The notorious case of a prosecutor who tried to review a court act issued by a judge of the Sofia Regional Court once again raises the question of the functions and status of judges and prosecutors. This issue is of the utmost importance in a country like ours, where the uncontrolled and selective (in the sense of arbitrary) actions of the prosecutor’s office leave citizens with the impression that prosecutors, not judges, administer justice.
This is hardly surprising, given that the process of democratization of the institution began with Ivan Tatarchev (the first democratic Prosecutor General), who declared that only God was above him, and is still continuing with the last Prosecutor General (Ivan Geshev) declaring that “[e]veryone who dispenses justice is God. I do not administer justice. I am an instrument with which He does the things He thinks are right.” It is inevitable that such a sense of omnipotence, which has materialized in numerous real examples of abuses of power, will reinforce the public perception that prosecutors are the “last resort.”
However, they are not and cannot be the last instance. The prosecution is on an equal footing with the defense in the criminal proceeding, not with the court which is the only justice adjudicating body equally distant from both sides – the body that makes the final decision on the rights, freedoms, duties, and property of citizens[1].
The differentiation of functions and status between judges and prosecutors is not an end in itself, but a fundamental inevitability of the democratic state, which provides citizens with the necessary guarantees for a fair trial and the effective protection of their rights and freedoms. Breaking this asymmetry removes one of the key safeguards against arbitrariness and abuse of power. If prosecutors were able to review judicial decisions, this would obliterate the key rule of law principle of independent and impartial administration of justice.
That is why European and international standards clearly define this difference: the court is the body that decides disputes, it is the arbiter, while the prosecutor’s office has an accusatory function. Below, we set out some of these standards and recommendations – it seems as if they would be useful to those members of the Supreme Judicial Council (SJC) and representatives of the prosecutor‘s office who persistently ignore this fundamental distinction, undermining the rule of law and reinforcing distrust in the judiciary:
- The principle of equality of arms in the criminal process
Judges ensure equality of arms between the prosecution and the defense [2]. The complementary nature of judges’ and prosecutors’ functions means that both are conscious that impartial justice requires equality of arms between the public prosecution service and the defense and that public prosecutors must act at all times honestly, objectively, and impartially [3]. That is, there is no equality of arms between the courts and prosecutors. - A clear differentiation of the powers and status of the judge from those of the prosecutor
Since the court is the independent arbiter between two disputing parties, [a]ll persons connected with a case, including public bodies or their representatives, should be subject to the authority of the judge [4]. The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge (…).
This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings [5]; (…) [P]ublic prosecutors are not judges and there can be no equivocation on that point, just as there can be no question of public prosecutors exerting influence on judges [6]; The prosecution is strictly separated from judicial functions [7]; The State must ensure that a person cannot simultaneously perform the duties of both a prosecutor and a judge. (…) Where the prosecution service is a part of the judicial institution, it is necessary to establish a clear distinction between prosecutors and court judges.
Member States should clarify the legal status, the competencies, and the procedural role of prosecutors by law in a way that there can be no doubt about the reciprocal independence and impartiality of prosecutors and court judges [8]; [I]n every system, the judge’s role is therefore different from that of the public prosecution. (…). There are no hierarchic ties between the judge and the prosecutor [9]; - The need not to give the impression to the public that there is a mixing of the functions of judges and prosecutors
In the eyes of litigants and the society as a whole, there must not be even a hint of connivance between judges and prosecutors or confusion between the two functions [10]; [A]ny ambiguity about the respective status and roles of public prosecutors and judges should be removed so that each profession is clearly identified in the eyes of the public and no confusion exists in the minds of those who come before the courts.
The first step in this regard is to lay down clear rules of procedure concerning the public prosecutor’s capacity to act [11]; Public prosecutors should refrain from making public comments and statements, using the media, which may create an impression of putting direct or indirect pressure on the court to reach a certain decision or which may impair the fairness of the procedure [12]. - Independence of the court and autonomy of the prosecution
The different roles that judges and prosecutors play – both in the judiciary and in society – also determine different perspectives on their institutional and functional independence. While for judges independence has an absolute value, for prosecutors it is less explicit, as there may be hierarchical control over prosecutors’ decisions and activities. As the Venice Commission has already noted, including specifically in the Bulgarian context, in relation to prosecutors one should speak of autonomy rather than independence:
There is an essential difference as to how the concept of independence or autonomy is perceived when applied to judges as opposed to the prosecutor’s office. Even when it is part of the judicial system, the prosecutor‘s office is not a court. (…) Judicial independence has two facets, an institutional one where the judiciary as a whole is independent as well as the independence of individual judges in decision-making (including their independence from influence by other judges). (…) The “independence” of prosecutors is not of the same nature as the independence of judges. While there is a general tendency to provide for more independence of the prosecution system, there is no common standard that would call for it. Independence or autonomy are not ends in themselves and should be justified in each case by reference to the objectives sought to be attained [13].
While judges should be independent, this concept is not fully applicable to the prosecutors; it is more accurate to speak of “autonomy” rather than full-fledged “independence” of the prosecution service [14]; 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 [15]; Prosecutors should respect the independence of the courts and the judiciary as a whole. They may challenge judges’ decisions only through the remedies provided by law. Prosecutors should take all measures within their competence to protect the independence of courts. [16]; [T]he prosecutor may not interfere in any way in the judge’s decision-making process and is bound to abide by the judge’s decisions [17].
The different functions of judges and prosecutors predetermine their unequal status. This is not merely a theoretical issue, but a problem with practical dimensions. When the state fails (whether because of institutional deficits, legal ambiguities, or specific, unchallenged attempts by prosecutors to seize court functions) to secure this fundamental distinction between the administration of justice and prosecution, the risk of institutional perversions that threaten citizens’ liberties becomes real. The acute need for effective democratic control mechanisms in the prosecution service is felt above all because of their absence.
References:
[1] United Nations Basic Principles on the Independence of the Judiciary (1985) and Opinion No. 1 (2001) of the Consultative Council of European Judges (CCJE) on Standards of Judicial Independence and the Irremovability of Judges
[2] Magna Carta of Judges (Basic Principles)
[3] Opinion No. 12 of the CCJE and Opinion No. 4 of the Consultative Council of European Prosecutors (CCPE) on the relations between judges and prosecutors
[4] Recommendation CM/Rec(2010)12 adopted by the Committee of Ministers to the Member States of 17.11.2010 on judges: independence, efficiency, and responsibilities
[5] Opinion No. 12 of the CCJE and Opinion No. 4 of the CCPE
[6] Recommendation Rec(2000)19 on The Role of Prosecutors in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000
[7] UN Guidelines on the Role of Prosecutors, 1990.
[8] Opinion No. 9 (2014) of the CCEP on European norms and principles concerning prosecutors, Rome Charter
[9] Opinion No. 12 of the CCJE and Opinion No. 4 of the CCPE
[10] Ibid
[11] Recommendation Rec(2000)19 on The Role of Prosecutors in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000
[12] Opinion No. 12 of the CCJE and Opinion No. 4 of the CCPE
[13] Venice Commission, Report on Europe as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011
[14] Opinion of the Venice Commission on the Judicial System Act, 6-7 October 2017, CDL-AD(2017)018
[15] Recommendation Rec(2000)19 on The Role of Prosecutors in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000
[16] Opinion No. 13 (2018) of the CCPE on “Independence, accountability and ethics of prosecutors”
[17] Opinion No. 12 of the CCJE and Opinion No. 4 of the CCPE