Independence and Autonomy of Prosecutors in Europe: Opinion No. 16 (2021) of the Consultative Council of European Prosecutors (CCPE) of the Council of Europe

Abstract

Under the title “Consequences of decisions of International Courts and Treaty bodies on the practical independence of Prosecutors”, the Consultative Council of European Prosecutors (CCPE).

A. V. Noguera—President of the Consultative Council of European Prosecutors (CCPE).

1 Introduction

Under the title “Consequences of decisions of International Courts and Treaty bodies on the practical independence of Prosecutors”, the Consultative Council of European Prosecutors (CCPE)¹ of the Council of Europe (CoE), based in Strasbourg (France), has adopted, in accordance with the mandate given to it by the CoE Committee of Ministers, a document, generically called Opinion² - although the term report is also used - which analyses the basis for the independence of Prosecutors in Europe.³ It uses the term “independence” in a broad sense, so that it can be useful in all CoE countries, seeking to bring it into line with European reality, precisely in order to facilitate the professional work of prosecutors.

It is undoubtedly a timely document, especially considering the complications that different Public Prosecutor’s Offices in Europe are going through. In my own country, Spain, without going any further, the situation in this respect is very problematic, being, moreover, framed within a scheme with a strong political component, as can be seen by simply reading the daily press, to which I refer for the sake of brevity. All of which places the Spanish Public Prosecutor’s Office in an undoubtedly complicated situation, since the 1978 Constitution gave it the current treatment in its article 124.⁴

Allow me to add that, at the time, I published an article on the CCPE⁵ - practically an informative article - in which I pointed out that the CCPE is a body created within the CoE with the aim of attending to the development of the Public Prosecutor’s Office on the European continent, given that this development is a verifiable fact and is not confined to our country alone. This body also seeks to provide a unitary perspective, as far as possible, both to this process of development of the Public Prosecutor’s Offices and to the strengthening of their independence, taking into account the different legal systems that coexist in Europe.

For the rest, I shall proceed to set out the most representative aspects of Opinion No.16 (2021), avoiding referring to the repercussions of the concept of independence on the Spanish Public Prosecutor’s Office, which is governed in its essential aspects in Article 124 of the Constitution,⁶ and although there is no specific reference to the principle of independence, it should be pointed out, in any case, that Article 2.1 of the Regulations of the Public Prosecutor’s Office,⁷ provides that the Spanish Public Prosecutor’s Office is attached to the Judiciary.⁸

In any case, what the CCPE has been very clear in preparing this Opinion is that the aspects to which it refers must be fully respected in any CoE country, for the same reasons that the CoE itself has been established, i.e. because they are essential for the defence of the rule of law and human rights.

2 Essential Aspects of Opinion No. 16 (2021)

When preparing this document, several assumptions have been established which are essential to be able to speak clearly of independence, thus avoiding confusion and improprieties. These assumptions are as follows:

• It is assumed that there are several legal systems and cultures in Europe, with two pre-eminent systems, the Anglo-Saxon and the Continental. However, over the centuries European criminal justice systems have borrowed elements and institutions from each other, so that what we have today is a variety of hybrid systems.⁹ Paradoxically, this has led to an interesting degree or level of convergence,¹⁰ with prosecutorial independence being one of the aspects towards which Europe is moving most strongly.¹¹

• In turn, another essential starting point is the fact that many judicial decisions taken by different courts on the independence of Judges are closely linked to the independence of Prosecutors, since the independence and autonomy of the Prosecutor’s Office is in turn an indispensable corollary of the independence of the judiciary.¹² The CCPE has therefore stressed to CoE Member States the need to take appropriate steps to strengthen the independence, accountability and ethics of Prosecutors,¹³ in parallel with those taken to promote the independence of Judges.¹⁴ It goes without saying that the Consultative Council of European Judges (CCJE) has been operating within the CoE together with the CCPE,¹⁵ and relations between the two advisory councils have been particularly constructive. In fact, joint work has been carried out between the two institutions, in which a variety of issues have been dealt with, from statements on problems affecting judges and prosecutors in Europe to the drafting of an Opinion,¹⁶ also jointly, on issues of common interest to judges and prosecutors.¹⁷

• The independence of Prosecutors is indispensable for them to be able to carry out their professional mission. Strengthening their role in the establishment of the rule of law and society is a guarantee that the justice system will function properly and effectively and that judicial independence will be strengthened. Thus, as with the independence guaranteed to Judges, the independence of Prosecutors is not a prerogative or privilege conferred for their benefit, but a guarantee in the interests of proper, impartial and effective justice that protects the public and private interests of the individuals concerned.¹⁸ In that line, the Prosecutor must act with caution and fairness in deciding whether to prosecute and why to charge, because of the serious consequences for a human being of the initiation of an investigation and subsequent criminal trial, which can lead to conviction and punishment.

