Prosecutors must carry out their functions fairly and effectively, in an independent, impartial and objective manner, without discrimination of any kind.[1]
They must maintain the honour and duty of their profession, and must respect and protect human dignity and uphold human rights.[2]
To these ends, prosecutors must among other things: inform, and consider the views of, victims; not initiate or continue an unfounded prosecution; refuse to use evidence obtained in violation of human rights, and take steps to bring those responsible for the violation to justice; give due attention to crimes committed by public officials (including corruption, abuse of power, violations of human rights and crimes under international law).[3]
States must 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.[4]
The authorities must physically protect prosecutors and their families when their personal safety is threatened as a result of discharging their prosecutorial functions.[5]
The office of prosecutors must be strictly separated from judicial functions.[6]
The prosecutors’ functions are set out primarily in the Code of Criminal Procedure.[7] The Minister of Justice is granted broad powers over the prosecution services. Pursuant to the amendment of the Code of Criminal Procedure by Law No. 87-80, the Advocates-General at the appeals courts exercise the prosecutorial functions, under the direct authority of the Minister of Justice.[8] Further, the Minister may denounce violations of the criminal law of which he has knowledge to the prosecution service, enjoining the latter to initiate a prosecution or to seize the competent jurisdiction with written submissions deemed desirable,[9] and all prosecutors are required to comply with written submissions made in accordance with such instructions.[10] Moreover, the Minister of Justice can order the Prosecutor General to the Court of Cassation to lodge an appeal with that Court against any final-instance judicial decision on the merits of a case.[11] Taken together, these provisions serve to consolidate the Minister of Justice’s control over the prosecution service as a whole, at odds with international standards, which require that each prosecutor can act in an impartial and objective manner in each case.
During the Ben Ali regime, the hierarchical relationship between the prosecution services and the Executive meant that prosecutors were particularly susceptible to political pressure, as their careers depended on decisions taken by the Ministry of Justice. This contributed to the almost total absence of investigations into and prosecutions of gross violations of human rights.[12]
- 1. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(i);
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.
International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, 1999, Articles 1, 2, 3 and 4.1. Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN doc A/HRC/20/19 (7 June 2012), paras. 24-28, 98-99, 110, and 119.↵In the performance of their duties, prosecutors shall:
1. carry out their functions impartially and avoid all political, social, racial, ethnic, religious, cultural, sexual, gender or any other kind of discrimination;
2. 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;
3. keep matters in their possession confidential, unless the performance of duty or needs of justice require otherwise;
4. 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 provisions below relating to victims.
- 2. UN Guidelines on the Role of Prosecutors, Guidelines 3, 12, 14-16;Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(h);
3. Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession.
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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.
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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.
International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, Articles 1, 3(a) and 4.3 (c), (f) and (g).↵Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.
- 3. UN Guidelines on the Role of Prosecutors, Guidelines 13d, 14-16;Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(k);
13. In the performance of their duties, prosecutors shall: … (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.
International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, Article 4.3.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.
See also UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34 (29 November 1985).↵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.
- 4. UN Guidelines on the Role of Prosecutors, ”GuidelinePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(a)(2);
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.
International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”ArticleStates shall ensure that:
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2. Prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.
↵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:
(a) to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability;
- 5. UN Guidelines on the Role of Prosecutors, ”GuidelineInternational Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”Article
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.
↵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:
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(b) 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;
- 6. UN Guidelines on the Role of Prosecutors, ”Guideline↵
10. The office of prosecutors shall be strictly separated from judicial functions.
- 7. Code of Criminal Procedure, Chapter I, sections 2 and 3 (Articles 20-24).↵
- 8. Code of Criminal Procedure, Article 24.↵
- 9. Code of Criminal Procedure, Article 23.↵
- 10. Code of Criminal Procedure, Article 21.↵
- 11. Code of Criminal Procedure, Article 258(6).↵
- In 2012, the UN Special Rapporteur on torture noted “a pattern of a lack of timely and adequate investigation of torture allegations by prosecutors or investigative judges” and that “complaint of torture were rarely investigated under the Ben Ali regime”. See Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Report to the Human Rights Council (2 February 2012), UN Doc. A/HRC/19/61/Add.1, para. 29 and 32.↵
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