COMPARATIVE

STUDY ON
INITIAL TRAINING
FOR PUBLIC
PROSECUTORS

International standards
Foreign practices
Observations for Ukraine
COMPARATIVE STUDY
ON INITIAL TRAINING
FOR PUBLIC PROSECUTORS
International standards
Foreign practices
Observations for Ukraine

Prepared on the basis of contributions by:

Mr Jeremy McBride and Mr John Pearson
 TABLE OF CONTENTS
A. INTRODUCTION 5
This study was prepared within the framework of
the Council of Europe Project «Continued support B. EUROPEAN AND
to the criminal justice reform in Ukraine», funded INTERNATIONAL STANDARDS 6
by the Danish Government.
1. Introduction 6
The opinions expressed in this work are the 2. The qualities and capacities required of public prosecutors 8
responsibility of the authors and do not necessarily
3. Selection 10
reflect the official policy of the Council of Europe.
4. Training 11
5. Conclusion 13
C. COUNTRY STUDIES 15
1. Introduction 15
2. Bulgaria 16
3. The Netherlands 21
4. Poland 25
5. Romania 31
D. A COMPARATIVE ANALYSIS 38
1. Introduction 38
2. The four countries 38
3. Effective training methods 41
E. SOME CONCLUDING OBSERVATIONS
FOR THE REFORM OF INITIAL TRAINING IN UKRAINE 45

© Council of Europe, June 2017

 A. INTRODUCTION 5

This Study has been prepared to assist the

Ukrainian authorities as they prepare to implement
the changes in the organisation and operation of the
professional training institution of the prosecution
system. Its focus is on the initial training of public
prosecutors and does so in the light of European
A INTRODUCTION
1. This Study is concerned with the initial training of public prosecutors. In particular, it considers
and international standards and best practices not the requirements for such training in the light of European and international standards for
only for such training but also those concerning the both such training and the qualities necessary for appointment. It also takes account of the
different approaches taken by a number of Council of Europe member States in implementing
qualities and capacities necessary for appointment as
those standards.
a public prosecutor. It examines the approach taken in
four Council of Europe member States to give effect to 2. It has been prepared with a view to providing Ukrainian authorities with comprehensive
information regarding relevant standards and best practices as they prepare to implement
these standards and, based on this examination and
the changes in the organisation and operation of the professional training institution of
other relevant material, draws out the substantive the prosecution system, pursuant to the adoption of a new Law of Ukraine “On the Public
and organisational aspects of the arrangements for Prosecutor’s Office” on 14 October 2014.
initial training that have been considered most helpful
3. The Study first reviews the various European and international standards that have been
in preparing intending prosecutors for the role that adopted or identified with respect to the selection of public prosecutors and any initial training
they will play and the responsibilities that they must that they must undergo before appointment. It then provides an account of the approach
taken towards selection and initial training in four countries: Bulgaria; the Netherlands;
discharge. It concludes with a number of concluding Poland and Romania. These countries were chosen to illustrate the diversity of approaches
observations that could be taken into account when that can be taken to the provision of initial training and because most of them have revised
developing the initial training that intending public their arrangements following the reform of their prosecutorial systems. Thereafter, it draws
out of these four country studies and a handbook prepared by the European Judicial Training
prosecutors in Ukraine will be expected to undergo. Network (“the EJTN Handbook”)1 those aspects of the initial training — both substantive
and organisational — that have been considered helpful in preparing intending public
prosecutors for the role that they will play and the responsibilities that they must discharge.
The Study concludes with some recommendations as to the nature and organisation of the
initial training to be provided for intending public prosecutors in Ukraine.

4. The Study has been prepared by Jeremy McBride2 and John Pearson3 under the auspices
of the Council of Europe’s Project “Continued Support to the Criminal Justice Reform in
Ukraine”, which is implemented under the “Good Governance and Human Rights Programme
in Ukraine, 2015-2018” funded by the Government of the Kingdom of Denmark.

