This module is a resource for lecturers
Topic two - The role of public prosecutors
The institutional and functional role of prosecutors: different models and practices
This section introduces students to the main characteristics of the organization of the prosecution service and the great variety of models and practices existing throughout the world. The purpose is to encourage critical thinking.
It is very difficult to provide a general overview of the models and practices adopted by the States to regulate the prosecutorial function in the criminal justice sector. This is due to the fact that the complexity is very high, much higher than that of the judicial function, and it is difficult to categorize the different existing practices and solutions into ideal-models or general clusters that can be useful for teaching purposes. Moreover, while the role of the judge has been the subject of extensive inter-disciplinary scholarship, the function of prosecutors has been mainly analyzed from a more legalistic perspective, in connection with criminal law and procedural criminal law and less attention has been given to the organization of prosecution services and the various dynamics that characterize them in a more general perspective. This again demonstrates the difficulty to manage the complexity and identify general trends and solutions.
For the purpose of the current Module, two questions will be addressed: a) the institutional position of the prosecutors, and b) the functional one. The former focuses on the institutional architecture and, more specifically, on the relationship between prosecutors and the political branches of the government; the latter on the relationship between prosecutors and the police in the investigative function. Both questions are important to evaluate the independence, impartiality and accountability of prosecutors and their purpose is not, of course, to promote one model as superior.
The institutional position of prosecutors
As for the first question, prosecutors can be ideally placed on a continuum defined at either end by these different organizational structures: a hierarchical structure in which the executive or legislative powers play a role, and a non-hierarchical structure in which prosecutors are part of the judiciary and enjoy similar independence. In between the two opposite 'models' there is a variety of solutions and practices which can shift from one end to the other.
The hierarchical model
The hierarchical model can be identified as a prosecutorial system in which the executive or legislative power, directly or indirectly, through a hierarchical chain, influences the general conduct of prosecutors.
In several countries, with either civil law or common law systems, the prosecution service has a hierarchical structure which is headed either by the Minister of Justice (in some States the Attorney General, who is a member of the Government) or by the Prosecutor General, who is entrusted with various powers. More specifically, in some States, the Prosecutor General is appointed (and can also be removed) by the Government, which maintains extensive powers on the prosecution service. In other States, the Prosecutor General is appointed by the Parliament and has to report to it on a regular basis.
In most cases the Prosecutor General serves as an interface between the prosecution system and the political branches and rarely engages in actual prosecution or even in the direction of subordinate prosecutors. He/she usually manages the department in which the prosecution service is located. In some cases, the link between the prosecution service and the political branches is further strengthened due to the fact that the high-ranking prosecutors (chief prosecutors) are appointed by political powers.
Ministers of Justice (or other competent authorities) can have the power to issue general policy instructions and directives, or even instructions in particular cases. In some States they have direct influence also over the career path of prosecutors and the budget of the service, as the prosecution service is regarded as a part of the Executive itself.
In Canada, for example, the decision-making function of the prosecution is independent from inappropriate political control, direction and influence. At the same time, however, since the Attorney General is fully accountable to Parliament for the prosecution function, the law ensures various measures of oversight for the exercise of prosecutorial discretion. The Attorney General may issue directives in respect of specific prosecutions or in respect of prosecutions more generally. The law moreover requires the Director of public prosecutions to notify the Attorney General about important questions of general interest, and gives the Attorney General the power to intervene in proceedings or to assume conduct of prosecutions (both activities shall be in writing and made public).The Attorney General consults with the Director of public prosecutions on policy, legislative or litigation matters which may have a significant impact on prosecutions or police powers (please see: Public Prosecution Service of Canada).
In hierarchical systems, criminal action is usually governed by the opportunity principle, i.e. discretionary investigation and prosecution. In opportunity-based systems, the exercise of discretion to prosecute is regulated by policy guidelines and instructions issued by the competent institutional authorities. Prosecutors "must assess the merits of a case relative to the elements of possible criminal offences, the adequacy and quality of the evidence, and perhaps the likelihood of conviction. In some States the prosecutorial test includes a consideration of the public interest". Discretionary decisions about whether or not to prosecute are onerous, given the serious consequences for the suspect, the victim and the community. On the other hand, prosecutorial discretion is considered an important component of modern criminal justice systems because it "allows prosecutors to place emphasis on cases with more impact" (UNODC, 2015, para. 158).
