EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
UNIDEM
Campus trieste seminar
“the independence
of the judicial
system
from the executive
and legislative power”
Trieste, Italy
28 September – 1 October 2009
|
REPORT
GUARANTEES OF INDEPENDENCE
AND NON-INTERFERENCE
OF THE PROSECUTION SERVICE
by
Ms Elsa GARCIA-MALTRAS DE BLAS
(Senior Prosecutor, European
Training Network (EJTN),
Brussels, Belgium)
1. INTRODUCTION
1. The
essential role that Public Prosecutors play in judicial systems, especially in
the criminal justice field, is widely recognised. The need to ensure adequate prosecution
of criminal offences, including corruption, the impact that the exercise of
criminal actions and the execution of criminal policy has on citizen’s rights
and the principle of equality of treatment before the law, require that
prosecution functions be exercised in an impartial and consistent manner. Introducing
guarantees to protect public prosecutors from undue interferences and to
enhance their independence therefore reinforces respect for fundamental rights
and the rule of law and is a requirement of democratic societies.
2. The
independence of the Prosecution Service does not mean the same as judicial
independence nor does it require equal guarantees. By definition, prosecutors
cannot be impartial in the sense of passive, as is required of judges in
criminal proceedings, as their role includes initiating and conducting
prosecutions before the courts. Similarly, they need not be guaranteed tenure
in a concrete position as a matter of principle, like the principle of the
natural judge requires for judges, and they may be subject to hierarchical
instructions and act according to fixed criteria to ensure an effective and
equal application of criminal law and policy.
3. What must
be ensured is that the conditions under which prosecutors exercise their functions
guarantee the fair, effective and impartial prosecution of criminal offences;
that such conditions are transparent and fixed by the law; that prosecutors act
in defence of public and not individual or political interests; that arbitrary
decisions or undue influence from internal or external authorities are ruled
out. It is in this sense that independence must be understood, not as an
absolute concept, but rather as an adequate balance between the somehow
conflicting elements and principles that are present in every prosecution
model. Only if sufficient guarantees are in place to this end, will the system
be able to benefit from modern, efficient, autonomous and accountable
prosecution services fully aligned with democratic principles.
2. EUROPEAN
STANDARDS ON THE ROLE AND FUNCTIONING OF PUBLIC PROSECUTORS
4. Despite the
existence of different prosecution systems, the need has been felt to identify
and set up guiding principles applicable to all European Public Prosecution Services,
as well as objectives to be achieved regarding their independence and the
“institutional balance on which democracy and the rule of law in Europe largely
depends”.
A number of
international instruments of the Council of Europe contain standards that
concern Public Prosecutors,
but the most relevant from the point of view of independence is Recommendation
Rec (2000)19 of the Committee of Ministers to member states on the role of the
public prosecutors in the criminal justice system.
5. The
Recommendation first refers to the functions of Public Prosecutors as public
authorities who exercise criminal actions neither on behalf of any (political
or economic) authority nor on their own behalf but “on behalf of society and in
the public interest...taking into account both the rights of the individual and
the necessary effectiveness of the criminal justice system”.
6. It then
provides for a number of safeguards for carrying out their functions, inviting states
to take the necessary measures to ensure them. The following can be
highlighted:
- Guarantees
related to adequate legal and organisational conditions of service, including
appropriate remuneration and budgetary means to fulfil their function, and if
need be protection of personal safety.
- Guarantees
related to the career of prosecutors, such as a fair and non-discriminatory
system for recruitment and promotion; disciplinary proceedings governed by law,
access to a satisfactory grievance procedure, including access to a tribunal
if their legal status is affected; access to training as a duty and a right for
all public prosecutors.
- Guarantees
related to fundamental rights, such as freedom of expression, belief,
association and assembly.
- Guarantees
related to internal organisation, such as impartial criteria for the assignment
of cases, specialisation, being able to request that instructions are delivered
in writing and replacement should the prosecutor believe that an instruction is
illegal or runs counter to his/her conscience.
7. The
Recommendation also contains principles regarding the relationship between the
public prosecution and the executive and legislative powers, (namely to prevent
undue interference and ensure cooperation between them) the court judges (in
particular to respect the independence of judges) and the police (in particular
to control the lawfulness of police investigations and monitor the observance
of human rights by the police). Finally, it contains a number of principles in
relation to International Cooperation.
