A/HRC/27/56
support (which is not always forthcoming), given the increasingly dense transnational
criminal networks.
74.
Expectations about the role prosecutions can play in dismantling whole structures
and criminal networks in the short run, however, need to take into account the limits of the
available criminal justice tools. Changing deeply entrenched systems requires broader
institutional as well as socioeconomic reform. Prosecution and reform efforts should go
hand in hand, complementing and reinforcing each other.
VII.
Criteria and institutional arrangements for an effective prioritization
strategy
75.
A brief analysis of the factors that may impinge on the successful articulation and
implementation of a domestic prosecutorial strategy in transitional situations, and
particularly one that could contribute to the dismantlement of structures that allowed the
violations in the first place, would identify power relations, capacities and resources as
crucial constraints.
76.
There is no legal mechanism that can completely neutralize unequal power relations
or that can make up for the lack of so-called “political will”. However, the independence
and impartiality of prosecutors are a tool for preventing criminal justice from becoming an
instrument of the powerful.
A.
Independence of prosecutors
77.
The Special Rapporteur stresses the importance of the Guidelines which highlight
the role of prosecutors42 as essential agents of the administration of justice in performing an
active role in criminal proceedings. The Guidelines require prosecutors to carry out their
functions impartially and avoid any kind of discrimination, while taking into account the
position of the suspect and the victim and, at the same time, protecting the public interest.
As noted above, the exercise of public interest functions, such as criminal prosecution,
should not be aimed at protecting the interest of the (incumbent or previous) government, a
political party or any other State institution.
78.
To shield prosecutors from political influence, the relationship between
prosecutorial services and ministries of justice has to be arranged in ways that do not make
the former subservient to the latter. This is manifested in the relationship between the
institutions (including power over the disposition of budgets); the procedures of
appointment and removal of prosecutors, especially chief prosecutors; the hierarchical
relations between chief and other prosecutors; as well as in mechanisms for the distribution
of cases among prosecutors, and the criteria and procedures under which cases can be taken
away from particular prosecutors. The external autonomy of prosecutors (vis-à-vis other
State and non-State actors) as well as their internal autonomy (the independence of
prosecutors vis-à-vis their superiors) need to be guaranteed.
79.
While the institutional and procedural set-up can take different forms, it should
effectively increase the likelihood that decisions to investigate and prosecute are taken on
the basis of the evidence of the case alone.
42
See para. 66 above; and A/HRC/20/19.
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