1
EJTN Handbook on Judicial Training Methodology in Europe, 2016: http://www.ejtn.eu/Documents/EJTN_JTM_Handbook_2016.pdf.
2
Barrister, Monckton Chambers, London and Visiting Professor, Central European University, Budapest.
3
BA, JD, LLM. Barrister and Solicitor, Law Society of Upper Canada, former General Counsel, Crown Law Office Criminal, Ministry of the Attorney General for Ontario and previously Director of Public Prosecutions for Nova Scotia.
6 B. EUROPEAN AND INTERNATIONAL STANDARDS 7

B
on the Role of Prosecutors of 19909, the Standards of professional responsibility and statement
of the essential duties and rights of prosecutors adopted by the International Association
of Prosecutors in 199910, as well as in the guide produced in 2014 by the latter association
together with the UN Office on Drugs and Crime on the Status and Role of Prosecutors11 and

EUROPEAN AND in the Guidelines for Initial Training of Judges and Prosecutors prepared pursuant to a Leonardo
da Vinci Partnership Project (“the da Vinci Guidelines”)12.

INTERNATIONAL STANDARDS 8. Furthermore, many of these soft law standards also set out requirements as to how public
prosecutors are to be selected and some give guidance with regard to the training that is
considered necessary.

1. Introduction 9. This section of the study thus reviews the European and international standards as to the
qualities that public prosecutors are expected to have before considering the ones applicable
5. There are no European or international treaty provisions governing the standards expected to the selection process and any initial training to be undertaken.
to be observed with respect to either the selection of public prosecutors or any initial training
that they must undergo before appointment.4

6. However, both the case law of the European Court of Human Rights and various soft law
standards do give some important indications as to the qualities and capacities that public
prosecutors must have, which are clearly relevant to the manner of their selection and
formation.

7. These soft law standards are to be found in the Recommendation of the Committee of
Ministers of the Council of Europe on the role of public prosecution in the criminal justice
system5, various opinions and a study of the European Commission for Democracy through 10
2 3 April 1999 (“the IAP Standards”). These were endorsed by the United Nations Commission on Crime Prevention and Criminal Justice (Resolution 17/2, 14-18 April 2008).
11
United Nations Office on Drugs and Crime, The Status and Role of Prosecutors (2014) (the UNODC/IAP Guide”).
Law (“the Venice Commission”)6, certain opinions of the Consultative Council of European 12
The Guidelines are the outcome of a joint venture undertaken by five judicial training institutions – the Belgian Judicial Training Institute, the French National School for the Judiciary, the Romanian National Institute of Magistracy, the
Centre for Judicial Studies of Spain and the Justice Academy of Turkey – within the framework of the Leonardo da Vinci Partnership Project. The Leonardo da Vinci Partnership is a framework funded by the European Union for small-scale
Prosecutors (“the CCPE”)7 and the European Guidelines on ethics and conduct for public cooperation activities between organisations working in the field of vocational education and training which will be cooperating on themes of mutual interest to the participating organisations. All five institutions that took part in the
project provide initial training for both judges and public prosecutors. See, http://www.cej-mjusticia.es/cej_dode/doc_users/doc/4_222_201327103538440.pdf.
prosecutors adopted by the Conference of Prosecutors General of Europe8, the UN Guidelines 13
Thus, the United Nations Guidelines provide that “Persons selected as prosecutors shall be individuals of integrity” (para. 1), the Venice Commission considers that prosecutors should be “suitable persons of high standing and good character”
and that “It is evident that a system where both prosecutor and judge act to the highest standards of integrity and impartiality presents a greater protection for human rights than a system which relies on the judge alone” (The Prosecution
System, para. 18), the Budapest Guidelines require that public prosecutors “at all times exercise the highest standards of integrity” (Title II) and the IAP Standards require that “Prosecutors shall […] at all times exercise the highest standards
of integrity and care” (Title 1). Integrity is also one of the common values for judges and public prosecutors that are identified in the da Vinci Guidelines; Title 1, Chapter 1.
Thus Recommendation Rec(2000)19 specifies that “In the performance of their duties, public prosecutors should in particular: a. carry out their functions fairly, impartially and objectively” (para. 24) and the United Nations Guidelines
14 

