International Conference “Public Prosecution, Democracy and the Rule of Law”

MEDEL, Magistrats Européens pour la démocratie et les libertés. Fundaţia Friedrich Ebert in Romania Union Nationale des Juges Roumains Fundaţia Konrad Adenauer in Romania Transparency Internacional Romania International Conference“Public Prosecution, Democracy and the Rule of Law”

“The importance of prosecutors position for the independence of courts” Miguel Carmona Ruano Bucureşti, 28th September 2007

European sign of identity: diversity - We have different legal systems. - We can’t appreciate more or less a system depending on its similarity to ours

Public Prosecution Service Different functions and organisation Two criteria of classification: • Constitutional position • Functions in criminal procedure

Constitutional position • A part of the Judiciary • A part of the executive branch • A “constitutional body”, situated in the realm of the Judiciary (as defined in my country, Spain), or in another position.

Functions in criminal procedure • Not just functions in the penal system. • But always the function in the penal system is the most important one, the “core” task. • Different penal systems • Different role in it of the public prosecutor

Different penal systems The investigation can be carried out by: The police, (more or less related to the Public Prosecutor’s office). The public prosecutor itself An investigating judge (le “Juge d’Instruction”)

Criminal proceedings systems Exclusiveness of prosecution: A monopoly of the Public Prosecutor Office Shared with particulars : The victim Even a public penal action, as in Spain. Principle of legality or opportunity: Mandatory (principle of legality): the public prosecutor is obliged to prosecute when a crime is committed. Discretionary: the public prosecutor, according to the law, can decide not to prosecute and carry out an alternative measure: Probation Bargaining Filing the case with or without imposing conditions. Mediation

But, always: • As said, the core function of the public prosecutor is carrying out the criminal action before the courts. • In general, the accusation before the court is sustained by the public prosecutor.

Can the organisation of the Public Prosecution Service, under certain conditions, jeopardize the judicial independence?

There is certainly a thread for the independence if undue interferences to the courts coming from other powers (not only political, also social, or economic) or even with origin in the media, are susceptible to be exerted throughout the prosecutor.

Threads to independence • This situation can occur namely if a decision of prosecute or not to prosecute can be taken by the public prosecutor following hidden, not transparent or arbitrary orders or instructions from other powers, established or not. • The thread is bigger when the public prosecutor • is subordinate to the government, • has discretionary powers • has the monopoly of prosecution and consequently an eventual decision of not to prosecute is equivalent to the closure of any possibility of punishment to a given crime.

It is also clear that this jeopardy is able to corrupt the entire legal system in the cases dealing with crimes committed by “important” persons occupying positions of power and therefore able to influence unduly their own destiny before the courts.

Two basic assertions • The personal integrity of each single public prosecutor is an essential barrier against corruption. • This personal integrity is not enough: the main question about the organisation of the public prosecution service is how to preserve it from unjustified interferences.

International instruments This is the principal object of the international instruments about the principles of organisation of the public prosecution system • MEDEL principles of Naples • Guidelines of the UN • Council of Europe’s Recommendation (2000)19

MEDELDECLARATION OF PRINCIPLESCONCERNING THE PUBLIC PROSECUTOR • (adopted in Naples on March 2nd 1993)

Guidelines on the Role of Prosecutors • Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990

THE ROLE OF PUBLIC PROSECUTIONIN THE CRIMINAL JUSTICE SYSTEM • Recommendation (2000) 19, of 6 October 2000 of the Committee of Ministers of the Council of Europe to member states on the role of public prosecution in the criminal system

Recommendation (2000) 19 • Paragraph 11: • States should take appropriate measures to ensure that public prosecutors are able to perform their professional duties and responsibilities without unjustified interference…

UN’s Guidelines • Paragraph 4: • 4. States shall 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.

MEDEL’S NAPLES PRINCIPLES • I. FUNCTION • It is the function of the Public Prosecutor to promote the application of the law while ensuring the respect of legality, of the fundamental rights and of equality in front of the law. • III. FUNCTIONAL STATUTE • The Public Prosecutor is subject to the law alone: the criteria governing its activity are only criteria of legality, impartiality and objectivity.

