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Sovereign Law Series

Havana “Guidelines on the Role
of Prosecutors” of 1990


Short-Form Reference:

1990 “Guidelines on Role of Prosecutors”

In-Line Micro Reference:

1990 “Role of Prosecutors”

Ratification / Registration:

UN 8th Congress on Prevention of Crime, Havana (07 Sep 1990)


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Introductory Notes by the Independent Judiciary

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Independence from the UN – The United Nations (UN) is not a “world government”,
and has no authority for any type of “global governance”: The UN is prohibited to
interfere with self-determination of peoples or sovereignty of States (UN Charter,
Articles 1.2, 2.1, 2.7), and is liable for any of its own violations of international law and
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and the UN is only authorized to register and publish them (1969 Law of Treaties,
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and “become binding upon” all States as “customary rules of international law” which
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added in Green font, in Brackets, to guide effective use to assert and enforce rights.]



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Official Text of this Law Source as Ratified

Guidelines on the Role of Prosecutors

Preamble

Whereas in the Charter of the United Nations the peoples of the world affirm, inter
alia, their determination to establish conditions under which justice can be
maintained, and proclaim as one of their purposes the achievement of international
cooperation in promoting and encouraging respect for human rights and fundamental
freedoms without distinction as to race, sex, language or religion;

Whereas the Universal Declaration of Human Rights enshrines the principles of
equality before the law, the presumption of innocence and the right to a fair and
public hearing by an independent and impartial tribunal;

Whereas frequently there still exists a gap between the vision underlying those
principles and the actual situation;

Whereas the organization and administration of justice in every country should be
inspired by those principles, and efforts undertaken to translate them fully into reality;

Whereas prosecutors play a crucial role in the administration of justice, and rules
concerning the performance of their important responsibilities should promote their
respect for and compliance with the above-mentioned principles, thus contributing to
fair and equitable criminal justice and the effective protection of citizens against
crime;

Whereas it is essential to ensure that prosecutors possess the professional
qualifications required for the accomplishment of their functions, through improved
methods of recruitment and legal and professional training, and through the provision
of all necessary means for the proper performance of their role in combating
criminality, particularly in its new forms and dimensions;

Whereas the General Assembly, by its Resolution 34/169 of 17 December 1979,
adopted the Code of Conduct for Law Enforcement Officials, on the recommendation
of the Fifth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders;

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Whereas in Resolution 16 of the Sixth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, the Committee on Crime Prevention and
Control was called upon to include among its priorities the elaboration of guidelines
relating to the independence of judges and the selection, professional training and
status of judges and prosecutors;

Whereas the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders adopted the Basic Principles on the Independence of the
Judiciary, subsequently endorsed by the General Assembly in its Resolutions 40/32 of
29 November 1985 and 40/146 of 13 December 1985;

Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power recommends measures to be taken at the international and national levels to
improve access to justice and fair treatment, restitution, compensation and assistance
for victims of crime;

Whereas , in Resolution 7 of the Seventh Congress the Committee was called upon to
consider the need for guidelines relating, inter alia, to the selection, professional
training and status of prosecutors, their expected tasks and conduct, means to
enhance their contribution to the smooth functioning of the criminal justice system
and their cooperation with the police, the scope of their discretionary powers, and
their role in criminal proceedings, and to report thereon to future United Nations
congresses;

The Guidelines set forth below, which have been formulated to assist Member States
in their tasks of securing and promoting the effectiveness, impartiality and fairness of
prosecutors in criminal proceedings, should be respected and taken into account by
Governments within the framework of their national legislation and practice, and
should be brought to the attention of prosecutors, as well as other persons, such as
judges, lawyers, members of the executive and the legislature and the public in
general. The present Guidelines have been formulated principally with public
prosecutors in mind, but they apply equally, as appropriate, to prosecutors appointed
on an ad hoc basis.



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Qualifications, selection and training

1.
Persons selected as prosecutors shall be individuals of integrity and ability, with
appropriate training and qualifications.

2.
States shall ensure that:

(a)
Selection
criteria
for prosecutors embody
safeguards against
appointments based on partiality or prejudice, excluding any discrimination against a
person on the grounds of race, colour, sex, language, religion, political or other
opinion, national, social or ethnic origin, property, birth, economic or other status,
except that it shall not be considered discriminatory to require a candidate for
prosecutorial office to be a national of the country concerned;

(b)
Prosecutors have appropriate education and training and should be made
aware of the ideals and ethical duties of their office, of the constitutional and
statutory protections for the rights of the suspect and the victim, and of human rights
and fundamental freedoms recognized by national and international law.

Status and conditions of service

3.
Prosecutors, as essential agents of the administration of justice, shall at all times
maintain the honour and dignity of their profession.

4.
States shall ensure that prosecutors are able to perform their professional
functions without intimidation, hindrance, harassment, improper interference or
unjustified exposure to civil, penal or other liability.

5.
Prosecutors and their families shall be physically protected by the authorities
when their personal safety is threatened as a result of the discharge of prosecutorial
functions.

6.
Reasonable conditions of service of prosecutors, adequate remuneration and,
where applicable, tenure, pension and age of retirement shall be set out by law or
published rules or regulations.

