Powers of the Prosecutor in Criminal Investigation

Front matter

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Directions and Developments in Criminal Justice and Law

POWERS OF THE PROSECUTOR

Introduction

Vanishing Trials 1

State of the Art on the (Almost) Unlimited Powers of the Prosecutor in Criminal Proceedings 5

Aim of the Study 9

Scope of the Study 13

Methodology of the Study 17

Structure of the Study 19

The Prosecution Service in Germany 32

2.2.1 Sources of Law Governing the German Prosecution Service 32

2.2.2 The Position of the German Prosecution Service in relation to the Judiciary and Executive 34 xviii

2.2.3 The Internal Independence of the Prosecutor within the

Structure of the German Prosecution Service 36 The Prosecution System in Poland 38 2.3.1 Sources of Law Governing the Polish Prosecution Service 38

2.3.2 The Position of the Polish Prosecution Service in relation to the Judiciary and Executive 40

2.3.3 The Internal Independence of the Prosecutor within the

Structure of the Polish Prosecution Service 42

2.4 The Prosecution System in Italy 45

2.4.1 Sources of Law Governing the Italian Prosecution Service 45 x Contents

2.6

2.4.2 The Position of the Italian Prosecution Service in relation to the Judiciary and Executive 46 2.4.3 The Internal Independence of the Prosecutor within the Structure of the Italian Prosecution Service 48 The Prosecution System in the United States of America 51

2.5.1 Sources of Law Governing the US Prosecution Service 51

2.5.2 The Position of the US Prosecution Service in relation to the Judiciary and Executive 54

2.5.3 The Internal Independence of the Prosecutor within the Structure of the US Prosecution Service 60

3.1 3.2

3.3

3.4

3.5

3.6

4.1 4.2

4.3

4.4

Criminal Investigation in Germany 75

3.2.1 The Notion and Outline of Criminal Investigation 75 3.2.2 Prosecutorial Discretion 77

Criminal Investigation in Poland 81

3.3.1 The Notion and Outline of Criminal Investigation 81 3.3.2 Prosecutorial Discretion 83

Criminal Investigation in Italy 88

3.4.1 The Notion and Outline of Criminal Investigation 88 3.4.2 Prosecutorial Discretion 91

Criminal Investigation in the United States of America 95 3.5.1 The Notion and Outline of Criminal Investigation 95 3.5.2 Prosecutorial Discretion 101

Powers of the Prosecutor over Initiation of Investigation

Initiating Investigation in Germany 117

4.2.1 Threshold for Initiating Investigation 117

4.2.3 Authority Responsible for Initiating Investigation 121 Initiating Investigation in Poland 122

4.3.1 Threshold for Initiating Investigation 122

4.3.3 Authority Responsible for Initiating Investigation 127 Initiating Investigation in Italy 128

4.4.1 Threshold for Initiating Investigation 128

Contents xi

4.4.2 4.4.3

Procedure for Initiating Investigation 131 Authority Responsible for Initiating Investigation 133

4.5 Initiating Investigation in the United States of America 134

4.5.1 4.5.2 4.5.3

Threshold for Initiating Investigation 134 Procedure for Initiating Investigation 137 Authority Responsible for Initiating Investigation 139

Powers of the Prosecutor over the Conduct of Investigation

5.2 Conduct of Investigation in Germany 147

5.2.1 5.2.2.

5:23 5.2.4

5.2.5

The Relationship between Prosecutor and Police 147 The Prosecutor’s Supervisory Authority over Investigation 149

The Investigative Authority of the Prosecutor 153 The Role of the Parties in the Conduct of Investigation 155

5.3 Conduct of Investigation in Poland 158

5.3.1 5.3.2

5.309 5.3.4

5.355

The Relationship between Prosecutor and Police 158 The Prosecutor’s Supervisory Authority over Investigation 160

The Investigative Authority of the Prosecutor 163 The Role of the Parties in the Conduct of Investigation 165

