CIRCULAR DATED MARCH 3, 1995
ON THE METHODS FOR PROSECUTORS IN MAKING CHARGES WITH OFFENSES
Nº 206 Cir.Pen.95
State's Minister, Minister of Justice
To :
Mr. the Prosecutors to the Provincial, Municipal
and military Courts.
Mr. Chief Judges of the Provincial, Municipal and Military Courts.
Subject: Specification on the methods for prosecutors in making charges with offenses.
The Ministry of Justice has observed that the court's works have been accumulated more and more, cannot be worked out on time and cannot response to the requirement of our population.
This delay is connected with the civil as well as criminal cases.
For Criminal cases, one of the elements which caused the delay, was the waste too much times for forming up the dossiers for the courts, this was because of the prosecutors had to issue commentary summons to refer the dossiers to the investigating judges for almost all of the criminal cases.
I would like to remind you all of the methods for making charges and the selection of its methods as follows:
I- Methods for making charges:
The filing of penal actions is the duty of the prosecutors. in order to make up the Penal actions, the means for making charges are as hereunder " Art. 102 of the Law on Criminal Procedure" :
- referring (the case) directly for trial.
- commentary summon to refer the case for inquiry.
- the immediate hand over of the accused person to trial, for the flagrant delito misdemeanor case.
1- Referring the case directly for trial:
The referring of the case directly for trial is a method that the prosecutor decides to make a charge to refer directly the accused person before the court.
According to the article 67 of the Law on Criminal Procedure, the prosecutor may use this method, when the accused is due to be condemned to imprisonment which its maximum term should not exceed 1 year.
Among the misdemeanor offenses as stipulated in the Provisions of Criminal transitional law and other laws which shall be punishable to imprisonment and which their maximum terms shall not be exceeded one year, are primarily:
- the offenses for the causing of injury, which did not cause the lost of physical capacity (Art. 41 ).
- incitement to commit acts of discrimination (Art. 61).
- defamation and derogatory insults (Art. 63 ).
- use of addicted drugs (Art. 65 ).
- the offenses for having fled from the scene after a traffic accident ( Art. 59 of Land traffic law).
- offenses for non-intentional causing of injury ( Art. 56 of Land traffic law).
- other offenses as stated in the Fishery, Forestry, Custom, taxation and labor laws, may as well be charged with the method of referring directly for trials.
2- Commentary summon to refer the case for inquiry:
The commentary summon to refer the case for inquiry are the written papers of the prosecutors who sued to the investigating judges to carry out investigations on specified cases. The Article 60 of the Criminal Transitional Law has stipulated that the prosecutor allows to proceed immediately an inquiry following the commentary summon which referred the case for inquiry, when it is a misdemeanor or crime/felony.
The article 61 indicated that for misdemeanors the prosecutor may allow to have a choice by permitting to make either an inquiry or referring the case directly for trial, if there is sufficient conditions as stated in the article 67.
For crime/felony the process of investigation following the commentary summon of referring the case for inquiry, shall be necessary. For misdemeanors, the inquiry shall absolutely be necessary to do, but for only those misdemeanor offenses which are subjected to imprisonment for over one (1) year term, and which are not flagrant delicto misdemeanor cases, only. This is because there was already a special procedure for it which allows hearing the case immediately, for any flagrant dallied case that shall subjected to be punishable to imprisonment.