 20 century under the influence of Anglo-American law, a new criminal law was adopted in Italy, and after this, the Prosecutor’s Office, in the process of investigation collects all types of evidence, including both evidence, that prove guilt and evidence that justify the guilt. But in practice, the obligation to collect justifying evidence has a formal nature. In the process of investigation, the prosecutor cannot make a quick and effective summary decision on the case, without the participation of the court. But besides that in the legislation, there are mechanisms, similar to the plea agreement, that gives the ability to the prosecutor to finish the case proceedings in time. Georgia The Prosecutor’s Office is an independent body, it is centralized and subjects only to the law. It is now allowed in any way to interfere in its activities. The prosecutor’s office is only accountable to the Parliament of Georgia. He/she proceeds procedural guidance of the investigation, starts criminal prosecution, and guarantees the support of the state prosecution in court (Organic Law of Georgia on Prosecutor's Office). Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Moldova In Moldova, the Prosecutor’s Office is a public institution, which is part of the judicial structure, it guarantees during criminal proceedings the rule of law,and protection of the rights and legitimate interests of individuals. In Moldova, the prosecutor is a public entity, who in his activities relies on the Constitution of the country and International Legislation. The prosecutor has the right to request the information and ask for the appropriate documents, from the legal entities, and also from appropriate organizations. They have the right to ask for an appropriate explanation regarding a specific case, both from public and private organizations. Besides that, they have the right in the process of investigation, without a court decision, to carry on measures provided by procedural legislation in the offices and institutions of state or private organizations. Romania The public ministry of Romania is a public entity and is the part of Judicial system, which represents the interests of society and guarantees uniform enforcement of the law. It defends the rights and freedoms of citizens. In criminal cases provide prosecution in court. Provides prosecution in criminal cases in court. According to the Constitution of Romania, the prosecutor’s office proceeds with the procedural supervision of the law enforcement structures. Their main duties are: - To carry out criminal prosecution in the cases provided by the law and in case of need to be able to resolve conflicts with alternative methods; - To supervise and control the activities of the judicial police and activities of other structures; - According to the law to request the consideration of criminal cases from the side of the court; - According to the law cases to present them to file a civil lawsuit; - To take part in the court sessions; - In case of having an appropriate basis, to appeal the decisions made by the court; - To provide the defense of the rights and legal interests of minors and persons subject to certain prohibitions; - To fight against the criminal and to prevent the crime, with the coordination of the Ministry of Justice, proceed with the relevant criminal law politics; - To ensure the control of law enforcement in places of pre-trial detention; - To proceed with the other activities provided by the law (Committee of Europe). France The prosecutor carries on the criminal prosecution and uses such alternative sanctions as are appropriate to the personality of the accused. He/she supervises Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) the activities of the police and the investigation process of criminal cases. The head of the Prosecutor's Office is the Chief Prosecutor. The Chief Prosecutor is not under the subordination of the Minister of Justice. On the other hand, deputy chief prosecutors have complete carte blanche in their activities. One of the main functions of the Prosecutor’s Office is to ensure compliance of legislation with public interests and to establish control over its correct and uniform performance. They must also ensure the unity of precedent law both in the Court of Cassation and in the court of other instances. The Prosecutor’s Office follows the three main principles: subordination, indivisibility, and unchallengeable legitimacy. Also, it should be mentioned, that the prosecutors and Judges study in the same training and same schools (The French legal system). Germany The Prosecution’s Office, which is in Germany at the present time, is a young institution, which is more or less similar to the model of the Prosecution’s Office, which is in France (The Public Prosecution Office in Germany: Legal Status, Functions and Organization). The Federal Prosecution’s Office in Germany represents the main governing body of the prosecutor's office system (General bundesanwaltschaft, GBA), which guarantees criminal prosecution and prosecution support in court in particularly important cases, such are for example international crimes, crimes against state security, etc. (European Center for Constitutional and Human Rights (ECCHR). In Germany, the prosecutors are public entities and at the beginning, they are initially appointed for a probationary period, then up to 3 – 5 years, and after that, it is possible to appoint them for an unlimited period. They are having all financial and social guarantees which are provided in the status of the prosecutor (How public prosecutors work in Germany). Source: Author, according to the data sources given in the text and collected from Performance of the Prosecution Services in Latvia: A Comparative Study The state prosecutor in some countries, for example in France and Netherlands, can use such information and evidence, which he/she has not presented in the court at the beginning, in case he has received it lately and he could not have information about this before. Of course, while presenting such kind of evidence the principle of competition between the parties should not be violated. The precedential law of France, demands from the prosecutor, that his written view, must be accessible to the participants of the process before the court session for some time