provide that: “In the performance of their duties, prosecutors shall: (a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or other kind of discrimination” (para. 13). Furthermore, having regard
to their responsibilities in the criminal process, the Venice Commission has considered that “15. The prosecutor must act fairly and impartially. Even in systems which do not regard the prosecutor as part of the judiciary, the prosecutor is
expected to act in a judicial manner. It is not the prosecutor’s function to secure a conviction at all costs. The prosecutor must put all the credible evidence available before a court and cannot pick and choose what suits. The prosecutor must
disclose all relevant evidence to the accused and not merely the evidence which favours the prosecution case. Where evidence tending to favour the accused cannot be disclosed (for example, because to do so would compromise the safety
of another person) it may be the duty of the prosecutor to discontinue the prosecution.16. Because of the serious consequences for the individual of a criminal trial, even one which results in an acquittal, the prosecutor must act fairly in
deciding whether to prosecute and for what charges. 17. A prosecutor, like a judge, may not act in a matter where he or she has a personal interest, and may be subject to certain restrictions aiming to safeguard his or her impartiality and
integrity. . 18. […] Of course, where a prosecutor falls short of the required standard, the impartial judge may be able to correct the wrong that is done. However, there is no guarantee of such correction and in any event great damage can
be caused. It is evident that a system where both prosecutor and judge act to the highest standards of integrity and impartiality presents a greater protection for human rights than a system which relies on the judge alone”; The Prosecution
System. In addition, the Budapest Guidelines require that “Public prosecutors should at all times and in all circumstances […] carry out their functions fairly, impartially consistently and expeditiously” (Title I, which is elaborated further in
Titles II, III and IV) and CCPE Opinion No.9 provides that “Striving for impartiality, which in one form or another must govern the recruitment and career prospects of public prosecutors, may result in arrangements for a competitive system
of entry to the profession and the establishment of High Councils either for the whole judiciary, or just for prosecutors” (para. 54). Moreover, the IAP Standards provide as regards impartiality that; “Prosecutors shall perform their duties
without fear, favour or prejudice. In particular they shall: carry out their functions impartially; remain unaffected by individual or sectional interests and public or media pressures and shall have regard only to the public interest; act with
objectivity; have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect; in accordance with local law or the requirements of a fair trial, seek to ensure that all necessary and
reasonable enquiries are made and the result disclosed, whether that points towards the guilt or the innocence of the suspect; always search for the truth and assist the court to arrive at the truth and to do justice between the community,
the victim and the accused according to law and the dictates of fairness” (Title 3). Also, the UNODC/IAP Guide provides that: “Prosecutors have great responsibility, and much is expected of them by society […] the accused expects that the
evidence will be carefully considered and the law correctly applied and that where discretion can be used, it is used fairly and impartially”; p. 26. The issue of the impartiality of prosecutors has also been the subject of a Report of the Special
Rapporteur on the independence of judges and lawyers; A/HRC/20, 191, 7 June 2012 and it is one of the common values for judges and public prosecutors that are identified in the da Vinci Guidelines; Title 1, Chapter 1
15
Thus, the Venice Commission has observed in respect of a draft law that: “Article 8(h) disqualifies persons who have been convicted of an intentionally committed crime and punished by imprisonment of more than six months. It seems
4
Cf. the requirement by Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights for judges to constitute an ‘independent and impartial tribunal’ which determines rights inappropriate that any person who has committed an intentional offence serious enough to be punished by imprisonment of any duration should be regarded as suitable for appointment as a […] prosecutor. […]”; CDL-AD(2011)004,
and obligations in a reasoned manner. This has clear implications both for the manner in which judges are appointed or removed and for the way in which they conduct themselves. Opinion on the Draft Law on Judges and Prosecutors of Turkey, paras. 31-32 and 35.
5
Adopted by the Committee of Ministers on 6 October 2000 at the 724th meeting of the Ministers’ Deputies, (“Recommendation Rec (2000)19”). 16
E.g., the Venice Commission has indicated of a draft law that: “Article 33 provides for background checks on candidate public prosecutors who have passed the proficiency test and is, in principle, appropriate. […]”; CDL-AD(2013)025, Joint
6
To be found in the Compilation of Venice Commission Opinions and Reports concerning Prosecutors, (CDL-PI(2015)009) and Report on European standards as regards the independence of the judicial system: Part II - The Prosecution System (Study Opinion on the Draft Law on the Public Prosecutor’s Office of Ukraine, para. 110.
No. 494/2008, CDL-AD(2010)040, 3 January 2011 (“The Prosecution System”). 17
Autonomy is not always a quality referred to explicitly but it is implicit in the emphasis placed frequently on the independence of individual prosecutors. Thus, it is a quality that is expected of public prosecutors by Recommendation
7
In particular, Opinion Nos.1 (2007) on “Ways of improving international co-operation in the criminal justice field”, 4 on “Judges And Prosecutors In A Democratic Society”, (“the Bordeaux Declaration”), 5 (2010) on Public prosecution and Rec(2000)19 (“11. States should take appropriate measures to ensure that public prosecutors are able to perform their professional duties and responsibilities without unjustified interference or unjustified exposure to civil, penal or other
juvenile justice (“the Yerevan Declaration”), 7 (2012) on the management of the means of prosecution services, 8 (2013) on relations between prosecutors and the media, 9 (2014) on European norms and principles concerning prosecutors liability. However, the public prosecution should account periodically and publicly for its activities as a whole and, in particular, the way in which its priorities were carried out […] 13. Where the public prosecution is part of or subordinate
and 11 (2016) on the quality and efficiency of the work of prosecutors, including when fighting terrorism and serious and organised crime. to the government, states should take effective measures to guarantee that: a. the nature and the scope of the powers of the government with respect to the public prosecution are established by law; […] e. public prosecutors remain free
8
Generally referred to as “the Budapest Guidelines”, (Council of Europe, 2005). to submit to the court any legal arguments of their choice, even where they are under a duty to reflect in writing the instructions received; f. instructions not to prosecute in a specific case should, in principle, be prohibited. Should that not
9
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 (“the United Nations Guidelines”). be the case, such instructions must remain exceptional and be subjected not only to the requirements indicated in paragraphs d. and e. above but also to an appropriate specific control with a view in particular to guaranteeing transparency.
8 B. EUROPEAN AND INTERNATIONAL STANDARDS 9

