Options for independence of prosecutors in exercise of judicial functions, current situation and remedies

Author:Teodor Victor Alistar - Cristian Vasile Bitea
Pages:62-71
SUMMARY

The independence of justice is often debated in the Romanian legal community, regarding also the independence of prosecutors. The legislative changes are subject of review in accordance with international standards or approaches and national constitutional framework. From this dual perspective a set of reflections and requirements are presented to be taken into account in legislative review of prosecutors’ status with their assigned professional rights and liabilities.

 
CONTENT
62 TEODOR VICTOR ALISTAR, CRISTIAN VASILE BITEA
OPTIONS FOR INDEPENDENCE OF PROSECUTORS
IN EXERCISE OF JUDICIAL FUNCTIONS,
CURRENT SITUATION AND REMEDIES
– Some issues of debate on the independence and accountability
of prosecutors. Situational and trend aspects –
Associate professor Teodor Victor ALISTAR, PhD1
Cristian Vasile BITEA
ABSTRACT
The independence of justice is often debated in the Romanian legal community, regarding also
the independence of prosecutors. The legislative changes are subject of review in accordance with
international standards or approaches and national constitutional framework. From this dual
perspective a set of reflections and requirements are presented to be taken into account in legislative
review of prosecutors’ status with their assigned professional rights and liabilities.
Keywords: prosecutors, status, independence, accountability, relationship, separation of powers.
Background context and present
In Romania, the role of Public Ministry and the prosecutors is determined by
the Constitution2 and by the statute of judges and prosecutors law3.
In order to guarantee the independence of justice a council for the judiciary has
been established, called Superior Council of Magistracy.
According to these basic regulations within the judicial activity, the Public
Ministry shall represent the general interests of the society and defend legal order,
as well as the citizens' rights and freedoms. The Public Ministry shall discharge its
powers through public prosecutors, constituted into public prosecutor's offices, in
accordance with the law. The public prosecutor's offices attached to courts of law
shall direct and supervise the criminal investigation activity of the police, according
1 National University of Political Studies and Public Administration, Faculty of Public Administration
E-mail: victor.alistar@yahoo.com
2 The Constitution of Romania of 1991 was amended and completed by the Law No. 429/2003 o n
the revision of the Constitution of Romania, published in the Official Gazette of Romania, Part I,
No. 758 of 29 October 2003. The Law No. 429/2003 on the revision of the Constitution of Romania was
approved by the national referendum of 18-19 October 2003, and came into force on 29 October 2003.
3 Law no. 303/2004 came into force on 27 September 2004 and republished in 2005 in the Official
Gazette of Romania, Part I, No. 826 of 13 September 2005, with subsequent amendments.
Law Review vol. III, Special issue 2017, pp. 62-71
Options of independence of prosecutors in exercise... 63
to the law. The office of public prosecutor is incompatible with any other public or
private office, except for academic activities.
Establishing the rights of prosecutors is done taking into account the place and
role of justice in the rule of law, the responsibility and complexity of the
prosecutor's office, the prohibitions and incompatibilities prescribed by law for this
function, and their independence and impartiality.
At the same time, the statute also considers and stipulates that continuous
professional training of prosecutors is the guarantee of independence and
impartiality in the exercise of their office. Therefore, training is viewed as a form and
way of guaranteeing the prosecutors’ independence.
Regarding the statute of public prosecutors an important provision laid down
in constitution [art.132(1)] says that „Public prosecutors shall carry out their activity in
accordance with the principle of legality, impartiality and hierarchical control, under the
authority of the Minister of Justice”. This rule has been subject of many disputes and
interpretations, either statutory, professional, academic or lay discussions.
Developing the constitutional text, the statute [art. 3(1)] stipulates that „Prosecutors
appointed by the President of Romania enjoy stability and are independent, under the law.”
At the moment of preparing this article the Parliament is assessing the possibility
to ensure more consistency between Constitution and organic law in this respect.
