Prosecutorial discretion

Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

Esad Landžo alleged that he was the subject of a selective prosecution policy conducted by the Prosecution.

601. Article 16 of the Statute entrusts the responsibility for the conduct of investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991 to the Prosecutor.  Once a decision has been made to prosecute, subject to the requirement that the Prosecutor be satisfied that a prima facie case exists, Article 18 and 19 of the Statute require that an indictment be prepared and transmitted to a Judge of a Trial Chamber for review and confirmation if satisfied that a prima facie case has been established by the Prosecutor.  Once an indictment is confirmed, the Prosecutor can withdraw it prior to the initial appearance of the accused only with the leave of the Judge who confirmed it, and after the initial appearance only with the leave of the Trial Chamber.[1]

602. In the present context, indeed in many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction.  It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted.  It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments.  This is acknowledged in Article 18(1) of the Statute, which provides: 

The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations.  The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.

It is also clear that a discretion of this nature is not unlimited.  A number of limitations on the discretion entrusted to the Prosecutor are evident in the Tribunal’s Statute and Rules of Procedure and Evidence.

603. The Prosecutor is required by Article 16(2) of the Statute to “act independently as a separate organ of the International Tribunal”, and is prevented from seeking or receiving instructions from any government or any other source.  Prosecutorial discretion must therefore be exercised entirely independently, within the limitations imposed by the Tribunal’s Statute and Rules.  Rule 37(A) provides that the Prosecutor “shall perform all the functions provided by the Statute in accordance with the Rules and such Regulations, consistent with the Statute and the Rules, as may be framed by the Prosecutor.”

604. The discretion of the Prosecutor at all times is circumscribed in a more general way by the nature of her position as an official vested with specific duties imposed by the Statute of the Tribunal.  The Prosecutor is committed to discharge those duties with full respect of the law.  In this regard, the Secretary-General’s Report stressed that the Tribunal, which encompasses all of its organs, including the Office of the Prosecutor, must abide by the recognised principles of human rights.[2]

605. One such principle is explicitly referred to in Article 21(1) of the Statute, which provides:

All persons shall be equal before the International Tribunal. 

This provision reflects the corresponding guarantee of equality before the law found in many international instruments, including the 1948 Universal Declaration of Human Rights,[3] the 1966 International Covenant on Civil and Political Rights,[4] the Additional Protocol I to the Geneva Conventions,[5] and the Rome Statute of the International Criminal Court.[6]  All these instruments provide for a right to equality before the law, which is central to the principle of the due process of law.  The provisions reflect a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law.  Thus Article 21 and the principle it embodies prohibits discrimination in the application of the law based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin.  The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.

606. This reflects principles which apply to prosecutorial discretion in certain national systems.  In the United Kingdom, the limits on prosecutorial discretion arise from the more general principle, applying to the exercise of administrative discretion generally, that the discretion is to be exercised in good faith for the purpose for which it was conferred and not for some ulterior, extraneous or improper purpose.[7]  In the United States, where the guarantee of equal protection under the law is a constitutional one, the court may intervene where the accused demonstrates that the administration of a criminal law is “directed so exclusively against a particular class of persons […] with a mind so unequal and oppressive” that the prosecutorial system amounts to “a practical denial” of the equal protection of the law.[8]

607. The burden of the proof rests on Landžo, as an appellant alleging that the Prosecutor has improperly exercised prosecutorial discretion, to demonstrate that the discretion was improperly exercised in relation to him.  Landžo must therefore demonstrate that the decision to prosecute him or to continue his prosecution was based on impermissible motives, such as race or religion, and that the Prosecution failed to prosecute similarly situated defendants.

[1]    Rule 51(A).

[2]    Secretary-General’s Report, para 106.

[3]    Article 7 provides: “All are equal before the law and are entitled without any discrimination to equal protection of the law.  All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

[4]    Article 14 provides: “[a]ll persons shall be equal before the courts and tribunals […].” Article 26 provides explicitly that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

[5]    Article 75 (fundamental guarantees) provides in para 1: “Insofar as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria.”

[6]    Article 21(3) provides “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”

[7]    R v Inland Revenue Commissioners, ex parte Mead and Cook, [1993] 1 All ER 772.  It has also been accepted in Australia that there may be a principle pursuant to which proof of a selective prosecution may give rise to some relief, including, for example, the exclusion of evidence:  Hutton v Kneipp [1995] QCA 203.

[8]    Yick Wo v Hopkins 118 US 356, 373 (1886); United States v Armstrong 517 US 456, 464-465 (1996).

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