before. The court has the right to postpone the process, in order to give the time to the parties to use the rights and get introduced to it. Besides that the state prosecutor in the first place should have the important issues reflecting public order and interests, for example, demand to use the international legislation in legal proceedings, beyond if Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) the other participants of the process are requesting it or not. For example, to request the use of international legislation in legal proceedings, regardless of whether other participants in the process request it or not (The role of public prosecutors outside the criminal justice system). Unlike Georgian law, the law of England and Wales, as well as the law of the United States, does not authorize a prosecutor to instruct an investigative body to take any action or to conduct an investigation directly. The prosecutor is not involved in defining the investigative strategy either. In this system, the prosecutor has the power of legal advice only in a specific case, upon the request of the investigative body. However, the results of the consultation are of a recommendatory nature and, therefore, are not binding on the investigative body. In these countries, the police have the discretion to initiate an investigation independently, which is not considered a prosecution, and have the authority to investigate in full. Consequently, the responsibility for the investigation of any case is divided not between the investigator and the prosecutor, but directly within the investigative body - the direct investigator of the case and the investigator with relatively high status. The investigative body is independently independent of the prosecutor's office in ensuring the safety of victims and the process of obtaining evidence (Harris, 2012). In Sweden, there are Public Prosecutors (incl. Chief Public Prosecutors), a Director of Public Prosecution, and the Prosecutor General, Sweden has no state or district public prosecutors or the like but according to Organic Law of Georgia on the Prosecutor's Office, we have the Prosecutor General, the Prosecutors of the Autonomous Republics of Abkhazia and Adjara, the Prosecutor of Tbilisi, a district prosecutor and a regional prosecutor. To see, more clearly the differences between the responsibilities and duties of prosecutors, table 3 was created. The given table demonstrates the responsibilities and duties of Pubic Prosecutors generally and in Georgia. Table 3. The responsibilities and duties of prosecutors during the investigation The Duties and the Powers of The Duties and the Powers of Public Prosecutors Prosecutors in Georgia (A) Study and collect the evidence; (A) Carry out criminal prosecution; (B) Request statements and (B) Offer procedural insight into interrogation of witnesses, victims, investigations to make certain criminal and individuals under investigation prosecution; process; (C) Carry out full-scale investigations in (C) Gain advancement of any State, the case provided for by legislation; Intergovernmental Organization, or (D) Supervise those activities of Mechanism as per their mandate operative and investigative bodies that and/or authority; fall under the prosecutorial capabilities Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) (D) Conclude such Agreements or presented by the legislation of Georgia Contracts that don't go against this rule on Operative-Researched Activities; and might be expected to work with (E) Support public prosecutions in a participation with the state, court; intergovernmental association, or (F) Implementation of operational and individual; investigative actions; (E) Agree, that at any phase of the (G) Coordination of crime fighting and preliminary procedures, the prosecutor crime prevention; will keep confidentiality and will not (H) To participate, as a plaintiff, on disclose the information and the behalf of the State, in civil proceedings documents that he/she will be granted; on transferring to the State illegal and (F) Take proper measures or undocumented property and property solicitation suitable measures to resulting from property owned by a guarantee classification of data, racket group, racketeering, a racketeer, a insurance of any individual, or saving human trafficker, an official, a member the proof; of the criminal world, an illegal narcotic (G) Conducts an investigation process drugs distributor, or an individual to generate the reality, to be able to convicted under Article 194(3)(c) of the examine everything and evidence for Criminal Code of Georgia. identifying if criminal responsibility is manufactured beneath this statute, as well since he can equally investigate the confirmed guilty and innocent; (H) Takes appropriate measures to guarantee effective investigations and criminal requested by the prosecution of judicial jurisdiction and as well to protect the interests and personal circumstances of victims and witnesses, including age, gender reasons as defined in paragraph 3 of Article 7, and health status, he/she as well take into account the specifications of the crime, particularly in the event, it is linked to sexual physical violence, gender violence or violence against children. Source: Author, according to the discussed literature and Organic Law of Georgia on the Prosecutor’s Office; The Law of Rome of the Cosmopolitan Criminal Court Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) As the demonstrated table shows, Georgian Organic Law is very close to the guidelines and requirements of the public prosecutors and has too much in common. There can be mentioned in their role in the investigations, where they are the main figures and take appropriate measures to ensure effective investigations and criminal prosecution of judicial jurisdiction and to protect the interests and personal circumstances of victims and witnesses, including age, and gender factors. In order to become a prosecutor, a citizen may be appointed to the office of prosecutor or investigator when she/he meets the following requirements. Table 4. Eligibility to become Prosecutor Prosecutor in International Association of Public Prosecutor Georgia Prosecutors • The applicant should • Have a higher • Individuals selected as have accomplished legal degree. prosecutors must be