Judicial Control of the Prosecutors’ Activities in the Light of the ECHR

• Date: 01 June 2014
• Year: 2014
• Author: Celina Nowak
• Pages: 18

The judicial control of the activities of prosecutors within criminal proceedings constitutes an important issue in every legal system. It is particularly important at the pre-trail stage of proceedings, when the prosecutor is responsible for many actions, and of lesser importance at the judicial stage of the proceedings, when the court takes over. However, the issue of judicial control of prosecutors’ actions may warrant special attention once the European Public Prosecutor’s Office (hereinafter the “EPPO”) is established.¹ When it comes to prosecutorial actions, the EPPO will be subjected to the control of the national courts.² Therefore, it will be necessary to define the framework of the judicial control of the EPPO’s activities executed by national courts.³

It seems obvious that in every legal system, with its specificities and traditions,⁴ the legal framework regarding the judicial control of prosecutors’ actions within criminal proceedings may vary. For this reason, it becomes necessary to search for a common ground, rules that might be useful and applicable in every legal system. In , it may be enlightening to examine the standards related to the judicial control of prosecutorial activities set forth by the European Court of Human Rights. It will be particularly informative to find answers to the following three questions that will be considered in this article – who controls prosecutors, what is controlled, and what should be the control.

I. The Entity Performing Judicial Control

At the outset of the analysis, it should be noted that the nature of the judicial control of prosecutors’ actions depends upon the position taken by the public prosecutors’ office within the institutional framework in a given country and on the role they play within the criminal proceedings. In some EU Member States, the public prosecutors’ office is an independent authority responsible for carrying out pre-trail proceedings and for prosecuting before the courts, and prosecutors enjoy a status of their own, e.g., in Poland. In contrast, in other Member States, prosecutors are a part of the corpus of magistrates, and their status is associated to the civil servants corps, but the most important decisions within the pre-trail proceedings are taken by other special magistrates or judges, not prosecutors, e.g., in France.

Therefore, the judicial control of prosecutors’ actions may be performed within different legal regimes and at different levels. The first and most obvious level is the judicial control performed by a national judge. However, when the prosecutor enjoys a more independent status within the preliminary proceedings and is solely responsible for their outcome, national judicial control of his actions is more limited and takes place only incidentally with regard to specific actions, mainly the decision on pre-trial detention. In such an event, judicial control of the actions of the prosecutor may be performed by the European Court of Human Rights instead. Furthermore, however, within the framework of the ECHR, the ECtHR may also control the national courts controlling prosecutors, which adds another element to this already complex structure. From the point of view of the ECtHR, the judicial control executed by the national court may be called indirect, and the control exercised by the Court itself – direct.

Considering the direct level of control, i.e., the control carried out by the ECtHR itself, the Court has ruled on the subject on numerous occasions. For instance, it stated that the prosecutor’s actions may violate Art. 6-1 ECHR when it declared a breach of the ECHR in a case when the actions of a prosecutor contributed to the prolongation of the proceedings up to the point of violating the reasonable time requirement.⁵ The ECtHR also decided that a prosecutor may breach the principle of presumption of innocence, set forth in Art. 6-2 ECHR,⁶ especially when formulating declarations as to the culpability of the accused in a context independent of the criminal proceedings themselves, i.e., by way of an interview to the national press.⁷ However, the prosecutor has the right to take a position on the guilt of the accused within the framework of the proceedings themselves, for instance when issuing a ruling on the applicant’s request to dismiss the charges at the stage of the pre-trial investigation, over which he has full procedural control,⁸ or in the indictment bill.⁹

Considering the national level of judicial control, i.e., the control over prosecutors’ actions carried out by national judges, it must be noted that the case law of the ECtHR on this matter is not plentiful. In my view, this is due to several factors. Firstly, within the framework of Art. 6 ECHR, referring to the right to a fair trial − one of the most frequently applied provisions of the ECHR − the Court always emphasizes that it examines the fairness of the criminal proceedings in their entirety.¹⁰ The “entirety of the proceedings” means that the pre-trail stage is taken under consideration by the Court too, but not exclusively. It is the judicial stage of proceedings that is more likely to bear on the assessment of the fairness of the proceedings. The course of the pre-trial stage of the proceedings is certainly evaluated and contributes to an assessment of the proceedings as a whole, but it rarely is subjected to a specific and separate evaluation by the Court.

Furthermore, the pre-trail stage of proceedings is covered by only some of the Convention’s provisions, so the scope of the control performed by the ECtHR itself is limited.

Finally, the control of the ECtHR depends on the nature and modalities of the national model of public prosecutors’ office and its role in the pre-trail stage of criminal proceedings. For instance, as mentioned above, in , the preliminary proceedings (investigation and inquiry) is carried out or supervised by the prosecutor. The judicial authorities intervene only incidentally at the pre-trial stage of proceedings. The prosecutor in charge of the pre-trial proceedings is controlled by his superiors, and the actual judicial control of his actions at this stage of proceedings takes place only when the case is submitted to the court. For this reason, the ECtHR cannot control a judicial control which does not exist. It can, however, assess the prosecutor’s actions on its own. Conversely, when the pre-trial stage is supervised by a judge, the Court may obviously take a position with regard to how this judge controls the actions of a prosecutor.

Coming back to the issue of who performs the judicial control at the national level, one should take note that Art. 5-3 of the ECHR mentions “a judge or other officer authorised by law to exercise judicial power,” whereas Art. 5-4 refers to “a judge,” and Art. 6-1 ECHR to “the tribunal.” At the time of the adoption of the Convention, it was incontestable that the term “other officer authorised by law to exercise judicial power” covered prosecutors too.¹¹ Today, however, in the light of the more updated case law of the Court, it seems clear that a prosecutor may only be controlled by a judge, who enjoys independence towards both the parties to the proceedings and to the executive power and who is not a prosecuting party to the proceedings.¹²

II. The Scope of Judicial Control

Concerning the scope of judicial control, it should be emphasized that it starts from the beginning of the proceedings at the pre-trail stage, that is “from...