A/HRC/11/41 page 7 transparency.4 In this connection, it should be noted that the Human Rights Committee, in its general comment No. 32, emphasized that a situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable, or where the latter is able to control or direct the former, is incompatible with the notion of an independent tribunal.5 Therefore, the Committee pointed to this concern in several of its concluding recommendations and called for a clear demarcation between the respective competences of the different branches of power.6 19. Furthermore, the Special Rapporteur, during several missions to countries in transition, questioned the paramount role of the office of the prosecutor and the amount of influence the prosecutor exerts over the pretrial and trial stages of judicial proceedings.7 In this connection, he highlights the importance of the independence of the office of the prosecutor, in particular where it is responsible for the investigation and ex officio prosecution. 2. Guarantee at the constitutional level 20. The Basic Principles provide for the independence of the judiciary to be “guaranteed by the State and enshrined in the Constitution or the law of the country”. Similar provisions are to be found in the regional standards.8 21. The Special Rapporteur considers it paramount that the independence of the judiciary be legally guaranteed at the highest possible level. Thus, in several country mission reports, he drew attention to the fact that the independence of the judiciary is enshrined in the Constitution.9 In States, where this was not yet the case, he recommended that this principle be spelled out in the Constitution.10 In other countries, where no written constitution exists, it should be considered a fundamental principle of law. 22. This principle, even if guaranteed in the Constitution, must also be given effect at the legislative level. Thus, domestic legislation needs to be brought in compliance with this principle. The Human Rights Committee expressed its concern at constitutional and legislative 4 E/CN.4/2004/60, para. 28. 5 CCPR/C/GC/32 (footnote 1), para. 19. 6 CCPR/CO/79/GNQ, para. 7; CCPR/C/79/Add.111, para. 10; CCPR/C/79/Add.79, para. 3. 7 E/CN.4/2006/52/Add.4, para. 86; E/CN.4/2005/60/Add.2, para. 70; E/CN.4/2006/52/Add.3, para. 76. 8 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, A (1) (a); Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, principle 4. 9 10 A/HRC/8/4/Add.2, para. 7. A/HRC/4/25/Add.2, para. 73.