• In this respect, the Prosecutor, like the judge, cannot act in a case in which he or she has the slightest personal interest of any kind and must therefore be subject to professional responsibilities designed to safeguard his or her own impartiality and integrity.¹⁹

• Therefore, to cover the different possibilities of the various legal systems that exist in the CoE, in countries where the Public Prosecutor’s Office is part of or subordinate to the Government, the State must ensure that the nature and scope of its powers with respect to public prosecution are clearly established by law, and that the Government exercises its powers in a transparent manner and in accordance with international treaties and standards, national legislation and general principles of law.²⁰

• In the same vein, the Opinion indicates that both the autonomy and independence of Prosecutor’s Offices and Prosecutors should be promoted²¹ and legally guaranteed at the highest possible level and in a similar way to the independence of Judges.

• In the same vein, the Opinion continues, it is necessary that in countries where the Prosecution is independent of the governmental authorities, the State should take the necessary and effective measures to ensure that the nature and extent of this independence are established by law²² and not only by administrative provisions. Indeed, a fully independent Prosecution remains a guarantee of the unconditional impartiality of judges.

In addition to these assumptions, the preparation of Opinion No.16 is based on a varied normative basis from the CCPC itself,²³ conventions and case-law,²⁴ as well as contributions from the United Nations²⁵ and other entities related to the Public Prosecutor’s Office at a global level.²⁶

3 Principles and Practical Foundations Determining the Term “Independence” in a Broad Sense

Opinion No. 16 (2021) is built on an absolutely key principle. According to this principle: “independence means that the prosecutors are free from unlawful interference in the exercise of their duties to ensure full respect for and application of the law and the principle of the rule of law and that they are not subjected to any political pressure or unlawful influence of any kind. Independence applies both to the prosecution service as a whole, its particular body and to individual prosecutors.”²⁷

At the same time, a number of practical aspects are listed which translate into a basis for asserting this independence:

• firstly, measures to ensure such independence should be established through the relevant legal framework, such as the independence of judges;²⁸

• consequently, the status, independence, recruitment and career of Prosecutors should, like Judges, be clearly established by law and governed by criteria of transparency and objectivity;²⁹

• regulations for Prosecutors should guarantee their external and internal independence, preferably through provisions at the highest legal level and ensure its implementation by an independent body such as a Prosecutorial Council, in particular for appointments, careers and discipline.³⁰ It is furthermore necessary to ensure the necessary stability and to develop appropriate provisions for the promotion, discipline and loss of status of Prosecutors;³¹

• throughout their career, including for recruitment and promotion, Prosecutors should be selected on the basis of their merits, skills, knowledge and ethical values, and receive adequate training to perform their duties independently and impartially, and in full compliance with ethical standards.³² This logically implies taking into consideration merits acquired through effort and dedication, which can be objectively evaluated and far from criteria strictly centred, for example, on youth or territorial location. The latter are neither merits nor demerits, but rather expressive of indecisiveness, inconsistency or fickleness and, in fact, are not even criteria, as was made clear in the debate on the subject in the CCPE.

• instructions from the executive branch relating to specific cases are generally undesirable. In this context, instructions not to prosecute should be prohibited and instructions to prosecute should be strictly governed in accordance with Recommendation Rec (2000)19;³³

• general instructions on the priorities of the Public Prosecutor’s Office activities resulting from the law, the development of international co-operation or requirements relating to the organisation of the service must always be given in accordance with the law and, furthermore, in a fully transparent and written manner.³⁴ Furthermore, all internal instructions within the Office of the Prosecutor must be given in writing, be transparent and aim to seek the truth and ensure the proper administration of justice.³⁵ If instructions are given to Prosecutors by superiors within the Office, they should be in writing, be given in a transparent manner and always aim to apply the law with respect for human rights and fundamental freedoms;³⁶

• the status, remuneration and treatment of Prosecutors, as well as the provision of financial, human and other resources allocated to the services of the Prosecutor’s Office, should correspond, in a manner comparable to that of Judges, considering the eminent nature of the Prosecutors’ professional mission and duties;³⁷

