Whereas in the Charter of the United Nations the peoples of the world affirm, inter
alia, their determination to establish conditions under which justice can be
maintained, and proclaim as one of their purposes the achievement of
international cooperation in promoting and encouraging respect for human rights
and fundamental freedoms without distinction as to race, sex, language or
religion,
Whereas the Universal Declaration of Human
Rights enshrines the principles of equality before the law, the presumption of
innocence and the right to a fair and public hearing by an independent and
impartial tribunal,
Whereas frequently there still exists a gap
between the vision underlying those principles and the actual situation,
Whereas the organization and administration of
justice in every country should be inspired by those principles, and efforts
undertaken to translate them fully into reality,
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, thus contributing to fair and equitable
criminal justice and the effective protection of citizens against crime,
Whereas it is essential to ensure that
prosecutors possess the professional qualifications required for the
accomplishment of their functions, through improved methods of recruitment and
legal and professional training, and through the provision of all necessary
means for the proper performance of their role in combating criminality,
particularly in its new forms and dimensions,
Whereas the General Assembly, by its
resolution 34/169 of 17 December 1979, adopted the Code of Conduct for Law
Enforcement Officials, on the recommendation of the Fifth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders,
Whereas in resolution 16 of the Sixth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, the
Committee on Crime Prevention and Control was called upon to include among its
priorities the elaboration of guidelines relating to the independence of judges
and the selection, professional training and status of judges and prosecutors,
Whereas the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders adopted the Basic Principles on the Independence of the
Judiciary, subsequently endorsed by the General Assembly in its resolutions
40/32 of 29 November 1985 and 40/146 of 13 December 1985,
Whereas the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, recommends measures to be
taken at the international and national levels to improve access to justice and
fair treatment, restitution, compensation and assistance for victims of crime,
Whereas, in resolution 7 of the Seventh
Congress the Committee was called upon to consider the need for guidelines
relating, inter alia, to the selection, professional training and status of
prosecutors, their expected tasks and conduct, means to enhance their
contribution to the smooth functioning of the criminal justice system and their
cooperation with the police, the scope of their discretionary powers, and their
role in criminal proceedings, and to report thereon to future United Nations
congresses,
The Guidelines set forth below, which have
been formulated to assist Member States in their tasks of securing and
promoting the effectiveness, impartiality and fairness of prosecutors in
criminal proceedings, should be respected and taken into account by Governments
within the framework of their national legislation and practice, and should be
brought to the attention of prosecutors, as well as other persons, such as
judges, lawyers, members of the executive and the legislature and the public in
general. The present Guidelines have been formulated principally with public prosecutors
in mind, but they apply equally, as appropriate, to prosecutors appointed on an
ad hoc basis.
Qualifications, selection and training
1. Persons selected as prosecutors shall be
individuals of integrity and ability, with appropriate training and qualifications.
2. States shall ensure that:
(a) Selection criteria for prosecutors embody
safeguards against appointments based on partiality or prejudice, excluding any
discrimination against a person on the grounds of race, colour, sex. Language,
religion, political or other opinion, national, social or ethnic origin,
property, birth, economic or other status, except that it shall not be
considered discriminatory to require a candidate for prosecutorial office to be
a national of the country concerned;
(b) Prosecutors have appropriate education and
training and should be made aware of the ideals and ethical duties of their
office, of the constitutional and statutory protections for the rights of the
suspect and the victim, and of human rights and fundamental freedoms recognized
by national and international law.
Status and conditions of service
3. Prosecutors, as essential agents of the
administration of justice, shall at all times maintain the honour and dignity
of their profession.
4. States shall ensure that prosecutors are
able to perform their professional functions without intimidation, hindrance,
harassment, improper interference or unjustified exposure to civil, penal or
other liability.
5. Prosecutors and their families shall be
physically protected by the authorities when their personal safety is
threatened as a result of the discharge of prosecutorial functions.
6. Reasonable conditions of service of
prosecutors, adequate remuneration and, where applicable, tenure, pension and
age of retirement shall be set out by law or published rules or regulations.
7. Promotion of prosecutors, wherever such a
system exists, shall be based on objective factors, in particular professional
qualifications, ability, integrity and experience, and decided upon in
accordance with fair and impartial procedures.
Freedom of expression and association
8. Prosecutors like other citizens are
entitled to freedom of expression, belief, association and assembly. In
particular, they shall have the right to take part in public discussion of
matters concerning the law, the administration of justice and the promotion and
protection of human rights and to join or form local, national or international
organizations and attend their meetings, without suffering professional disadvantage
by reason of their lawful action or their membership in a lawful organization.
