The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The prosecution service is an indivisible and hierarchical body carrying out criminal prosecution proceedings and ensuring application of the law. In all legal systems with similar institutions, the question of their constitutional status and relationship with the judiciary and the Ministry of Justice is especially important. The situations varies from country to country, and depends on legal and constitutional tradition.
Criminal prosecution and the appropriateness of legal action
The prosecution service is entrusted with the task of carrying out criminal prosecution. The CCP states that the state prosecutor receives complaints and denunciations. The prosecutor may become aware of an offence in different ways; personal knowledge, information from individuals, statements and police reports, opinions of authorities, public officers or civil servants, or denunciations by foreign authorities. The state prosecutor determines the consequences to give them (Sect. 23 CCP). This formula is an expression of the principle of the appropriateness of legal action, which governs the commencement of criminal prosecution proceedings. In other words, no complaint, no statement or report, nothing other than material relevance may compel the state prosecutor to take legal action. The law does not restrict the principle of appropriateness of legal action, irrespective of the nature of a crime, offence or infringement, or whether or not the prosecutor terminates proceedings for serious crimes.
It should be noted that a recent bill aims to restrict the scope of the principle of appropriateness by providing that the victim of an offence who has lodged a complaint with the state prosecutor must be informed within a certain period of time of how the prosecutor responds to the case. The victim may lodge an appeal against the state prosecutor’s decision to terminate any proceedings before the public prosecutor, who may charge the state prosecutor with taking legal action (Bill no. 5156).
Likewise, the Ministry of Justice may charge the public prosecutor with initiating criminal prosecution proceedings. Finally, and most importantly, victims of crime have the right to initiate criminal prosecution proceedings, whether this be by direct summons of the offender of the crime to appear before a criminal court, or through an action instituted by a private person for damages before the investigating judge. Termination of proceedings by the prosecutor requires a justification, even if recourse against a decision not to take legal action is not anticipated. Since a 1999 reform, the state prosecutor may resort to mediation before deciding not to take legal action (Sect. 24 subs. 5 CCP). In any event, a relegation may occur at any time in cases where criminal prosecution is not prescribed. In practice, two surmises of termination of proceedings may be distinguished. Either legal action is not taken with regard to a slight disturbance of public order (minor offences), or preliminary investigations led by the C.I.D. on instruction of the state prosecutor have not enabled sufficient charges to be brought. Finally, it should be noted that Luxembourg law does not contain out of court settlements, in the sense that the prosecution abandons prosecution proceedings in return for payment of a monetary sum by the culprits of crime.
If a judge or member of the prosecution has committed a crime or an offence, whether in the exercise of his duties or not, or if a criminal investigation officer has committed a crime or an offence in the discharge of his duties, the public prosecutor initiates criminal prosecution proceedings (Sects. 479 ff and 483 CCP).
Legal status of the prosecution
Consistent with the logic of separation of powers, the Luxembourg Constitution of 1868, whose main provisions relating to the judiciary have remained unchanged to this day, in chapter III distinguishes between powers of the Grand-Duke (executive power), legislative power and those of the judiciary. Chapter VI concerns the judiciary. The superior court of justice exercises the supreme jurisdiction in the civil system, even if this term is not used, in conjunction with other courts in the civil system (juridictions judiciaires), military courts, courts with jurisdiction in labour disputes, matters of social security, administrative courts and the constitutional court. A series of guarantees are intended to ensure the independence of judges, such as the principle of irremovability, incompatibility of the post of judge with other posts, appointment of the president and vice-president of the district court (and administrative tribunal) as well as of advisers to the superior court of justice and to the administrative court (Sects. 84-95ter Constitution). The Constitution does not contain any reference to the institution of the prosecution service nor to the appointment and dismissal procedures for members of the public prosecutor’s department. Consequently, constitutional guarantees of independence do not apply to members of the prosecution service. It should be noted however, that no case of transfer or dismissal of a member of the prosecution service has been enforced yet.
