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    Lesson 2: The role and characteristics of the prosecution as envisaged under international law

    Having seen the state of prosecution throughout the Asian region, it is important to study the role the prosecution mechanism should be playing in establishing effective rule of law and human rights under international legal principles. The primary sources of these will be the UN Guidelines on the Role of Prosecutors (Guidelines) and article 14 of the International Covenant on Civil and Political Rights (ICCPR), both of which can be found in the appendices.

    A. Roles and characteristics of the prosecution

    Guidelines, para 4
    Whereas prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles [equality before the law, presumption of innocence and the right to a fair hearing], thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime…

     
    The prosecution mechanism has two primary functions: maintaining the rule of law and upholding fair trial. These functions must be undertaken with complete independence and accountability, based solely upon legal principles.

    Maintaining rule of law

    Prosecutors are responsible for the enforcement of all existing law, as well as proposing new laws or amending old ones when necessary. If the law defines crimes but persons who violate that law are not prosecuted, then the law itself has no meaning. Equality before the law and equal treatment by the law is one of the root principles of international law and prosecutors must ensure it is upheld--all those who violate the law must be held accountable, be they police officers, government officials or ordinary citizens, just as all those who seek redress before the law must be treated equally.

    For prosecution to occur there must be competent officers with legal power to prosecute. This legal power should be combined with actual facilities for conducting such prosecutions. However, the role of the prosecutors in maintaining the rule of law goes further than just the prosecution--they are responsible for maintaining the rule of law from the time of investigation to the time of conviction or acquittal.

    This maintenance must be done without influence from the executive government, the judiciary or the police. The prosecution must make its own decisions guided only by the law and it must also ensure that other justice mechanisms are doing the same.

    Upholding fair trial

    ICCPR, article 14
    1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

    Fair trial is not only a basic human right recognized under international law, but also essential for the effective prosecution of human rights violations, the punishment of the perpetrators and the delivery of justice to the victims. The principle of fair trial encompasses all that is related to a fair trial before the trial in court actually occurs, such as the investigation of the crime and the collecting of evidence. It comprises positive and negative obligations. The positive aspect involves ensuring that all investigations into crimes and complaints are carried out properly, the necessary indictments filed and cases prosecuted according to the law. The negative aspect involves not implicating individuals without sufficient cause, not allowing cases to proceed in court without sufficient evidence and eliminating any abuse of power within the prosecution mechanism.

    Pre-trial; investigation

    Guideline 11
    Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.

    Investigations are a crucial part of the prosecutor's duty. Without investigations, there cannot be adequate collection of evidence and naming of suspects. Furthermore, given the dire situation of the police investigations in the majority of Asian countries, it is imperative that the prosecution conduct their own impartial investigations, and supervise those conducted by the police. These must include post mortem examinations and forensic science inquiries as well as speaking to witnesses and having access to all relevant documents.

    Though the function of criminal investigation and the function of prosecutions are different and should be independent from each other, there is still a significant link between the two. Any prosecution based on faulty investigations will most likely fail due to a lack of evidence; investigators can sabotage prosecutions either due to their ignorance and neglect or due to deliberate acts in not collecting available evidence. Thus, prosecutors should have legal capacity to review evidence and to direct the investigations in some manner so as to prevent faulty investigations.

    Based on these investigations, it is the job of the prosecutor to file indictments or direct the police to do so. Following this is the prosecution of the case itself. It is important to ensure that the investigation, indictment and prosecution all occur in the shortest time possible; delays in any of these amount to a delay in justice and further violation of victims' rights.

    The criminal investigators also have the ability to fabricate cases. In such instances, prosecutors have the duty to probe the evidence and to guarantee the basic rights of people by preventing such fabricated cases, as mentioned in guideline 14. In the context of countries where there are very grave abuses by the investigators, who are in fact policemen, this function of the prosecutors can prevent severe miscarriages of justice and pain caused to innocent citizens. The prosecutors have also the duty to be fair to those who they prosecute. All norms and rules relating to fairness and the rights of the accused persons should be adhered to.

