This module is a resource for lecturers
Topic two - The role of public prosecutors
General issues. Public prosecutors as the 'gate keepers' of criminal justice
This section illustrates the main characteristics of the role of prosecutors in society and it introduces students to the concepts of prosecutorial independence and impartiality.
Public prosecutors perform a crucial role in society. They are the ' gate keepers' of criminal justice, insofar as without their initiative there cannot be the prosecution and repression of crimes. Prosecution services are, in fact, society's principal means of pursuing punishment of criminal behaviour and its interface with the adjudicative power. Only cases that are brought to courts by public prosecutors can be processed and adjudicated by judges. Other forms of prosecution (like private prosecution) exist only in a few countries and apply in limited circumstances.
Prosecutors are required to apply the law to criminal cases, protect the rights of the persons involved in criminal proceedings, respect human dignity and fundamental rights, and ensure public security. In many countries, prosecutors also play a key role in applying and defining criminal policy by using their discretion, including adapting to social and societal changes. In some countries prosecutors also have competence in civil proceedings, to secure the protection of the rights, freedoms and interests of juveniles, elderly or disabled persons, or persons who, due to their state of health, are unable to take proceedings.
In criminal cases, prosecutors are responsible for representing not only the interests of society at large, but also those of victims of crimes. They also have duties to other individuals, including persons suspected of a crime and witnesses.
Legal systems in fact (sometimes the Constitutions) usually prescribe some fundamental rights to be granted to victims of crimes, suspects, and witnesses, for which prosecutors are primarily responsible. It is advisable that victims be informed and heard on matters of bail or conditional release, trial preparation, plea negotiation, sentencing recommendations and restitution ( Module 11 on Justice for Victims provides more information on the rights of victims). Such rights also extend to suspects of crimes and usually include the rights to remain silent, to a public trial within a reasonable time, to a presumption of innocence until proven guilty, to have full access to evidence presented against them, to be represented by legal counsel and to have the assistance of an interpreter when necessary. The role of witnesses is also crucial in criminal process, as they must be protected from possible pressure and bias. "All these rights are central to the protection and preservation of human rights for all persons, at all stages of criminal proceedings, and the responsibility of the prosecutor includes the safeguarding of those rights whenever possible" (UNODC, 2015, para. 141).
Prosecutors must also ensure that justice is done when public behaviours are at stake. To this end, they must be committed to the rule of law and safeguard the lawfulness of public actions. Prosecutors "shall control the State actions by bringing to the attention of the courts any instance of unlawful or corrupt behaviour by agents of the State or other officials in positions of authority and by prosecuting such offenders to the full extent of the law. In cases involving corruption, abuse of power, grave human rights violations, and other crimes committed by public officials, the role of prosecutors is particularly important and delicate" (Dandurand, 2007).
In short, effective prosecution services, with well trained and adequately empowered and equipped prosecutors, committed to the rule of law values, contribute to tackle impunity, protect citizens' rights, and ensure the lawfulness of State actions (Dandurand, 2007). In doing so, the United Nations Guidelines on the Role of Prosecutors states that "prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system" (1990, p. 12).
The characteristics of the prosecutors' role are different from those of the judicial role, as illustrated in Topic One. While the judge is entrusted with decision-making power, and he/she cannot initiate judicial process, the prosecutor's primary function is to initiate and conduct criminal action, to act as a party in judicial proceedings and, in many countries, to supervise and direct the police during the investigative phase. In some criminal justice systems, prosecutors also: ensure that victims are effectively assisted; decide on alternatives to prosecution; offer assistance to the court in reaching its decision as to the appropriate sentence; supervise the execution of court decisions.
The distinction between an agent (the prosecutor) in charge of investigation and criminal prosecution and another agent (the judge) in charge of adjudication is at the basis of most criminal justice systems and contributes to enhance the independence and impartiality of the judge. Judges, in fact, being not directly involved in investigation and prosecution, can better safeguard their neutral and detached position in the judicial process.
As far as criminal action is specifically concerned, the role of public prosecutors implies two kinds of activities that are functionally related but different in nature. One is investigative and encompasses the activities necessary to identify the suspects of a crime and to gather the evidence needed to prove their guilt; during investigation prosecutors also take proper account of the position of the victims, considering their views and concerns and ensuring that they are informed of their rights. The other is forensic and concerns the presentation of evidence to a judge who has the power to decide whether the case ought to be prosecuted, and/or to decide whether the suspect is innocent or guilty. In the different criminal systems these two functions are concentrated in various ways in the hands of the public prosecutor or shared with other subjects (police, investigating magistrate, private parties, etc.) (Di Federico, 1998).
