IAP ANNUAL CONFERENCE: MOSCOW
Tuesday, 10 September 2013
Session: Workshop 2C
Time: 14:30 – 16:00
PRESENTATION: BILLY DOWNER SC
DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS, NATIONAL PROSECUTING AUTHORITY OF SOUTH AFRICA
MEMBER OF THE EXECUTIVE COMMITTEE, IAP
‘Practicing what we preach’- dealing with complaints and prosecutions against prosecutors and addressing disciplinary breaches in accordance with the rule of law
The topic of this discussion is complaints and prosecutions against prosecutors and addressing disciplinary breaches in accordance with the rule of law. This raises a complex series of issues. I propose to examine each of them carefully, according to the following framework:
- The regulatory framework governing complaints
- Protecting the prosecutor
THE REGULATORY FRAMEWORK GOVERNING COMPLAINTS
The applicable criminal procedure and criminal law apply equally to prosecutors as they do to other ordinary citizens. If prosecutors commit crimes, they must be investigated and prosecuted. The rule of law principle of equality requires this.
What is peculiar to prosecutors is that the investigation and prosecution of their crimes inevitably involve their colleagues. Agencies typically have rules to ensure that the investigation and prosecution is conducted by colleagues who are as distant as possible from the prosecutor being investigated and prosecuted – for instance by officials who do not know the prosecutor, or who are from another office, etc. A prosecutor who holds a higher rank from an office of a different jurisdiction may be called to assist to avoid a conflict of interest or the perception of such. This is all in pursuit of the rule of law considerations of fairness, impartiality and transparency.
The IAP Standards provide a framework that dictates how prosecutors must behave.
For instance, Article 1 reads as follows:
“1. Professional Conduct
Prosecutors shall :
- at all times maintain the honour and dignity of their profession;
- always conduct themselves professionally, in accordance with the law and the rules and ethics of their profession;
- at all times exercise the highest standards of integrity and care;
- keep themselves well-informed and abreast of relevant legal developments;
- strive to be, and to be seen to be, consistent, independent and impartial;
- always protect an accused person’s right to a fair trial, and in particular ensure that evidence favourable to the accused is disclosed in accordance with the law or the requirements of a fair trial;
- always serve and protect the public interest; respect, protect and uphold the universal concept of human dignity and human rights.”
The Standards also provide in general how disciplinary breaches must be dealt with. Article 6 provides as follows:
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 :
to expeditious and fair hearings, based on law or legal regulations, where disciplinary steps are necessitated by complaints alleging action outside the range of proper professional standards”.
Typically, prosecuting agencies are governed by laws and regulations that expand the IAP Standards. Disciplinary complaints must be dealt with in accordance with those provisions.
IAP investigations for conduct contrary to the IAP standards
The IAP Constitution provides as follows:
Cessation and suspension of membership
6.2 The Executive Committee may recommend to the General Meeting that membership be suspended or that a member be expelled if it is considered that he/she or it has been guilty of dishonourable conduct or that continuation of his/her or its active participation in the activities of the Association or of his/her or its membership is detrimental to the Association. The procedure to be adopted is set out in the protocol at Annex 3.
6.5 The Secretary-General shall promptly notify the member concerned of any recommendation, suspension or expulsion under paragraphs 2, 3 or 4 of this Article.
6.6 An appeal against a decision to recommend suspension or expulsion pursuant to paragraph 6.2 above may be made to the Conflict Committee by written notice to the Secretary-General.
Suspension from membership
Article 6.2 of the Constitution of the International Association of Prosecutors (IAP) provides that:
“The Executive Committee may recommend to the General Meeting that a member be expelled or his/her or its membership suspended if it is considered that he/she or it has been guilty of dishonourable conduct or that continuation of his/her or its active participation in the activities of the Association or of his/her or its membership is detrimental to the Association.”
This Annex sets out the procedure to be adopted should the Executive Committee wish to consider the possible suspension of a member and subsequently recommend suspension to the General Meeting.
The decision of the Executive Committee
- If the Secretariat receives a complaint of dishonourable conduct on the part of a member or activity on the part of a member which is detrimental to the Association, the Secretary-General will :
- a) write to the member setting out the nature of the complaints which have been made and asking for a response; and
- b) on receipt of the response, circulate it and the information supporting the complaint to all members of the Executive Committee.
- The members of the Executive Committee shall, within one month of the date of the Secretary-General’s message, reply to him/her indicating whether they support suspension or not.
- If there is unanimity on the issue, the Secretary-General will inform the member of the outcome of the Executive Committee’s deliberations. If the decision is against suspension, the matter will rest there.
- If there is no such unanimity, the matter will be discussed at the next meeting of the Executive Committee and will be decided by a vote.
- If the decision is to recommend suspension to the General Meeting, the member will be informed of the right to appeal against the decision to the Conflict Committee. This will be done in writing within one month of the member’s being informed of the decision.
