Public Prosecution Service
12.2.1 Overview
Public Prosecution Services may form independent institutions (as it is predominantly the case in Common law countries and some other countries) or be part of the judiciary enjoying functional autonomy.
As the judicial systems are rooted in the legal cultures and traditions of the countries this is the more true for the prosecution services as well: there are important differences in criminal law proceedings between adversarial systems and inquisitorial systems, systems with a judicial control of investigations and those with non-judicial (prosecutorial or police) investigations.[873] The systems also differ between the mandatory duty of prosecution (legality principle) and the discretionary prosecution in the public interest (opportunity principle) or a combination of both (mixed systems); there are systems with the participation of lay judges in the fact finding and incriminating procedure and systems even allowing private prosecutions or private participation in the prosecution procedure.[874] As the Venice Commission states in its Report on Independence of the Judiciary (Part II: Public Prosecution Service) the different systems especially in Common Law countries and Civil Law countries are largely converging, thus recognising e.g. the institution of a public prosecutor (civil law origin) or the jury (originally coming from Common law systems).[875] For centuries France had known the involvement of an investigative judge, “juge d’instruction”, who played a more important role than the public prosecutors. This role had been practised in Russia and the Soviet Union and is still in place in countries like Spain, Belgium, the Netherlands, but also Greece. Since 1985 France has been gradually reducing the power of the “juge d’instruction” and only “jugez de libertes et de la detention” can now order custody.[876]Public prosecutor(s) may be defined as “public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system”.[877]
Apart from specific tasks and functions in some criminal systems they are obliged to
• decide on the initiation or continuation of prosecutions
• conduct prosecutions before the courts
• may appeal or conduct appeals concerning court decisions.[878]
As prosecutorial services and proceedings are largely left to the legislative regulation in criminal codes of procedure or by-laws Table 12.4 can only focus on some essential elements of public prosecution which apparently could be regulated on a constitutional level or be delegated to the legislator (legal reservation): model of organisation—qualification and appointment—independence and accountability.
12.2.2 Remarks
Even if remarkable differences in the systems of prosecutorial services still exist, the increasing convergence between the status of prosecutors in common law and civil law countries invites to formulate common standards for the status and exercise of the prosecutorial function.[879]
Although the status and function are different from “ordinary judges”, public prosecutors can be perceived as part of the judiciary in a functional sense. As the Rome Charter of the Consultative Council of European Prosecutors (2014) indicates: “The independence and autonomy and accountability of the Prosecution service constitutes an indispensable corollary to the independence of the judi- ciary”.[880] The independence of public prosecutors vis a vis the other state powers and the judiciary itself (external and internal interference) should therefore be uphold and guaranteed to the maximum possible in the different organisational structures: the formal assignment of the Public Prosecutorial Service within or outside the judiciary is much less important than the substantial role, independence, rules on appointment and dismissal to be guaranteed on the constitutional level or eventually be delegated to the legislator, preferably with qualified majorities in the parliamentary chambers.[881]
As there is no common standard for more independence and autonomy of the prosecution services, basic elements should be regulated on the constitutional level, especially in more recent democracies and constitutions; in older democracies the role of the public prosecutor often has not attained explicit constitutional regulation but is left to the legislative power and traditions (e.g. UK; Canada, Australia).
Table 12.4 | | The organisation of public prosecution in a constitution
| Model of organisation | Qualification and nomination | Independence & accountability |
| Europe: variety of models: see Rec (2000) 19, Explanatory Memorandum, p. 11 (fn. 78) French model of “Ministere Public” monopoly of prosecution: “inquisitorial system”:“Anglo-Saxon” model of original initiation by victims or police: “adversarial system” Part of judiciary: France: art. 64: the notion “magistrats” comprises judges and prosecutorsa Austria: art. 90 a B-VG Netherlands: art. 117 Germany: no express regulation in BL Denmark: Belgium: art. 151, § 1 Italy: art. 107 par. 4 Spain: art. 124: functional description, organisational principles; organic law; Sweden RF Poland; Czech Republic; Hungary: art. 29 (4th amendment 2013)b Georgia (2017/2018): art. 65 Romania: art. 131 | UN Guidelines on the Role of Prosecutors; Havana 27/8-7/9 1990: qualification and criteria “1. Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications” at 2: safeguards against appointments based on partiality or prejudice excluding specific discriminations Venice Commission CDL-AD (2010) 040: Prosecutor General: no unique model of appointment but certain safeguards: in states without subordination to Government advice on professional qualifications by representatives of legal community in states with parliamentary elections reduction of politisation by certain mechanisms, e.g election by a parliamentary committee with advice of experts, election by a qualified majority; no re-eligibilityc | Tendency to extend prosecutorial independence even in countries where prosecutors office is subordinated to Ministry of Justice;d Safeguards against undue interference see Recommendation (2000) 19, at 13 (fn. 78): reservation by law transparent exercise of powers in conformity with general principles of law written instructions to be published when instructing in specific cases adequate guarantees for transparency and equity mandatory freedom of Public Prosecutor to submit any legal argument to the Court -instruction not to prosecute in a specific case should generally be prohibited. Guarantees for maintenance of prosecutorial independence in countries where there is no subordination to governmente Prosecution of public officials without obstruction by statef Recommendation (2012) 11 of Committee of Ministers of Council of Europe: Role of Public Prosecutor outside criminal proceedings |
| Russia: art. 129 par. 1: “single centralized structure”g | Russia: General Prosecutor: appointment (5 years) & dismissal by Council of Federation on proposal by President: art. 129 par. 2 | |
| Turkey: art. 140 | ||
| Other prosecutors | ||
| Venice Commission CDL-AD (2010) 040: various methods to reduce hierarchical influence: § 48 “In order to prepare the | Venice Commission CDL-AD (2006) 029: dismissal to be prescribed by law; preferably on constitutional levelh |
Table 12.4 (continued)
| Model of organisation | Qualification and nomination | Independence & accountability |
| appointment of qualified prosecutors expert input will be useful”; § 50: “Prosecutors should be appointed until retirement” | Disciplinary measures: Venice Commission CDL-AD (2010) 040: § 52 “... the prosecutor should also have a right to be heard”; “An appeal to court against disciplinary sanctions should be available” | |
| South Africa: Public Prosecution Service in Chap. “Judiciary and Administration”: art. 179(1) | South Africa: National Director of Public Prosecution and Directors of Public Prosecution: regulation by “legislation”: no qualified majorities prescribed (-) | |
| USA: Art. II: federal prosecutors: appointment by President with approval of Senate | ||
| Tunisia: art. 118 par. 2: “ministere public” | Tunisia: reservation by law; no qualified majority required | |
| Togo: art. 118 par. 3: appointment on proposal by minister of justice after “avis” of CSM by Government | ||
| France: art. 64 & organic law: after avis of CSM (High Council of Judiciary) | ||
| Separation from Judiciary | External influence | |
| UK: England and Wales: Crown Prosecution Service (CPS) since 1986; supervision by Attorney General (minister of government) Scotland: Crown Office & Procurator Fiscal (COPFS); supervision by Attorney General of Scotland; similar in Northern Ireland: Director of Public Prosecution (DPP) USA: Art. II; Act of Judiciary 1789 Brazil: art. 127 par. 1: “Public ministry is a permanent institution, essential to the jurisdictional | Russia: by Prosecutor General Hungary: appointment of prosecutors by Gen. Pros; Gen. Pros on proposal by President elected by Parliament with 2/3 majority (art. 29 par. 4) Romania: High Council of judges proposes appointment of prosecutors to President; art. 134 par. 1 Georgia: General Prosecutor on proposal of Prosecution Council by absolute majority of MP Chile: appointment etc. regulated by organic law Colombia: Attorney General elected by Supreme Court for | Belgium: art. 151 § 1, Sent. 21 France: “functional independence” ;j impartiality11 Italy: art. 107 par. 4 Hungary: art. 29 & organic law CLXIII (2011) Romania: art. 132 par. 1: “in accordance with principles of legality, impartiality and hierarchical control under the authority of Minister of Justice” l Georgia: art. 65 par. 1, 3 Turkey: art. 139 irrevocability ; conditions of status regulated by law (no special majorities required); Control of administrative functions by |
Table 12.4 (continued)
| Model of organisation | Qualification and nomination | Independence & accountability |
| function” Chile: Chapt. VII art. 83 Colombia: Chapt. VI: “Office of Attorney General of Nation” Peru: Chapt. X:Office of Prosecutor General: art. 158 Mexico: art. 102-A: “autonomous public organ” with legal personality | 4 years: art. 249 par. 2 Peru: Prosecutor General elected by Board of Supreme Prosecutors: art. 158 Mexico: appointment of Attorney General by 2/3 majority of Senate: art. 102-A III | Ministry (art. 144) Brazil: art. 127 § 2: “functional & administrative autonomy”; art. 128 § 2: removal on initiative of Pres prior authorization of absolute majority of Senate; guarantees: art. 128 I, a-c; supervision of National Council of Public Ministry: art. 130-A§2 |
| Canada: no regulation in Canadian Const; Public Prosecution Service (PPS) since 2006 more independent (DPPAct): “distinct governmental organisation”m | Canada: Director of PPS is Deputy Attorney General; the Attorney General can issue directives to DDPS and even assume conduct of prosecutionn | |
| Australia: independent public prosecution service within Dep. of Att. General (CDPPA 1983) on federal levelo | Australia: Crown Prosecutors are appointed by government, but private counsels | |
| Armenia: Chapt. 18, art. 176: “Prosecution Office” | Armenia: General Prosecutor appointed on proposal of a Standing Committee and elected by Parliament with 3/5 majority of national Assembly: art. 177 par. 1 | |
| Internal influence Rec 2000 (19); No. 10: only written instructions; internal remedy recommendable Venice Commission CDL-AD (2010) 040, above Recommendation not sufficient |