Another question raised is regarding the place of prosecution service within
the system of separation of powers. Is it part of the executive power, the judiciary
power, or somewhere in between? According to the Romanian Constitution it is
part of „Judicial Authority” (Chapter VI of the Constitution)4 In this context to be
mention that prosecutors are enjoying stability not immovability as a difference
stated by Constitution, and they are called to enforce penal policy of the state as
part of general policy of government. For this reason Constitution provide authority
of Minister of Justice upon prosecutors.
Main stakeholders and their role
What are the prosecutors and what they do?
European Court of Human Rights (ECHR/CEDO) held that „prosecutors are
civil servants whose task is to contribute to the proper administration of justice. In this
respect they form part of the judicial machinery in the broader sense of this term”5. Council
4 Some interesting points of view on the topic and practical approaches can be found find in
Alexandru, I., Giredariu, O. (2013) The public ministry between executive and justice. Bucureşti, Editura
Universul Juridic and Alistar, V. (2007) Le statut du procureur en Roumanie. Le procureur: magistrat ou
agent exécutif ?”, Editura Universitar Danubius.
5 European Network of Councils for the Judiciary (ENCJ) – Independence and Accountability of the
Prosecution Report 2014-2016, para.III.A.3. Apud (ECHR, Lešník v. Slovakia, § 54, 11 March 2003,
35640/97, ECHR, Błaja News sp. Z o.o. v. Poland, § 60, 23 November 2013, ECHR Chernysheva v.
Russia, 10 June 2004).
64 TEODOR VICTOR ALISTAR, CRISTIAN VASILE BITEA
of Europe (COE) defines public prosecutors as “public authorities who, on behalf of
society and in the public interest, ensure the application of the law where the breach of the
law carries a criminal sanction, taking into account both the rights of the individual and the
necessary effectiveness of the criminal justice system6”.
Tranparency International in its Practical guide Enhancing judiciary`s ability to
curb corruption stated that „Judicial and prosecutorial independence helps establish an
impartial judiciary and improves public trust in the courts. Prosecutorial independence,
even in those jurisdictions in which they are not formally part of the judiciary, occurs when
the decision-making of prosecutors is free from interference by any other state entity
including higher prosecutorial offices or courts7”.
Few years ago, the Superior Council of Magistracy adopted the Profile of the
magistrate in the Romanian judicial system and the Evaluation Guide, reference papers
in understanding the vision, the demands and the aims of judicial branch as a
public service and among these a view of the prosecutors’ activity8.
At a glance, the prosecutors have constitutional basis and legal status, are
invested with public authority, carry out specific judicial functions, acting within
hierarchy circle, with proper rights and liabilities, legal restrictions concerning
conflicts of interest and incompatibilities, seeking and pursuing for the jure and the
facto independence on their activity and responding to the need for accountability
and public scrutiny.
The role of the Council for the Judiciary
There are 5 states9 among EU countries that have organised Councils for the
Judiciary including both categories: judges and prosecutors: France, Italy, Belgium,
Romania and Bulgaria, more or less within so called „Southern European Model”10
which are significantly different from Northern European Model.
The design, size, dimension and competences of councils for judiciary are subject
of studies and comparative questions in order to find out and highlight their role in
6 The role of public prosecution in the criminal justice system - Recommendation Rec(2000)19 - adopted by
the Committee of Ministers of the Council of Europe on 6 October 2000 and Explanatory Memorandum,
p. 4, para. 1.
7 Alistar, V., co. (2015) Practical guide Enhancing judiciary`s ability to curb corruption. Bucureşti,
Tranparency International, p.12.
8 According to the first document (2006), the magistrates must be able to think independently in
juridical matters, recognize the inner factors that might cloud their judgment, understand the society,
manifest moral integrity, have the capacity and the courage to improve his/her working environment,
communicate clearly and logically and be receptive to the information that might improve his/her
message, be credible and trustworthy, be efficient in the management of his/her own duties and contribute
to the improvement of the court’s administration. The personality profile connects to: independent/
critical thought; moral- cognitive integrity/consistency, social awareness and commitments, being
inclined for hard work and continuous professional training; authenticity; clear and logical communication,
receptivity toward any information that might improve his/her message; self-control; conscientiousness,
diligence, collegial respect.