5.4 Conduct of Investigation in Italy 168

5.4.1 5.4.2

5.4.3 5.4.4

5.4.5

The Relationship between Prosecutor and Police 168 The Prosecutor’s Supervisory Authority over Investigation 171

The Investigative Authority of the Prosecutor 173 The Role of the Parties in the Conduct of Investigation 175

5.5 Conduct of Investigation in the United States of America 179

55.1 5.5:2

5.3.9

The Relationship between Prosecutor and Police 179 The Prosecutor’s Supervisory Authority over Investigation 181 xii

Contents

5.6

Powers of the Prosecutor over the Preliminary Charging 207

6.1 6.2

6.3

6.4

6.5

6.6

Preliminary Charging in Germany 210

6.2.1 General Considerations concerning Charging Decisions 210

Preliminary Charging in Poland 221

6.3.1 General Considerations concerning Charging Decisions 221

Preliminary Charging in Italy 233

6.4.1 General Considerations concerning Charging Decisions 233

Preliminary Charging in the United States of America 241

6.5.1 General Considerations regarding Charging Decisions 241

6.5.4 Authority Responsible for Preliminary Charging 252 Summary 254

Powers of the Prosecutor over Imposition of Coercive Measures

Tell 7.2

7.3

Imposition of Coercive Measures in Germany 266

7.2.1 General Considerations on Search and Arrest 266 7.2.2 Procedure for Imposing Coercive Measures 268 7.2.3 Authority to Impose Coercive Measures 270 Imposition of Coercive Measures in Poland 272

7.3.1 General Considerations on Search and Arrest 272 7.3.2 Procedure for Imposing Coercive Measures 274

Contents xiii

7.4 Imposition of Coercive Measures in Italy 278 7.4.1 General Considerations on Search and Arrest 278 7.4.2 Procedure for Imposing Coercive Measures 280 7.4.3 Authority to Impose Coercive Measures 282

7.5 Imposition of Coercive Measures in the United States of America 284 7.5.1 General Considerations on Search and Arrest 284 7.5.2 Procedure for Imposing Coercive Measures 287 7.5.3 Authority to Impose Coercive Measures 290

8 Prosecutor’s Powers to Discontinue Investigation 299

8.2 Discontinuation of Criminal Investigation in Germany 301 8.2.1 Threshold to Discontinue the Investigation 301 8.2.2 Procedure for Discontinuation of Investigation 303 8.2.3 Authority for Discontinuing Investigations 305

8.3 Discontinuation of Criminal Investigation in Poland 307 8.3.1 Threshold to Discontinue the Investigation 307 8.3.2 Procedure for Discontinuation of Investigation 309 8.3.3 Authority for Discontinuing Investigations 312

8.4 Discontinuation of the Criminal Investigation in Italy 313 8.4.1 Threshold to Discontinue the Investigation 313 8.4.2 Procedure for Discontinuation of Investigation 315 8.4.3 Authority for Discontinuing Investigations 318

8.5 Discontinuation of Criminal Investigation in the United States of America 319 8.5.1 Threshold to Discontinue the Investigation 319 8.5.2 Procedure for Discontinuation of Investigation 324 8.5.3 Authority for Discontinuing Investigations 327

9 Redefining Prosecutorial Powers during Criminal Investigation 335 9.1 Criminal Investigation Remastered 335 9.2 Prospects for Shaping Prosecutorial Powers during Criminal Investigation 336 9.3 Concluding Remarks 350

Taylor & Francis Taylor & Francis Group http://taylorandfrancis.com

Preface and Acknowledgments

This book is the result of a very long, sometimes overwhelming, but eventually very fulfilling and satisfactory period of research. Therefore, the list of institutions and people that I am indebted to is extremely long. The study was carried out with the financial support of the Polish National Science Center (Narodowe Centrum Nauki) that granted me funds that allowed my ideas and dreams to come true (research project no. 2014/15/D/HS5/00658 entitled “The Role of the Prosecutor in Criminal Investigation — comparative perspective”). Three universities have welcomed me generously and allowed me to conduct the research on their premises and provided me with hospitality and support: The University of Bologna, the University of Cologne, and the University of Connecticut.

