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  This module is a resource for lecturers   
 
Topic two - The role of public prosecutors
 

Other factors affecting the role of prosecutors: appointment, tenure and conduct

 

There are other important factors that are useful to guarantee the proper functioning of prosecution services. Among them, it is worth mentioning appointment, security of tenure, and conduct.

International standards such as the United Nations Guidelines on the Role of Prosecutors provide that the persons hired as prosecutors shall be "individuals of integrity and ability, with appropriate training and qualifications". They, moreover, need to be "aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law" (1990, para. 1-2).

To this end, prosecutors shall be entitled to non-discriminatory recruitment and promotion procedures, based on objective factors, professional qualifications, ability, integrity, performance and experience, and decided upon in accordance with fair and impartial procedures. States should also ensure that prosecutors receive appropriate training on the scope of their role.

Appointment procedures vary considerably among the States. In countries where prosecutors and judges belong to the same corps the provisions concerning appointment, promotions and career, salary, transfer, and discipline are the same. Conversely, in countries where prosecutors and judges are separated, the recruitment procedures are different, even though in some States judges and prosecutors share a common period of initial training.

Example: Germany

In Germany, for example, before appointment, prosecutors and judges need to undertake a two year post-graduate training, which is common to all the legal professions (including also lawyers and notaries) (Guarnieri and Pederzoli, 2002).

Conditions of service must be secured by law or published rules or regulations. They include for example adequate remuneration and, where applicable, security of tenure, pension and age of retirement. Adequate remuneration, commensurate with the crucial role performed by prosecutors, is essential for an efficient and just criminal justice system and reduces the risk of possible corruption practices. Prosecutors, moreover, shall not have their salaries or other benefits arbitrarily diminished.

Prosecution services need to be equipped with adequate resources to properly perform their function. States should take effective measures to guarantee adequate legal and organizational conditions, as well as adequate budgetary means. Such conditions should be established in close cooperation with the representatives of the prosecutors.

To perform their key role in upholding the rule of law in criminal justice matters, it is critical that prosecutors conduct themselves with integrity and with the full respect for the ethics of their position. They must "not only maintain the honour and dignity of their profession, but also conduct themselves professionally, in accordance with the law and the rules and ethics of their profession, exercising the highest standards of integrity and care, servicing and protecting the public interest and respecting human dignity and human rights" (GA Resolution 58/4, Article 11). Prosecutors' misconducts may lead to appropriate sanctions.

Codes of professional conduct and other established standards and ethics have been adopted by several countries to strengthen integrity and prevent opportunities for corruption among prosecutors. Ethics and training programmes for prosecutors have been developed in several countries, also thanks to the support of specialized institutions (National Schools).

Key Debate

Ethics and training programmes have been developed in some countries on the protection of confidentiality and privacy in criminal proceedings.

In criminal justice settings, confidentiality is even more important than in other sectors, because of the presumption of innocence until final conviction. If care is not taken, a person accused of a crime can face prejudice in the media or public before evidence is ever presented in court and, once such opinions are formed, they can be difficult if not impossible to change, regardless of the eventual outcome of the case.

It is nevertheless a common occurrence that the prosecutor will receive requests from the media - particularly in high profile cases - for information about the case or the proceedings. In such cases, "the prosecutor should certainly facilitate the media's access to information regarding the stage of the proceedings, upcoming public hearings or other judicial activity, while at the same time balancing the need for confidentiality of evidence or other information not clearly in the immediate public interest" (UNODC, 2015, para. 175).

 
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