9 Three of them are EU/EEC founders (1957).
10 Voermans, W., Albers,P. (2003) „Councils for the Judiciary in EU Countries “. Brussels, p. 10.
Options of independence of prosecutors in exercise... 65
the protection of prosecutors’ guarantees provided by law. In this regard, a chart was
drawn up below, where you may see some substantial differences in approach.
We may note that in the Romanian law system, the Superior Council of
Magistracy has the right and obligation to defend prosecutors against any act that
might affect their independence or impartiality or would create suspicions about
them. Prosecutors who consider that their independence and impartiality are
affected in any way through acts of prohibition of professional activity may
address to the Higher Magistracy Council in order to take the necessary measures,
according to the law.
The role of policy-makers
Stakeholders in a consolidate and adaptive legal framework comprise the
Parliament as well as the Government through the Ministry of Justice, professional
associations, think-thank structures and, last but not least, judicial authority’s bodies.
Political will and society’s expectations are crucial for better regulation. In this
respect Council of Europe (COE) has shown that „States should take appropriate
measures to ensure that the legal status, the competencies and the procedural role of public
prosecutors are established by law in a way that there can be no legitimate doubt about the
independence and impartiality of the court judges.”11 Guaranteeing the prosecutors’
independence should be seen as a way to promote and to preserve it, as the case
may be to safeguard it.
The decision makers are called to be accountable to public opinion12 [10] for
measures enhancing capacity of judiciary from a dual perspective: resources and
regulatory framework.
The role of civil society
If we have a look at the composition of those 5 mixt-organized (judges and
prosecutors) bodies we mentioned above, we may note that civil society, in the
narrow sense of the term, is represented only in the Romanian Council for
Judiciary. In the others, there are only magistrates or magistrates and professors,
practitioners or lawyers appointed by the head of state or parliaments.
A project team of European Network of Councils for the Judiciary (ENCJ) in
one of their open reports on the composition of the Council for the Judiciary
„highlights the advantages of including members of civil society who are held in high
esteem by their peers and are in a position to represent the ordinary citizen in addition to
the needs of society as a whole, thereby giving rise to a diverse representation of society13”.
11 The role of public prosecution in the criminal justice system - R ecommendation Rec(2000)19 - adopted
by the Committee of Ministers of the Council of Europe on 6 October 2000 and Explanatory
Memorandum, p. 6, para. 11.
12 Cocoşatu, M. (2012) Governance in Europe. Bucureşti, Editura ProUniversitaria.
13 European Network of Councils for the Judiciary (ENCJ) – Councils for the Judiciary Report 2010-2011,
p. 5, para. 2.6.
66 TEODOR VICTOR ALISTAR, CRISTIAN VASILE BITEA
Moreover, in other further report, ENCJ suggests referring to the Declaration
of principles on prosecutors (Naples, 1996) that „A council of Prosecutors offers one
further means of accountability, particularly if the Council includes members of civil
society14 and „Such councils must be representative of the professional body of
prosecutors and must include members of civil society15”.
Open epilogue
There is a wide range of international reports, resolutions, charters,
recommendations, standards, declarations of principles, guidelines, opinions,
statements, research projects, white papers, public policies and programmatic
documents that treated the independence, autonomy and accountability of
prosecutors, giving binding or non-binding rules and patterns of good practices for
common and transnational approach.
An increasingly discussed issue and a questionable one is the following:
independence related to whom? In most situations related to the executive and
legislative branch or political parties, but also in relation with the courts, other
public or private entities, professionals etc.
Currently there is a heated debate concerning the interference of legislature in
setting and updating the regulatory framework:
Is it viewed as a normal one, grounded on society needs and dynamics or it
comes like a threat to prosecutors’ independence?
How is it received and treated by the stakeholders and public opinion?
