Koror, Palau – On May 28, 2021, the Office of the Special Prosecutor (OSP) filed a Motion for an Order to Show Cause in the Trial Division of the Palau Supreme
Hello and welcome to the website for the Office of the Special Prosecutor. Over the past 34 months, the OSP received many questions on how complaints received by the OSP are handled. This message is provided to explain the mechanisms by which complaints are received, investigated, prosecuted, and closed. In addition, the OSP considers aspirational standards for the prosecution function published by the American Bar Association(ABA) when deciding how to proceed.
Under 2 PNC § 503, the Special Prosecutor is authorized to (1) receive complaints of, investigate, and prosecute any and all allegations of violations of the Constitution and laws of the Republic of Palau; and (2) investigate and act as the prosecutor for the national government in any other case in which the Ministry of Justice or the Office of the Attorney General is unable to investigate or prosecute because of an actual or potential conflict of interest or other ethical considerations.
Complaints are received by our office through email, mail, in-person contact, and our website. In addition, while investigating or reviewing complaints, it is not unusual to stumble across new complaints. Each complaint is assigned a complaint number for tracking and accountability regardless of the method by which it is received. Complaints are generally kept confidential until filed upon.
After a complaint is received, it is assigned to one of the OSP investigators to investigate and make a recommendation to the SP regarding its disposition. Throughout the investigation, the investigators and prosecutors are in constant communication. Often, other agencies are consulted during the investigatory process. Once the matter is submitted to the SP with a recommendation of disposition, the SP or Assistant SP reviews the entire complaint and investigation and either seeks additional information, approves closure of the complaint as unfounded or for lack of evidence, or proceeds to case prosecution. If the complaint is closed and there is a known victim or complainant, they will receive a letter explaining the closure of the matter. If additional information is received that makes the original complaint viable, the closure may be revisited provided the statute of limitations has not expired.
After review, prosecution may take several different avenues. This is where the aspirational standards for the prosecution function promoted by the ABA come into consideration. The standards that most affect how the SP resolves cases include the following:
Standard 3-1.2(b), which states “(t)he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”
Standard 3-1.2(e), which states “(t)he prosecutor should be knowledgeable about, consider, and where appropriate develop or assist in developing alternatives to prosecution or conviction that may be applicable in individual cases or classes of cases. The prosecutor’s office should be available to assist community efforts addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system.”
Standard 3-1.2(f), which begins “(t)he prosecutor is not merely a case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system….”
As the Special Prosecutor, I keep the above standards in mind – always. Prosecution is not just about resolving complaints or prosecuting crimes but includes community education and public awareness, transparency and trust in government, and prevention of future criminal activity. It also includes, where possible, making the victim whole and giving voice to those who might otherwise not be heard, regardless of ethnicity or gender.
For the above reasons, deferred prosecution and plea offers are made to resolve cases. If there is a victim, the victim will be consulted before the case is resolved. Once filed, if the parties cannot agree upon a resolution of the case, the case is tried in court. Generally speaking, this can be but often is not a quick process. Continuances to try to resolve the case, prepare the case for trial, or to litigate various points of law before the case is actually tried often occurs, which brings about necessary delays for the parties and the courts. However, the cases that need to be tried will be tried and decided by the courts.
It is our goal to resolve all complaints received by the OSP in consideration of the above standards with integrity, fairness, transparency, and justice for the Republic of Palau.
Kom kmal mesulang!