The role of prosecutors has also evolved considerably, reflecting the growing international dimension of crime phenomena, such as organized crime and corruption. National criminal justice systems have proven to be insufficient and/or ineffective with respect to international and transnational crime. The need for strengthened international cooperation in investigation and prosecution activities has led prosecutors to seek to transcend national borders (Dandurand, 2007). This has confronted prosecutors with new difficult challenges and has made the prosecutor's duties and responsibilities increasingly complex (for example, they are often members of inter-disciplinary teams, together with specialists from other disciplines, and they are expected to exercise new leadership skills). Thus, the efficient and effective prosecution increasingly requires that prosecutors' activities be - to varying degrees - coordinated with those of other prosecutors' offices, also at the international and regional levels.
One regional network that fulfils this function is the West African Network of Central Authorities and Prosecutors against Organized Crime (WACAP) comprises representatives from the 15 countries of the Economic Community of West African States (ECOWAS) and from Mauritania, with the purpose of operating as a point of "exchange of information and good practices between prosecutors, practitioners and law enforcement practitioners on international cooperation in criminal matters" (WCAP, n.d.).
In addition, some networks are also important standard setting entities. For example, the International Association of Prosecutors (IAP) and the Network of Prosecutors against Organized Crime, and the Consultative Council of European Prosecutors (Ccpe). The Ccpe is composed of high-level prosecutors of the Council of Europe member States. It has various tasks, including: to prepare opinions for the Committee of Ministers of the Council of Europe (CoE) on issues related to the prosecution service; to promote the implementation of CoE recommendations concerning the role of public prosecution in the criminal justice system; and to collect information about the functioning of prosecution services in Europe. Its opinions have great influence in the CoE system and in the European Union.
Example: Azerbaijan: International conference on the role and independence of lawyers organized in Baku
On 15 and 16 November 2018, the ICJ, jointly with the Council of Europe (CoE) and the Azerbaijan Bar Association (ABA), held its annual international conference in Baku on "the Role and Independence of Lawyers: comparative perspectives".The conference, which is the first such event on the role and independence of the legal profession organized in the country, aimed to bring together perspectives on the governance and role of the legal profession from international experts and representatives from a wide range of countries, including the CoE countries, Central Asian as well as representatives of international organizations.
To function effectively, a prosecution service must be able to provide neutral, non-political, non-arbitrary decision-making about the application of criminal law to real cases. An undue, improper or partisan use of criminal investigation may have devastating consequences for the protection of civil rights and the equal treatment of the citizens before the law (criminal investigation often is, de facto, a sanction in itself, which may continue for years before any judicial review). Consequently, to fulfil its institutional mission, the prosecution service shall exhibit independence and impartiality in performing its functions. Prosecutors shall be free from any political and undue pressure and influence.
Independence and impartiality are essential values of the prosecutorial role, but some clarifications are needed. Independence, in fact, assumes a peculiar meaning with respect to that of judges and judiciaries. Unlike judges, whose independence is essentially inherent to their role, prosecutors may enjoy lower levels of institutional and operational independence. Although some States create an analogy between judicial and prosecutorial independence, usually the independence afforded to the prosecution service (and individual prosecutors) differs to that of the judiciary (and individual judges), in the sense that:
- In many countries, prosecutors enjoy less independence because of the hierarchical structure of the prosecution service. The rationale lies both in historical legacies and in the functional role of the prosecutor. Being instrumental to the implementation of public policies in the criminal sector, prosecutors' activity can be steered by the authorities that are politically accountable for the implementation of such policies.
- If non-prosecutorial authorities or high-level prosecutors (or other authorities) have the right to give general or specific instructions to prosecutors, such instructions have to be transparent and subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence. The level of transparency actually varies from one country to the other.
- The different constitutional, institutional and legal arrangements must be considered comprehensively and not in isolation. In some countries, for example, the institutional dependence of prosecutors on the executive branch is the accepted status quo, nonetheless they maintain a certain degree of discretion with respect to decision-making.
- A certain degree of discretion always affects the prosecutors' activity, even in countries that do not formally recognize it. This is due to various reasons: laws are written in quite abstract terms to fit a broad range of situations, hence prosecutors may have some discretion in applying the law to specific facts; financial resources and time are limited, and prosecutors have some discretion to identify the cases requiring more effort, hence reducing the effort on other cases.
A certain degree of institutional independence is indispensable to guarantee prosecutorial impartiality in the concrete exercise of investigation and prosecution function. Independence is, in fact, ultimately instrumental to impartiality. It is therefore a general obligation of all States according to the United Nations Guidelines on the Role of Prosecutors to ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability. In the performance of their duties, prosecutors shall protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect (1990, p. 4 and 13).
Their role is not to win convictions at any cost but to put before the court all available, relevant, and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused. The role of prosecutors, as found by the Supreme Court of Canada in Boucher v. The Queen , "excludes any notion of winning or losing; their function is a matter of public duty (...). It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings" (1955, p. 23-24).