8. It is
worthwhile mentioning that the Recommendation does not really try to harmonise
European prosecution systems, and recognises, especially in what concerns the
relationship with the executive and legislative powers (subordination or
independence), that legal Europe is “divided on this key issue”. It
therefore makes specific recommendations for each type of system, after having
identified “the elements for achieving the balance that is necessary if
excesses in either direction are to be avoided”. The further harmonising of
European prosecution systems and functions remains a difficult and
controversial issue
and the existence of a variety of systems, resulting from different traditions
in Europe is generally accepted. It is therefore for member states to define
the role and functioning of public prosecution services.
9. On the
occasion of finalising the draft Recommendation, high level prosecutors were
invited to a Conference in Strasbourg to discuss the future of public
prosecution in the XXI century. Ever since, the Council of Europe has organised
a yearly Conference of Prosecutors General of Europe, which allows them to
discuss and exchange views on the development of prosecution services. In 2005,
the Conference of Prosecutors General adopted the European Guidelines on Ethic
and Conduct for Public Prosecutors (“The Budapest Guidelines”).
10. Although
not binding on national prosecution services, they set up widely accepted
standards of conduct expected of prosecutors in the performance of their duties
and can serve as guidance at national level considering ethical questions. The
Guidelines refer to professional conduct in general, in the framework of
criminal proceedings and to private conduct. In addition they establish that
Public Prosecutors should at all times and under all circumstances:
- perform their
duties, including the duty to take action, always in accordance with relevant
national and international law
- carry out
their functions fairly, impartially consistently and expeditiously
- respect,
protect and uphold human dignity and human rights
- take into
account that they are acting on behalf of society and in the public interest
- strive to
strike a fair balance between the general interests of society and the
interests and rights of the individual
11. Finally,
we will briefly refer to the Consultative Council of European Prosecutors
(CCPE) that was set up by the Committee of Ministers in 2005 to prepare
opinions on issues related to the prosecution service and promote the effective
implementation of Rec (2000)19.
12. In 2008,
the CCPE presented its 3rd Opinion on “The role of prosecution
services outside the criminal law field” which also mentions some guarantees of
independence in the exercise of these functions. In particular, States are
invited to ensure that the principles of separation of powers, impartiality and
fairness are respected when prosecutors act outside the criminal law field,
that no undue intervention in their activities occurs, that their competences
are provided by law and regulated as precisely as possible, or that the action
of public prosecutors does not go against the equality of arms or the principle
of res judicata.
3.
GUARANTEES OF INDEPENDENCE AND NON-INTERFERENCE OF THE PROSECUTION SERVICE IN
THE SPANISH SYSTEM
13. After
having examined “in abstracto” some of the safeguards that should be provided
to ensure Public Prosecutors are able to fulfil their professional duties in an
effective, impartial and fair way, I would like to refer to the Spanish system
as a concrete example. Since the restoration of the constitutional regime by
the Constitution of 1978, the Spanish Prosecution Service has undergone a
gradual process of modernisation and full adjustment to the requirements of a
democratic society. The evolution of the institution in Spanish law shows that
the system of checks and balances introduced to enhance the “independence” of
the prosecution service must be always considered from a dynamic point of view.
Indeed, elements can be introduced in the system that reinforce or weaken such
guarantees. In addition, there is no such thing as a single, ideal way in which
European prosecution services should be conceived and organised. The
peculiarities of the diverse legal systems determine to a great extent the
need, the feasibility and the timeliness to introduce additional guarantees.
Society itself frequently contributes to this process, demanding increased
transparency and impartiality, especially as the role of public prosecutors
becomes more important and is even extended beyond its traditional remit in
criminal law.
14. The
institutional design of the Spanish Prosecution Service was radically changed
by the Constitution. In the pre-constitutional regime, the Prosecution Office
was initially defined as the “government’s representative before the courts”
(Organic Statute of 1926) and later as the “communication organ between the
Government and the Courts of Justice”(Organic State Law of 1967). The
Constitution, which refers to the Public Prosecution Office in Title VI (devoted
to the Judicial Power), establishes in Section 124 (2) “The Office of Public
Prosecutor shall discharge its duties through its own bodies in
accordance with the principles of unity of performance and hierarchical
subordination, always subject to the principles of legality and impartiality”,
thus granting it organic and functional autonomy to achieve its tasks. It also
sets an important guarantee by requiring that the organic statute of the Office
of the Public Prosecutor is laid down by law. This constitutional requirement
was provided for by Act 50/1981 of 30 December regulating the Organic Statute
of the Public Prosecution Service with successive amendments in 2003 and 2007.