This book would not have been possible without the constant support and assistance of Professor Thomas Weigend (University of Cologne), Professor Michele Caianiello (University of Bologna), and Professor Todd Fernow (University of Connecticut). It is difficult to find the appropriate words to express the gratitude I feel toward these three remarkable scholars that devoted their free time, wise advice, and—I hope I can say—friendship that allowed me to finish the book. Without you, Thomas, Michele, and Todd, this would have never happened.

There is also a long list of people whose words and insights echoed in my head long after our meetings and discussions ended. Some of them have supported my research directly and some may not even know what our brief discussions brought me to. Therefore, I wish to thank Mike Gailor, Paul Narducci, Marcia Pilsbury, James R. Turcotte, Tim Everett, Jenia I. Turner, Giulio Iluminati, Giulia Lasagni, Giuseppe di Giorno, Claus Kreß, Bettina Weisser, Elisa Hoven, Jacqueline Hodgson, Jenny McEwan, Andrea Ryan, Sabine Gless, Frank Verbruggen, Vanessa Fransen, Cezary Kulesza, Hanna Kuczyńska, Patrycja Matusz, Anna Sledziriska-Simon, Agnieszka Frackowiak-Adamska, Marta Ktopocka-Jasinska, Jarosław Zagrodnik, and Dariusz Adamski. Thank you for shedding light when I was in the dark.

xvi Preface and Acknowledgments

I also want to express gratitude to the McDougall Family and late Anne McDougall for the support that they offered me with the generous Edward Barry McDougall Memorial Scholarship, which allowed me to study in Ottawa in 2006. Even though this happened long before I started thinking about writing this book the experience that I had, thanks to them, marks the beginning of my amazing journey through the academic world, for which I will always be thankful. Canada and the University of Ottawa have always treated me in a very special way. Bruce Feldthusen, Adam Dodek, and especially David Paciocco—thanks to you also.

Carrying out this comparative study was an extremely demanding challenge for me. Thus, I would like to apologize in advance for providing a result that will certainly have a number of deficiencies. I am conscious that mistakes are always a part of comparative research. And even though I have spent endless hours on research and consultations, I am sure that the book is not free of errors. Moreover, I am fully aware of the limits of my language abilities. Writing an entire book in English certainly required skills that went far beyond my command of that language, and so I am very grateful to Dave Harrold and Martin Barr for providing excellent editing. All errors and flaws are entirely mine.

I am extremely grateful to my colleagues and fellow researchers at the Department of Criminal Procedure at the Faculty of Law, Administration, and Economics (University of Wroclaw), who provide me with the unique opportunity of a daily exchange of ideas and thoughts. I take this opportunity to thank my boss Professor Jerzy Skorupka for inviting me over eight years ago to the Department and for his constant support, the trust, all the wise words, guidance, and direction throughout my journey. The research team that I am a proud part of is built on his idea. I hope that with this book, I am at least to some extent repaying my debts.

Now my special thanks go to my beloved and the one and only #teamkpk, especially Dorota Czerwinska and Dominika Czerniak my closest supporters in whom I could always confide and without whom all the exciting projects in which we engage in the Department would not be possible. To other colleagues, Kazimierz, Krzysztof and Artur, our PhDs, and students with whom we build the community on which I could always rely: my achievements are the result of our teamwork.

But there are no words in which I could express my gratitude to my dearest friend and remarkable research fellow Wojciech Jasinski. Without his encouragement, kind words, and priceless advices this book and everything that led me up to this point would never have happened. Wojtek— still owe you!

