Most criminal jurisdictions in the world
have stopped imprisoning people at random, torturing them and arbitrarily
taking away their property. The others will eventually be caught up in the
spread of the rule of law and their prosecutors will then be able to conduct
themselves in the way in which most of us now do, giving proper consideration
to human rights in the course of the prosecution process. We are aided and
guided in that task by standards that are set by:
·
international and
regional bodies;
·
domestic law; and
·
rules and guidelines
prescribed by the various relevant professional agencies.
The XXIst Century will see increasing
attention paid to the implementation of these standards.
The Universal Declaration of Human Rights
(1948) is a good starting point. From it flow international covenants and
conventions, codes, rules, principles, guidelines and standards, usually
promulgated by the United Nations.
The International Covenant on Civil and
Political Rights (1966) contains guarantees of freedom from
arbitrary arrest and detention, the right to a fair and public trial and the
presumption of innocence.
The independence of the judiciary and the
legal profession are addressed in the Basic Principles on the Independence
of the Judiciary (1985), Basic Principles on the Role of Lawyers (1990),
Guidelines on the Role of Prosecutors (1990) and in the International
Bar Association's Standards for the Independence of the Legal Profession
(1990) and other documents such as the Beijing Statement of Principles of
the Independence of the Judiciary in the LAWASIA Region (1995).
Human rights provisions relevant to the
activities of law enforcement officials are found in the Standard Minimum
Rules for the Treatment of Prisoners (1977), Code of Conduct for Law
Enforcement Officials (1979), Principles of Medical Ethics Relevant to
the Role of Health Personnel, particularly Physicians, in the Protection of
Prisoners and Detainees against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (1982), Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984), UN Standard
Minimum Rules for the Administration of Juvenile Justice [Beijing Rules] (1985),
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment (1988), Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials (1990), UN Standard Minimum
Rules for Non-Custodial Measures [Tokyo Rules] (1990) and Guidelines for
the Prevention of Juvenile Delinquency [Riyadh Guidelines] (1990).
Provisions concerning human rights and the
administration of justice which relate to particular sectors of the community
(including juveniles, women, indigenous peoples, people with disabilities,
immigrants and asylum seekers) are found in the Convention on the
Elimination of All Forms of Racial Discrimination (1965), Declaration on
the Rights of Disabled Persons (1975), Convention on the Elimination of
All Forms of Discrimination Against Women (1982), Declaration on the
Human Rights of Individuals who are not Nationals of the Countries in which
they Live (1985), ILO Convention No 169 on Indigenous and Tribal Peoples
(1989), Convention on the Rights of the Child (1989), UN Rules
for the Protection of Juveniles Deprived of their Liberty (1990) and the Draft
Declaration on the Rights of Indigenous Peoples (1993).
In common law countries, pursuant to the Bangalore
Principles (1988), courts may have regard to the obligations undertaken by
countries under such instruments "for the purpose of removing ambiguity
or uncertainty from national constitutions, legislation or common law".
The Vienna Declaration and Programme of
Action of 1993 noted that:
"The
administration of justice, including law enforcement and prosecutorial agencies
and, specially an independent judiciary and legal profession in full conformity
with applicable standards contained in international human rights instruments,
are essential to the full and non-discriminatory realisation of human rights
and indispensable to the processes of democracy and sustainable
development."
In 1994 the UN General Assembly prepared a
plan of action for the UN Decade for Human Rights Education (1995-2004) in
which it called for governments to give special attention to "the
training of police, prison officials, lawyers, judges ... and other groups
which are in a particular position to effect the realisation of human
rights."
Domestic laws of responsible governments are
consistent with these standards. The rules of professional practice of our
professional associations and the guidelines given to prosecutors by
prosecuting agencies also mirror the basic values expressed in such instruments
- consistently with the just rule of law as we understand it. (What do we mean
by the just rule of law? I have attached to this paper some rather incomplete
thoughts on the subject.)