2. The qualities and capacities required of public prosecutors 13. Moreover, public prosecutors must have “appropriate legal qualifications”21 but, while this
may include a requirement to have passed the bar or a comparable professional examination,
10. The first set of qualities that public prosecutors are expected to have are to be persons the latter is not something that must necessarily be required22.
of high standing and good character, including integrity13 and impartiality14. This will
undoubtedly preclude the appointment of persons convicted of offences that are 14. In addition, the possession by public prosecutors of certain more practical and professional
punishable by imprisonment15 and will also justify some background checks on candidates skills is seen to be necessary23. However, it is also considered that the need for professional
for appointment16. competence should not be displaced by other requirements such as minority representation24.

11. They are also expected to be able to act autonomously17 and to preserve professional 15. There may be certain requirements as to citizenship and health25 but the latter should not
confidentiality18. be vague in character26.

12. Furthermore, they must understand both what is needed to act fairly and to respect human 16. Moreover, there may also be requirements as to language skills27.
rights in the conduct of criminal proceedings19, as well as what are the ideals and ethical
duties of the office of public prosecutor20.

21
T hus, the Venice Commission has observed that: “In order to allow them to exercise their functions in accordance with the law, appropriate legal qualifications are indispensable for all levels of prosecutors”; The Prosecution System, para.
47. Furthermore, the United Nations Guidelines provide that: “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 […]1. Persons selected as
prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications”. In addition, the UNODC/IAP Guide provides that: “Prosecutors have great responsibility, and much is expected of them by society. The
courts expect prosecutors to demonstrate a high level of legal acumen […]investigators expect and need sound and proper legal advice or supervision in increasingly complex investigations […]. None of the competencies mentioned
above are easily obtained, but none of them can be ignored by a prosecution service that is committed to excellence”; p. 26. The da Vinci Guidelines provide in Chapter 2 of Title I that all appointees “ should have or acquire extensive
knowledge of substantive national and international law and procedures before they take up their duties”
22
E.g., while the Venice Commission has observed of proposed legislation that: “The draft Law […] sets out general requirements that persons wishing to be appointed as […] prosecutors need to satisfy, as well as requirements for the
appointments to the different […] prosecutor’s offices. General requirements include […]professional competence, the bar exam [...] These appear to be appropriate and in line with European standards”; CDL-AD(2014)008, Opinion on
the draft Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, para.73, it has also stated in respect of other draft legislation that: “Among the qualifications for becoming a prosecutor in Article 11, the requirement
to be a professional lawyer (third paragraph) should be clarified to show whether this means all law graduates or only those who have been advocates and are registered with the bar. The profession of prosecutor should be open to all those
who have followed law studies satisfactorily, have passed the necessary prosecutor examinations and had the necessary training”; CDL-AD(2011)007, Opinion on the Draft Organic Law of the Public Prosecutor’s Office of Bolivia, paras. 26-27.
Thus, the Explanatory Note to the Bordeaux Declaration provides that: “The highest level of professional skill is a pre-requisite for the trust which the public has in both judges and public prosecutors and on which they principally base their
23 