Examples: South Africa; United States
In South Africa, prosecutors may decline to prosecute even prospectively successful cases should the "public interest demand otherwise." In determining the public interest, prosecutors are supposed to consider factors such as the nature and seriousness of the offense, the interests of the victim and the broader community, and the circumstances of the offender. For example, where the offense is trivial, the accused is very old or very young, or where there are tragic personal circumstances of the accused, the case law indicates this may justify a decision not to prosecute a prospectively successful case. Prosecutors must act impartially and in good faith. They should not be influenced by factors such as their personal views regarding the nature of the offense or the race, ethnicity or national origin, sex, religious beliefs, status, political views or sexual orientation of the victim, witnesses or the offender. More broadly, they are to exercise this discretion so as to "make the prosecution process more fair, transparent, consistent and predictable". A court will not interfere with a bona fide (good faith) decision to prosecute or not to prosecute. However, the exercise of discretion by a Director of Public Prosecution can be reviewed by the courts on the basis of ordinary administrative law grounds of review, such as male fides (bad faith) (Du Plessis, Redpath and Schonteich, 2008, p. 360).
A complex system is adopted in the U.S. At the federal level, the U.S. Federal Prosecutors are part of the Department of Justice, the Executive branch, which is headed by the Attorney General, a cabinet level position appointed by the President. Federal prosecutors are guided by the Department of Justice's policies when applying discretion in their decision-making activity. The Attorney General may have priorities or initiatives to be emphasized through the various Federal prosecutors.
By contrast, at the State level, most Chief Prosecutors, often called District Attorneys (DAs), are elected in local popular elections. They are independent from the political branches. By electing them, people authorize the DAs to establish policies for implementing the law, which may vary among the prosecutors' offices (depending on specific strategies and budgets) and over time to reflect the need to respond to particular crime trends or problem areas. Prosecutors exercise their discretion in screening cases to determine when prosecution is not justified (in the public interest or in the interest of justice). They may decline to prosecute a case, and generally neither federal nor state courts have the authority to review such decisions. As a practical matter, such decisions must be based on reasons that are provided to and understandable by victims, police, and the public. DAs can find guidance for establishing policies for screening, charging, diversion, etc. in the National District Attorneys Association (NDAA), National Prosecution Standards (Gramchow, 2008, p. 393 and 410).
The advantages and disadvantages of hierarchical systems
Hierarchical systems have some pros and cons. On the one hand, they can improve legal certainty by facilitating the uniform implementation of criminal policies, as determined by political authorities and carried out by prosecutors. Criminal policies may vary from one district to another (especially where offices are organized by geographic areas) to respond to different prosecution strategies and problem areas. Hierarchical systems also foster mechanisms of accountability, both for prosecutors, with respect to the directives/instructions issued by political authorities; and for political authorities, towards the general public for their policy choices. On the other hand, the influence of political authorities on the prosecution service cannot be denied, and the independence of the prosecutors is inevitably reduced. In such a context, for example, some scholars have argued, the prosecution of political corruption (involving, for example, members of the executive power) might become quite difficult, due to the possible reluctance of police and public prosecutors to investigate and prosecute cases of government corruption and human rights abuse (see for example IACHR, Guarantees for the independence of justice operators, par. 39). The major risk connected to hierarchical systems is the power of the Executive or the Legislature to improperly influence the decision about whether or not to prosecute in specific cases.
Several countries have introduced reforms to avoid the risks of biased influence by the Executive or Legislature. In France, for example, it has been established that the Minister of Justice may only give the public prosecutor instructions in writing, when relating to individual cases. This provision is intended to make more visible, hence accountable, the exercise of the hierarchical power of the Minister of Justice. Another measure that has been adopted is the introduction of councils of prosecutors (they exist, for example, in Spain and Portugal). These councils are self-governing bodies composed also of prosecutors which participate - sometimes with mere advisory powers - in the decision-making processes concerning the status of prosecutors, including - where appropriate - promotions, transfers, discipline, etc. Their opinions are usually taken into consideration by the Executive, because of the competence and the prestige of these councils.