The reasons for our modern directions are
complex. In large part, however, they are motivated by a general acceptance of
the inherent dignity of the human person and the rights that attach to preserve
that dignity. There may also be pragmatic considerations: we often hear that
the best evidence in a prosecution is a confession; but we should qualify that
to mean only a voluntary confession - because an involuntary confession, one
resulting from torture or other pressure to confess, will be inherently
unreliable. (People make false confessions simply to escape from torture.)
Evidence that is otherwise unlawfully
obtained may also be unreliable and broader public interest considerations also
make it desirable that its use be discouraged.
A mix of idealism and pragmatism is to be
found in the development of the International Association of Prosecutors'
("IAP") Standards of Professional Responsibility and Statement
of the Essential Duties and Rights of Prosecutors ("the
Standards"). They are directed towards ensuring conduct that will more
effectively maintain the rule of law (more appropriately, the just rule of law)
in all our societies. In addition to the philosophical and jurisprudential
arguments supporting the rule of law, there is a very practical basis for
enforcing it. Without the rule of law, as history has taught us time and time
again, the climate is created for various kinds of extreme unpleasantness to
befall us - various forms of oppression or anarchy may be allowed to prevail
with unfortunate consequences for us all.
The IAP was formed in 1995 and has grown
apace since then. We now have over 900 individual members and over 70
organisational members representing 90 countries. We hold annual conferences
(the next being in Cape Town on 3-8 September 2000), produce publications and
research issues of relevance to prosecutors. We have established networks in
particular areas of practice designed to assist prosecutors confronted by
particular problems.
A significant early development for the
Association was the promulgation of the Standards. It is intended that
eventually all prosecution services in the world, not just our members, will
subscribe to and observe the Standards and be assessed according to the extent
to which they implement them in practice. The Standards are complementary to
the UN Guidelines on the Role of Prosecutors of 1990 (which are presently being
reviewed in the light of the IAP Standards and other considerations). They have
been favourably cited in the recent report on the justice system of Northern
Ireland.
An important point to note about the
Standards (which are also attached to this paper with a brief description of
the way in which they were developed) is that they are the minimum standards to
be achieved by all prosecutors. They are not high ideals to be aimed for. In
mathematical terms, they are the lowest common denominator. More simply, they
should be thought of as a starting point, rather than a finishing line.
The Standards are promulgated in accordance
with the Object of the IAP to:
"...
promote and enhance those standards and principles which are generally
recognised internationally as necessary for the proper and independent
prosecution of offences".
Another important point to note about them
is that they are short. That is important because it demonstrates that they are
a distillation of the principles considered important by the prosecutors of the
world. They are not cluttered with detailed rules and guidelines, subject to
numerous qualifications and exceptions. They paint a simple outline and leave
you to responsibly fill in the detail.
I propose to refer to some only of the
issues included in the Standards. You may read and consider them in full in
your own time. It would be surprising if the prosecutors of Canada were not
already measuring up to them in full, but they are a useful reminder of how we
should go about our business.
Article 1 prescribes a number of forms of conduct for
prosecutors and, importantly, in paragraph (f) refers expressly to the
prosecutor's protection of an accused person's right to a fair trial.
That is in many ways our raison d'etre - it is why we do what we do and
lies at the heart of all our work. The Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights both require that
trials be fair - to both sides.
A guide to the requirements of a fair trial
may be found in the listed reference materials also attached to this paper.
Fairness in many situations will be a matter of judgment, but this Article
obliges us to pursue it. We must do so with due regard to the human rights of
those involved. We must do so always in a way that is in the public interest (an
expression that does not mean the same as "of public interest", or
"in the interests of a section of the public").
Article 2 addresses the independence of the prosecutor,
but it is qualified. The degree of independence of prosecutorial decision
making, from government and other influences, varies considerably across the
globe. In some jurisdictions the prosecuting authority is completely
independent of government in its decision making; in others it is intimately
bound up in the political functioning of government; and there are all shades
in between. This Article is capable of dealing with those shades of
independence. Where it is qualified, however, there is an obligation to ensure
that any interference with that independence is open and accountable.
