Guidelines on the Role of Prosecutors

Guidelines on the Role of Prosecutors
聯合國「檢察官角色準則」

Adopted by the Eighth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990
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 their 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 consideration 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.

CIA, Italian Intelligence Kidnapping Trial

CIA, Italian Intel Kidnapping Trial to Start in Italy

"The trial of several CIA and Italian intelligence officers is set to begin Friday in Italy. Prosecutors say the officers kidnapped an Islamic cleric in Milan and transported him to Egypt, where he said he was tortured. This is the first trial associated with the CIA's policy of "extraordinary rendition." All 26 American defendants will be tried in absentia." (NPR 2007.6.7)

美國CIA幹員據悉依據所謂的"extraordinary rendition"政策與義大利情治人員在2003義大利米蘭境內，沒有持任何拘票即在一位幕斯林被害人家中將人抓走，而且逕行將人送出國境，關入位於埃及的美軍涉於埃及的秘密監獄長達十四個月之久。
義大利檢察官針對本案的調查，同時也在義大利境內引發"行政權"與"司法權 "衝突之爭。
本案義大利檢察官在一連串長期而且所費不貲的循線調查(飯店、機票與電話號碼等)而得以確定嫌疑人後，已經就本案針對CIA以綁架罪名( Kidnaping)起訴且經法官簽發起訴書，法官表示沒有經過法定程序拘捕並將人關於秘密監獄的行為就是綁架，而且根本無法改善或報障國家安全，明天法院就會依據"缺席審判"程序開始審判。
本件被害人表示被關的十四個月期間還被CIA刑求。相對於檢察官對美國傷害民主法治、義大利境內的弱勢團體的指摘，義大利政府目前就相對保守了，政府表示對美國CIA在其境內活動一事均不知情。當然美國就此案仍然保持高調，表示本案審判顯然會傷害美國的國家秘密。不過，Human Right Watch的NGOs也有插一腳，出面譴責美國的秘密活動嚴重傷害人權。

歐盟已經據新聞預測，預料應在明天( 2007.6.8)公開美國在歐盟境內抓人的相關報告了。

註:義大利司法官有三種，Prosecutors, preliminary investigaiton judges, and trial judges. 所以上開簽發起訴書的應該是preliminary investigation judges. see Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. Comp. L. 227.

台灣的司法體制，只要將人犯通緝就可以在行政程序上加以結案，這種通緝當然是必須基於刑事訴訟法的法定程序，但是，通緝後能否繼續審判? 法律似乎也沒有明確明文禁止? 僅有一些行政程序"簡便"讓司法人員得以"結案"。其實，如果案件一概都能未經通緝即起訴或判決，當然與追求真實與正義的目標不符; 相反的，如果案件被告都已經開過庭，只是因為調查、審判時間拉長、司法官輪調換人等因素使被告被逸脫，能否再以通緝結案? 這可能要多加考慮，否則，一些經濟要犯，逸出國境後，不適度尋求國際協助，就一概以通緝結案，長久下來，實會導致有司法公信力下沉，沒能力逃逸的被關，有能力的繼續在外國消遙的怪現象。


Wan-Li Yang
2007.6.7

European Security Officials Critical of U.S.

European Security Officials Critical of U.S.

May 31, 2007 · Many European security officials were highly critical of the U.S. for not sharing evidence they say is crucial for investigations and trials. Spain and Italy also rejected the U.S. military response to terrorism and insisted the best methods come from the criminal justice system. (~From NPR 2007.5.31)

自從布希以Military Commissions Act.反將最高法院一軍後，美國反恐勢力愈來越誇張, 成立越來越多的秘密軍事法庭，在各國轄區抓人家的公民，而且一抓就是送入美國自己的祕密軍事法庭，這些軍事法庭均不適用due process與fair trial，甚至沒有律師，正常的聯邦法院也都無法審理這些案件。
針對這種情形的批評，不再限於美國境內的教授、記者開罵了，這次般上國際檯面，而且還是原本應該是同一陣線的歐盟執法人員，由他們首先開砲。

在今年五月份的一場由NYU主辦而且針對執法人員的反恐會議中，美國的反恐政策與手段，終於引發歐洲，尤其是南 歐的西班牙與義大利 檢察官的強烈不滿。
兩國的執法人員均強烈質疑美國的執法方式，表示這些反恐與取締行動均應遵守刑事正義，在criminal justice之內進行，並適用正當程序due process等。一位義大利司法官，曾經起訴美國26 CIA在伊朗綁架慕斯蘭人的檢察官，表示美國未經任何程序直接將人抓入拘留所的行為根本無法被接受。另外，西班牙檢察官也支持這樣的看法，甚至認為布希在各地的拘留所，尤其是"關塔那摩"軍事基地(Guantanamo Bay, Cuba.) 裡的拘留所，黑暗的處所，廣泛的侵害人權。而且他們甚至具體引據個案，來指責美國US不願、刻意遲延與歐洲分享恐怖份子資料的態度，以及due process。他們強調，指有遵守rule of law才能在歐洲對慕斯蘭的少數民族建立起真正的信心與信賴、幕斯蘭的年輕人才不會往卡達組織靠攏。

英國UK則表示，雖然英國也是恐怖份子攻擊的目標，但是UK override concern，However,他也指出人民對執法人員的強烈不信任，在UK加入US攻打Iraq陣線後更形嚴重，人民嚴重不信任情報員，甚至引起政治陣線的分離。

NYU Law School教授說反恐沒有人說他成功，美國必須重新審查其反恐政策。
US官方則希望能在同盟中重建信心(rebuilt trust)、恢復雙方的緊密關係。

在這樣的反恐潮流中，終於由一群執法人員出來批評美國的反恐政策，我們看到的不僅是歐盟檢察官們對自己責任的期待，對境內少數民族的關懷，更看到他們在國際政治中的高度。
台灣呢?
有沒有人爲這種國際政策下的不公發出聲音?


Wan-Li Yang 2007.05.31