The problem has also been addressed by the development of standards at both the international and institutional levels. According to the United Nations Guidelines on the Role of Prosecutors, in countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution (1990, p. 17). If non-prosecutorial authorities have the right to give general or specific instructions to prosecutors, such instructions should be: transparent; consistent with lawful authority; subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence. At the institutional level, and in an effort to provide standards to prosecution services around the world, the IAP developed the Standards of professional responsibility and Statement of the essential duties and rights of prosecutors, which state that "Where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees that transparency and equity are respected in accordance with national law" (International Association of Prosecutors, 1999, para. 2).
Thus, what is really important is that prosecutors should be functionally independent and impartial in the substance of their investigative and decision-making function. This implies that prosecutors' individual investigative and charging decisions should not be directly affected by the interests of political actors, but only by general, transparent, pre-existing guidelines legitimately determined in the political process.
In 2017, some associations of judges and prosecutors challenged before the Conseil Constitutionnel the traditional subordination of the prosecution service to the French Ministry of justice. They claimed that such subordination is in contrast with the principles of independence of judges and prosecutors, provided for by the French Constitution (Article 64), and of separation of powers.
According to the Conseil's stand , the subordination of the prosecution servicedoes not infringe the principles mentioned above, but, on the contrary, represents a balance between the independence of judges and prosecutors and the prerogatives of the Executive, recognized by art. 20 of the Constitution. The Executive, in fact, determines and manages national policies, including those in the domain of the prosecution service. Prosecutors, on the other hand, enjoy independence and impartiality, considering that the general instructions of criminal policy are inscribed in the code of criminal procedure and prosecutors are free to formulate their oral arguments in the judicial process (Judgment No. 2017-680 QPC, 2017).
The judicial model
The second model is non-hierarchical or 'judicial'. In models of this kind, the prosecutors are part of the judiciary and have no ties with the executive and legislative branches.
In judicial models, prosecutors are fully independent from the political branches and enjoy the same guarantees as judges. As a consequence, their institutional independence is very high: they are not part of a hierarchical structure and the Executive or Legislature cannot in any way issue instructions to them. The independence is further enhanced, in some countries, thanks to the presence of self-governing councils in which prosecutors (and sometimes also judges) are represented. All decisions concerning the status of prosecutors, from recruitment to retirement, are concentrated exclusively in the hands of these councils, and the political powers play no role. Some cooperation between the councils and the Executive may be possible as regards, for example, the management of financial resources and about matters concerning courts' administration.
Prosecutors usually have a monopoly in initiating criminal action and such a monopoly is exercised in full independence, i.e. without any of the direct or indirect forms of political accountability existing in other countries. They can pursue crimes in full independence, i.e. without taking into account the choices of criminal policy that - in the hierarchical systems - are made by subjects that are politically accountable.
Criminal action is regulated by the principle of compulsory prosecution, which requires that a criminal action must always be initiated if there are sufficient grounds. In other words, the prosecutor is required to prosecute every case where there is sufficient evidence to sustain a prosecution. The judge is usually entrusted with the final check on the decision to prosecute or not and therefore there is a mechanism of internal control on the activity of prosecutors, since judges and prosecutors belong to the same professional corps. At the end of investigation, in fact, prosecutors must get judicial approval for both the dismissal of the case or (but for minor crimes) the formal indictment of the suspect. In a regime of compulsory criminal action public prosecutors may not close a case, only judges have such power. Accountability of prosecutors is not of a political or democratic nature, but is rather of an internal type.
The advantages and disadvantages of judicial models
There are some pros and cons relating to judicial models. On the one hand, prosecutors enjoy full independence from the political branches of the government, and this formally prevents prosecutors from any possible external influence. On the other hand, since judges and prosecutors form a single professional body (and have equivalent status, salary and career), the assimilation of the two actors responsible for criminal initiative and adjudication undermines the image - and also the role - of the judge as a third party. There is, in fact, a connection (and a sort of solidarity) between the judge and the prosecutor which places the prosecutor in a more favorable position with respect to the suspect and the defense lawyer (see also IACHR, 2013, para. 43). This also implies the risk that public confidence in the fairness and objectivity of the criminal justice process can be compromised. In fact, "in the eyes of persons accused of criminal activity and society as a whole, there should be no perception of collaboration or collusion between the officers responsible for prosecution and the judiciary sitting as finder of law and fact, or confusion between their respective functions" (UNODC, 2015, para. 148).
