Annex A. Considerations in the assessment of prosecutorial services

  1. 1. Allocation of investigative authority: One distinctive feature of prosecutorial services is the allocation of investigative and prosecutorial authority within the criminal justice system. Generally speaking, the allocation of pre-trial investigative authority to judges (investigating magistrates or juges d’instruction) rather than to prosecutors and police is a foundational feature of the inquisitorial model of criminal justice, whereas entrusting the pre-trial investigation to the police under the supervision of prosecutors is characteristic of the adversarial criminal justice systems. Generally, in the former the investigating judge is meant to seek the ‘material truth’ whereas in the latter the court is generally presented with the evidence serving the purpose of obtaining the conviction of the defendant or solving the legal criminal conflict as quickly as possible (‘material truth’ v ‘conflict resolution approach’).

  2. 2. Interaction patterns of prosecutors and the police: Another distinctive feature of prosecutorial services is the patterns of the relationships between prosecutors and the investigative police (Stenning, Philip and Jansson. Julia, 2020[1]). The allocation of responsibilities between police and prosecutors in a given criminal justice system and the interactions between them reflect to varying degrees the extent to which key values associated to democratic prosecution processes are prioritised and upheld. Often those values are invoked as rationales for legal and operational changes in prosecutorial services (impartiality, independence, equity, cost effectiveness-efficiency, expertise-specialisation, checks and balances, and effective political public accountability). In addition, in Europe, there is the case law on the ECtHR urging “objectivity” in investigations and prosecutions (Kjelby, G. J., 2015[2]) and the growing necessity of a harmonisation of law enforcement and justice within the European Union Schengen space, which leads to mutual borrowing from among national systems.

  3. 3. Prosecutorial discretion: In many national settings, prosecutors play a broader role in the criminal process designed in legal frameworks. Prosecutors not only are meant to bring about legality control over police investigations in democratic countries, but they also dispose of cases with a high degree of independence and discretion. The freedom to prosecute or not is seen as an alternative (along with plea bargaining and its equivalents) to court sentencing. Those alternatives are increasingly being used in OECD countries, even in those where the legal obligation for prosecutors to prosecute (i.e. the principle of legality) criminal offences is stronger (e.g. in Germany, where penal orders are being profusely used) (Thaman, 2012[3]). The use of these alternatives may in turn require additional safeguards to prevent wrongful convictions and may imply that the judiciary may need to serve as an instance of control (Enescu, 2020[4]) (Luna, 2014[5]).

  4. 4. Economic analysis of law: More and more decisions in criminal justice systems in developed countries are being brought out of courts to prosecutorial made settlements, with a view of solving problems in the most efficient and affordable manner. Yet, with these changing roles of prosecutors and courts, care is needed to ensure guarantees of the rights of the defendants.

  5. 5. Ethical shifts: The traditional liberal state imperative that the prosecutors and the courts were there to ensure the realisation of justice appears, in many cases, to often been replaced in practice by the imperative of winning the criminal cases “at all costs”. The “do justice” ethical principle is being replaced by the “win the case” principle or wind up the case quickly, which may lead to deny or jeopardise procedural rights to the accused while primarily pressing up for conviction, as any private lawyer would do. Some performance appraisal schemes for prosecutors are infused of that ethical philosophy.

  6. 6. Conceptual challenges: Many of the newly developing conceptual understandings may require systemic reformulation of both substantive norms of the criminal law and the structural design of criminal justice systems. This would be required if they are to be kept within the legitimate boundaries of the liberal democratic states often put forward in many OECD countries’ constitutions to ensure the realisation of justice under the “equality before the law” constitutional imperative. These reformulations often represent big conceptual challenges if liberal democratic values are to be preserved while being balanced with efficiency-driven reforms (Snyder, 2018[6]).

  7. 7. Balancing independence and accountability: While there is a lot of international emphasis on the value of prosecutorial independence, it is essential to underline the importance of procedural fairness and prosecutorial accountability.1 This is particularly important when there is a growing tendency towards the use of discretionary decisions by prosecutors about whether to prosecute or not a case. Strong discretionary decision making without accountability can pose various risks to integrity and effectiveness of criminal justice systems.

References

[4] Enescu, R. (2020), “Penal Orders and the Risk of Wrongful Convictions”, Bergen Journal of Criminal Law & Criminal Justice 7(2):3-20.

[2] Kjelby, G. J. (2015), “Some Aspects of and Perspectives on the Public Prosecutor’s Objectivity according to ECtHR Case-Law.”, Bergen Journal of Criminal Law & Criminal Justice, 3(1), 61-83., https://doi.org/10.15845/bjclcj.v3i1.828.

[5] Luna, E. (2014), “Prosecutor King”, Stanford Journal of Criminal Law & Policy [Vol. 1:48], https://law.stanford.edu/wp-content/uploads/2018/05/luna.pdf.

[6] Snyder, T. (2018), The Road to Unfreedom: Russia, Europe, America.

[1] Stenning, Philip and Jansson. Julia (2020), “Framing Prosecutor-Police Relations in Europe- A Concept Paper, in Colvin, Victoria and Stenning, Philip, Ed.The Evolving Role of Public Prosecutor. Challenges and Innovations” Routledge, London.

[3] Thaman, S. (2012), “The Penal Order: Prosecutorial Sentencing as a Model for Criminal Justice Reform? in The Prosecutor in Transnational Perspective”, Oxford University Press. Published to Oxford Scholarship Online.

Note

← 1. See OECD (2020): The Independence of the Prosecutors: Practices Review and Recommendations. OECD Publishing, Paris, p. 9:

“The independence of prosecutors is a crucial issue in the fight against corruption. The power of prosecutors in deciding whether to prosecute a case, their role in carrying out investigations and the substantial choices they take in the course of the whole proceedings make the prosecutorial service a decisive factor conditioning the possibility of a country to combat corruption crimes. Integrity, an essential quality of prosecution professionals, implies their institutional, economic and individual independence.”

See also the Venice Commission numerous opinions advocating for prosecutorial independence as the fundamental principle. For all, see the seminal CDL(1995)073rev, Opinion on the Regulatory concept of the Constitution of the Hungarian Republic, Chapter 11, p. 6:

“The fundamental principle which should govern the system of public prosecution in a state is the complete independence of the system, no administrative or other consideration is as important as that principle. Only where the independence of the system is guaranteed and protected by law will the public have confidence in the system which is essential in any healthy society.”

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