Venice Commission Published its Opinion on New Provision on Prosecutorial Council

News | Rule of Law and Human Rights | Publications | Analysis 19 December 2018

European Commission for Democracy through Law (Venice Commission) has published its opinion on the new provisions on the prosecutorial council in the draft organic law on the Prosecutor’s Office. The opinion briefly assessed the provisions in the draft law that were prepared for the purposes of harmonizing the law on Prosecutor’s Office with the new edition of the Constitution. The opinion also analyses existing shortcomings  of the draft law on the Prosecutor’s Office.


Venice Commission has drawn its attention to the following important issues:


- Necessity of ensuring the internal independence of the prosecutors and the need for balancing the strictly organized vertical structure;


- Justification of the restriction from the participation in gatherings and strikes  with respect to its proportionality and legitimate aim;


- Extending the functions of the Prosecutorial Council due to its unique constitutional role;


- Revising the composition of the Prosecutorial Council and considering an enhanced representation from civil society.


Subordination of Prosecutors


In its opinion paper, Venice Commission starts by addressing the issue of internal independence within the Prosecutor’s Office. The Commission notes that existing hierarchical system shall not lead to the total subordination of prosecutors. The prosecutors should benefit from the internal independence and for that - a minimum set of guarantees shall be introduced in the draft Law. For instance - obligation of the superior prosecutor (including the Prosecutor General) to provide instructions in written form; the right and the duty of the subordinated prosecutor to report on the illegality of an instruction received from his or her superior, as well as the dangers of its implementation; the right of the subordinated prosecutor to express dissenting opinions in regards to an instruction of his or her superior; the right of the subordinated prosecutor to ask for the reassignment of a case if s/he cannot follow the instructions.


The Prosecutorial Council shall be attributed with the role of ensuring the above listed guarantees. In this respect, Venice Commission states that “any instruction to reverse the view of an inferior prosecutor should be reasoned and in case of an allegation that an instruction is illegal a court or an independent body like a Prosecutorial Council should decide on the legality of the instruction.”


Venice Commission reviewed provisions regarding the prohibition of the employees of the Prosecutor’s Office from participation in gatherings and strikes. Commission states that this restriction needs to pursue the principle of proportionality and a legitimate aim. If this is a blanket ban, then it should be replaced with appropriate and specific limitations.


Prosecutorial Council 


On the position of the Prosecutorial Council, the Venice Commission notes that there is no set international standard on the functions and degrees of independence. Albeit, if a state chooses a more independent model of public prosecution, then an independent prosecutorial council is a good mechanism to help balance the power of the Prosecutor General.


Venice Commission also notes that the Prosecutorial Council has a unique constitutional role to ensure the independence, transparency and efficiency of the Prosecutor’s Office. Yet, powers granted by law to the Prosecutorial Council does not correspond with the goals defined by the Constitution for the Council. Merely the competence to select the candidate for the Prosecutor General’s position cannot be considered to be a tool that will allow the Prosecutorial Council to ensure the independence of the Prosecutor’s Office.


Venice Commission also drawn its attention to the composition of the Prosecutorial Council and significantly criticized respective provisions in reference with the newly defined Constitutional role of the Council. The Commission notes that even though the majority of prosecutors being elected by their peers corresponds to the aim of having a professional representation and expertise, it still does not sufficiently enhance public credibility of independence. Furthermore, the Commission noted that such a composition was appropriate before the Council received the new constitutional role. Moreover, the vertical nature of authority within the Prosecutor's Office and the professional subordination threatens the independence of the prosecution service. This gap is not sufficiently filled by the other components of the Council’s membership and the overall design is not sufficient to achieve independence. Hence, the Venice Commission is of the opinion that the Georgian authorities should consider an enhanced representation from civil society.


According to Venice Commission, the career management, ethics and incentives council shall be subordinated to the Prosecutorial Council. In addition, the Commission states that the role of the Prosecutorial Council should be enhanced in regards to the career management of the prosecutors and this competence should be shared between the Prosecutor General and Prosecutorial Council.


In order to ensure greater transparency within the Prosecutor’s Office, Venice Commission believes that the prosecutorial Council should have a power to offer a written opinion to the report of theactivities of the Prosecution System, which per se should become an integral part of the report.


The civil society organizations have been raising attention to the all above listed issues by the Commission since the beginning of the drafting process of the new amendments to the law on Prosecutor’s Office. Institute for Development of Freedom of Information (IDFI), in its opinion on the draft law on the Prosecutor’s Office, has addressed the Parliament with the recommendation to regulate with the aforementioned law the duty and obligation of issuing instructions in a written form. However, the parliament disregarded the recommendation. Furthermore, during the period when the working group was revising the draft law, the civil society organizations have provided recommendations regarding extension of competences and revision of the composition of the Prosecutorial Council. The parliament has postponed revision of the aforementioned issues to the time of publication of the opinion of Venice Commission on the draft law.


IDFI calls on the Parliament, to return to the working process on the amendments to the organic law on the Prosecutor’s Office, in accordance with the Opinion of the Venice Commission and ensure that the recommendations of the Venice Commission and Civil Society organizations are applied to the amendments of the law. Application of those recommendation in the new law on the Prosecutor’s Office will ensure an effective implementation of the ongoing reform in the prosecution system.


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