I end by thanking my whole family, especially my parents Ella and Zdzichu, who gave me all my special powers, wings bigger than life, and who are

Preface and Acknowledgments xvii without doubt the source of my self-confidence that allowed me to believe that I could write this book. I also would like to thank my two amazing children Karolinka Junior and Adas Junior, who always keep me smiling and entertained. Thank you for putting up with my writing and editing. Also my amazing friends on both continents have played an important role in writing this book: Królik, Maja, Kluska, Marcin, Kaziu, Paulinka, Lara, Kurtis, Agusia, and others to whom I must apologize, as I am unable to name you all here: thank you so much for always believing in me. It means the world to me.

My final thoughts and the biggest and most sincere gratitude go to Adam— the fantastic Ironman to whom this book is dedicated. He constantly shows me what devotion and commitment to a goal mean. Adam: without your limitless support and your faith in me, this work and everything else that happened to me over the past 15 years, would not have been possible. This one is for you.

Abbreviations

CCO Gerichtsverfassungsgesetz [Code of Court Organization]

CGS General Statutes of Connecticut (Connecticut General Statutes)

CPB Connecticut Practice Book

c.p. Codice Penale [Italian Code of Criminal Law]

C.p.p. Codice di Procedura Penale [Italian Code of Criminal Procedure]

DFS ABA Criminal Justice Standards for the Defense Function

ECHR European Convention on Human Rights and Fundamental Freedoms

FRCP Federal Rules of Criminal Procedure

FRE Federal Rules on Evidence

ICCPR International Covenant on Civil and Political Rights

k.k. Kodeks karny [Polish Code of Criminal Law]

k.p.k. Kodeks postępowania karnego [Polish Code of Criminal Procedure]

NPS NDAA National Prosecution Standards

PSA 1985 Ustawa o Prokuraturze Polskiej Rzeczypospolitej Ludowej [Polish Prosecution Service Act of 1985]

PSA 2016 Ustawa Prawo o prokuraturze [Polish Prosecution Service Act of 2016]

SPF ABA Standards for Criminal Justice for the Prosecution Function

SPI ABA Standards for Criminal Justice. Standards on Prosecutorial Investigations

StGB Strafgesetzbuch [German Code of Criminal Law]

StPO Strafprozessordnung [German Code of Criminal Procedure]

USC Code of Laws of the United States of America

Chapter |

Introduction

1.1 Vanishing Trials

The most popular image of criminal proceedings captured in the public imagination refers to the courtroom, where the guilt of the defendant is decided, in the presence of the curious, and even eager for revenge, audience gathered in that hall, with the meaningful participation of the prosecutor and defense counsels. Depending on the system of law where one was born and raised, this image may be complemented by a jury burdened with the obligation of deciding on the guilt of the accused, or a mixed tribunal in which jurors adjudicate together with a professional judge, while in other cases the judge sits alone. The location of actors of this peculiar theatre may move along the courtroom. The parties may sit at right angles to the bench or facing the judge. The testifying witness may be standing in the middle of the room in front of the judge or sitting next to her facing the interrogator and the public. Sometimes even the costumes—the gowns, the wigs, become an important part of the play and in other environments just nice suits and ordinary clothes are enough. In any case, however, the courtroom, an impartial decision maker, witness testimonies, presentation of evidence, as well as prosecution and defense arguments remain in the collective imagination as an image of the criminal process.

It also seems that in minds of those who write and teach about the law this picture remains equally valid. All academics begin their tale of the criminal justice system by explaining the importance of the trial, as it is the leading feature of the criminal process. Of course, at some point they will also pay attention to violations of individual rights during the process, methods of collecting evidence during investigation, or the available remedies and manners in which the judgment can be appealed. But eventually, the central point of any criminal procedure academic course will be the structure of the trial, the procedural roles played by its actors, admissibility of evidence, and issues related to the presence of the accused in the courtroom. It will be presented as having the most significant impact on the criminal justice system as a whole. Frequently, among the compulsory courses to be tackled by young adepts of law are moot courts and mock trials, where they may practice their oratory skills, as well as the ability to question witnesses or submit motions. Such activities are looked forward to and are strongly desired by young lawyers wishing to enter the real world of legal practice. This happens regardless of the latitude in which their school of law is situated and system of criminal process in which young lawyers take their education.

