Why is this important for defence attorneys? The prosecutor’s procedure gathers most of the evidence. The court procedure mostly relies on the written protocols and does not – for example – question witnesses again (though exceptions do apply). This is why, by default, during the prosecutor’s procedure, the law grants all parties (defendants as well as criminal claimants/victims) the right to be present during all interrogations and to ask their own questions. This right to participate goes beyond the minimum standard as defined by the European Convention on Human Rights (ECHR). This right can only be exercised once the prosecutor’s procedure has been initiated. But the right can be waived, even tacitly. to participate in interrogations, at least not unless it is beneficiary in the case at hand. What should a criminal defence attorney focus on during the public prosecutor’s procedure? Obviously this depends largely on the case at hand and on the strategy selected. The prosecutor’s procedure is deemed initiated at the latest as soon as the prosecutor has ordered coercive measures (most commonly a house search). Every interrogation during this phase that does not respect the defendant’s right to participate cannot be used against him and must be repeated. For a defence attorney it is of utmost importance to be aware when the phase of police investigations ends and the phase of the public prosecutor’s procedure begins. The defence must also make sure not to waive any rights THOUGHT LEADER 53 One could say: the prosecutor’s procedure is where the beef is.
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