• 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  

Key issues

Key terms

The judiciary is the branch of the State powers entrusted with ensuring equal justice through interpreting and applying the law in the name of the State through effective dispute resolution. It includes the judicial institutions responsible for administering justice through a system of courts of law and the people who operate within those courts - namely judges and court officials. In some jurisdictions, prosecution services, and those who work within these, are also part of the judiciary. By contrast, in other jurisdictions, the prosecution service is separate from the judiciary but enjoys independence and/or operational guarantees that are, to a certain extent, similar to those of the judiciary.

Judicial independence, as described in the Commentary on the Bangalore Principles of Judicial Conduct, "is not a privilege or prerogative of the individual judge. It is a responsibility imposed on each judge that enables him or her to adjudicate a dispute honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone" (2007, para. 22). A judge shall uphold and exemplify judicial independence in both its individual and institutional aspects. As mentioned in the United Nations Basic Principles on the Independence of the Judiciary, "it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary" ( GA Resolution 40/32 and 40/146, para. 1).

The rule of law refers "to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards" ( United Nations Security Council, 2004, para. 6).

Module overview

Topic one - Judicial independence

• General issues. Judicial independence as a fundamental value of the rule of law and of constitutionalism:
• • The role of the judiciary in society;
  • The concepts of judicial independence and impartiality.
• The main factors aimed at securing judicial independence:
• • Appointment and promotion of judges;
  • Judicial councils;
  • Terms and conditions of judicial tenure;
  • Financial autonomy and court administration;
  • Judicial conduct and discipline.

Topic two - 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:
• • The institutional position of prosecutors:
  • • The hierarchical model;
    • The advantages and disadvantages of hierarchical systems;
    • The judicial model;
    • The advantages and disadvantages of judicial models.
  • The functional role of prosecutors:
  • • Prosecutor as dominus of investigations;
    • Prosecutor not having supervisory authority over the police;
• Other factors affecting the role of prosecutors: appointment, tenure and conduct.

Next: Topic one - General issues. Judicial independence as a fundamental value of the rule of law and of constitutionalism

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