Apparently, only practitioners who have spent enough time outside the courtroom are under no illusions. They very clearly perceive the changes that have taken place in criminal justice systems in which the importance of the trial as a venue where the fate of the defendant is decided has vanished. One might smile when Daniel Kaftee played by Tom Cruise enters the courtroom as a young but already experienced JAG lawyer in one of the scenes of the iconic movie A Few Good Men and says with unfailing delight mixed with fear “So this is what a courtroom looks like!” This indicates that he had never been in a courtroom before, since his reputation as a successful and tenacious lawyer had been built on the exploitation of plea-bargaining mechanism and not his litigation skills that would require courtroom experience. This scene was filmed more than 30 years ago and even though it refers to the military proceedings there is no doubt that it is a good example of what became an everyday reality not only in the US courthouse, but it is increasingly becoming the unfortunate truth for all criminal justice systems.

The comparative law literature has noted and broadly described the phenomenon of criminal cases decided out of trial through the negotiations leading to conviction and all other distinct forms of avoiding this form of adjudication.! The trend originated in the USA and has spread to the other common-law countries.” The statistics are merciless. A study from 2008 shows that in the USA almost 90 percent of all criminal cases are resolved in plea bargaining.* Some older works report that only about 3 percent of cases in that country are dealt with by the way of trial and that judges are conducting only about two trials each month on average.* And even more striking are data for the federal courts system providing that 97.3 percent convictions are a result of guilty pleas.’ This is a result of many years of trying to overcome an overload of criminal cases entering the court system.

On the other hand, in Continental European countries, these mechanisms are perceived as relatively new. In 2010 when Wade presented the results of

See the studies from 1983 and 2003 cited by Jacoby and Ratledge (2016), p. 88. Brown (2019), p. 544.

ae WON Pe a collective comparative study on the issue, the so-called negotiated case-settlement procedures were treated as a “new trend.”° At that point she was not even able to gather statistical data from all researched countries. But even then, it was clear that this was the direction in which the criminal process had been moving for some time. The current data gathered among the European countries prove that the “new trend” became solid and develops further.’ Currently, the majority of criminal cases are resolved without trial. In 2009 in Germany only 10 percent of cases in which the police referred an identified suspect to the prosecutor went to trial.* In 2012, 77 percent of cases involving known suspects were dismissed for lack of sufficient evidence or for policy reasons and 52 percent of the remaining cases were disposed of by penal order.’ In Poland more than 54 percent of cases filed yearly with the court are resolved without a trial, as a result of plea-bargained agreements and other forms of trial-waiver procedures." In Italy the popularity of the Italian version of plea-bargaining called pattegiamento is distinctively lower, yet other forms of adjudicating out of trial or in a shortened form of proceedings appear to make up for it."!

It should not go unnoticed that the disappearance of the trial is not only the result of negotiated agreements concluded by the court’s decision to convict and sentence the defendant without a trial. The legal inventions are much broader. As has been presented in various studies, the variety of options in that regard encompasses e.g. conditional disposals, penal orders, and discontinuation of proceedings based on public interest grounds." These decisions to some extent are made by an impartial adjudicator with the prosecutor’s consent but in case of discontinuations based on public interest usually they remain purely within the scope of prosecutorial powers. One can therefore notice a common ground for these decisions. First of all, they all add to the replacement of the trial with some other form of adjudication. This results in a major reinforcement of the significance of the criminal investigation as the only phase of criminal process where the defendant is faced with the criminal justice system machinery and where evidence

Nn

10 See the most recent data from 2019 regarding Poland in Sprawozdanie z dziatalnosci powszechnych jednostek organizacyjnych prokuratury za rok 2019, https://pk.gov.pl/wp-content/uploads/2020/03/PK-P1K.pdf (accessed 12.05.2020), p. 6. Note that in 2019, while 302,668 cases were filed with court, at the same time as many as 406,770 were dismissed by the prosecutor (Cf. Jasiński and Kremens (2019), p. 42).