This principle comports: • Personal guarantees for individual members of the public prosecution service. • Institutional guarantees for the organisation of the public prosecution offices and the form they perform their functions.

Personal guarantees General principle: • Personal statute as similar to judges’ as possible

Personal guarantees • Maximal guarantee: same independence. • Ensure as much objectivity as possible. • Objective recruitment: preferably the same or similar to judges’ • Objective criteria of transfer or destitution • Appropriate conditions of service • Professional training • Ensure the rights of prosecutors as citizens: freedom of expression, association, etc. • Ensure to each single prosecutor the respect of personal conscience options.

MEDEL’S PRINCIPLES • IV. PERSONAL STATUTE • The members of the Public Prosecutor System are necessarily magistrates, integrated in a single judicial body, • or forming a distinct Magistracy, which will have a statute, rights and guarantees equivalent to those of judges.

UN’s GUIDELINESCouncil of Europe’s Recommendation (2000) 19 • Not a general declaration • As a matter of fact, both instruments define the recruitment, promotion, transfer, career, conditions of service and guarantees in a similar way to those applying to judges.

Rights of prosecutors as citizens • UN’s Guidelines: • Freedom of expression and association • 8. Prosecutors like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional disadvantage by reason of their lawful action or their membership in a lawful organization. In exercising these rights, prosecutors shall always conduct themselves in accordance with the law and the recognized standards and ethics of their profession. • 9. Prosecutors shall be free to form and join professional associations or other organizations to represent their interests, to promote their professional training and to protect their status.

Rights of prosecutors as citizens • Council of Europe’s Recommendation (2000) 19: • 6. States should also take measures to ensure that public prosecutors have an effective right to freedom of expression, belief, association and assembly. In particular they should have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organisations and attend their meetings in a private capacity, without suffering professional disadvantage by reason of their lawful action or their membership in a lawful organisation. The rights mentioned above can only be limited in so far as this is prescribed by law and is necessary to preserve the constitutional position of the public prosecutors. In cases where the rights mentioned above are violated, an effective remedy should be available.

Institutional guarantees • As much autonomy as possible • Transparency: • General guidelines: criminal policy options • Write instructions • Participation of the prosecutors and safeguards • Prohibition in general of singular case per case instructions of not to prosecute.

Recommendation (2000) 19 Paragraph 13. Where the public prosecution is part of or subordinate to the government, states should take effective measures to guarantee that: • a. the nature and the scope of the powers of the government with respect to the public prosecution are established by law; • b. government exercises its powers in a transparent way and in accordance with international treaties, national legislation and general principles of law; • c. where government gives instructions of a general nature, such instructionsmust be in writing and published in an adequate way;

Recommendation (2000) 19Paragraph 13: Specific instructions • d. where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees that transparency and equity are respected in accordance with national law, the government being under a duty, for example: • − to seek prior written advice from either the competent public prosecutor or the body that is carrying out the public prosecution; • − duly to explain its written instructions, especially when they deviate from the public prosecutor’s advices and to transmit them through the hierarchical channels; • − to see to it that, before the trial, the advice and the instructions become part of the file so that the other parties may take cognisance of it and make comments;

Recommendation (2000) 19Paragraph 13: Safeguards • e. public prosecutors remain free to submit to the court any legal arguments of their choice, even where they are under a duty to reflect in writing the instructions received; • f. instructions not to prosecute in a specific case should, in principle, be prohibited. Should that not be the case, such instructions must remain exceptional and be subjected not only to the requirements indicated in paragraphs d. and e. above but also to an appropriate specific control with a view in particular to guaranteeing transparency.

MEDEL’s Principles • II.- INSTITUTIONAL POSITION • The Public Prosecutor is a judicial organ, and consequently autonomous from the executive, the autonomy of the Public Prosecutor constituting an indispensable tool for guaranteeing the independence of the judiciary and equality in front of the law. • Consequently, the organs of the executive cannot give either general or specific instructions to the Public Prosecutor.

International Conference “Public Prosecution, Democracy and the Rule of Law”