This is an important principle which is shared by most criminal justice systems. A prosecutor "must ensure that all necessary and reasonable inquiries are made and the result disclosed to the suspect, whether that points towards the guilt or the innocence of a suspect. A prosecutor's duty is, in fact, to search for the truth, assist the court to arrive at the truth and to restore justice among the community, the victim and the accused according to the law and the dictates of conscience" (UNODC, 2015, para. 163; Open Society, 2008; Seibert-Fohr, 2011). Prosecutors may, however, feel pressure to secure a conviction for a criminal case, coming from the victim, the victim's family, victim advocacy groups, the media, the general public, other prosecutors, etc. This pressure can lead to 'conviction psychology,' which is the overemphasis on obtaining convictions at the expense of seeking to 'do justice'. To avoid this, prosecutors are required to achieve a delicate balance between the different requirements and expectations.
A second challenge is the ethical obligation to believe in the case being prosecuted. This obligation may simply manifest itself as a product of the prosecutor's sense of their fundamental role in serving justice. It has been noted that this approach can lead to 'tunnel vision' by prosecutors which "can compromise their objectivity - because prosecutors seeking to do justice must first satisfy themselves of a person's guilt as a precondition to the decision that a criminal conviction is the just result" (UNODC, 2015, para. 166).
In South-Africa, for example, prosecutors' primary function is 'to assist the court in ascertaining the truth'. A prosecutor is ethically bound to display the highest degree of fairness to an accused. Thus, information favorable to the defense must be disclosed, and if there is a discrepancy between a witness's oral testimony in court and earlier written statement, the prosecutor must draw attention to this fact and make the written statement available to the defense for purposes of cross-examination. In practice, however, prosecutors' performance is measured predominantly by their conviction rate - the number of successful convictions as a proportion of prosecutions. Consequently, there is pressure on prosecutors to: (a) secure a conviction where a prosecution has been initiated, and (b) to decline to initiate a prosecution unless a conviction is assured (Du Plessis, Redpath and Schonteich, 2008, p. 359).
Independence and impartiality are essential means to prevent and combat corruption within the prosecution services, by reducing opportunities for corrupt officials to interfere in investigations/criminal action. Prosecutors contribute to the fairness and effectiveness of prosecutions (and judicial process) through cooperation with the police, the courts, defence counsel and relevant government agencies, whether nationally or internationally. Preventing and avoiding corruption is therefore essential for prosecutors properly performing their role. In those States where the prosecution service forms part of the judiciary, or enjoys independence similar to that of the judicial service, measures to the same effect as those taken with respect to the judiciary may be applied to the prosecution service as well (UNODC, 2015, para. 137). Other measures to limit the risk of improper interference on prosecutorial activity can include, for example, judicial review, the prohibition of instructions in individual cases, procedures requiring any such instructions to be given in writing and made public, any other mechanisms ensuring the consistency and transparency of prosecutors' decision making.
The - more or less discretionary - power assigned to prosecutors poses important questions as far as their accountability is concerned. According to the fundamental principles of the rule of law, wherever criminal justice institutions are given discretion and authority to take decisions themselves, there is a need to ensure that actors and agencies responsible are held accountable for the decisions that they make (Dandurand, 2007). Hence, prosecutors, as well as judges, must be held accountable for their actions and different measures can be put in place.
Besides the general principles, the analysis of the main characteristics of the role of prosecutors has to necessarily consider that the organization of the prosecution service varies considerably from country to country and several configurations may be possible, depending on various elements and practices which are rooted in different legal cultures. The main components that can affect prosecutors' activity can be identified as follows:
- Criminal justice systems which are adversarial in nature and those which are inquisitorial;
- Systems where prosecutors are entrusted with criminal investigation and those where prosecutors are excluded from the investigative phase, in which case investigation remains the exclusive domain of the police (or other investigative agencies); the investigation and prosecution functions are therefore separate and independent, even though some cooperation is possible;
- Systems where prosecution is mandatory (according to the legality principle) and others where the prosecutor has discretion not to prosecute (following the opportunity principle) if, for example, the public interest does not demand it;
- Systems where the public prosecution service is centralized, and those where it is decentralized;
- Systems where prosecutors and judges belong to a single professional corps and others where they are entirely separate;
- Some systems allow for private prosecution while others do not do so, or recognise the possibility of private prosecution only on a limited basis;
- Systems where prosecutors are subject to the directives and supervision of subjects that bear political responsibility for their activities (hierarchical structure) and system where prosecutors enjoy guarantees of independence that are similar to those of judges;
Systems where high ranking prosecutors may intervene directly in a subordinate's case (highest prosecutors may also be an interface between the prosecution service and the political branches) and those where the single prosecutor enjoys greater independence.
Topic two - The institutional and functional role of prosecutors: different models and practices