15. A first
characteristic of the system is that the Prosecution Service maintains certain
links with the judicial, legislative and executive powers. It is
“geographically” integrated, albeit with functional autonomy, in the judiciary
(article 2 of the Organic Statute) and the suppletory application of the
provisions Organic Law for the Judiciary is foreseen for a number of career
related issues. It shall cooperate with Parliament and appear before it on
request to report about concrete matters, as long as there is no legal obstacle
for such cooperation. In general, the Prosecutor General shall present in
Parliament the annual activity report that he is obliged
to submit to
the Government.
The link with the executive power is, however, still predominant, as the
Government appoints the State Attorney General to which the rest of prosecutors
are subject.
16. Additional
safeguards were introduced by the Organic Statute to enhance independence.
Firstly the objective requirement that the Attorney General is designated
between Spanish jurist of recognised professional prestige and capacity and at
least 15 years’ experience. After the 2007 reform, the introduction of a
limited 4 year mandate in addition to a closed list of causes for removal, so
that the Government can no longer destitute the Attorney General solely at its
will, reinforced his autonomy. The reform also provided that, after receiving
the report of the General Council for the Judiciary, the candidate proposed by
the Government appears before a Parliamentary Chamber prior to appointment,
which will assess his/her merits and suitability for the post. The three state
powers are therefore involved in the nomination of the General State Attorney.
17. The link
of the Attorney General with the executive power also means that the Government
may, through the Ministry of Justice, ask the Attorney General to introduce
motions in court in order to promote and defend the public interest. The
latter is, however, not legally obliged to follow such instructions, but will
respond to the Government on the feasibility and adequacy of implementing its
request in a reasoned way, after consulting the Board of Court Attorney
Generals, a technical body composed of Supreme Court Prosecutors.
18. The new
territorial design of the Prosecution Offices, introduced in 2007, entailed the
creation of new Offices and hierarchical structures at the level of the
Autonomous Communities. Their relations with the governments of the Autonomous
Communities (ie. as regards intructions or reporting), have been regulated in
parallel to those between the Government and the Attorney General. It has been
said that in this way the Prosecution Service has been organised in accordance
to the legal and sociological territorial structures derived from the
Constitution. Whether such adjustment is not a step backwards as far as the
independence of the Prosecution Service is concerned, remains to be seen.
Indeed the new provisions allow for certain interference of territorial executive
powers, with no formal competence in criminal policy, in the Prosecution
Offices within their territory and introduce an element of complexity which
could prove detrimental to the principle of unity.
19. From a
functional point of view, it derives from the abovementioned constitutional
provision that the design of the prosecution service entails a difficult
balance between principles that at first glance seem contradictory: unity and
hierarchical subordination versus legality and imparciality.
20. The two
first principles are indeed a limit to the independence of Public Prosecutors
but must also be seen as a guarantee of efficiency and equality of treatment.
The General Attorney and in general, every chief prosecutor, can give general
and specific instructions to subordinate prosecutors who are in principle
obliged to follow them and may otherwise face disciplinary sanctions. They can
also decide to replace one prosecutor by another regarding the assignment of a
case.
