The Prosecution Service
What the Venice Commission refers to as the prosecution service is not always a part of the judiciary. The different legal cultures and the different conceptions of the relations between the investigative activity and the judges have produced a variety of models throughout Europe.
However, the Commission also recognises in the same Opinion[236] that over the centuries, the European criminal justice systems have borrowed extensively from each other. Today, there are probably no pure systems that have not imported important elements from outside. In principle, it is suggested that the prosecution service should not be overly powerful and should limit its competence to the criminal law field.[237] The Commission is of the opinion that the rebirth of a prosecution service designed according to the Soviet and czarist model of Prokuratura should be avoided as ‘it reflects a non-democratic past and is not compatible with European standards and Council of Europe values’. In a case concerning Poland, it was said that, in light of the Commission’s yardsticks, the Prokuratura model of general supervision powers was inadmissible.[238]In any case - said the Commission - as far as the criminal prosecution is ‘a core function of the state’,[239] the prosecutors ‘must act fairly and impartially’,[240] even if they are not regarded as a part of the judiciary. Therefore, the constitutions and the consequent legislations have to guarantee the organisational and personal independence of the service and its personnel. When the independence of the prosecutorial branch from the executive is not guaranteed, safeguards shall be ensured at least ‘at the level of individual case'[241] so that ‘there will be transparency concerning any instructions [of the Executive power] which may be given’.[242] With regard to the internal and external independence of the prosecutor’s office, the position of the Commission looks very complex. While the external independence shall reside ‘in the impermissibility of the executive to give instructions in individual cases’ to the service, the prevailing conception of the internal organisation allows a system of hierarchical subordination of the inferior offices to the superior ones.[243]
There are still systems where the Prosecutor General is elected by the parliament or appointed by the Head of the State in compliance with the legislative requirements of professional and ethical qualities.
However, there is a growing tendency for the administration of the prosecutorial personnel to be undertaken by (or with the consultative intermediation of) a prosecutorial council, including prosecutors elected by their colleagues and lay members, including lawyers and legal scholars.[244] The establishment of such a separate body is suggested even with regard to countries where prosecutors are part of the judiciary. In these cases, the prosecutorial council could be designed as a special section or branch of the judicial council. However, the existence of a single body with general competence over judges and prosecutors is in any case admissible. The effects of the decisions of the prosecutorial councils can vary.VI.
More on the topic The Prosecution Service:
- The Prosecution Service
- Public Prosecution Service
- Bibliography
- TABLE OF CONTENTS
- References
- The Research of the Historical Roots
- Focus: Advice on the Undesirable Foreign Funding of Organisations and on the Rule of Law
- INDEX
- The Netherlands and the UK: The Witteveen Reports and their contradictory results
- REFERENCES