The law of March 7, 1980 on the organisation of the judiciary, adopted by the enforcement of Sects. 86 and 87 of the Constitution, considers the prosecution service an integral part of various jurisdictions of the civil system. Thus, the provisions on the district courts and on the superior court of justice, which feature in title I relating to the judiciary, list, apart from judges, the prosecutor (state or public) and the members of the respective public prosecutor departments (Sect. 11 Judicial Organisation Act, hereafter JOA). The first chapter of title II, the chapter entitled ‘the exercise of legal duties’ distinguishes between judges and the prosecution service ‘which fulfils its official duties at the court or tribunals’ (Sect. 69 JOA).
The legal task of taking on official jurisdictionary duties however, highlights the fact that a member of the prosecution is not a civil servant within the traditional meaning of the word, carrying out administrative tasks following orders from the executive power. Assuming the status of magistrate, he is a public official carrying out a duty which has been assigned to him by law and which consists of ensuring that the law and public order is observed in the whole of the territory (Sects. 16 CCP and 74 JOA). This duty is taken on in close co-operation with the courts and tribunals in whom the prosecution is represented and of which it is organically a part (Sects. 16 CCP and 69 JOA). This applies not only to criminal jurisdictions, but also to civil jurisdictions which may, or indeed have to, send certain cases to the prosecution service at the moment that public order is affected, and before the cassation court where the state public prosecutor is called to file legal submissions, including in cases to which the prosecution was not a party before the trial judge (Sect. 183 of the new Code of Civil Procedure).
The rules and practice concerning appointments, just like the administrative status of the members of the prosecution, also give important insights into their position in relation to the executive power. Whereas appointments to the duties of a judge, beyond a certain grade, is done by the Grand-Duke on the advice of the general assembly of the superior court of justice, the appointment of members of the prosecution is a matter for, a priori, the discretionary power of the executive. Likewise, members of the public prosecutor’s department do not benefit from the constitutional guarantee of irremovability. Once again the scope of these provisions must be qualified. Judges and members of the public prosecutor’s department form, according to the rules on the organisation of the judiciary and the civil service, a single body of judges. The recruitment process is identical. Even if external appointments to the duties of members of the public prosecutor’s department are theoretically possible, this does not happen in practice. The practice of a change-over from judge to member of the prosecution is well established. Within the internal organisation of courts and tribunals, judges and members of the prosecution feature on common lists determining their rank on the bench. Thus, deputies of the state prosecutor obtain the rank of judge in the district court; members of the public prosecutor’s department and heads of the public prosecutor’s department may obtain the appointment of honorary adviser to the superior court of justice, on the opinion of the general assembly of the court. The statutory regime of prosecution service does not include any assessment or grading system relevant to individual careers. No member of the prosecution service has been removed from office or forced to resign as yet. The fact remains, nonetheless, that appointments to head of the public prosecutor’s department, public prosecutor or state prosecutor, are made according to the criteria ‘intuitu personae’, which are determined by the Ministry of Justice.
The prosecution service: a hierarchical body
The prosecution constitutes a hierarchical and indivisible body. At its head the state public prosecutor exercises his authority and supervision over members of his department, over first advocate generals and advocate generals, over state prosecutors from district courts, and the members of the public prosecutor’s department. Members of the public prosecutor’s department, deputy state prosecutors, main deputy public prosecutors, first deputy public prosecutors and deputy public prosecutors, carry out their duties under the supervision and authority of the state prosecutors.