Could be a law passed by the Parliament, within constitutional limits, an
arbitrary action?
Forward we would like to emphasize some positioning statements that may
comprise further debates and reflections on how the independence and accountability
of prosecutors should meet other check and balance mechanisms.
ENCJ Report 2014-2016, Independence and Accountability of the Prosecution,
underlines among others that „The priorities in terms of types of offences can properly be
influenced by legislation”16, or „Prosecutors must not pursue a conviction whatever the
circumstances and at all costs”17 or „It is legitimate for the executive to require a prosecution
service to implement government policies contained in legislation or decided upon by the
executive, but such influence must not bear upon any individual prosecuting decision”18.
Referring to the relationship between public prosecutors and the executive and
legislative powers as well as to judiciary, Council of Europe (COE) states that
14 European Network of Councils for the Judiciary (ENCJ) – Independence and Accountability of the
Prosecution Report 2014-2016, para. C.1/45.
15 Ibidem, para. B.1.1/13.
16 Ibidem, para. B.1.3/38.
17 Ibidem, para. B.1.3/39.
18 Ibidem, para. B.1.3/40.
Options of independence of prosecutors in exercise... 67
„Public prosecutors should not interfere with the competence of the legislative and the
executive powers”19 or „States should take appropriate measures to ensure that the legal
status, the competencies and the procedural role of public prosecutors are established by law
in a way that there can be no legitimate doubt about the independence and impartiality of
the court judges. In particular, States should guarantee that a person cannot at the same
time perform duties as a public prosecutor and as a court judge”20.
On the same prerequisites, in the circulated paper “The Status and Role of
Prosecutors. A United Nations Office on Drugs and Crime and International
Association of Prosecutors Guide” (2014) it is shown that „The independence of the
prosecutor does not mean that a prosecutor is completely autonomous and accountable to
no one. Prosecution services are accountable to the executive and legislative branches of
government, to the public and to an extent the judiciary. „Accountability” of the prosecutor
means that a prosecution service may be required to account for its actions either by filing
reports, responding to inquiries or, in some situations, acting as a respondent in a court
hearing. Accountability may also mean that a prosecution service can potentially be held
liable as a result of inefficiencies and abuses of its authority. Individual prosecutors are also
accountable for their decisions and actions, through the courts, the hierarchies of their
prosecution services, their professional associations and the media and public interest in
their professional conduct. […]Accountability also involves accountability to other
branches of government and the general public21or
„A prosecution service may be required to report on its activities or on specific issues
to the executive branch and to the Parliament. The Ministry of Justice, the legislative
branch and financial and auditing services of government can be kept informed of the
activities and expenditures of a prosecution service in a variety of ways. One method is the
preparation and tabling of annual reports to the legislature and in some jurisdictions the
subsequent publication of those reports. The appearance of senior members of the prosecution
services before legislators to answer questions regarding the operation of the prosecution
service is an example of another method. However, care should be taken to ensure that any
accountability to Parliament does not extend to permitting the legislature to give directions
to a prosecutor in any individual case or to compel the disclosure of information which is
properly confidential22”.
Finally, an overlook on branch machinery shows that the prosecutors’ activity
includes dealing with criminal matters (mainly) or non-criminal matters (such as in
the case of civil or administrative trials/litigations).
They also may be involved in non-specific activities without the exercising of
judicial functions. For example, a prosecutor may act as a part of an electoral
19 The role of public prosecution in the criminal justice system – Recommendation Rec(2000)19 –
adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 and Explanatory
Memorandum, p. 6, para. 12.
20 Ibidem, p. 7, para. 17.
21The Status and Role of Prosecutors. A United Nations Office on Drugs and Crime and
International Association of Prosecutors Guide” (2014), p. 17, para. 2.
22 Ibidem, p. 18, para. 2.1.
68 TEODOR VICTOR ALISTAR, CRISTIAN VASILE BITEA
commission/body every electoral cycle, together with other public officials, political
parties’ representatives and electoral experts. Should they claim the independence
even in this case? If so, has it the same weight as in their day-by-day working judicial
issues?