legitimacy and role. Adequate professional training plays a crucial role since it allows the improvement of their performance, and thereby enhances the quality of justice as a whole)”; para. 43. The skill set of prosecutors has been elaborated
as follows in CCPE Opinion No. 11 (2016): “47. It is the opinion of the CCPE that prosecution services should support prosecutors’ work by setting out good practices of case management in various fields of prosecutorial competences and
duties. Prosecutors’ decisions should further reflect the following elements: a. Objectivity and impartiality 48. Prosecutors should remain independent in the performance of their functions and exercise them always upholding the
rule of law, integrity of criminal justice system and the right to a fair trial. Prosecutors should adhere to the highest ethical and professional standards, should carry out their duties fairly, and always behave impartially and objectively. 49.
Prosecutors should provide for equality of individuals before the law without any kind of discrimination, including on the grounds of gender, race, colour, national and social origin, political and religious belief, property, social status and
14. In countries where the public prosecution is independent of the government, the state should take effective measures to guarantee that the nature and the scope of the independence of the public prosecution is established by law”), sexual orientation. b. Comprehensiveness 50. All decisions and actions by prosecutors should be carefully considered by them. They should seek out evidence relating both to guilt and innocence and should ensure that all appropriate
the United Nations Guidelines (“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 lines of enquiry be carried out, including those leading to evidence in favour of the accused or suspected persons. Thus, they should consider if the evidence delivered by the investigation is clear and comprehensive. This does not, however,
liability”), the Venice Commission (“31. The independence of the prosecution service as such has to be distinguished from any “internal independence” of prosecutors other than the prosecutor general. In a system of hierarchic subordination, require an investigator to engage in a disproportionate commitment of resources and should be reasonably and realistically interpreted on the facts of each case. It does not take away from the responsibility of defence lawyers to seek out
prosecutors are bound by the directives, guidelines and instructions issued by their superiors. Independence, in this narrow sense, can be seen as a system where in the exercise of their legislatively mandated activities prosecutors other than evidence they consider relevant. 51 Prosecutors should decide to prosecute only upon well-founded evidence, reasonably believed to be reliable and admissible, and refuse to use evidence involving a grave violation of human rights. c.
the prosecutor general need not obtain the prior approval of their superiors nor have their action confirmed. Prosecutors other than the prosecutor general often rather enjoy guarantees for non-interference from their hierarchical superior”; Reasoning 52. Clear reasoning and analysis are basic requirements of prosecutors’ work. They should fully consider all relevant evidence and examine factual and other issues revealed by the investigation and by the parties. All decisions or
The Prosecution System), the Bordeaux Declaration (“27. The independence of public prosecutors is indispensable for enabling them to carry out their mission. It strengthens their role in a state of law and in society and it is also a guarantee actions by prosecutors should reflect such relevant evidence, be in accordance with the law and general guidelines which may exist on the subject. Decisions and actions by prosecutors should be justified in consistent, clear, unambiguous
that the justice system will operate fairly and effectively and that the full benefits of judicial independence will be realised (Declaration, paragraphs 3 and 8). Thus, akin to the independence secured to judges, the independence of public and non-contradictory manner. d. Clarity 53. All instructions or directives, as well as any official acts given by prosecutors should be clearly understandable by those to whom they are addressed. Where in writing, such instructions and
prosecutors is not a prerogative or privilege conferred in the interest of the prosecutors, but a guarantee in the interest of a fair, impartial and effective justice that protects both public and private interests of the persons concerned”), CCPE directives should be drafted in a very clear language. In addition, prosecutors should pay particular attention to the format of written instructions and directives so that they can be readily identified. e. Exchange of information and co-
Opinion No. 9 (“the Rome Charter”) (“V. Prosecutors should be autonomous in their decision-making and should perform their duties free from external pressure or interference, having regard to the principles of separation of powers and operation 54. Co-operation is essential for the effectiveness of the prosecution service both at national and international levels, between different prosecution offices, as well as between prosecutors belonging to the same office, as well as
accountability”), the IAP Standards (“The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference”; Title 2) and the da Vinci Guidelines (“4.1. […] between prosecutors and law enforcement agencies/investigators. Increasing specialisation of prosecutors is likely to improve the effectiveness of such cooperation. 55 Where prosecutors have an investigative function, they should seek to