The law on the organisation of the judiciary and the CCP determines that the prosecution is subordinated to the Ministry of Justice. It states that the duties of the prosecution are carried out under the authority of the Ministry of Justice which exercises its supervision over all officials in the prosecution service (Sect. 72 JOA). The law does not specify the scope of this authority and supervision and does not define the acts through which these theoretical prerogatives of the Ministry may be expressed. The law specifies maintaining order in courts, supervision over all criminal investigation officers and law officials, maintaining discipline, the legality of a service and enforcement of laws and regulations (Sect. 73 JOA). The question could be posed as to whether the Ministry of Justice is restricted to exercising political and moral authority over members of the prosecution. Also, whether supervision should only focus on correct operation of the service in general or whether the Ministry should supervise the individual acts of public prosecution officials as well. It can be noted that these provisions (prior to the revision of the law in 1980) have scarcely been applied.
The CCP clearly states the powers of the Ministry of Justice in relation to the initiation of legal proceedings. The Ministry of Justice has the right to charge the state public prosecutor to institute legal proceedings, or to refer to the competent jurisdiction such written requisitions, that the Ministry considers appropriate (Sect. 19 CCP). However, he does not have the power to prohibit the prosecution from initiating criminal prosecution proceedings. By virtue of the saying ‘writing is serf, but speaking is unrestricted’ the Ministry may give the prosecution instructions for written requisitions, but should not hinder it from freely developing oral pleadings which it believes suitable for the good of justice (Sect. 20 CCP). Despite the principle of hierarchy the same freedom of speech, justified by the good of justice safeguard, exists between the members of the prosecution service. This guarantees their independence in court. Throughout recent decades, formal injunctions for the initiation of legal proceedings sent by the Ministry of Justice to the public prosecutor have been very rare.
In principle, making criminal policy, or to put it differently, determining a policy for legal action, is up to the public prosecutor in consultation with the Ministry of Justice. Within the framework of the ensuing political declarations the Ministry of Justice can be induced to lay down certain priorities as regards criminal policy. Traditionally, and contrary to what happens in other European states, issues of criminal policy are not the subject of governmental programmes discussed in Parliament. Likewise, the possible views of the Ministry on these questions is not conveyed by circulars or formal instructions sent to the prosecution. The public prosecutor and the state prosecutors are not accountable to Parliament for their decisions in individual cases nor for their general policy.
The Relation between the Public Prosecutor and the Minister of Justice
The prosecution service is an indivisible and hierarchical body carrying out criminal prosecution proceedings and ensuring application of the law. In all legal systems with similar institutions, the question of their constitutional status and relationship with the judiciary and the Ministry of Justice is especially important. The situations varies from country to country, and depends on legal and constitutional tradition.
Criminal prosecution and the appropriateness of legal action
The prosecution service is entrusted with the task of carrying out criminal prosecution. The CCP states that the state prosecutor receives complaints and denunciations. The prosecutor may become aware of an offence in different ways; personal knowledge, information from individuals, statements and police reports, opinions of authorities, public officers or civil servants, or denunciations by foreign authorities. The state prosecutor determines the consequences to give them (Sect. 23 CCP). This formula is an expression of the principle of the appropriateness of legal action, which governs the commencement of criminal prosecution proceedings. In other words, no complaint, no statement or report, nothing other than material relevance may compel the state prosecutor to take legal action. The law does not restrict the principle of appropriateness of legal action, irrespective of the nature of a crime, offence or infringement, or whether or not the prosecutor terminates proceedings for serious crimes.
It should be noted that a recent bill aims to restrict the scope of the principle of appropriateness by providing that the victim of an offence who has lodged a complaint with the state prosecutor must be informed within a certain period of time of how the prosecutor responds to the case. The victim may lodge an appeal against the state prosecutor’s decision to terminate any proceedings before the public prosecutor, who may charge the state prosecutor with taking legal action (Bill no. 5156).