7.
Promotion of prosecutors, wherever such a system exists, shall be based on
objective factors, in particular professional qualifications, ability, integrity and
experience, and decided upon in accordance with fair and impartial procedures.



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Freedom of expression and association

8.
Prosecutors like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take part in public
discussion of matters concerning the law, the administration of justice and the
promotion and protection of human rights and to join or form local, national or
international organizations and attend their meetings, without suffering professional
disadvantage by reason of their lawful action or their membership in a lawful
organization. In exercising these rights, prosecutors shall always conduct themselves
in accordance with the law and the recognized standards and ethics of their
profession.

9.
Prosecutors shall be free to form and join professional associations or other
organizations to represent their interests, to promote their professional training and
to protect their status.

Role in criminal proceedings

10.
The office of prosecutors shall be strictly separated from judicial functions.

11. Prosecutors shall perform an active role in criminal proceedings, including
institution of prosecution and, where authorized by law or consistent with local
practice, in the investigation of crime, supervision over the legality of these
investigations, supervision of the execution of court decisions and the exercise of
other functions as representatives of the public interest.

12. Prosecutors shall, in accordance with the law, perform their duties fairly,
consistently and expeditiously, and respect and protect human dignity and uphold
human rights, thus contributing to ensuring due process and the smooth functioning
of the criminal justice system.

13.
In the performance of their duties, prosecutors shall:

(a)
Carry out their functions impartially and avoid all political, social,
religious, racial, cultural, sexual or any other kind of discrimination;

(b)
Protect the public interest, act with objectivity, take proper account of
the position of the suspect and the victim, and pay attention to all relevant
circumstances, irrespective of whether they are to the advantage or disadvantage of
the suspect;

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(c)
Keep matters in their possession confidential, unless the performance of
duty or the needs of justice require otherwise;

(d)
Consider the views and concerns of victims when their personal interests
are affected and ensure that victims are informed of their rights in accordance with
the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

14. Prosecutors shall not initiate or continue prosecution, or shall make every effort
to stay proceedings, when an impartial investigation shows the charge to be
unfounded.

15. Prosecutors shall give due attention to the prosecution of crimes committed by
public officials, particularly corruption, abuse of power, grave violations of human
rights and other crimes recognized by international law and, where authorized by law
or consistent with local practice, the investigation of such offences.

16. When prosecutors come into possession of evidence against suspects that they
know or believe on reasonable grounds was obtained through recourse to unlawful
methods, which constitute a grave violation of the suspect's human rights, especially
involving torture or cruel, inhuman or degrading treatment or punishment, or other
abuses of human rights, they shall refuse to use such evidence against anyone other
than those who used such methods, or inform the Court accordingly, and shall take all
necessary steps to ensure that those responsible for using such methods are brought
to justice.

Discretionary functions

17.
In countries where prosecutors are vested with discretionary functions, the law
or published rules or regulations shall provide guidelines to enhance fairness and
consistency of approach in taking decisions in the prosecution process, including
institution or waiver of prosecution.

Alternatives to prosecution

18.
In accordance with national law, prosecutors shall give due consideration to
waiving prosecution, discontinuing proceedings conditionally or unconditionally, or
diverting criminal cases from the formal justice system, with full respect for the rights
of suspect(s) and the victim(s). For this purpose, States should fully explore the
possibility of adopting diversion schemes not only to alleviate excessive court loads,
but also to avoid the stigmatization of pre-trial detention, indictment and conviction,
as well as the possible adverse effects of imprisonment.

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19.
In countries where prosecutors are vested with discretionary functions as to the
decision whether or not to prosecute a juvenile, special consideration shall be given to
the nature and gravity of the offence, protection of society and the personality and
background of the juvenile. In making that decision, prosecutors shall particularly
consider available alternatives to prosecution under the relevant juvenile justice laws
and procedures. Prosecutors shall use their best efforts to take prosecutory action
against juveniles only to the extent strictly necessary.

Relations with other government agencies or institutions

20.
In order to ensure the fairness and effectiveness of prosecution, prosecutors
shall strive to cooperate with the police, the courts, the legal profession, public
defenders and other government agencies or institutions.

Disciplinary proceedings

21. Disciplinary offences of prosecutors shall be based on law or lawful regulations.
Complaints against prosecutors which allege that they acted in a manner clearly out of
the range of professional standards shall be processed expeditiously and fairly under
appropriate procedures. Prosecutors shall have the right to a fair hearing. The
decision shall be subject to independent review.

22. Disciplinary proceedings against prosecutors shall guarantee an objective
evaluation and decision. They shall be determined in accordance with the law, the
code of professional conduct and other established standards and ethics and in the
light of the present Guidelines.

Observance of the Guidelines

23. Prosecutors shall respect the present Guidelines. They shall also, to the best of
their capability, prevent and actively oppose any violations thereof.

24. Prosecutors who have reason to believe that a violation of the present
Guidelines has occurred or is about to occur shall report the matter to their superior
authorities and, where necessary, to other appropriate authorities or organs vested
with reviewing or remedial power.