It is no less true that prosecutors may temporarily fulfil public dignities in
executive branch where they may act as state secretaries, counsellors to the ministers,
general directors, prefects etc.
There are questions raised and perhaps there are several answers and approaches.
As well as required measures, specific regulatory framework and public expectations.
We may conclude that, under both its forms, internal and external,
prosecutors’ independence implies accountability and the latter implies also self-
responsibility meaning either individual or as an “esprit de corps”.
COMPARATIVE TABLE OF COUNCILS FOR THE JUDICIARY
ORGANIZED FOR BOTH: JUDGES AND PROSECUTIONS – Governance and
independence factors for legislative consideration
Item France Italy Belgium Bulgaria Romania
Total
number of
members
22 members 27 members 44 members 25 members 19 members
Term of
office
4 years 4 years 4 years 5 years 6 years
Compo-
sition
- 6 elected
judges (5 are
member of the
formation with
jurisdiction
over sitting
judges and 1 is
a member of
the formation
with
jurisdiction
over public
prosecutors); -
6 elected
prosecutors (5 are
member of the
formation with
jurisdiction over
public
prosecutors and 1
- 16 members
are
magistrates,
elected by
their peers.
The members
elected by
judges are
chosen as
follows: 2
magistrates
from the
Supreme
Court (Corte
di
Cassazione),
who are
judges
and/or
public
- 22 judicial
members
elected by
their peers -
each
linguistic
college
comprise at
least 1 judge
and 1
prosecutor.
- 22 non-
judicial
members
appointed by
the Senate –
each
linguistic
college
comprises at
- 11 members
elected by the
Judicial
system
bodies out of
their own
composition,
the judges
electing 6, the
prosecutors
– 4 and the
investigating
magistrates
– 1 of these.
- 11 members
elected by the
National
Assembly
among
judges,
- 14
magistrates
(9 judges and
5 prosecutors,
representing
all levels of
jurisdiction)
elected by the
general
assemblies of
magistrates
and validated
by the
Romanian
Senate
- 2 lay
members,
representativ
es of the civil
society,
Options of independence of prosecutors in exercise... 69
is a member of
the formation
with jurisdiction
over sitting
judges);
- President of
the Cour de
Cassation;
- General
Prosecutor of the
Cour de
Cassation;
- 8 prominent
figures from
outside the
judiciary:
1 member of the
Conseild’Etat
elected by the
general
assembly of the
Conseild’Etat,
1 lawyer
nominated by
the president of
the national
Council of bars
and 6
prominent
figures
nominated
respectively by
the President of
the Republic,
the president of
the National
Assembly and
the president of
the Senate.
prosecutors
deciding on
legitimacy
issues; 4
public
prosecutors
who carry out
their role by
deciding on the
merits; 10
judges who
carry out
their role of
judges in trial
courts
deciding on
the merits.
- 8 lay
members,
appointed by
Parliament in
a joint
session;
- 3 ex officio
members: the
President of
Italy
(Chairperson)
, the First
Chief Judge
of the
Supreme
Court and the
Attorney
General (Chief
Public
Prosecutor).
least: - 4
lawyers
member of
the bar for at
least 10 years,
- 3 university
or college of
higher
education
professors
having at
least 10 years
of
professional
experience
and
- 4 members
who hold an
university or
equivalent
degree as
well as 10
years of
relevant
professional
experience.
prosecutors,
investigating
magistrates,
full
professors in
legal science,
attorneys at
law or other
lawyers.
