A/HRC/20/19
69.
The Special Rapporteur emphasizes that transfer should not be based exclusively on
the exigencies of service but should also take into account the views, aspirations and
specializations of the prosecutor and his/her family situation.
70.
Given their important role and function, the dismissal of prosecutors should be
subject to strict requirements, which should not undermine the independent and impartial
performance of their activities.44 There should be a framework for dealing with internal
disciplinary matters and complaints against prosecutors, who should in any case have the
right to challenge – including in court – all decisions concerning their career, including
those resulting from disciplinary proceedings.
71.
Remuneration for prosecutors in line with the importance of the task is an element of
independence and impartiality that should not be overlooked.45 Dissatisfaction regarding
level of remuneration has been expressed on different occasions to the Special Rapporteur.
She notes that the appropriate remuneration of prosecutors also implies recognition of their
important function and role and can also reduce the risk of corruption.
72.
The Special Rapporteur also observes that self-management of the resources/budget
of the prosecution service can be an important aspect of autonomy and independence.
Instructions and guidelines
73.
In order to ensure a fair and consistent approach in criminal justice policy, general
guidelines can be issued by the prosecution service itself (internally) and by nonprosecutorial authorities (externally). The issue of policy guidelines and other general
instructions for the prosecution service may be of importance to create consistency in the
actions of the prosecution service. In this vein, the United Nations Guidelines state that
States shall ensure that prosecutors are made aware of the ideals and ethical duties
attributable to their public office (para. 2 (b)).
74.
Prosecutors should also have the right to request that instructions be issued in
writing.46 In any case, all instructions should be substantiated and open to scrutiny. IAP
Standards of professional responsibility stress that the issue of instructions by nonprosecutorial authorities should be: transparent, consistent with lawful authority and subject
to established guidelines to safeguard the actuality and the perception of prosecutorial
independence (art. 2.2). They further underline that prosecutors are entitled to relief from
compliance with an unlawful order or an order that is contrary to professional standards or
ethics (art. 6). It is of vital importance for the independence of prosecutors that allegations
of improper interference be duly investigated.
75.
In most countries where the prosecution service is hierarchical, case-specific
instructions may also be given by the Prosecutor General or the Head of the Prosecution
Service or on his behalf to individual prosecutors, including instructions as to whether to
initiate or discontinue prosecution in a specific case or to transfer the case to another
prosecutor. It would be an abuse of authority if the motive for such an instruction is
politically motivated. The Special Rapporteur further emphasizes that case-specific
instructions to prosecutors from external organs are not desirable and that they should be
formally recorded and carefully circumscribed to avoid undue interference or pressure.
44
45
46
A/HRC/20/33/Add.6, paras. 89-90.
United Nations Guidelines, para. 6. See also Venice Commission, Report on European standards,
para. 87.21.
Council of Europe, Recommendation Rec (2000) 19, para. 10.
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