Article 3 requires impartiality in the way in which we
carry out our functions. Paragraph (e), together with Articles 1 (f) and 4.3
(d), requires the prosecution to disclose to the accused in a timely manner all
material within its knowledge that may be relevant to the issues to be tried,
whether that material favours an outcome for the prosecution or for the
defence. This is a vitally important requirement. There is much pressure these
days in many jurisdictions for the defence to make at least limited disclosure
to the prosecution and we cannot reasonably expect that to occur other than in
a spirit of cooperation between the parties. That spirit will not be engendered
unless there is trust - unless it is clear that the prosecution, which has a
favourable balance of power, is making full disclosure in the first place.
Article 4 is a more specific provision affecting the conduct of
proceedings by prosecutors and requires us to do certain things. Again, it
recognises that there are differences between our various agencies. Some are
engaged in the investigation of crime while some have no investigatory role at
all. In all circumstances the Article casts upon us obligations to act objectively,
impartially and professionally.
Article 4.2 (d) requires us to know when we
have a viable case. That in turn requires us to have procedures in place for
the continual screening of cases - continually assessing the strength of the
evidence and the probability of conviction in due course.
Article 4.3 (b) refers to victims of crime.
Further guidance may be had from the UN Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power 1985. Victims are an
increasingly vocal group in society, their position (at least in the view of
many people) having been overlooked for far too long.
Article 4.3 (h) addresses the decision to
prosecute, itself, and the alternatives that may be available. Diversionary
schemes are becoming more popular as the costs and delays inherent in criminal
trial proceedings increase and ideas of restorative justice take hold.
Article 5 reflects another reason for the existence of the
IAP. Cooperation is a major goal.
Article 6 (rather evocatively entitled "Empowerment")
refers in part to what we get out of prosecuting and in part to what our
communities should provide for us. There is an ongoing serious issue of
resourcing included in this Article. On the one hand governments are very fond
of emphasising to their constituents the important role played by the
prosecution in the maintenance of social order; on the other hand they are very
fond of withholding adequate resources from us in order to fund activities that
will more directly translate into votes at the time of the next election. Those
of us who suffer in this way must maintain our pressure for adequate resources
to do our jobs in a completely professional manner.
The Standards are for all of us a beginning.
Most of your agencies will probably have extensive guidelines and policy
documents assisting decision making in the course of prosecutions; some may
not. It seems to me that the starting point is to ensure that such documents as
we have at home reflect the standards, duties and rights contained in the IAP
Standards. The next step is to ensure that our respective governments
acknowledge the Standards. The next step is to assist those agencies who do not
- or cannot - embrace the Standards to do so, or to find ways of making
compliance with them possible.
There is, I am told, a Native American
saying referring to the environment: "We do not inherit the earth from our
parents; we borrow it from our children." In that same spirit of
responsibility and expectation, we should use these Standards to ensure even
better prosecution services for the future.
As in most jurisdictions (I suspect) there
is in NSW a published and freely available policy and guideline document. Its
contents are consistent with the IAP Standards.
They deal with many aspects of the exercise
of prosecutorial discretion: the decision to charge, plea (or charge)
bargaining, immunities to witnesses, appeals, taking over proceedings,
disclosure and so on. They are a reference, a source and a comfort to
prosecutors in their daily work and they are of great assistance in explaining
publicly and to government those decisions that need to be explained.
_____________________________
The outreach of the NSW Prosecution Policy
and Guidelines (proactively seeking defence cooperation) has now been
reciprocated by new Rules of the New South Wales Bar Association which came
into effect on 6 March 2000 (although the reach of the rules is much wider than
simply the conduct of criminal proceedings).
Duty to Client
17A A barrister must inform the client or the
instructing solicitor about the alternatives to fully contested adjudication of
the case which are reasonably available to the client, unless the barrister
believes on reasonable grounds that the client already has such an
understanding of those alternatives as to permit the client to make decisions
about the client's best interests in relation to the litigation.
17B A barrister must (unless circumstances warrant
otherwise in the barrister's considered opinion) advise a client who is charged
with a criminal offence about any law, procedure or practice which in substance
holds out the prospect of some advantage (including diminution of penalty) if
the client pleads guilty or authorises other steps towards reducing the issues,
time, cost or distress involved in the proceedings.
