Since the Palermo Declaration “Elements of a European Statute of the Judiciary”, adopted on 16 January 1993, MEDEL affirmed that the autonomy of the public prosecutor constitutes a fundamental instrument of the independence of jurisdiction. As public prosecutors contribute to a fair, impartial and efficient justice- system, they should enjoy guarantees equivalent to those of judges, without external interferences or undue pressure[1].
MEDEL reaffirmed in the “Naples Declaration of Principles Concerning the Public Prosecutor”, adopted on 2 March 1996, the essential role of public prosecutors in protecting the Rule of Law, as well as the need of a parallel statute of judges and prosecutors guaranteeing independent performance of duties.[2]
Effective independence and autonomy of public prosecutors is an added value to the independence of justice systems and a key component of the Rule of Law. Such vision is reflected in common principles adopted at European level in texts, opinions, and recommendations.
The Joint CCJE – CCPE Bordeaux Declaration of 2009 – “Judges and Prosecutors in a Democratic Society”[3] and the Rome Charter (CCPE Opinion n. 9 -2014)[4] expressly state that the independence and autonomy of the prosecution services constitute an indispensable corollary to the independence of the judiciary.
Finally, the “Joint report on challenges for judicial independence and impartiality in the members states of the Council of Europe” (Bureau of CCJE and CCPE, 24 March 2016) affirms: “The independence of prosecutors is a further safeguard in maintaining the independence of judges, it is crucial in a democratic society and an essential condition for the independence of the entire justice system”.
Such principles should not remain a mere proclamation.
Within the European context the statute of prosecution services is different in different countries. Independence from the executive is not fulfilled everywhere or is under discussion. Democratic backsliding led some European countries to dismantle the independence of the justice system and to even overcome the principle of separation of powers, through the unification of the role of State Prosecutor and of Minister of Justice or through strict hierarchical structure, extensive powers and lack of accountability of the General Prosecutors’ office, creating an institutional loophole affecting independence of the judiciary as a whole and of individual judges.
Seen all the above, the Council of Administration of MEDEL, gathered in Florence:
- recalls the principles stated in Palermo and Naples Declarations;
- reaffirms that independence of public prosecutors requires a statute fully complying with Rule of Law principles and continuous monitoring from EU institutions on the respect of common standards ensuring impartial and independent exercise of prosecutorial functions.
Firenze, Italy, September 19th, 2020
[1] 9.1 The autonomy of the public prosecutor constitutes a fundamental instrument of the independence of the judiciary. The magistrates of the public prosecutor ensure the equality of citizens in front of the law. They carry out their functions in an autonomous fashion in relation to the political power. They are subject only to legality and the law.
9.2. The magistrates who exercise the functions of the public prosecutor benefit from the same freedoms and enjoy guarantees equivalent to those defined by the present statute.
[2] 1.Function. It is the function of the Public Prosecutor to promote the application of the law while ensuring the respect of legality, of the fundamental rights and of equality in front of the law. 2.Institutional position. The Public Prosecutor is a judicial organ, and consequently autonomous from the executive, the autonomy of the Public Prosecutor constituting an indispensable tool for guaranteeing the independence of the judiciary and equality in front of the law. Consequently, the organs of the executive cannot give either general or specific instructions to the Public Prosecutor. At the most, he can be required to provide general information concerning its activity. 4.Personal Statute. The members of the Public Prosecuting service are necessarily magistrates, integrated in a single judicial body, or forming a distinct magistrature, which will have a statute, rights and guarantees equivalent to those of judges.
[3] The independence and autonomy of the prosecution services constitute an indispensable corollary to the independence of the judiciary. Therefore, the general tendency to enhance the independence and effective autonomy of the prosecution services should be encouraged (IV).
[4] The independence of public prosecutors is indispensable for enabling them to carry out their mission. It strengthens their role in a state of law and in society and it is also a guarantee that the justice system will operate fairly and effectively and that the full benefits of judicial independence will be realised (Declaration, paragraphs 3 and 8) 27 explanatory note;
The proximity and complementary nature of the missions of judges and prosecutors create similar requirements and guarantees in terms of their status and conditions of service, namely regarding recruitment, training, career development, discipline, transfer (which shall be effected only according to the law or by their consent), remuneration, termination of functions and freedom to create professional associations (Declaration, paragraph 8) 37 explanatory note.