Another important concern pertains to prosecutors' accountability and the pragmatic effects of mandatory prosecution. While mandatory prosecution appears to reduce the scope of prosecutorial discretion, or even remove it, in actual fact it serves, de facto, to widen discretion, without supplementing it with adequate accountability.
The principle of mandatory prosecution is unrealistic, since it is impossible to prosecute all crimes. The rise in the number and complexity of the crimes committed has made this phenomenon ever more visible. The choices of priorities in the exercise of criminal initiative has become of ever-increasing importance in terms of the effectiveness of public policies in the criminal sector, and for guaranteeing an efficient use of the investigative and judicial resources. In judicial models the choice of priorities, and with it a good part of the choices in the sector of criminal policies, is de facto made by the prosecutors who carry no responsibility for such choices (Di Federico, 1998). The absence of effective hierarchical controls and the independence of prosecutors are such that the criteria on which choices are made may vary not only from one office to another but also within the single office. In such a context, it cannot be denied that the prosecutors' discretionary choices might also be governed by prosecutors' personal orientations, political objectives or partisan reasons (Di Federico, 1998).
The effect of mandatory prosecution, when coupled with strong norms of prosecutorial independence, is to afford prosecutors nearly unrestricted and unaccountable discretion in practice and an informal influence over public policy in the criminal sector (Waters, 2008, 54). This also significantly increases prosecutors' power with respect to other social and institutional actors, since it is relatively difficult for external actors to oppose any action a prosecutor undertakes, regardless of expense or intrusiveness.
This is a long-standing debate in some civil law countries and efforts are taken to better regulate prosecutorial discretion through pre-established and more transparent priorities in the exercise of criminal action.
In 1992 a chief of the prosecutor's office in Italy, decided on his own initiative to investigate the relationship between the Freemasons and organized crime. In 1994 he extended his investigations to members of a new political party. Under his direction, the police conducted investigations covering the entire country. So much material was collected that the Ministry of Justice rented a warehouse in which to store it and hired computer specialists to retrieve it. The media followed the investigations with great interest due to the importance of the people actually or potentially involved. The chief prosecutor acquired national fame and was praised for his independence in conducting investigations without regard to the position of the suspects. On February 25, 2001, the case was finally brought before a judge. The judge closed the case, saying that no indications could be found in the monumental documentation that a single crime had been committed. He also stated that no indications could be found even to justify the investigation. No questions were raised about the vast resources wasted without cause. After all, a specific article of the Code of Criminal Procedure allows a prosecutor to initiate an investigation to ascertain whether a crime has been committed. The more than 60 people investigated for more than eight years did not even receive formal apologies (Di Federico, 2008b).
Since 2016 a new regulation of the Superior Council of the magistracy allows chief prosecutors to fix priorities for the exercise of criminal action to be applied by prosecutors of their relevant office. This is not an obligation, however, but a simple choice in the hands of each chief prosecutor.
The functional role of prosecutors
With respect to their functional role, the degree of involvement of prosecutors in investigative activities is extremely variable. While in some systems prosecutors direct police investigation, in others they do not deal with investigations or simply act as 'legal advisors' of the police forces. To give an ideal representation, prosecutors can be placed on a continuum defined at either end by different functional powers: a model in which prosecutors are primarily responsible for investigations and coordinate the police activity, and a model in which the prosecutors are excluded from the investigative phase, which remains the exclusive domain of the police. In between the two models there are various solutions and practices ( Module 5 on Police Accountability, Integrity and Oversight provides more information about the role of police).
Prosecutor as dominus of investigations
In the first model, the prosecutor is considered the dominus of investigations and has the power to direct the judicial police in the course of the criminal investigative phase. The police are directed by prosecutors and subject to their instructions. Prosecutors can have the power and the duty to initiate the investigation themselves, even in the absence of reports of the police or other parties, whenever they personally deem, for whatever reason, that a violation of the law has been committed. In some countries, the responsibility for leading investigations may also be shared with 'investigative judges', who usually lead investigations in more serious cases.