21. A number
of mechanisms have been introduce to strike a balance between hierarchical
powers and the requirements derived from the principle of legality and
impartiality, which oblige prosecutors to act with full objectivity and
independence in defence of the public interest always subject to constitutional
and legal provisions. In this sense the Organic Statute provides for the
following guarantees:
·
Any Public Prosecutor
who receives orders or instructions that he or she considers contrary to law or
wrongful for any other reason shall notify the Chief Prosecutor in a reasoned
report. The Chief Prosecutor after consulting the relevant board of prosecutors
decides whether or not to ratify the instruction. If he decides to ratify the
instruction, he must do so in a reasoned, written form expressly relieving the
recipient of any liability stemming from its performance or else decide to
entrust the matter to another Public Prosecutor. (Art.27)
·
Public prosecutors
remain free to orally submit before the court any legal arguments of their
choice even if they are under a duty to reflect in writing the instructions
received for a specific case (Art.25)
·
Public Prosecutors may
not receive orders or indications concerning how to discharge their functions
except from their hierarchical superiors (Art.55)
·
The hierarchical
powers of each Chief Prosecutor are moderated by the corresponding Board of
prosecutors, which comprises all the prosecutors that form part of a specific
prosecution office. The Board of Prosecutors meets regularly to fix unified
criteria, and study complex cases. Although the views of the Chief Prosecutor
in principle prevail, if his opinion be contrary to the majority of prosecutors
present in the meeting, both opinions will be submitted to their hierarchical
superior who will take the final decision. (Art.24)
·
It is also important
to mention that the principle of mandatory prosecution applies in Spain, so
that the prosecution service must prosecute all crimes that come to its
knowledge, and cannot receive instructions not to prosecute certain offences or
take into consideration the opportunity of giving priority to the prosecution
of certain conducts. Similarly, the Prosecution Service is not empowered to
drop prosecution or investigation. Even if it considers there are reasons to do
so, the final decision is taken by a judge and it is also possible, as the
Public Prosecutor does not hold the monopoly of criminal action, that charges
are brought by the private or popular prosecution and that the Public
Prosecutor finally intervenes in trial in the position of the defence.
22. The way
the career of prosecutors is legally defined is also an important element of
their independence. In Spain the Public Prosecution Service is a highly
professional body whose members (with the exception of the Attorney General)
are recruited exclusively on the basis of specific competitive examinations
(that are common for the selection of judges and prosecutors) and appointed for
lifetime. They may only be removed from office in the cases provided by law
(ie. as a result of disciplinary proceedings for serious breaches of their
duties) and the main aspects of their career (appointment, tenure, duties and
responsibilities, incompatibility regime, etc) are fixed in the Organic
Statute.
23. There are
3 categories of Public Prosecutors, who form a single hierarchically organised
body:
Category 1:
Supreme Court Division Prosecutors, on a level with Supreme Court Magistrates.
The Deputy Chief Prosecutor at the Supreme Court and the Chief Prosecutor at
the Technical Secretariat also belong to this category.
Category 2:
Public Prosecutors, on a level with Magistrates.
Category 3: Prosecuting
attorneys, on a level with Judges.
24. The
Attorney General plays a predominant role in the appointment of members of
those organs especially created to assist him and of the higher grades of the
hierarchy. Chief Prosecutors and those working at the higher court’s
prosecution offices or specialised prosecution offices are appointed by the
government on a proposal submitted by the State Attorney General; However, he
must previously consult the Attorney general council (as a representative body
of public prosecutors) and the objective requisites regarding length of service
provided for in the Organic Statute of the State Prosecution Service must be
respected.
25. All other
public prosecutors’ posts are filled by means of a selection process
predominantly based on seniority. Among the applicants, the highest-positioned
person on the promotion roster will be chosen. Vacant positions in category two
shall be covered, in order of seniority, from amongst the public prosecutors
belonging to category three.
26. The
Organic Statute refers to the responsibility of Public Prosecutors. They are
subject to civil and criminal liability in the exercise of their functions that
will be governed by the same provisions as Judges thus ensuring a high level of
non-interference. Regarding disciplinary proceedings, a detailed list of
misconducts and sanctions is provided by law, together with rules on who can
impose them and how. It is interesting to point out that the most serious
sanction, removal from office, can only be pronounced by the Minister of
Justice on a proposal from the Attorney General after receiving the favourable
opinion of the Council of Public Prosecutors, which is a representative body
elected by and from prosecutors of all categories. In all cases there is the
possibility to appeal to the hierarchical superior and when administrative
channels have been exhausted, decisions are open to judicial appeal.
27. Finally, the Public Prosecution
Service’s budget is part of the Ministry of Justice’s budget (and, exclusively
regarding material means, part of the budget of those Autonomous Communities to
which competences in justice administration have been transferred). In order to
reduce an excessive dependence from the Ministry of Justice, two important
amendments were introduced in 2007. First, the Prosecution Service was granted
legal personality, which gives it capacity to act and establish relations with
other institutions. Second, specific budgetary lines for the Prosecution
Service will be individualised in the General State budget and, the case being,
in the budget of the Autonomous Communities.