These rules are likely to be taken up by the
solicitors' branch of the profession and, through the Law Council of Australia,
are quite likely to become rules of application to the profession nationwide. I
commend them to you.
THE RULE OF
LAW
_________________________________
Nicholas
Cowdery QC
Director of
Public Prosecutions, NSW
President
International
Association of Prosecutors
Co-Chairman
Human Rights
Institute
International
Bar Association
__________________________________
The Preamble to the Universal Declaration of
Human Rights (1948) states that:
"it is
essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected
by the rule of law."
Human rights are fundamental rights - they
are "universal, indivisible and inter-dependent and inter-related"
as the Vienna Declaration (1993) affirmed. It is appropriate that they should
be protected and, significantly, by something as equally fundamental as the
rule of law.
THE RULE OF LAW
What is the "rule of law"? How does
it operate? Why is it important? How may it protect human rights and do
whatever else it is properly called upon to do? Is it essential to a civil
society?
There is no doubt of the importance of the
rule of law. Sir Ninian Stephen (former Justice of the High Court of Australia
and former Australian Governor General) in his 1999 Annual Lawyers' Lecture for
the St James Ethics Centre in Sydney said:
"Maintaining
the rule of law is the true basis of democratic society. Without it democracy
is a misleading and empty phrase."
It is necessary to state that the rule of
law does not mean:
- rule by law
(that is, so long as there is a law on the subject, the rule of law is
operating);
- the law of the ruler; or
- "law and order" or related
notions of authority.
A clue to its meaning would be given by the
addition of just one word to the phrase: "the just rule of
law". Justice requires the importation of principles that arise under
other labels, such as peace, freedom, democracy and fairness. Such principles
are echoed in the rule of law and are supported by it.
One writer has said that the rule of law is
in effect an institutional morality which requires certain ethical values to be
observed by those who govern and those who administer public affairs. In that
respect it sits alongside the notion of obedience to the unenforceable (the
domain of manners) propounded by Lord Moulton in 1920 - but it differs in that
it may be backed up by legal sanctions in certain circumstances.
It is a difficult notion to define comprehensively.
It is both normative and descriptive. It is a universal ideal. It is a
restraint on arbitrary power.
The International Commission of Jurists
(ICJ) in 1959 described two ideals underlying the concept of the Rule of Law.
· All power in the state should be derived
from and be exercised in accordance with the law.
· The law itself must be based upon respect
for the supreme value of human personality.
Human personality imports human rights (and
so the circle is drawn back to the Universal Declaration).
Allied to the ideals described by the ICJ
are two principal features of the rule of law.
* The people
(including the government) should be ruled by the law and obey it.
* The law should
be such that the people will be able and willing to be ruled (or guided) by it.
Those features provide balance that would
otherwise be absent. Democratic legislatures have plenary power - they can make
laws about anything, subject to constitutional limitations, and provide for
those laws to be enforced. But obedience to rules at the price of cruelty and
repression is not the just rule of law. Sir Ninian Stephen in his lecture
identified three factors that operated to resolve conflict between that plenary
power and the rule of law in a country like Australia:
"First
the general, if not constant and unanimous, recognition of and respect for the
principles of the rule of law by our legislatures. Secondly, judicial
interpretation ... Thirdly, it is aided by our constitution's separation of
powers doctrine and its distinction between legislative and judicial
power."
REQUIREMENTS
From the features to which I have referred
commentators have deduced 12 more particular requirements to be met before it
can be said that the rule of law is truly in operation in any jurisdiction.
1 There must be laws prohibiting and
protecting against private violence and coercion, general lawlessness and
anarchy.
The need for such
laws is self-evident, for no members of society may be free to enjoy their
rights unless a degree of social order is maintained. This is the extent of the
"law and order" component of the rule of law.
2 The government must be bound (as far as
possible) by the same laws that bind the individual.
As a corporate
entity the government is required to take actions that affect its subjects and
others. It is necessary that the same principles that bind individuals in their
conduct towards others should also bind governments when they take action that
will affect others. Principled behaviour is universally recognised and
governments should not be exempt from it.
