Prosecution Process in Public Institutions: Stages and Procedures
Summary Procedure
Stage 1: Instruction begins with a resolution from the institution’s supervisor appointing an official as a prosecutor. This resolution must be communicated, and from that point, the deadline for complying with their tax commitment begins. Once notified, the prosecutor must appoint an actuary who becomes a minister of faith for all actions of the prosecutor (and their secretary). Once the clerk is appointed, the prosecutor has broad authority to take all necessary steps to clarify the facts in the summary. For all legal purposes, they are part of the Service Commission while assuming that role. Officials are obliged to provide cooperation as requested by the prosecutor.
Stage 2: Investigation
The prosecutor undertakes a series of measures such as:
- Requesting documents from the authorities and IMF staff
- Taking statements
- Conducting confrontations
- Making personal inspections
- Ordering expert reports
Care: Comparison of statements. Witnesses may contradict each other. To clarify, both witnesses are called, and their statements are read with the aim of reaching an agreement, which does not always happen.
Expertise: Expert opinion on certain matters.
Once the investigation is closed, the prosecutor has two options:
- Propose dismissal if they consider that the facts do not constitute any responsibility or if these cannot be attributed to any particular official.
- Formulate objections to a particular official to determine if there is some degree of official responsibility.
The prosecutor must end their role with a resolution that determines:
- The end of the investigation
- The proposed dismissal or the filing of charges
If the prosecution decides to press charges, the accused official must be notified in person. Once notified of the charges, the accused has a period of five days to present their defense or present evidence. If the defendant requests evidence, the prosecutor can establish a probationary period of 20 days. Once the five-day deadline for the defendant to make their case has passed, or the probationary term has expired (if requested), the prosecutor must certify through the clerk that those periods have expired. From then, they have a period of five working days to express their opinion or view (final report), which can propose: acquittal or sanction.
Important:
- The Chief Prosecutor proposes to the superior.
- The superior determines if they agree with the prosecutor’s opinion.
Special Powers
- During their duties, the prosecutor may suspend or temporarily set aside the accused as a preventive measure so as not to obstruct the investigation.
- The summary is secret until the indictment stage, at which point the defendant and their lawyer can access it.
Once the prosecutor’s opinion or view is issued, it should be referred to the superior head of the institution, who can take the following actions:
- Agree with the prosecutor’s proposal, either to acquit or apply sanctions.
- Disagree with the prosecutor, in which case they could apply a different penalty than the one proposed, or if they determine that there are pending proceedings, order the reopening of the case.
Important: Whenever sanctions are applied, they must go through the Comptroller General of the Republic.
The prosecutor can ask to be recused as the prosecutor to investigate someone of a higher rank, for example, if the prosecutor in this case reaches the stage of investigation.