• Member States should protect Prosecutors and, as appropriate, members of their families and livelihoods, in the performance of their duties;³⁸

• in their systems of administrative and hierarchical organisation, Member States, if they wish to confer or maintain the status of judicial authority on prosecutors within the meaning of the European Convention on Human Rights, must ensure that they have all the guarantees, in particular those necessary for independence, associated with that status;³⁹

• the general public and interested persons should, upon request, receive adequate information about the Prosecutor’s Office and its activities. In parallel, Prosecutors should play a key role in disseminating such information through appropriate channels and in accordance with the law, while ensuring respect for prosecutorial independence, the presumption of innocence, the needs of the investigation, the protection of personal data and other relevant aspects according with what has been said above.⁴⁰

• Appointments for limited periods with the possibility of reappointment entail the risk that the Prosecutor makes his or her decisions not on the basis of the law, but with the idea of pleasing those who reappoint him or her.⁴¹ This is one of the most problematic aspects of the Public Prosecutor’s Office, given the very limited regulation of this matter, which is leading to more than questionable approaches in which merits acquired through objectively assessable effort and dedication often do not take precedence, but rather other interests, including those of the hierarchical superior.

4 Contributions from Case-Law and International Organisations

The references of the European Court of Human Rights (ECtHR) to prosecutors have, so far, been rather limited, as indicated in Opinion nº 16 of the CCPE.

Article 6 of the European Convention provides that everyone has the right to an independent and impartial tribunal established by law. There is a vast case-law on what an independent tribunal should be. The relevance of the concept derives from the fact that it is an element of the judicial system vital to the strengthening and functioning of the rule of law. An independent and impartial tribunal ensures respect for human rights and fundamental freedoms and is vital to ensure public confidence in the justice system in a democratic society. These have traditionally been the aspects most analysed by the ECtHR.

However, in relation to the same type of approach, the role of the Public Prosecutor’s Office is essential. But more crucially, the Prosecutor plays a key role not only in the enforcement of laws, but more importantly, in giving full effect to rights, including, of course, human rights. Whatever his or her specific task in the national criminal justice system, it undoubtedly involves the notion of “Human Rights in Service”.⁴²

However, as I have pointed out, the independence and autonomy of Prosecutors have so far been examined by the ECtHR only to a limited extent, unlike the case-law on Judges, which is much more comprehensive. These concepts, in relation to Prosecutors, have only been addressed in a few judgments. However, since the independence and autonomy of the Prosecutor’s Office is, as the CCPE has made clear, an indispensable corollary of the independence of the judiciary,⁴³ the guidance provided by the judgments concerning the Judiciary⁴⁴ may also be applicable, mutatis mutandis, to the Prosecutor’s Office.

In that vein, and referring already to the case-law of the ECtHR, it has been said that, in a democratic society, both the Courts and the investigating authorities must remain free from any kind of political pressure. It is therefore in the public interest to maintain confidence in the independence and political neutrality of the Prosecuting Authorities of a State.⁴⁵

It has also been said that the general procedural safeguards applicable in Member States include provisions regulating the institutional or functional independence of Prosecutors, whether they are members of the judiciary or civil servants.⁴⁶ Moreover, in some Member States, Prosecutors are protected from undue pressure by additional safeguards, such as the obligation to prosecute all offences except misdemeanours⁴⁷ (on the basis of the need to respect the principle of legality). In some other Member States, which acknowledge the principle of discretionary prosecutions, importance is attached to the transparency of the official guidelines governing such discretion.⁴⁸

Although prosecution systems in some Member States are hierarchically structured with senior Prosecutors empowered to give orders and instructions to junior Prosecutors, a number of safeguards can be put in place to ensure the effectiveness and independence of the bodies in charge of criminal investigations from senior Prosecutors, including in relation to:

• transfer of the case to another entity within or outside the prosecution system;

• special investigation procedures in cases of suspicion against senior prosecutors;

• suspension of the Prosecutor under suspicion from his or her duties (in the case of the most senior Prosecutor this decision would be taken by the political bodies responsible for his or her appointment); and

• general safeguards, such as guarantees ensuring the functional independence of the Prosecutors within their hierarchy and judicial control over the actions of the Prosecutor’s Office.⁴⁹

