Despite the differences depending on the legal tradition of each State, prosecutors generally have a vital role in criminal proceedings and contributing to the administration of justice (e.g. through the institution of prosecution, investigation of crime, supervision over the legality of these investigations, and the supervision of the execution of court decisions)[1].

 

The prosecution can be part of the judiciary (in civil law systems) or part of the executive (in common law jurisdictions) and hierarchically organized, which may include that superior prosecutors have competence to give orders to lower-rank prosecutors (which prosecutors should be able to refuse if they are unlawful)[2].

 

Furthermore, it is necessary that prosecutors act independently, without unjustified interference from government, parliament and other external influences (such as organized crime), to carry out their professional responsibilities[3].

 

Generally, there are many ways in which the executive branch can exert its influence over the prosecution service. Two important factors are the political context in which prosecutors operate, and several structural arrangements that the government can employ to interfere in the prosecution.

 

In this context, the appointment, promotion and removal process of prosecutors, for instance, is essential to determine how independently prosecutors will behave in future. Ideally, prosecutors should be selected on a competency merit basis (e.g. test and evaluation procedures)[4]. The selection process should be conducted by an (impartial and independent) outside authority or legal body (such as the office of the general attorney). This appointment procedure may make prosecutors less vulnerable to “outside” pressure than appointments by government or vote of parliament because they have the necessary qualifications to carry out their duties and are less likely to “pay back” for their appointment. An independent and impartial authority (such as the office of the general attorney or an external authority) should also be responsible for the promotion and disciplinary process of prosecutors, following clear and objective criteria[5].

 

Furthermore, the length of tenure (such as case assignments and probation periods), (abridged) scope of authority, budgetary autonomy of the prosecution, and the level of corruption, in combination with an underfunded and under-resourced prosecution service, can have a detrimental effect on the quality of their performance and institution-building within the prosecution service[6]

 

Footnotes

[1] UN Guidelines on the role of prosecutors (1990), rule 3, 11; UN Office on Drugs and Crime, The status and role of prosecutors: a UN Office on Drugs and Crime and International Association of Prosecutors guide (2014) 38

[2] UN Office on Drugs and Crime, The status and role of prosecutors: a UN Office on Drugs and Crime and International Association of Prosecutors guide (2014) 16-19; Egbert Myjer, Barry Hancock and Nicolas Cowdery (eds), International Association of Prosecutors: Human Rights Manual for Prosecutors (2nd edn, WLP 2008) 1

[3] Cf. IAP Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, rules1, 3, 6; Council of Europe, Committee of Ministers, Recommendation Rec(2000)19, The Role of Public Prosecution in the Criminal Justice System (6 October 2000)

[4] UN Office on Drugs and Crime, The status and role of prosecutors: a UN Office on Drugs and Crime and International Association of Prosecutors guide (2014) 25

[5] Cf. UN Guidelines on the role of prosecutors (1990), rule 1-2, 7, 20; IAP Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, rule 6; UN Office on Drugs and Crime, The status and role of prosecutors: a UN Office on Drugs and Crime and International Association of Prosecutors guide (2014) 27

[6] Cf. UN Guidelines on the role of prosecutors (1990), rule 6; Chr. Michelsen Institute and Transparency International, U4 expert answer: Panama: overview of corruption risks in the judiciary and prosecution service (2014) 6

 

Prosecutors