This model presents some pros and cons. It can facilitate coordination and enhance the effectiveness of the investigative activities, which are the responsibility of the sole prosecutors. There is very little room for the Executive, to which the police usually belong, to interfere with investigations. On the other hand, however, both the decisions about investigation and prosecution are concentrated in the hands of prosecutors, without the necessary 'distance' that would allow prosecutors to decide about prosecution in an impartial and objective way (without being influenced by the investigative activity). In fact, being directly involved in the investigation, prosecutors might be inclined to behave as police officers, with the purpose of pursuing the suspect's conviction, rather than as neutral 'guardians of the law'.
Prosecutor not having supervisory authority over the police
In the second model, the investigative function and the exercise of criminal action are separated. The police are exclusively entrusted with investigations, while prosecutors, having received the documentation related to police enquiries, shall decide, in full autonomy, whether to go ahead with criminal initiative. Prosecutors are therefore in a position to make an evaluation of the evidence collected by the police in a detached ('quasi-judicial') manner. This procedural arrangement "places the prosecution service as a filter between the police investigation and formal criminal proceedings before the judiciary, as a review measure to ensure that the rights of the person suspected of criminal activity are protected and have been respected during the course of the criminal investigation" (UNODC, 2015, para. 145).
Also in this case there are pros and cons. This model is intended to prevent that the emotional involvement of prosecutors in the investigation could undermine the objectivity in the evaluation of the effective relevance of the evidence gathered (as has been said, the aim is to avoid any emergence of a ' hunter's syndrome' on the part of the prosecutor in the exercise of criminal initiative). It also helps to prevent miscarriages of justice in that there is an independent body - the prosecutor's office - that reviews the investigation and decides whether the case should proceed to trial. Upon receiving the investigation report, it is the prosecution service that decides what action should be taken, which could include the initiation of a prosecution against the person, requesting further investigation into the matter, or declining to prosecute the case at all.
Conversely, possible concerns may include the need to limit - to a certain extent - the discretion of the police to decide which cases should be put before the prosecutors, and the need to guarantee a certain uniformity and objectivity in the police action, avoiding improper and undue influence by the Executive or other agencies. Moreover, because of the separation of the police and prosecutor roles, the prosecutor "will often only see evidence generated as the result of the police investigation against a particular criminal suspect rather than the full range of evidence" and potential suspects considered during the course of the investigation. This risk could be reduced by collaborative work between the police and prosecutors, and the role of the mutual check that they perform one against the other (UNODC, 2015, para. 167).
Example: United States
In some countries, despite the distinction between investigation and criminal action, there are mechanisms in place to ensure a close cooperation between police and prosecutor offices at the investigative stage, especially in relation to complex cases. This does not, however, obviate the requirement that the prosecutor conduct an independent review of the evidence to determine whether a case warrants formal prosecution.
In the U.S., for example, the State prosecution offices handle the large majority of criminal cases. Most Chief Prosecutors, often called District Attorneys (DAs), are elected in local popular elections. The elections are an indicator of the DA's ability to connect with the community and other justice agencies. DAs' offices do not have supervisory authority over police investigative activities. They may, however, provide legal guidance, particularly for conducting investigative activities that require judicial approval, such as arrest, and search warrants and wiretaps. The role of the prosecutor's office in these instances is to ensure that these intrusive investigative measures are legally sound, so that the court provides authorization, the investigation is lawful, and investigative efforts are not tainted. These activities require close cooperation between police and prosecution. For example, to ensure that a search of a suspect's home is conducted lawfully, police will often not only have a set of detailed procedural guidelines (often developed with the legal advice of the prosecutor's office), but will request legal advice right before, and sometimes while, the search is conducted. This requires an assistant DA with knowledge of such operations to be on call. To provide this support to law enforcement agencies, larger offices in urban areas assign prosecutors to be available 24 hours a day, seven days a week.
Accordingly, DAs' offices generally strive to develop good cooperative relationships with their law enforcement counterparts, as a means of ensuring successful investigations that produce evidence that holds up in court. Prosecutors need competent investigations in order to prosecute successfully, and police want their cases prosecuted (Gramchow, 2008, p. 409-417).