The case of Kolevi v. Bulgaria is particularly interesting, in the context under consideration, in that the ECtHR established that the executive branch of Government cannot dismiss Chief Prosecutors without independent judicial review and also noted⁵⁰ that the premature termination of the applicant’s (Chief Prosecutor) term of office was a particularly severe sanction, which undoubtedly had a “chilling effect” in the sense that it must have discouraged not only her, but also other Prosecutors and Judges from participating in the future in the public debate on legislative reforms affecting the judiciary and, more generally, on issues relating to the independence of the judiciary. In doing so, the ECtHR reaffirmed, inter alia, the freedom of expression of Prosecutors with regard to legislative reforms that may have an impact on the judiciary and its independence.⁵¹

For its part, the Court of Justice of the European Union (CJEU) declared, with regard to prosecutors - and interpreting the concept of “issuing judicial authority”⁵² in relation to a European injunction - that Article 64 of the French Constitution guarantees the independence of the judicial authorities, which includes judges and prosecutors, and that the Public Prosecutor’s Office performs its duties objectively, free from any instructions from the Executive in a specific case. This is so, given that the Minister of Justice can only give general instructions concerning criminal justice policy to the Prosecutors in order to ensure that such policy is applied in a consistent manner throughout the national territory. As regards the government, such general instructions cannot in any event have the effect of preventing a prosecutor from exercising his discretion as to the proportionality of issuing a European arrest warrant. Moreover, the Public Prosecutor’s Office carries out prosecutions and ensures that the law is applied in accordance with the principle of impartiality.⁵³

In turn, and with regard to the case-law of the Inter-American Court of Human Rights, referring to the specific duties of Prosecutors, the Court underlined the State’s duty to carry out an independent and objective investigation in relation to human rights violations and crimes in general, stressing that the authorities in charge of the investigation must be independent, de jure and de facto, which requires not only hierarchical or institutional independence, but also actual independence.⁵⁴

The Court added that the independence of Prosecutors implies the absence of political pressure or undue hindrance in their professional actions, also ruling out any kind of reprisals for decisions taken by them in an objective and impartial manner. This requires a guarantee of stability and a fixed term in the exercise of their professional actions. Therefore, the specific guarantees for Prosecutors, in an equivalent application of the protection mechanisms recognised for Judges, can be expressed in the following points:

• (i) that removal from office must be for legally permissible reasons only, either through a procedure that complies with the right to a fair trial or because the mandate for which they have been appointed has expired;

• (ii) that Prosecutors can only be removed for serious disciplinary misconduct or incapacity, and

• (iii) all proceedings against Prosecutors must be in accordance with fair procedures that guarantee objectivity and impartiality under the Constitution or the law, since the free removal of Prosecutors promotes an objective doubt about the real possibility that they can perform their duties without fear of reprisals.⁵⁵

All this without forgetting the rulings of the Member States’ own Courts which, inspired by the above case-law, have ended up reinforcing the independence of Prosecutors, being one of the examples of the positive progressive impact of the case-law of the international Courts, and in particular of the ECtHR, on the practical independence of the Prosecutors of the Member States. Such rulings relate to a wide range of aspects of the status and profession of Prosecutor, and are particularly necessary where reforms of the judiciary and the prosecution service do not provide sufficiently positive results.⁵⁶

For its part, the Human Rights Committee (HRC), which is the body of independent experts that monitors the implementation of the United Nations International Covenant on Civil and Political Rights (ICCPR) by its States Parties, has issued a series of recommendations in relation to judicial and prosecutorial independence, insisting on the need to strengthen the independence of both the Judiciary and the Prosecutor’s Office.⁵⁷ The HRC has also made clear that the principle of judicial independence, an essential guarantee for the independent exercise of judicial duties, requires that judges and prosecutors be able to interpret and apply the law and freely assess facts and evidence, without intimidation, obstruction or interference in the exercise of their duties.⁵⁸

5 Epilogue

It is clear that what emerges from the inventory of case-law of the international courts just reviewed, as well as the decisions of other bodies, initially focused on judicial independence, is an increasing concern for the independence of Prosecutors. This has been observed, moreover, in the light of developments in case-law and the subject in general in recent years. In turn, this compilation of case-law provides a number of useful indicative elements which can serve to clarify the concepts of prosecutorial impartiality and independence, both in law and in practice.

It is therefore a very interesting process, with the main added value that the ECtHR case-law has binding force and the requirement, as it follows, that general measures be taken by the Member States to put an end to the violations identified in the ECtHR judgments. This process is mandatory and is supervised by the Committee of Ministers of the Council of Europe, as is clear from Article 46 of the European Convention on Human Rights.⁵⁹