The set of principles drawn up by the Consultative Council of European Prosecutors (CCPE) in the so-called Charter of Rome leads one to ponder over the status and organisation of the Italian public prosecutor. Although this does confirm the hierarchical character of public prosecutors, it strongly emphasises that prosecutors are independent, autonomous and impartial, recognising in the essential role to ensure the rule of law. It states that “members of the Public Ministry help to ensure that the rule of law is ensured by the administration of an equitable justice that is impartial and efficient. Prosecutors act to respect and protect human rights and the fundamental right to freedom… “.
A necessary premise for the magistrate is to guarantee the European rule of law in order to have his independence and autonomy recognised, which “constitutes an indispensable corollary of the independence of the judiciary” parallel to what the Italian constitution establishes.
The vision of this body is in line with the legal process in which the attorney has primary functions of protecting the interest of the state, to respect the constitution and the law, and is devoted to the search for the truth through “findings based on facts and circumstances on behalf of the person under investigation” (art 358 c.p.p.).
But is this model of public prosecutor incompatible with the civil rights of every citizen, including state prosecuter, for it to descend into the political arena? In this regard, the Charter of Rome calls on prosecutors not only to be impartial but to appear as such refraining “from political activities regarded incompatible with the principle of impartiality”.
The principle prescribed as the basis in Italian law is in harmony with this principle in the decree art. 8 No. 361/d.P.R 1957 which prescribes that ” magistrates who were candidates and were not elected cannot exercise for a period of five years, their functions in the constituency where elections were held.” The logic is that he who has expressed his political positions during an election campaign, should return back to offering his services in the constituency where he was a candidate.
The secondary CSM standardisation (circular No. 12046/09 successive mod.) does not include the general obligation for the prosecuter to change his functions as Prosecutor to judge after returning to the role in the case of a non-election, but only when the application is made in performance of duties. This expresses the need to prevent the magistrate from risks of excessive overexposure and potentially tarnishes the his image of independence and third party status.
The Charter of Rome, however, goes even further, outlining the public prosecutor’s role as office manager, who, being in charge should ensure “efficiency, speed and working judicial system” he should also be able to manage resources (personnel, technologies, financial budget) that are at his disposal.
The claim that the Prosecutor should be able to negotiate his own budget and decide how to transparently use the funds appropriately “is not usual in our legal system where the management of financial resources would rather be associated with the role of a judge with management competences, a role that is still not culturally accepted.
In conclusion, it may become clear that the Charter of Rome, albeit taking the hierarchical organisational framework of the public prosecutor, fosters its independence and autonomy, in full harmony with the Italian Constitution, suggesting, under the European perspective, a model similar to the Italian, which is organised in the protection of fundamental rights of the individual.