3 The law must possess characteristics of
certainty, generality and equality. Certainty requires that the law be
prospective, open, clear and relatively stable. Laws must be of general
application to all subjects. They must apply equally to all.
These principles
militate against the making of retrospective laws or laws that discriminate
against sections of society. They prevent the manipulation of the lawmaking
process for improper purposes which disadvantages subjects of the legislature.
4 The law must be and remain reasonably
in accordance with informed public opinion and general social values and there
must be some mechanism (formal or informal) for ensuring that.
In a democracy it
is essential that there be continuing consultation between the lawmakers and
the community. The legislature makes laws for the community - so those laws
should be what the community wants. The difficulty, of course, is in reflecting
informed public opinion and general social values, not the
opinions and values of noisy elements of the society that may not be generally
held. (Talkback radio is not a sound basis on which to fashion laws!)
Unless this
requirement is fulfilled, the consent of the governed, on which the effective
enforcement of the law is essentially dependent, will not be forthcoming.
5 There must be institutions and
procedures that are capable of speedily enforcing the law.
That is
self-evident; but even in this country the speedy enforcement of the law
suffers with the inadequacy of resources provided to the institutions involved.
6 There must be effective procedures and
institutions to ensure that government action is also in accordance with the
law.
Mechanisms for
the effective review of public administrative decisions are instrumental in
enforcing this principle. Government must also be subject to the law and
amenable to law enforcement.
7 There must be an independent judiciary,
so that it may be relied upon to apply the law.
If government -
or anyone else - has a thumb on one side of the scales of justice, litigants
will avoid the courts and the community will not respect or abide by their
decisions. That way lies anarchy.
8 A system of legal representation is
required, preferably by an organised and independent legal profession.
Access to justice
cannot be assured if citizens do not have the means to maintain their positions
- whether by pressing their claims through the proper channels or by defending
their positions against attack. Courts and legal processes are not, by and
large, "user-friendly". Again, independence is essential to ensure
that the rights of citizens are not improperly compromised.
9 The principles of "natural
justice" (or procedural fairness) must be observed in all hearings.
Contests cannot
be allowed to become "one-sided" by the denial of equal rights to all
concerned.
10 The courts must be accessible, without
long delays and high costs.
Even this country
falls down badly on this one. "Justice delayed is justice denied" -
to all the parties, it must be remembered. If the costs of access are too high,
access will be denied.
11 Enforcement of the law must be
impartial and honest.
This is
self-evident.
12 There must be an enlightened public opinion
- a public spirit or attitude favouring the application of these propositions.
This proposition
has echoes of no. 4 in it. In addition, it is a requirement that the community
be kept informed of the state of the law, factors indicating any need for
change to it, or to the way in which it is enforced, and the need to proceed in
a principled way at all times in the general public interest. The media play a
large part in the fulfilment of this requirement - so freedom of the press, of
information and of communication are vital.
CONCLUSION
If all (or most) of these features exist, at
least in large part, the climate will exist for democracy and for the
protection and enforcement of human rights - those rights that are enjoyed by
humans simply because they are human beings (which are to be found in the great
international instruments accepted by the commonwealth of nations).
That climate will be one of acceptance,
observance and incorporation into domestic law of those international standards
and their enforcement in everyday life. Those 12 features also provide the
internal mechanisms for that enforcement.
Professor Geoffrey de Q Walker wrote in The
Rule of Law (Melbourne University Press, 1988) that the rule of law
"is
plainly the essential prerequisite of our whole legal, constitutional and
perhaps social order ... The rule of law is not a complete formula for the good
society, but there can be no good society without it."