12 See in comparative perspective especially Luna and Wade (2010); Jehle and Wade (2010).

Cf. very recent work by Langer (2020).

is gathered and to some extent tested. As a consequence the defendant is exposed for the sake of those actors that dominate the criminal investigation i.e. police and prosecutor.

The concept that the criminal investigation has gained tremendous importance at the expense of the trial is not a novel observation. Caianiello noted in 2016 that in the past two decades the trial phase has lost its relevance and that the crucial decisions for the outcome of criminal proceedings are made more and more frequently during the investigation and pretrial phase, where the prosecutor can operate with greater discretion. "°

This has been concluded based on the Italian system but should be considered as equally valid for other countries. It has also been observed by Huber that trials should be considered as diminishing in their importance not only due to the constantly growing number of decisions regarding the criminal liability of defendant taken out of trial; it is so also because “the outcome of the criminal process today is in fact determined to a large extent during the pre-trial phase.’'* Even if the process is ultimately taken to the courtroom and decided in an adversarial atmosphere by the trier of fact, the final decision that is to be made has already been largely predetermined by what has happened during criminal investigation. This is in part because the complexity of many investigative measures has reached such a level of professionalization that the presentation of evidence is often just a repetition of what has been done during criminal investigation. And as Elsner and Peters observed of the German system “[t]he investigative stage and the quality of evidence found in it will influence the procedural path and result of the main proceedings; it is therefore a focal point of criminal proceedings.’ These tendencies were also recognized by Weisser, who suggested that the reduction of criminal proceedings to the pretrial process calls for reinterpretation of guarantees as applied at this stage.'®

The trials are gone. And they are not likely to ever come back. Only a small number of carefully selected cases is nowadays perceived as deserving a full trial. We can all keep dreaming about the system where the emphasis in taking evidence is put on trial and where the cases are decided publicly in an open court by an impartial adjudicator. We can also try to fix the system

16 The author refers to conventional guarantees as prescribed in the ECHR but this is so also in the context of legal systems remaining outside of the Council of Europe (see Weisser by depenalizing over-criminalized behavior and probably we should keep trying. But we should also be aware that such dreams most likely will never come true and that the populistic narrative calling for criminalization of more and more far-reaching areas of human life is not easy to overcome. Hoping that we will come back to the model of criminal justice to which we all once aspired seems utopic. Therefore, we should rather try to find a way to consciously deal with the criminal process in the form to which it transformed. In this model, the criminal investigation constantly grows in importance. Wade is definitely right when she states that:

our criminal justice systems have departed from the ideals with which they were framed in far more humdrum ways. Day to day challenges and practicalities, as well as overloading, have led to pragmatic practices [...] This can be seen particularly well in relation to prosecution services and the means they use to drive efficient case-ending practices."

And since the prosecutor has gained the position of the powerful master, influential leader, and the dominant ruler of this stage of criminal process, looking into her responsibilities and powers during criminal investigation seems to be indispensable.

1.2 State of the Art on the (Almost) Unlimited Powers of the Prosecutor in Criminal Proceedings

Thus, over the last century the prosecutor became perhaps the most powerful figure within criminal justice systems, considered as “the centerpiece of the process.”'® The rise of her powers has taken a longer period of time, but the recent decades have shown an even more dramatic increase in the attention that this process has deserved. Naturally the role that prosecutors play in the criminal justice system has been grabbing the attention of scholars for some time now and it has been tackled from distinct perspectives, including the comparative one.