In exercising these rights, prosecutors shall always conduct themselves in
accordance with the law and the recognized standards and ethics of their
profession.
9. Prosecutors shall be free to form and join
professional associations or other organizations to represent their interests,
to promote their professional training and to protect their status.
Role in criminal proceedings
10. The office of prosecutors shall be
strictly separated from judicial functions.
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.
12. Prosecutors shall, in accordance with the
law, perform their duties fairly, consistently and expeditiously, and respect
and protect human dignity and uphold human rights, thus contributing to
ensuring due process and the smooth functioning of the criminal justice system.
13. In the performance of their duties,
prosecutors shall:
(a) Carry out their functions impartially and
avoid all political, social, religious, racial, cultural, sexual or any other
kind of discrimination;
(b) Protect the public interest, act with
objectivity, take proper account of the position of the suspect and the victim,
and pay attention to all relevant circumstances, irrespective of whether they
are to the advantage or disadvantage of the suspect;
(c) Keep matters in the* possession
confidential, unless the performance of duty or the needs of justice require
otherwise;
(d) Consider the views and concerns of victims
when their personal interests are affected and ensure that victims are informed
of their rights in accordance with the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power.
14. Prosecutors shall not initiate or continue
prosecution, or shall make every effort to stay proceedings, when an impartial
investigation shows the charge to be unfounded.
15. Prosecutors shall give due attention to
the prosecution of crimes committed by public officials, particularly
corruption, abuse of power, grave violations of human rights and other crimes
recognized by international law and, where authorized by law or consistent with
local practice, the investigation of such offences.
16. When prosecutors come into possession of
evidence against suspects that they know or believe on reasonable grounds was
obtained through recourse to unlawful methods, which constitute a grave
violation of the suspect's human rights, especially involving torture or cruel,
inhuman or degrading treatment or punishment, or other abuses of human rights,
they shall refuse to use such evidence against anyone other than those who used
such methods, or inform the Court accordingly, and shall take all necessary steps
to ensure that those responsible for using such methods are brought to justice.
Discretionary functions
17. In countries where prosecutors are vested
with discretionary functions, the law or published rules or regulations shall
provide guidelines to enhance fairness and consistency of approach in taking
decisions in the prosecution process, including institution or waiver of
prosecution.
Alternatives to prosecution
18. In accordance with national law,
prosecutors shall give due consideration to waiving prosecution, discontinuing
proceedings conditionally or unconditionally, or diverting criminal cases from
the formal justice system, with full respect for the rights of suspect(s) and
the victim(s). For this purpose, States should fully explore the possibility of
adopting diversion schemes not only to alleviate excessive court loads, but
also to avoid the stigmatization of pre-trial detention, indictment and
conviction, as well as the possible adverse effects of imprisonment.
19. In countries where prosecutors are vested
with discretionary functions as to the decision whether or not to prosecute a
juvenile, special considerations shall be given to the nature and gravity of
the offence, protection of society and the personality and background of the
juvenile. In making that decision, prosecutors shall particularly consider
available alternatives to prosecution under the relevant juvenile justice laws
and procedures. Prosecutors shall use their best efforts to take prosecutory
action against juveniles only to the extent strictly necessary.
Relations with other government
agencies or institutions
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.
Disciplinary proceedings
21. Disciplinary offences of prosecutors shall
be based on law or lawful regulations. Complaints against prosecutors which
allege that they acted in a manner clearly out of the range of professional
standards shall be processed expeditiously and fairly under appropriate
procedures. Prosecutors shall have the right to a fair hearing. The decision
shall be subject to independent review.
22. Disciplinary proceedings against
prosecutors shall guarantee an objective evaluation and decision. They shall be
determined in accordance with the law, the code of professional conduct and
other established standards and ethics and in the light of the present Guidelines.
Observance of the Guidelines
23. Prosecutors shall respect the present
Guidelines. They shall also, to the best of their capability, prevent and
actively oppose any violations thereof.
24. Prosecutors who have reason to believe
that a violation of the present Guidelines has occurred or is about to occur
shall report the matter to their superior authorities and, where necessary, to
other appropriate authorities or organs vested with reviewing or remedial
power.
© Copyright 1997 - 2000
Office
of the United Nations High Commissioner for Human Rights
Geneva,
Switzerland