In Portugal the Public Prosecution Service is essentially polymorphous.

The powers granted to the Public Prosecution Service  are distributed at various levels, one of which is the criminal prosecution  which consists of the direction of the criminal investigation; the promotion of legality; the representation of the State; the representation of the disabled persons and of the persons having no permanent residence; the performance of  advisory functions.

A further identifying feature is its organisational unity. Except for the  military courts, the Public Prosecution Service is uniformly structured by all courts.

The history of the institution shows that it follows a pattern with ancient roots, which has evolved   according to the requirements of justice, and of the administration of the country.

The Public Prosecution Service currently enjoys an organisational and functional autonomy, the intervention of  other powers being excluded from its actions. The only exception to this rule arises when it acts as a "lawyer for the State" ,that is, when it defends and sustains the private or specific interests of the State.

The problem concerning the  nature of the Public Prosecution Service results mainly from its powers in the field of the  criminal procedure.

Such powers grant it a powerful status, due not only to the means and the coercive initiatives but also to the ability of the Public Prosecution Service to ccuse or file a case. In addition, these powers shifted the Public Prosecution Service close to the executive power -one of the classical powerful branches of the State - accountable for the  security and the public order.

Clearly it is not possible to discuss the nature of the Public Prosecution Service without approaching, even if superficially, the question of its constitutional position.

Historically, two main reasons have been advanced in favour of the Public Prosecution Service's dependence on the government: on the one hand, the fact that the Public Prosecution Service plays the role of a party in the dialectical decision-making structure, and that it is necessary to guarantee a balance that would be threatened if it had autonomy; on the other hand,  that autonomy could make the government "dangerously irresponsible" towards the nation in an area as important as the  crime policy.

This statement is based on the assumption that the Public Prosecution Service is a party, although  it  becomes controversial when faced with the difficulty of the integration of the Public Prosecution Service into one of the two referred branches of the State- the executive and the judicial. Since the integration of a party in the judicial branch would be a contradiction in terms, the answer seems to be obvious.

As regards the political responsibility, the arguments can also be historically and geographically traced.

Political interference in the criminal proceedings was easy when the power was organised in a homogeneous way, and social plurality was transitory. It was therefore possible to prepare interventions in the secrecy of offices, arrange their acceptance  by the various levels of the hierarchy, and keep everything hidden from the ordinary citizen.

However, the enforcement of the criminal policy through the proceedings is  increasingly delicate in an era dominated by the myth of transparency, the implications of which are constantly foccused in power games, and in  the  public opinion-making.

Anyway, the room available for such interference was never significant in systems that profess the compulsory enforcement of the criminal prosecution . Whereas the principle of opportunity allows cases to be selected and priorities to be established, the principle of legality leaves a very small margin of discretion for the Public Prosecution Service.

Reason why the problem of the nature of the Public Prosecution Service is nowadays engaged with State reasons,  in the most strict political meaning.

Drawn up in an era already detached from a rigid concept of the State organisation, the Constitution of the Republic establishes a principle of separation and interdependence of powers. It also defines the Public Prosecution Service as a body integrated into the courts, and given autonomy and a specific statute.

This statute has to follow the scheme set out in the Constitution itself, whereby it is the  Attorney-General's Office, and not the government, that is the highest body of the Public Prosecution Service.

The system excludes the dependence on the government, and it also rejects the pattern used to picture the Public Prosecution Service.

It is an autonomous body included in the constitutional heading relating to the  courts, and having rules of organisation, a statute, and an opertion system based on principles that characterise a branch of the Magistracy . It pursues aims that regulate judicial intervention, or seek its conformity with the levels of standardisation  governing it. Therefore it must be a body of the judicial power.

However, this does not answer the whole question.

Although the Public Prosecution Service is organised as a judicial institution, and it is constitutionally included in the heading relating to the courts, this  does not solve all the problems of classification that its powers may justify.

The Constitution itself sets out (article 221) that the Public Prosecution Service may be entrusted with the defence of other interests determined by law, along with the powers that are specifically assigned to it.