- 3 ex officio
members: the
President of
the Supreme
Court of
Cassation, the
President of
the Supreme
Administrati
ve Court, and
the Prosecutor
General.
specialists in
law, who
enjoy a good
professional
and moral
reputation
elected by the
Romanian
Senate
- 3 ex officio
members: the
president of
the High
Court of
Cassation
and Justice,
the minister
of justice and
the general
prosecutor of
the
Prosecutor’s
Office
attached to
the High
Court of
Cassation
and Justice
Presidency
of the
Council
President of the
plenary
formation and
President of the
formation with
jurisdiction
The President
of the
Republic of
Italy
The
Presidency of
the High
Council is
exercised on
a rotating
The meetings
of the
Supreme
Judicial
Council shall
be presided
President: is
elected
among the
members
who are also
judges or
70 TEODOR VICTOR ALISTAR, CRISTIAN VASILE BITEA
over sitting
judges:
President of the
Cour de
Cassation.
Substitute
President of the
plenary
formation and
President of the
formation with
jurisdiction over
public
prosecutors:
General
Prosecutor of the
Cour de
Cassation.
basis by one
of the four
members of
the Bureau.
The Bureau is
composed of
four
members of
the General
Assembly
who serve as
President of
the Council
on a rotating
basis, for a
period of one
year.
over by the
Minister of
Justice,
without a
right to vote.
prosecutors for
a 1 year term
of office; (if
the President
is a judge
than the Vice-
president
must be a
prosecutor and
vice-versa)
Vice-
president: is
elected
among the
members
who are also
judges or
prosecutors for
a 1 year term
of office
Particularly
aspects
regarding
prosecutors
The formation
of the Council
with
jurisdiction
over public
prosecutors has
the task to issue
a simple
“favorable” or
unfavorable”
opinion on
proposed
appointments
by the Minister
of
Justice who is
not bound by
this opinion.
The formation
of the Council
with
jurisdiction
over
prosecutors
The High
Council is
exclusively
competent on
disciplinary
procedure
and sanctions
against
public
prosecutors.
The decision
adopted by
the
Disciplinary
Division can
be challenged
in front of the
Joint
Divisions of
the Supreme
Court.
The proposal
of a
candidate
prosecutor by
the High
Council can
be refuted by
the King
within 60
days by a
reasoned
decision, in
which case a
new
candidate
will be
proposed by
the Council.
In case of a
renewed
reasoned
refusal by the
King the
entire
procedure of
Disciplinary
procedure is
under the
competence
of the
Council. The
Supreme
Judicial
Council shall
impose the
disciplinary
sanctions of
demotion
and removal
from office
on
prosecutors
and
investigating
magistrates
Through its
specialised
section, the
Superior
Council of
Magistracy
fulfils the role
of a court in
the field of
the
disciplinary
liability of
prosecutors.
The SCM’s
Plenum
settles the
appeals
brought by
prosecutors
against the
decisions
rendered by
its section.
Options of independence of prosecutors in exercise... 71
issues a simple
opinion as only
the Minister of
Justice is
granted power
to impose a
sanction.
nomination is
reopened.
*This comparative table was elaborated according to data and information provided by ENCJ
BIBLIOGRAPHY
1. Alexandru, I., Giredariu, O. (2013) The public ministry between executive and
justice. București, Editura Universul Juridic
2. Alistar, V., co. (2015) Practical guide Enhancing judiciary`s ability to curb corruption.
București, Tranparency International
3. Alistar, V. (2007) Le statut du procureur en Roumanie. Le procureur: magistrat ou
agent exécutif ?”, Editura Universitar Danubius
4. Cocoşatu, M. (2012) Governance in Europe. Bucureşti, Editura Pro Universitaria
5. Voermans, W., Albers,P. (2003), Councils for the Judiciary in EU Countries,
Brussels
6. European Network of Councils for the Judiciary (ENCJ) – Councils for the
Judiciary Report 2010-2011
7. European Network of Councils for the Judiciary (ENCJ) – Independence and
Accountability of the Prosecution Report 2014-2016
8. The role of public prosecution in the criminal justice system - Recommendation
Rec(2000)19 - adopted by the Committee of Ministers of the Council of Europe on
6 October 2000 and Explanatory Memorandum
9. The Status and Role of Prosecutors. A United Nations Office on Drugs and
Crime and International Association of Prosecutors Guide (2014). New York