Although prosecutors play a central role in ensuring the rule of law and the application of human rights standards, there are no international instruments in place, which monitor their actions and impose sanctions in case they fail to follow their professional responsibility obligations. In many countries, there exist disciplinary councils to detect and corroborate breaches of discipline while in others the exposure of human rights abuse may lead to more serious consequences for prosecutors, such as the prospect of being removed from the service. In particular, if the prosecution is controlled by the executive branch (e.g. through appointment, promotion and removal procedures made on the basis of personal and political considerations) and has poor powers to investigate, prosecutors are less likely to oppose unlawful orders by superiors and raise human rights issues.

 

The professional responsibility of prosecutors to respect human rights is increasingly reflected and referred to in law, regulation, bilateral contracts and litigation[1]. Taking into account their crucial role in delivering justice, human rights should therefore be a main source for prosecutors who should be held to account when they fail to comply with their duties under international law [2]. But global mechanisms to monitor their professional responsibility to respect human rights fall considerably short.

 

There are several human rights systems at international and regional level that monitor the compliance of their members with human rights standards but these mechanisms pay little attention to prosecutors. At international level, the UN developed various monitoring systems to hold States to account for their wrongdoings, such as the UN Charter-based bodies and the expert committees of the ten UN treaty bodies that assess the implementation of the core international human rights treaties. Each treaty covers specific human rights, such as the International Covenant on Civil and Political Rights, (ICCPR)[3] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[4](and their optional protocols[5]). Both treaties have, insofar States made an additional declaration, inter-State and individual complaints which are administered by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights respectively. Other UN treaty bodies include the Committee Against Torture (CAT), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimi­nation against Women (CEDAW), the Committee on the Rights of the Child (CRC), the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), the Committee on Enforced Disap­pearances (CED) and the Committee on the Rights of Persons with Disabilities (CRPD).

 

Additional complaints and reporting mechanisms are provided by the UN Human Rights Council that has the mandate, as against the treaty bodies, to monitor the human rights situation of all UN member States (Universal Periodic Review). Besides, there are various special procedures, among them, the UN Special Rapporteurs who, unlike the Human Rights Council, have the mandate to examine specific countries or human rights issues of a particular concern, without the exhaustion of domestic remedies. This includes, for instance, the mandate of the UN Special Rapporteur on the situation on Human Rights Defenders and the UN Special Rapporteur on the Independence of Judges and Lawyers but which only occasionally referred to the special role of prosecutors in fighting against human rights abuse.

 

Furthermore, the UN Guidelines on the Role of Prosecutors[6] and other international professional standards for prosecutors, as well as regional human rights systems, covering Europe, the Americas, Africa, South Asia and the Islam and human rights, do not take a definitive stance on monitoring the professional responsibility obligations of prosecutors. In view of Europe, there exist several individual and collective complaint mechanisms, such as at the ECtHR and the European Social Charter (ESC), but they pay little or no attention to the performance of prosecutors. Other entities, such as the OSCE and the Consultative Council of European Prosecutors (CCPE), also lack of a special reporting mechanism for prosecutors.

 

Footnotes

 

[1] For instance, a number of ruling made by the ECtHR, including Bulut v Austria App no 17358/90 (ECHR, 22 February 1996); Huseyn and others v Azerbaijan App no 35485/05, 45553/05, 35680/05, 36085/05 (ECHR, 26 July 2011); Ilgar Mammadov v Azerbaijan App no 15172/13 (ECHR, 22 May 2014); Svinarenko and Slyadnev v Russia App no 32541/08 and 43441/08 (ECHR, 17 July 2014); Rasul Jafarov v Azerbaijan App no 69981/14 (ECHR, 17 March 2016).

[2] Council of Europe, Recommendation Rec(2000)19, The Role of Public Prosecution in the Criminal Justice System (6 October 2000).

[3] UN Doc A/6316 (1966), 999 UNTS 171 (ICCPR).

[4] UN Doc A/6316 (1966), 993 UNTS 3 (ICESCR).

[5] UN. Doc A/6316 (1966), 999 UNTS 302; UN Doc A/44/1281 (1989), 1642 UNTS 414; UN Doc A/63/435 (2009).

[6] UN Guidelines on the Role of Prosecutors (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990), http://euromed-justice.eu/document/un-1990-guidelines-role-prosecutors accessed 4 September 2016.

Monitoring Mechanisms