Likewise, the Ministry of Justice may charge the public prosecutor with initiating criminal prosecution proceedings. Finally, and most importantly, victims of crime have the right to initiate criminal prosecution proceedings, whether this be by direct summons of the offender of the crime to appear before a criminal court, or through an action instituted by a private person for damages before the investigating judge. Termination of proceedings by the prosecutor requires a justification, even if recourse against a decision not to take legal action is not anticipated. Since a 1999 reform, the state prosecutor may resort to mediation before deciding not to take legal action (Sect. 24 subs. 5 CCP). In any event, a relegation may occur at any time in cases where criminal prosecution is not prescribed. In practice, two surmises of termination of proceedings may be distinguished. Either legal action is not taken with regard to a slight disturbance of public order (minor offences), or preliminary investigations led by the C.I.D. on instruction of the state prosecutor have not enabled sufficient charges to be brought. Finally, it should be noted that Luxembourg law does not contain out of court settlements, in the sense that the prosecution abandons prosecution proceedings in return for payment of a monetary sum by the culprits of crime.
If a judge or member of the prosecution has committed a crime or an offence, whether in the exercise of his duties or not, or if a criminal investigation officer has committed a crime or an offence in the discharge of his duties, the public prosecutor initiates criminal prosecution proceedings (Sects. 479 ff and 483 CCP).
Legal status of the prosecution
Consistent with the logic of separation of powers, the Luxembourg Constitution of 1868, whose main provisions relating to the judiciary have remained unchanged to this day, in chapter III distinguishes between powers of the Grand-Duke (executive power), legislative power and those of the judiciary. Chapter VI concerns the judiciary. The superior court of justice exercises the supreme jurisdiction in the civil system, even if this term is not used, in conjunction with other courts in the civil system (juridictions judiciaires), military courts, courts with jurisdiction in labour disputes, matters of social security, administrative courts and the constitutional court. A series of guarantees are intended to ensure the independence of judges, such as the principle of irremovability, incompatibility of the post of judge with other posts, appointment of the president and vice-president of the district court (and administrative tribunal) as well as of advisers to the superior court of justice and to the administrative court (Sects. 84-95ter Constitution). The Constitution does not contain any reference to the institution of the prosecution service nor to the appointment and dismissal procedures for members of the public prosecutor’s department. Consequently, constitutional guarantees of independence do not apply to members of the prosecution service. It should be noted however, that no case of transfer or dismissal of a member of the prosecution service has been enforced yet.
The law of March 7, 1980 on the organisation of the judiciary, adopted by the enforcement of Sects. 86 and 87 of the Constitution, considers the prosecution service an integral part of various jurisdictions of the civil system. Thus, the provisions on the district courts and on the superior court of justice, which feature in title I relating to the judiciary, list, apart from judges, the prosecutor (state or public) and the members of the respective public prosecutor departments (Sect. 11 Judicial Organisation Act, hereafter JOA). The first chapter of title II, the chapter entitled ‘the exercise of legal duties’ distinguishes between judges and the prosecution service ‘which fulfils its official duties at the court or tribunals’ (Sect. 69 JOA).
The legal task of taking on official jurisdictionary duties however, highlights the fact that a member of the prosecution is not a civil servant within the traditional meaning of the word, carrying out administrative tasks following orders from the executive power. Assuming the status of magistrate, he is a public official carrying out a duty which has been assigned to him by law and which consists of ensuring that the law and public order is observed in the whole of the territory (Sects. 16 CCP and 74 JOA). This duty is taken on in close co-operation with the courts and tribunals in whom the prosecution is represented and of which it is organically a part (Sects. 16 CCP and 69 JOA). This applies not only to criminal jurisdictions, but also to civil jurisdictions which may, or indeed have to, send certain cases to the prosecution service at the moment that public order is affected, and before the cassation court where the state public prosecutor is called to file legal submissions, including in cases to which the prosecution was not a party before the trial judge (Sect. 183 of the new Code of Civil Procedure).
