Prosecutors have a very distinctive role to play in society. They are a vital and active part to conduct criminal proceedings and deliver justice, to strengthen the public’s trust and confidence in the criminal system[1]. They are required to apply the law and see that it is applied, thereby balancing the rights of the individual with the necessary effectiveness of the criminal justice system[2].

 

Prosecutors therefore owe the public a deep and abiding commitment to the rule of law, which includes respecting the principle to equality before the law and the right to a fair trial[3]. Specifically, prosecutors should ensure that courts are provided with all relevant facts and legal arguments necessary for the fair administration of justice[4]. This particular role of prosecutors is highlighted by a variety of international professional standards for prosecutors and legal professionals[5], which recognize their professional responsibility obligations to respect human rights, as a component of ethical prosecuting.

 

Key resources are the UN Guidelines on the Role of Prosecutors and the IAP Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (“the IAP Standards”). 

 

The UN Guidelines on the Role of Prosecutors note that prosecutors “shall (…) respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system”[6]. In particular, prosecutors “shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded”[7], “give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law”[8] and, when coming into possession of evidence against suspects “that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, (…) and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice”[9].

 

Besides, the IAP Standards emphasize that prosecutors shall “respect, protect and uphold the universal concept of human dignity and human rights”[10] and, at regional level, the Council of Europe, for example, identifies five core areas to further professionalism, integrity and fairness within the prosecution service, one of which are the human rights and freedoms as laid down by the European Convention on Human Rights (ECHR)[11].

 

International human rights standards that are relevant for prosecutors are, for instance, the right to life (including the obligation to conduct effective investigation when individuals have been killed as a result of the use of force), and the freedom from torture, the prohibition of the use in any proceedings of statements made as a result of torture[12]. Prosecutors who are confronted by such a violation, should take all necessary steps to ensure that they themselves or those responsible for using such methods are brought to justice[13].

 

Additionally, prosecutors can be confronted with human rights abuse at different stages of their work, for instance, while investigating offences (e.g. the lawfulness of police investigations, especially that a person’s privacy is not unlawfully violated, ensuring that torture or other ill-treatment are not used during police investigations, and the right not to incriminate oneself is respected), arrest and pre-trial detention (e.g. guaranteeing the right of people deprived from their liberty, such as the freedom from torture), pre-trial procedures (e.g. bringing an individual promptly before a judge), trial procedures (e.g. guaranteeing the right to a fair trial, such as equality of arms, not holding back evidence that can discharge a person standing trial, and respecting the presumption of innocence), sentencing (the punishment of a convicted offender should not include torture) and the treatment of prisoners (who should, for instance, not be subjected to torture)[14]. Particular attention to human rights should also be paid in the state of emergency, the fight against terrorism, juvenile justice and in cases of gender-related discrimination.  

 

Footnotes

 

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

[2] Egbert Myjer, Barry Hancock and Nicolas Cowdery (eds), International Association of Prosecutors: Human Rights Manual for Prosecutors (2nd edn, WLP 2008) 1.

[3] IAP Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, rule 3(e, f).

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

[5] This includes, for instance, the UN Basic Principles on the Independence of the Judiciary Adopted by the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders (held at Milan from 26th August to 6th September 1985 and endorsed by General Assembly resolutions); Recalling the UN Basic Principles on the Independence of the Judiciary (adopted by the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders and endorsed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13th December 1985); Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary (ECOSOC resolution 1989/60); Guidelines on the Role of Prosecutors Adopted by the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 1990); Standards of Professional Responsibility And Statement of The Essential Duties and Rights of Prosecutors (adopted by the International Association of Prosecutors on 23rd April 1999); Committee of Ministers, Recommendation Rec(2000)19, The Role of Public Prosecution in the Criminal Justice System (6 October 2000); Council of Europe, Recommendation on the freedom of exercise of the profession of lawyer (2000); the Bangalore Draft Code of Judicial Conduct 2001 (adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26th November 2002); Report on European Standards as Regards the Independence of the Judicial System: Part Ii – The Prosecution Service (2010); Charter of core principles of the European legal profession and code of conduct for European lawyers (2010); the UN Implementation Guide and Project Tools (2011); Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system; UN Resolution adopted by the Human Rights Council 23/6 (2013); the Status and Role of Prosecutors, a United Nations Office on Drugs and Crime and International Association of Prosecutors Guide (2014).

[6] UN Guidelines on the role of prosecutors, rule 12.

[7] UN Guidelines on the role of prosecutors, rule 14.

[8] UN Guidelines on the role of prosecutors, rule 15.

[9] UN Guidelines on the role of prosecutors, rule 16

[10] IAP Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, rule 1(h).

[11] Especially ECHR, art 5-6. Committee of Ministers, Recommendation Rec(2000)19, The Role of Public Prosecution in the Criminal Justice System (6 October 2000).

[12] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art 15.

[13] UN Guidelines on the role of prosecutors, principle 16.

[14] For instance, see UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; UN Guidelines on the role of prosecutors, principle 16; 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.

Professional Standards