- The Conflict Committee will consider and come to a decision on the matter within six weeks of the matter being referred to it. It will explain the reasons for its decision in writing to the Executive Committee and the member.
- If the matter is not referred to the Conflict Committee, or if the Conflict Committee supports the view of the Executive Committee, the Secretary-General will circulate details of :
- the complaint;
- the decision of the Executive Committee; and
- the decision, if any, of the Conflict Committee, to all members of the Association.
- The matter will be placed on the agenda of the next General Meeting and put to those attending in a vote. The member and the President shall be entitled to address the meeting and all those attending shall be entitled to speak.
- The Secretary-General shall inform the member concerned of the decision of the General Meeting.”
Provided that criminal and other complaints are dealt with properly according to the applicable regulatory framework, with due application of fair trial rule of law prescripts, then the investigation and prosecution of prosecutors ought to elicit no criticism from a rule of law perspective.
PROTECTING THE PROSECUTOR
There are, however, some further considerations that render complaints against prosecutors more subject to abuse than might be the case with ordinary citizens.
First, dealing as they do often with ruthless, desperate, rich or powerful criminals, prosecutors are vulnerable to the abuse of false charges from them. Criminals may typically attack the prosecutor as a defence tactic, when there is no basis for the complaint of professional negligence or even of criminal conduct.
Second, complainants who are aggrieved by prosecutorial decisions with which they do not agree, may also resort to complaints about the prosecutor concerned – for instance alleging that the prosecutor was discourteous, professionally incompetent, biased, or the like – all as a tactic of revenge or to achieve the result that the prosecutor, in their opinion, is obstructing.
Third, prosecutors, being burdened with the task of prosecuting fearlessly and without prejudice, are in the yet further peculiar position of becoming political footballs as a result of decisions that displease the authorities. Complaints against such prosecutors from the authorities, and even their own agencies, are not unknown.
Because of these vulnerabilities so peculiar to prosecutors, investigators and heads of prosecuting agencies must be alive to false complaints that may be made for ulterior purposes, designed to hinder the proper prosecutorial process by in turn removing the prosecutor. There is a pressing need that very early decisions about the origin and merits of the complaint against a prosecutor must be made, so as not to allow otherwise meritorious prosecutions to be wrongly derailed.
Once an undeserved attack has been launched against a prosecutor, then fairness requires that the prosecutor should receive the necessary support and protection from his or her prosecuting authority in order properly to deal with the complaint. Such support may require providing the prosecutor with legal advice and proper legal representation in litigation that arises. There is little more unfair and intimidating than for a prosecutor to be expected to rely on his or own resources to deal with complaints without the support of the prosecuting agency.
Regulations governing legal representation for civil servants typically permit the government to provide it to civil servants where the litigation is connected to the duties of the employee.
THE ROLE OF THE IAP’S PROTOCOL ON PROSECUTORS IN NEED
The IAP last year adopted a protocol dealing with prosecutors in need. Such need may well arise where a prosecutor may be the subject of underserved complaints that are not being properly and fairly dealt with. This is where the IAP has been able to assist in the past and will consider doing so in the future according to the Protocol. The preamble of the Protocol reads as follows:
This Protocol regulates the ways in which the International Association of Prosecutors (IAP) processes requests for assistance from prosecutors, prosecution agencies or associations of prosecutors claiming to be in difficulty.
Article 8.2 of the IAP Constitution requires the IAP Executive Committee: “to assist members in accordance with the objects of the Association”. Article 1.3 of the Constitution identifies the objects of the IAP; these include, inter alia: “to promote the effective, fair, impartial and efficient prosecution of criminal offences”; “to respect and seek to protect human rights as laid down in the Universal Declaration of Human Rights”; “to promote high standards and principles in the administration of criminal justice”; “to promote the professional interests of prosecutors and to enhance recognition of their crucial role in achieving justice”; and
“to promote good relations between individual prosecutors and prosecution agencies”.
Whenever a prosecutor, prosecution agency or association of prosecutors claims to be in difficulty and requests assistance, the IAP is committed to having in place mechanisms to ensure the effective, just and timely processing of the request, and further recognizes the need to achieve an outcome which appropriately addresses the basis of the request, satisfies the objects of the IAP and promotes the rule of law.
The IAP can thus be seen as providing one last and comforting protection to prosecutors against improper complaints, all in the interests of the rule of law.
The satisfactory resolution of complaints in accordance with the rule of law requires fairness to the prosecutor, just as much as it requires fairness to the complainant. The thesis is that fair complaints regime requires maintaining a difficult and delicate balance between competing considerations, but that this is achievable if it is informed by rule of law principles and the IAP Standards. Proper resolution of complaints is essential to maintain the integrity of the prosecution and, ultimately, the integrity of the criminal justice system.