A prosecutor works within a hierarchical framework and has to take account of the views of his superiors but he must disregard any other influences”; Title I). ensure an effective exchange of information in a due manner among themselves, as well as between themselves and law enforcement agencies/investigators. This should help in avoiding duplication of work, as well as in complementing
18
 Thus, the United Nations Guidelines require that: “In the performance of the duties, prosecutors shall: […] (c) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise” (para. efforts of different prosecutors and law enforcement agencies in cases which are connected to each other. 56. Where prosecutors do not have such an investigative function, they should, as appropriate, co-operate during investigations with
13) and the Budapest Guideline state that: “Public prosecutors should at all times adhere to the highest professional standards and […] j. preserve professional confidentiality” (Title II). Furthermore, the European Court observed in a case the relevant investigating agency, particularly in furnishing relevant advice and/or guidance. 57. Such co-operation should continue until the end of investigation, with a view to ensuring that all relevant evidence is made available to the
that concerned the dismissal of the Head of the Press Department of the Prosecutor General’s Office for having disclosed to a newspaper information concerning the commission of a serious offence by the Deputy Speaker of Parliament, that prosecutor and disclosed, as appropriate, to the defence”. A slightly different formulation – albeit with much the same content – can be seen in the da Vinci Guidelines, which emphasise in Chapter 4 of Title 1 the importance of the following
it is “mindful that employees have a duty of loyalty, reserve and discretion to their employer. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and competences: knowledge and command of personal ethics and deontological rules; ability to analyse and summarise a case file; ability to prepare and conduct investigations, hearings and questioning respectful of adversarial procedures
discretion”; Guja v. Moldova [GC], no. 14277/04, 12 February 2008, at para. 70). Moreover, it observed in Kudeshkina v. Russia, no. 29492/05 that: “Disclosure by civil servants of information obtained in the course of work, even on matters and legal framework; adaptability and flexibility; human attitude; ability to listen; capacity to elicit agreement and conciliation; capacity to formalise and explain legal grounds of a decision and to communicate clearly; awareness of local,
of public interest, should therefore be examined in the light of their duty of loyalty and discretion” (para. 85). Furthermore, in Di Giovanni v. Italy, no. 51160/06, 9 July 2013, the European Court found no violation of the right to freedom of national and international environment; management and organisational skills;, hard work and commitment to improving public confidence in the judiciary.
expression where disciplinary action was taken against a judge for having failed in her duty of respect and discretion vis-à-vis members of the National Council of the Judiciary on account of her having given a newspaper interview in which 24
E.g., the Venice Commission has observed in respect of draft legislation that: “However, the provision then goes on to say that in making the list, ‘care shall be taken of the national composition of the population, adequate representation
she stated that a member of the examining body for a public competition was opened to recruit judges and public prosecutors had used his influence to help a relative. of members of national minorities, as well as knowledge of professional legal terminology in national minority languages using court’. It is unclear what this means in practice. What happens if the original list based on professional
19
See the importance attached by the European Court to public prosecutor in observing the presumption of innocence and the equality of arms and other rights of the defence in cases such as Khuzhin and Others v. Russia, no. 13470/02, 23 October 2008, competence, etc., does not contain anyone from a particular national minority or with the necessary language skills? Is the list to be supplemented? Presumably, if it can be supplemented with persons who did not have the necessary
Moiseyev v. Russia, no. 62936/00, 9 October 2008 and Natunen v. Finland, no. 212022, 31 March 2009. See also the recognition of the European Court of their role in ensuring respect for human rights through ensuring the conduct of thorough and effective professional skills to make it on to the original list, they must at least reach some acceptable minimum standard. Is a quota to be fixed? These matters need to be clarified in the text of the Law, as the practical implications of the current
investigations into various alleged violations in cases such as Kaya v. Turkey, no. 22729/93, 19 February 1998. The responsibility of public prosecutors regarding human rights is also underscored in Recommendation Rec(2000)19, which states that: “In the provision are very vague. […]”; CDL-AD(2013)006, Opinion on the Draft amendments to the Law on the Public Prosecution of Serbia, para. 32.
performance of their duties, public prosecutors should in particular: b. respect and seek to protect human rights, as laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms” (para. 24). It is also emphasised in the Budapest E.g., the Venice Commission has observed that: “The draft Law […] sets out general requirements that persons wishing to be appointed as […] prosecutors need to satisfy, as well as requirements for the appointments to the different
25 