|
Standards of
professional responsibility and statement of the essential duties and rights
of prosecutors adopted by the International
Association of Prosecutors on the twenty third day of April 1999 |
|
Foreword The International Association of
Prosecutors was established in June 1995 at the United Nations offices in
Vienna and was formally inaugurated in September 1996 at its first General
Meeting in Budapest. In the following year in Ottawa, the General Meeting
approved the Objects of the Association which are now enshrined in Article
2.3 of the Association's Constitution. One of the most important of these
Objects is to : ".. promote and
enhance those standards and principles which are generally recognised
internationally as necessary for the proper and independent prosecution of
offences." In support of that particular
objective a committee of the Association, chaired by Mrs Retha Meintjes of
South Africa, set to work to produce a set of standards for prosecutors. A
first draft was circulated to the entire membership in July 1998 and the
final version was approved by the Executive Committee at its Spring meeting
in Amsterdam in April 1999. The International Association of
Prosecutors' Standards of Professional Responsibility and Statement of the
Essential Duties and Rights of Prosecutors is a statement which will serve as
an international benchmark for the conduct of individual prosecutors and of
prosecution services. We intend that this should not simply be a bold
statement but rather a working document for use by prosecution services to
develop and reinforce their own standards. Much of the Association's efforts
in the future will be directed to promoting the Standards and their use by
working prosecutors throughout the world. |
|
Standards of
professional responsibility and statement of the essential duties and rights
of prosecutors WHEREAS the objects of the International
Association of Prosecutors are set out in Article 2.3 of its Constitution and
include the promotion of fair, effective, impartial and efficient prosecution
of criminal offences, and the promotion of high standards and principles in
the administration of criminal justice; WHEREAS the United Nations, at its Eighth
Congress on the Prevention of Crime and the Treatment of Offenders in Havana,
Cuba in 1990, adopted Guidelines on the Role of Prosecutors; WHEREAS the community of nations has
declared the rights and freedoms of all persons in the United Nations
Universal Declaration of Human Rights and subsequent international covenants,
conventions and other instruments; WHEREAS the public need to have confidence
in the integrity of the criminal justice system; WHEREAS all prosecutors play a crucial
role in the administration of criminal justice; WHEREAS the degree of involvement, if any,
of prosecutors at the investigative stage varies from one jurisdiction to
another; WHEREAS the exercise of prosecutorial discretion
is a grave and serious responsibility; AND WHEREAS such exercise should be as
open as possible, consistent with personal rights, sensitive to the need not
to re-victimise victims and should be conducted in an objective and impartial
manner; THEREFORE the International Association of
Prosecutors adopts the following as a statement of standards of professional
conduct for all prosecutors and of their essential duties and rights: |
|
1. Professional
Conduct Prosecutors
shall : at all times
maintain the honour and dignity of their profession; always conduct
themselves professionally, in accordance with the law and the rules and
ethics of their profession; at all times
exercise the highest standards of integrity and care; keep themselves
well-informed and abreast of relevant legal developments; strive to be,
and to be seen to be, consistent, independent and impartial; always protect
an accused person's right to a fair trial, and in particular ensure that
evidence favourable to the accused is disclosed in accordance with the law or
the requirements of a fair trial; always serve
and protect the public interest; respect, protect and uphold the universal
concept of human dignity and human rights. 2. Independence 2.1 The use of
prosecutorial discretion, when permitted in a particular jurisdiction, should
be exercised independently and be free from political interference. 2.2 If
non-prosecutorial authorities have the right to give general or specific
instructions to prosecutors, such instructions should be : · transparent; · consistent
with lawful authority; · subject to
established guidelines to safeguard the actuality and the perception of
prosecutorial independence. 2.3 Any right
of non-prosecutorial authorities to direct the institution of proceedings or
to stop legally instituted proceedings should be exercised in similar
fashion. 3. Impartiality Prosecutors
shall perform their duties without fear, favour or prejudice. In particular
they shall: carry out their
functions impartially; remain
unaffected by individual or sectional interests and public or media pressures
and shall have regard only to the public interest; act with objectivity; have regard to
all relevant circumstances, irrespective of whether they are to the advantage
or disadvantage of the suspect; in accordance
with local law or the requirements of a fair trial,seek to ensure that all
necessary and reasonable enquiries are made and the result disclosed, whether
that points towards the guilt or the innocence of the suspect; always search