Both the organisational inclusion of the Public Prosecution Service in the courts, and the constitutionally stated specification of its powers, seem to impose  interests closely related to the  institutional aims of the Public Prosecution Service. Any statutory provisions granting to the Public Prosecution Service a purely administrative function deprived from any relation with the law and the justice administration would most certainly be construed as inconstitutional. 

However, the flexibility of the principles is clear, and it leaves open the possibility of widening the Public Prosecution Service's powers. Today such powers already surpass the basic functions that are exercised by the courts.

Therefore, any argument  which aims at demonstrating the jurisdictional nature of the Public Prosecution Service's powers would seem to be unnecessary and sterile from the very start.

The Public Prosecution Service is not a jurisdictional body in the technical and legal sense of the word 'jurisdiction', that is, a body entrusted with the function of defining, with legal force, the  law applicable to a case.

However its powers are judicial. In other words, they are discharged according to the principles, the aims, the object, the organisation, and the statute proper to the judicial power.

This was the constitutionalist's choice, pursuant to which the Public Prosecution Service's powers are emboided of a initiative funciton limitation the courts intervention in such important fields as the affirmation of the souverignity and the keeping of the democratic State. Furthermore the Public Prosecution Service's powers represent a self-limitating instrument to the judicial power,  being construed as a fundamental instrument in any State based on legality. 

On the other hand, there is an inteconexion between the  constitutional features  and those  adopted in the criminal proceedings.

Even before these reforms, and pursuant to Figueiredo Dias, it was understood that "the position of the Public Prosecution Service in the criminal procedure is  in conformity with the principles applicable to the  administration of justice. It is an autonomous body of this administration - that is, it is  independent from the courts, although materially and functionally connected to them, and having its own structure and organisation - whose activity can  be regarded neither as a  'common executive function', nor as a  'judicial function' ".

Nowadays the Public Prosecution Service is organised as a branch of the Magistracy that is procedurally autonomous in two senses: as regards the non-interference of the political power in the criminal prosecution; and as regards the concept of the Public Prosecution Service as a branch of the Magistracy guided  by the principle of separation and parallelism towards the Judiciary.

This concept is repeatidly  reaffirmed by the Code of Criminal Procedure in the principle of objectivity (Article 53); in the application to  Public Prosecutors  of the provisions regarding judges' impediments, recusals, and excuses (Article 54); in the Public Prosecution Service's obligation to investigate and to accuse or file a case (Article 262); in the non-application to the Public Prosecution Service of the  ruleson the conduct of lawyers and counsels for the defence  (article 326); and in the recognition of the legitimacy of lodging an appeal exclusively in the interests of the defendant (Article 401).

The concept of justice body is the one that best expresses the position of the Public Prosecution Service as regards the criminal prosecution, and also its nature. However, the problems of qualification deriving from other powers which bear a   considerable identification potential because of their variety and scope.

If we analyse these powers, we will conclude that they all lead to the fulfillment of justice and to the promotion and defence of legality. In any case, they are interlinked and subject to strict statutory rules.

Certainly, the internal configuration of the activity that enforces those powers is materially administrative, if we should classify in this way an activity that does not aim at the declaration of the application of the law to a particular case.

However, this is not the basis for determining or excluding the judicial nature of an activity.

If we detach the activity of the courts from its final intention, we will see that its content and order are essentially administrative,   not different from the activity of the Public Prosecution Service. Anyway, in certain cases one cannot even say that the objective of the courts' activity is to promulgate the law.

The decisive feature of the activities of both the courts and the Public Prosecution Service is the plan of operation and the objectives in which they foccus their efforts.

Both the plan and the objectives  are intrinsically judicial. While subject to  a statute defined for the judicial power, they operate (or rather, co-operate) in a relationship of need, for the final achievement of the  courts' powers.

Therefore, we conclude that the Public Prosecution Service is a judicial body. It is autonomously integrated in the judicial power, although its powers are neither essentially jurisdictional, nor are they confined to those exercised by the courts.