Guidelines, which provide that: “Public prosecutors should at all times and under all circumstances […] respect, protect and uphold human dignity and human rights […] When acting in the framework of criminal proceedings public prosecutors should at all […] prosecutor’s offices. General requirements include citizenship of BiH, a good medical record […]These appear to be appropriate and in line with European standards”; CDL-AD(2014)008, Opinion on the draft Law on the High Judicial
times: […] a. uphold the principle of fair trial as enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Proceedings and the Case-law of the European Court of Human Rights” (Titles I and III). In addition CCPE and Prosecutorial Council of Bosnia and Herzegovina, para. 73.
Opinion No. 11 (2016) provides, under the heading “Management of cases” that: “A high quality decision or other relevant action by a prosecutor is one which reflects both the available material and the law, and which is made fairly, speedily, proportionally, 26
Thus, the Venice Commission observed of another draft law that: “Chapter 2 deals with recruitment of […] prosecutors and Section 1 deals with the traineeship period. Article 8 sets out the qualifications of trainees. Among the qualities
clearly and objectively. In this respect, it is obvious that prosecutorial actions should, in line with the ECHR and other relevant international instruments, respect the rights of victims, their families and witnesses and be balanced with the rights of the defendants, required of a trainee […] prosecutor is the following (Article 8(g)): ‘Not to have physical or mental health problems or disabilities which will prevent to perform the profession of […] prosecutorship throughout the country, or not to have
as well as with the public interest in prosecuting crimes. Therefore, prosecutors should seek to carry out their work in accordance with these principles”. Furthermore, it has been observed that: “Prosecutors are the essential agents of the administration of handicaps such as unusual difficulties for speaking or controlling movement of organs that may be regarded as odd by other people.’ This provision is far too broad and would not be regarded as generally acceptable according to European
justice, and as such should respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system. Prosecutors also play a key role in protecting society from a culture standards in its approach to how to deal with persons under a physical or mental disability. The test of something appearing odd to other people seems an inappropriate one. […] [I]t seems extraordinary that physical appearance should
of impunity and function as gatekeepers to the judiciary.”; Report of the Special Rapporteur on the independence of judges and lawyers, (A/HRC/20, 191, 7 June 2012), para. 93. This quality is also seen in the concept of “loyalty” as defined in the da Vinci be a valid criterion for suitability for appointment as a judge or prosecutor. So far as concerns behaviour and reactions it needs to be clarified what is meant by these and what type of behaviour or reaction would disqualify a candidate”;
Guidelines (“4.4. Loyalty is the value of showing – usually by taking an oath – that one is bound by the rule of law. Loyalty implies two things: on the one hand the duty to exercise the powers entrusted in one and on the other hand the prohibition to exceed CDL-AD(2011)004, Opinion on the Draft Law on Judges and Prosecutors of Turkey, paras. 31-32 and 35.
them”; Title I). 27 
However, the Venice Commission has noted that ensuring this can be problematic: “The fourth paragraph of Article 11 stipulates the requirement to ‘speak at least two official languages’ without specifying the level of knowledge required.
20
Thus, the United Nations Guidelines state that: “States shall ensure that: 2. […] (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 Prosecutors already working as such should be allowed time to learn the second language. In addition, the second language concerned may not always be used in a specific case, because another language than that learned may be
statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognised by national and international law”. In addition, the UNODC/IAP Guide provides that: “Prosecutors have great required. It seems therefore difficult to guarantee the right to use local languages, as set out in Article 32.23 or Article 63 of the preliminary draft Law”; CDL-AD(2011)007, Opinion on the Draft Organic Law of the Public Prosecutor’s Office
responsibility, and much is expected of them by society. The courts expect prosecutors to demonstrate […] well-defined ethics”; p. 26. of Bolivia, paras. 26-27.
10 B. EUROPEAN AND INTERNATIONAL STANDARDS 11