aSee Conseil Constitutionnel (CC), dec No. 93-326 DC
bAlthough under a special title it forms part of the judiciary: see wording of art. 29 par. 1: “The Supreme Prosecutor and the Prosecution Service are independent being contributors of the judiciary as public prosecutors represent the penal will of the state”; see also Varga et al. (2015), pp. 228ss
cNo. 37: “A Prosecutor General should not be appointed permanently or for a relatively long period without the possibility of renewal at the end of that period. The period of office should not coincide with Parliament's term in office” dVenice Commission (2010b), CDL-AD (2010)040, p. 26
Table 12.4 (continued)
eIbid., at 14: “... the state should take effective measures to guarantee that the nature and the scope of the independence of the public prosecution is established by law”
fThis is an essential element of any system governed by the rule of law: “Public prosecutors should, in any case, be in a position to prosecute without obstruction public officials for offences committed by them, particularly corruption, unlawful use of power, grave violations of human rights and other crimes recognised by international law”; Rec (2000) 19, p. 16
gThe Prosecution Service has widespread supervising and inspecting powers and is not limited to criminal investigation and proceedings, see art. 129 Russian Const & Art. 1 Federal Law on Prosecution Service of the Russian Federation
hSee Venice Commission (2010b), CDL-AD (2010)040, p. 34:..Moreover, there should be an
expert body to give an opinion whether there are sufficient grounds for dismissal”; p. 40:.. the
Prosecutor General should benefit from a fair hearing in dismissal proceedings, including before Parliament”
'“The public prosecutor is independent in conducting individual investigations and prosecutions, without prejudice to the right of the competent minister to order prosecutions and to prescribe binding directives on criminal policy on investigations and prosecutions”; also art. 151 § 1 subpar. 2 for “Community and Regional governments” (communautes et regions)
JRenoux et al. (2019), p. 1247; concretized in the Code of Criminal Procedure: art. 30: the minister can only issue general instructions to Public Prosecutors (“Magistrats du Parquet”), but not individual ones kLoiNo. 2013-669: art. 3
lFor dismissal of General Prosecutor Kovesi by the Minister of Justice see critical evaluation by EU Commission in its Report of Nov. 2018 on the rule of law in Romania, FAZ of 6/2/2019 mSee homepage of DPPP: ppsc-spp.gc.ca
nEven if independence of PPS generally is assumed the separation from the Government is not strictly guaranteed, as the Press Release of the Director of PPS reveals: “Canadas top prosecutor insists her office is independent” (Mc Leans of 12 Feb. 2019) oSee homepage of DPPA: cdpp.gov.au
p§ 59, ibid. Any instruction to reverse the view of an interior prosecutor should be reasoned and in case of an allegation that an instruction is illegal a court or an independent body like a Prosecutorial Council or similar should be available”
From the (selective) table above of normative regulations one may draw various conclusions regarding essential questions concerning qualification, appointment and dismissal, safeguards against external and internal interference, and the role of selfgoverning bodies of the Public Prosecution Services; the different status of Prosecutor General and other prosecutors should also be taken into account.
Not all recommendations or proposals must necessarily be elevated to the constitutional level; this also depends on the flexibility or “rigidity” of constitutional amending procedures.
Concerning the role and appointment of the General Prosecutor—sometimes called Attorney General in systems where the Public Prosecution Service is part of the judiciary and subordinated to the Ministry of Justice—a decisive influence on the proposal of candidates should be left to representative bodies of national “Councils of Prosecutors” similarly to national Councils of Judges which exist in quite several countries. The nomination by the Head of State should only be formal. The legitimising effect of an appointment can be reinforced by parliamentary approval of the respective chambers (e.g. Armenia; Georgia; Mexico); in parliamentary systems of election however the politicisation of the appointment process can be minimised by participation of an advisory or expert board or a parliamentary Committee and/or election by 2/3 or 4/5 majorities.[882] The mandate of office may be for a longer period and should not be renewable. Grounds of dismissal should— comparable to judges—be regulated by law with advice of an expert body and a fair hearing with the chance of an appeal must be provided for.[883]
Accountability of the General Prosecutor should be limited to a general report to parliament; any instructions of the Ministry in individual prosecution cases should be expressly forbidden—either on constitutional or on “organic law” level.
As to “ordinary” prosecutors their role should be limited to prepare and conduct criminal proceedings and—as the case may be—support police investigations.[884]
In order to secure utmost independence prosecutors should be nominated for lifetime. Instructions by superior prosecutors or the General Prosecutor must be given by written notice and be substantially grounded; if an illegal instruction is assumed a separate body like a Prosecutorial Council may decide;[885] this may also be applicable in the case of an involuntary transfer of the prosecutor. Where such prosecutorial councils exist in a single body with the judges,[886] there should be functional independence of the former as to appointment and promotion.[887]