A classic comparative work on the prosecution systems in twenty-five EU states edited in 2004 by Tak covered an interesting range of issues such as the relationship between the public prosecution and the police, between the public prosecution and the executive as well as the role of the prosecutor in court and with regard to execution of sanction.'? The methodology adopted for this work can be described as a country-related approach, where regulations of each state were presented separately according to the adopted scheme by different authors usually originating from the country on which they had written. Based on the same structural premises a 2006 study, edited by Jehle and Wade had a much stronger focus on statistical data and an aim to discover methods by which prosecution services in six countries deal with a backlog of criminal cases.” A similar approach was also applied in an analysis of prosecution services of nine states from 2008 funded by the Open Society Institute in Sofia with a stronger focus on structure of the prosecution service as well as description of the accountability of prosecutors and their independence.” The most recent study of this kind, edited in 2013 by Ligeti, provided an analysis of 24 legal systems of EU Member States with a focus on the investigative and prosecuting stages of criminal proceedings as well as the rights of the accused during the criminal process.” This was done with a further aim of providing a draft set of model rules for the procedure of the European Public Prosecutor’s Office.”

Likewise, single-authored books approaching the position held by public prosecutors from a comparative perspective can be found very easily. One of the classic works is a book authored by Fionda discussing English and Welsh, Scottish, Dutch, and German systems with a particular focus on the discretionary powers of the prosecutor.** Research by Marguery focused on the history and organization of the prosecution services, in particular with relation to the executive in Czechia, Netherlands, France, and Poland.” A more recent study by Gilliéron analyzed the public prosecution services in the USA, Switzerland, France, and Germany with a focus on the case-ending decisions in each country.” Another work by Kuczyńska, devoted to the position of the prosecutor in the International Criminal Court, provided comparative analysis of public prosecution systems in the USA, Poland, and Germany.” In fact, for many years, scholars conducting research primarily on international criminal procedure have produced marvelous works on comparative criminal procedure including on the issue of prosecutorial powers.”

Though the descriptive form of analysis, usually followed by critical evaluation and some reform proposals, seems a style of choice for the discussion on various roles that the prosecutor serves in criminal justice systems,

20 Jehle and Wade (2010).

21 Open Society Institute Sofia (2008).

26 Gilliéron (2014).

27 Kuczynska (2015).

28 See e.g. Orie (2002); Keen (2004); Ambos and Bock (2012).

one can find in recent years a rise of the problem-related approach in edited volumes. One such major work, edited by Luna and Wade, concentrated on the convergence of prosecutorial functions among states in Europe and the USA.” More recently the changes in the role of the prosecutor both during investigation and while prosecuting cases has been discussed by scholars in a work on countries not considered before such as Australia, Nigeria, Finland, and Denmark.” A similar approach was adopted for another work edited by Langer and Sklansky devoted to analysis of the relationship between the prosecutor and democracy also from the perspective of prosecutorial discretionary powers.*!

The presented state of the art of the current discussion on the growing powers of the prosecutor in criminal justice systems should not be perceived as covering all topics within that subject to the same extent. Naturally, for the reasons discussed in the previous section, the vast majority of conducted research focused on the issue of prosecutorial discretion and the results of prosecutorial decision-making.” Indeed, during the past decades, plea bargaining became a “hub of comparative scholarship on the prosecutorial functions.”*? This seems to be a legitimate choice since the impact of the prosecutor on the outcome of criminal investigation when undertaking the decision whether to drop a case or to file it with a court is undeniable, regardless of normative limitations imposed on the system. Moreover, with the enormous overload of cases that the criminal justice systems experienced in the last decades, prosecutors have gradually begun to obtain unique abilities to undertake some case-ending decisions, even without any involvement of the court; the powers once reserved only for judges.*+ This change in the role of the prosecutor must be perceived as particularly empowering if one understands that the primary role of the prosecutor was to prosecute cases—where the word “prosecutor” comes from—and not to decide on them. Therefore, it is no wonder that by allocation of these powers to prosecutors, these actors have grown into the main players dominating the criminal process. Obviously, this issue has been most extensively tackled from the US perspective where the US understanding of discretion gives the prosecutor extraordinary scope of powers,” but this has been also analyzed