• E4J University Module Series: Crime Prevention and Criminal Justice

• Module 14: Independence of the Judiciary and the Role of Prosecutors

• Introduction and learning outcomes

• Key issues

  • Topic 1.  Judicial independence
  • • General issues. Judicial independence as a fundamental value of the rule of law and of constitutionalism
    • The main factors aimed at securing judicial independence
  • Topic 2.  The role of public prosecutors
  • • General issues. Public prosecutors as the 'gate keepers' of criminal justice.
    • The institutional and functional role of prosecutors: different models and practices:
    • Other factors affecting the role of prosecutors: appointment, tenure and conduct.
  • References

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

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• First published in February 2020
  

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  This module is a resource for lecturers  

Introduction

Conflicts are endemic in human society and their resolution is of primary concern: societies couldn't function in the absence of mechanisms for dispute resolution. The judiciary's essential function therefore derives from a basic social need: "when dispute arises about legal rights and duties, we want a mutually acceptable third party adjudicator to settle the dispute" (Russell and O'Brian, 2001).

In response to this 'basic social need' the authority and discretionary power vested in judges and prosecutors, in all jurisdictions, is considerable. Indeed, individuals who find themselves enmeshed in legal processes may feel they have little scope to question the authority of powerful legal actors and institutions, or the penalties they impose. Yet if the 'basic social need' is for an impartial and principled decision-making body, then it is important that we pay critical attention to both the principles, and the practicalities, of judicial process, and related legal functions.

This Module is designed to provide lecturers with materials that they can use to introduce students to the main concepts that characterize the role of judges and public prosecutors and the fundamental values associated thereto. More specifically, the Module aims at providing the knowledge necessary to promote critical thinking about:

• The role of the judge in society, the concept of judicial independence as a fundamental value of the rule of law and of constitutionalism, and the essential balance between judicial independence and accountability;
• The role of the public prosecutor as the 'gate keeper' of criminal justice, the prosecutors' function in defining/implementing penal policy, the investigative and forensic function, the fundamental principles concerning criminal action, the organization of the prosecution service and the variety of existing models and practices;
• The standards and guidelines that have been drafted at the international level to protect the fundamental values of the judicial and prosecutorial functions and some crucial questions concerning their concrete implementation;
• The interplay of various factors that affect the role of the judge and the public prosecutor, the impact on the political and social environment, the need for effective and efficient justice systems, and analysis of complementarity and divergence among respective justice systems.

Learning outcomes

The materials presented here are designed for use by lecturers, to encourage students to critically assess the factors that bear influence on judicial independence and the role of public prosecutors, and to understand the operation of these factors across different legal, political, and institutional contexts.

Students will develop critical thinking skills. In particular:

• To assess the new challenges that confront judges and public prosecutors;
• To evaluate the impact of specific national reforms on the fundamental values concerning the role of judges and prosecutors;
• To analyze case studies concerning the organization and the functioning of judicial and prosecutorial institutions.

Next: Key issues

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