individuals significantly more than a • Study the of integrity and ability, with UG degree in regulation if language of court appropriate training and he/ she wants to become a proceedings. qualifications. Prosecutor. • Pass the exam • States shall ensure that: • Individuals who have of prosecutors, • (a) The criteria for the completed a Postgraduate judges, or selection of prosecutors shall degree in Law are as well lawyers. include guarantees against recruited for the job as a • Take the oath appointments based on bias or result LLM graduates can of the prosecutor's prejudice, which shall exclude also incorporate for office employee. discrimination against persons becoming a Prosecutor. • Have on account of race, color, sex, • The applicant must professional skills language, religion, political or have eliminated each of and high moral other opinions, national, social, the exams of his/ her principles. or ethnic origin, property, birth, degree and should have a • Ability to economic or other Status, except great aggregate score of at perform the duties that the requirement of least 50- 55%. of a prosecutor citizenship of the respective • Remarkable /prosecution country of the candidate for the communication skills. investigator in prosecutor's office should not be • Remarkable terms of physical considered discriminatory; intellectual abilities. health. • For prosecutors to be able to • Capability to analyze, • Having passed perform their professional absorb, and understand an internship duties independently and follow large amounts of details. program in the these standards, prosecutors • Skills to make a good prosecutor's must be protected from arbitrary presentation. office. actions by governments. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) • Ability to write clearly • Employment and promotion and concisely. are based on objective factors, • Ability to handle namely professional pressure, unlimited qualifications, ability, integrity, working hours, performance, and experience, demanding deadlines, and and decided following impartial great responsibility. procedures and fair. • Attention to details. • Have a good knowledge of the regulation. • Litigation and transaction expertise. • Updated with a whole new event and news. • Imaginative problem- solving ability. • Good proofreading skills. • Wise approach. • It is mandatory to have some work experience as an intern in the position of a prosecutor. Candidates should have completed some internships in established agencies in similar roles. Source: According to Career as a Prosecutor, the Prosecutor's Office of Georgia and Criminal Justice Handbook Series As the research shows the requirements to become a prosecutor, really follow one framework, have not got important differences, and mostly have similarities e.g. law degree, passing exam, professional skills, etc. What about the statistics according to the information provided by the Prosecutor's Office, as of December 2018, 420 prosecutors were employed in the Prosecutor's Office of Georgia (Strategy and Action Plan of the Prosecutor's Office of Georgia Interim performance monitoring report) and in 2019 there were 413 prosecutors in Georgia, so their number is not growing rapidly and is in accordance with the order Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) of the Prosecutor General of Georgia – On the approval of the evaluation system of prosecutors and prosecutors' investigators. 5. Conclusions In conclusion, it can be said, that in the process of implementing justice, the prosecutor has the most important role, thus it is vitally important for this structure to have the opportunity to function independently and not to be a part of any institution. In the international criminal court, there are some questions about the full independence of the prosecutor, because the Chancellery of the Prosecutor's Office is part of the international court and that’s why even taking a procedural decision, such as conducting an investigation due to a committed crime, requires the approval of the court. The court also oversees the issue of initiation of criminal prosecution after obtaining relevant evidence from the prosecutor's side. A different situation is in the countries which we have discussed, where the prosecution’s office is a fully independent body and in the process of making decisions, it is not limited by different departmental controls. There should be mentioned the example of Georgia too, where were implemented many important reforms in this regard in order to increase the development, independence, transparency, and efficiency of the Prosecutor's Office. As a result, the institutional independence of the Prosecutor's Office was determined by the Constitution of Georgia and it was established as an independent state structure, which made the Prosecutor's Office work even more effectively. To summarize, as we mentioned above, it is clear and unambiguous the role of prosecutors and meaning in the process of administration of justice and if we want Prosecutor’s Office to work effectively and transparently, it should be less dependent on any other institutions. This will help it to respond quickly and efficiently to the challenges, that Prosecutor’s Office faces. Acknowledgments The author thanks the anonymous reviewers and editor for their valuable contribution. Funding This research received no specific grant from any funding agency in the public, commercial, or not–for–profit sectors. Author Contributions The entire article was written by Shota Tkeshelashvili. Journal of Legal Studies Volume 30 Issue 44/2022 ISSN 2457-9017; Online ISSN 2392-7054. Web: publicatii.uvvg.ro/index.php/jls. Pages 44 – 64 Tkeshelashvili, S., (2022) Disclosure Statement The author has not any competing financial, professional, or personal interests from other parties. References 1. Abashidze, G., (2012). Prosecutor at the investigation stage. Tbilisi: Universal, p. 20. 2. Harris, D., (2012). The Interaction and Relationship Between Prosecutors and Police Officers in the United States, and how this Affects Police Reform Efforts. 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Journal

Journal of Legal Studies – de Gruyter

Published: Dec 1, 2022

Keywords: Prosecutor; Criminal Court; Prosecution

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