for the truth and assist the court to arrive at the truth and to do justice
between the community, the victim and the accused according to law and the
dictates of fairness. 4. Role in criminal
proceedings 4.1 Prosecutors
shall perform their duties fairly, consistently and expeditiously. 4.2 Prosecutors
shall perform an active role in criminal proceedings as follows: where
authorised by law or practice to participate in the investigation of crime,
or to exercise authority over the police or other investigators, they will do
so objectively, impartially and professionally; b) when
supervising the investigation of crime, they should ensure that the
investigating services respect legal precepts and fundamental human rights;
when giving advice, they will take care to remain impartial and objective; d) in the
institution of criminal proceedings, they will proceed only when a case is
well-founded upon evidence reasonably believed to be reliable and admissible,
and will not continue with a prosecution in the absence of such evidence;
throughout the course of the proceedings, the case will be firmly but fairly
prosecuted; and not beyond what is indicated by the evidence; when, under
local law and practice, they exercise a supervisory function in relation to
the implementation of court decisions or perform other non-prosecutorial
functions, they will always act in the public interest. 4.3 Prosecutors
shall, furthermore; preserve professional confidentiality; in accordance with
local law and the requirements of a fair trial, consider the views,
legitimate interests and possible concerns of victims and witnesses, when
their personal interests are, or might be, affected, and seek to ensure that
victims and witnesses are informed of their rights; and similarly
seek to ensure that any aggrieved party is informed of the right of recourse
to some higher authority/court, where that is possible; safeguard the
rights of the accused in co-operation with the court and other relevant
agencies; disclose to the
accused relevant prejudicial and beneficial information as soon as reasonably
possible, in accordance with the law or the requirements of a fair trial; examine
proposed evidence to ascertain if it has been lawfully or constitutionally
obtained; refuse to use
evidence reasonably believed to have been obtained through recourse to
unlawful methods which constitute a grave violation of the suspect's human
rights and particularly methods which constitute torture or cruel treatment; seek to ensure
that appropriate action is taken against those responsible for using such
methods; in accordance
with local law and the requirements of a fair trial, give due consideration
to waiving prosecution, discontinuing proceedings conditionally or
unconditionally or diverting criminal cases, and particularly those involving
young defendants, from the formal justice system, with full respect for the
rights of suspects and victims, where such action is appropriate. 5. Co-operation In order to ensure
the fairness and effectiveness of prosecutions, prosecutors shall: co-operate
with the police, the courts, the legal profession, defence counsel, public
defenders and other government agencies, whether nationally or
internationally; and render
assistance to the prosecution services and colleagues of other jurisdictions,
in accordance with the law and in a spirit of mutual co-operation. 6. Empowerment In order to
ensure that prosecutors are able to carry out their professional
responsibilities independently and in accordance with these standards,
prosecutors should be protected against arbitrary action by governments. In
general they should be entitled : to perform
their professional functions without intimidation, hindrance, harassment,
improper interference or unjustified exposure to civil, penal or other
liability; together with
their families, to be physically protected by the authorities when their personal
safety is threatened as a result of the proper discharge of their
prosecutorial functions; to reasonable
conditions of service and adequate remuneration, commensurate with the
crucial role performed by them and not to have their salaries or other benefits
arbitrarily diminished; to reasonable and regulated tenure, pension and age
of retirement subject to conditions of employment or election in particular
cases; to recruitment
and promotion based on objective factors, and in particular professional qualifications,
ability, integrity, performance and experience, and decided upon in
accordance with fair and impartial procedures; to expeditious
and fair hearings, based on law or legal regulations, where disciplinary
steps are necessitated by complaints alleging action outside the range of
proper professional standards; to objective
evaluation and decisions in disciplinary hearings; to form and
join professional associations or other organisations to represent their
interests, to promote their professional training and to protect their
status; and to relief from compliance with an unlawful order or an order
which is contrary to professional standards or ethics. |
|
Information Information
regarding the Association, its Officers and Committees and its projected
Meetings, Conferences and other activities can be obtained from the
Secretary-General at the Bureau of the Association. New address: Hartogstraat
13, 2514 EP The Hague, The Netherlands Phone: ++ 31 70
363 03 45 Fax: ++ 31 70
363 03 67 E-Mail: info@iap.nl.com;
sg@iap.nl.com; WWW:
http://www.iap.nl.com |