    It is very important for prosecutors to check police investigations and ensure no illegal methods are being used, particularly torture. Guideline 16 emphasizes that if prosecutors come across information that torture or other illegal practices have been used to procure evidence, they must disallow the use of such evidence, inform the court and take action against the perpetrators. Article 14(3)(g) of the ICCPR further states that no one shall be compelled to testify against themselves or to confess to guilt.

    Trial

    The principle of the presumption of innocence is an essential one in the fight for justice. Article 14(2) of the ICCPR states that "everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law". While this principle is predominant during the trial itself, it must also be upheld in the pre-trial stages. As noted by the Human Rights Committee in General Comment No. 13, the principle of innocence means that

    the burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial [http://www.ohchr.org/english/bodies/hrc/comments.htm].

    The principle of innocence, as well as all other principles involved in ensuring due process of law during the trial stage must be upheld by the prosecutor, who is bound to maintain the rule of law. This responsibility to the law also means that the prosecutor should not strive for a conviction; while a case should be firmly and fairly presented, there must be some restraint in how it is advanced. This is because the prosecutor is the representative not of any ordinary party to a controversy, but of a state. The state's obligation to govern impartially is as compelling as its obligation to govern at all, and therefore, its interest in a criminal prosecution must be that justice is done, not that it shall win a case.
     
    Another important principle to be upheld is article 14(3)(b) of the ICCPR, which provides that everyone is entitled to "have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing". This is strengthened by 14(3)(d), which says that all those accused of a crime must be provided legal assistance, without payment if they cannot afford it.

    During the trial, the prosecution must also ensure that if the accused are being detained, their conditions of detention are not in violation of international or domestic law.

    Similarly, the prosecution should also take the responsibility of providing adequate protection to witnesses and complainants. Witness testimony is usually essential in successful prosecutions, particularly in human rights violations. For this reason, they are also particularly vulnerable to attacks and intimidation by the perpetrators, as indicated in Lesson 1. A lack of protection will undoubtedly affect whether witnesses will come forward or not to testify and ensure the successful prosecution of the perpetrators; the conviction rate in Sri Lanka is a mere four per cent, largely due to the failure of witnesses to appear in court. Furthermore, when the prosecution is made aware of the fact that witnesses and complainants have been threatened, it must take effective action against the perpetrators.

    B. Relationships with law enforcement and accused

    Guideline 20
    In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to cooperate with the police, the courts, the legal profession, public defenders and other government agencies or institutions.


    The unique position of the prosecutor within the criminal justice system necessitates a working relationship with other parts of the system; the better the relationship, the better the working of the system as a whole. However, it is crucial to note here that all these relationships must be based solely on legal principles. The purpose of the relationships is to pursue justice, which must be foremost in the mind of the prosecutor.

    Law enforcement agencies

    With regards to the police, it is important for the prosecution to have a relationship with them to ensure cooperation and collaboration, as mentioned above, regarding criminal investigations. However, such a relationship will also reduce the likelihood of police errors as well as ensure that as soon as the police receive any complaints or begin investigations, they inform the prosecution department or seek their advice. Regardless of the relationship though, it is the role of the prosecution to ensure that the police are working within the confines of the law and that due process is being followed.

    When it comes to the courts, guideline 10 states that "the office of prosecutors shall be strictly separated from judicial functions." This is to ensure the independence and impartiality of the prosecution mechanism, which must however, inform the courts of all relevant matters. While it is the court that must ultimately decide on the outcome of a case, it can only do so based on the case in front of it; this will largely depend upon the work of the prosecution. Furthermore, it is the responsibility of the prosecutor to keep the court informed regarding violations committed by the police or others during the course of the case.

    Accused

    As mentioned in section A, the law provides for many rights for those accused of crimes. It is the prosecutor's duty to ensure that these rights are protected. However, again, the prosecutor must also remember that he is a public official, and as such must undertake his duty impartially, with a view to obtaining justice.

    Questions For Discussion

    1.  What are the domestic legal provisions regarding the mandate of the prosecutor in your county?
    2.  Are there provisions regarding the discipline of prosecutors who fail to carry out their duties in accordance with the law?
    3.  In your opinion, are the international provisions mentioned in the lesson adequate? If not, what would you add/amend?
    4.  Discuss how such legal provisions can be practically implemented.

    Human Rights Correspondence School
    Asian Human Rights Commission
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