The rules and practice concerning appointments, just like the administrative status of the members of the prosecution, also give important insights into their position in relation to the executive power. Whereas appointments to the duties of a judge, beyond a certain grade, is done by the Grand-Duke on the advice of the general assembly of the superior court of justice, the appointment of members of the prosecution is a matter for, a priori, the discretionary power of the executive. Likewise, members of the public prosecutor’s department do not benefit from the constitutional guarantee of irremovability. Once again the scope of these provisions must be qualified. Judges and members of the public prosecutor’s department form, according to the rules on the organisation of the judiciary and the civil service, a single body of judges. The recruitment process is identical. Even if external appointments to the duties of members of the public prosecutor’s department are theoretically possible, this does not happen in practice. The practice of a change-over from judge to member of the prosecution is well established. Within the internal organisation of courts and tribunals, judges and members of the prosecution feature on common lists determining their rank on the bench. Thus, deputies of the state prosecutor obtain the rank of judge in the district court; members of the public prosecutor’s department and heads of the public prosecutor’s department may obtain the appointment of honorary adviser to the superior court of justice, on the opinion of the general assembly of the court. The statutory regime of prosecution service does not include any assessment or grading system relevant to individual careers. No member of the prosecution service has been removed from office or forced to resign as yet. The fact remains, nonetheless, that appointments to head of the public prosecutor’s department, public prosecutor or state prosecutor, are made according to the criteria ‘intuitu personae’, which are determined by the Ministry of Justice.
The prosecution service: a hierarchical body
The prosecution constitutes a hierarchical and indivisible body. At its head the state public prosecutor exercises his authority and supervision over members of his department, over first advocate generals and advocate generals, over state prosecutors from district courts, and the members of the public prosecutor’s department. Members of the public prosecutor’s department, deputy state prosecutors, main deputy public prosecutors, first deputy public prosecutors and deputy public prosecutors, carry out their duties under the supervision and authority of the state prosecutors.
The law on the organisation of the judiciary and the CCP determines that the prosecution is subordinated to the Ministry of Justice. It states that the duties of the prosecution are carried out under the authority of the Ministry of Justice which exercises its supervision over all officials in the prosecution service (Sect. 72 JOA). The law does not specify the scope of this authority and supervision and does not define the acts through which these theoretical prerogatives of the Ministry may be expressed. The law specifies maintaining order in courts, supervision over all criminal investigation officers and law officials, maintaining discipline, the legality of a service and enforcement of laws and regulations (Sect. 73 JOA). The question could be posed as to whether the Ministry of Justice is restricted to exercising political and moral authority over members of the prosecution. Also, whether supervision should only focus on correct operation of the service in general or whether the Ministry should supervise the individual acts of public prosecution officials as well. It can be noted that these provisions (prior to the revision of the law in 1980) have scarcely been applied.
The CCP clearly states the powers of the Ministry of Justice in relation to the initiation of legal proceedings. The Ministry of Justice has the right to charge the state public prosecutor to institute legal proceedings, or to refer to the competent jurisdiction such written requisitions, that the Ministry considers appropriate (Sect. 19 CCP). However, he does not have the power to prohibit the prosecution from initiating criminal prosecution proceedings. By virtue of the saying ‘writing is serf, but speaking is unrestricted’ the Ministry may give the prosecution instructions for written requisitions, but should not hinder it from freely developing oral pleadings which it believes suitable for the good of justice (Sect. 20 CCP). Despite the principle of hierarchy the same freedom of speech, justified by the good of justice safeguard, exists between the members of the prosecution service. This guarantees their independence in court. Throughout recent decades, formal injunctions for the initiation of legal proceedings sent by the Ministry of Justice to the public prosecutor have been very rare.
In principle, making criminal policy, or to put it differently, determining a policy for legal action, is up to the public prosecutor in consultation with the Ministry of Justice. Within the framework of the ensuing political declarations the Ministry of Justice can be induced to lay down certain priorities as regards criminal policy. Traditionally, and contrary to what happens in other European states, issues of criminal policy are not the subject of governmental programmes discussed in Parliament. Likewise, the possible views of the Ministry on these questions is not conveyed by circulars or formal instructions sent to the prosecution. The public prosecutor and the state prosecutors are not accountable to Parliament for their decisions in individual cases nor for their general policy.
