A/HRC/20/19
executive avoids intervening in individual cases or operational decisions, even though it is
entitled to do so. Nonetheless, the fundamental problem remains as long as there are no
formal safeguards against such interventions. The existence of an entitlement to such
interventions can, in terms of public perception, be as damaging as an act of interference.
28.
In this context, it is important to develop clear and adequate policy guidelines as
well as codes of conduct and ethics, so that the parameters for action and the authority of
the respective actors are clearly defined, so as to detect, challenge and remedy any violation
or abuse of authority that may arise.
V. Status and role of prosecutors
A.
Diversity of prosecution service structures
29.
Prosecution services are constructed in a wide variety of ways. First, the prosecution
service can be an integral part of the executive power. The service may be organized as an
ordinary civil service department, under the authority of the Minister of Justice or an
Attorney General who may also have ministerial responsibility and operate outside the
Ministry of Justice. Appointments, career and disciplinary proceedings may be organized
by the Ministry of Justice, and/or a prosecutorial council or similar body may approve or
advise on these matters.
30.
Second, the prosecution service may be organized as an autonomous agency, but
may be linked to the executive power to a greater or lesser extent. In this case, a
prosecutorial council or a similar independent body may regulate the career of prosecutors.
The Minister of Justice or another other organ of the executive power often retains a certain
degree of control over the appointment of prosecutors, and can decide on appointments
autonomously or on the advice of the prosecutorial council. In this structure, the Minister of
Justice may also remain in charge of organizational matters and budget management. In
other jurisdictions, all policy, operational and administrative matters reside with the
operational head of the prosecution service, though some budgetary control may remain
with the responsible minister, which may have an impact on the independence of the
service. It should be added that nomenclatures can be misleading as there is no consistency
between jurisdictions.
31.
Third, the prosecution service forms part of the judiciary, which is mostly the case
for a number of civil law countries. In this structure, there is usually a higher judicial
council or a similar independent body that regulates the careers of both prosecutors and
judges. Judges and prosecutors may have the possibility of switching between the
respective careers, which in some cases is limited by law.
32.
Finally, the prosecution service may be totally independent from both the executive
and the judiciary branches.
33.
Not only may prosecution services be institutionalized in different ways, their
internal structure may also differ. Within prosecution services, prosecutors are either
independent of one another within a horizontal structure, or the service is structured in a
hierarchical manner. Within a horizontal structure, prosecutors generally enjoy more
autonomy, while within a hierarchical structure, it is easier to align the application and
interpretation of the law as well as a common approach to criminal justice policy, since
there will be an objective, in the name of consistency, to ensure that common practices,
procedures and policies are followed. Arguably, the likelihood for an abuse of authority
increases with a more hierarchical structure; therefore an adequate system of checks and
balances must be in place as a safeguard against this risk. This may occur through internal
7
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