3. Selection 4. Training
17. There is recognition that the different ways in which prosecution systems are organised can 23. T he need for initial training is only alluded to in the Bordeaux Declaration37 but it is recognised
lead to diverse approaches to the recruitment of public prosecutors28. more explicitly in other standards38.

18. However, it is considered that the process should lead to the recruitment of persons who are 24. Without specifying when it should occur, emphasis has also been placed on need for
properly qualified29 and that all selection decisions should be based on objective criteria that the training of public prosecutors to include ethical standards, law and human rights39,
are formally established and applied in a procedure that is transparent and reasoned30. professional identity and an understanding of the context in which they work40, as well as
some more practical matters relevant to the work of public prosecutors41.
19. The objective criteria should include professional qualifications, ability or competence,
performance and experience31. 25. In addition, the topics that have been seen as necessary for training to cover include:
information technology42; the media43, management44; some specialisation45 (notably as
20. Moreover, such criteria should not be discriminatory32. regards juvenile justice46); new challenges47; social sciences48; foreign languages49; and some
focus on aspects of international cooperation, even if that might generally be more a matter
21. The selection process should usually entail a competitive examination33 and an interview34. for further training after appointment50.

22. Furthermore, it is considered that the selection process should not be handled exclusively
within the public prosecution service35 and that the selection process should be subject to
judicial control36.

28
T hus, it is observed in the UNODC/IAP Guide that: “Different States will have different recruitment methods depending on how the prosecution service is constructed and on factors such as the way legal education is taught in the State,
the qualifications and standards needed to practise law and become a prosecutor and the strength of the body that governs the profession. As mentioned in the preceding section, the selection of prosecutors is an important function and
should be governed by fair and impartial procedures for recruitment, promotion and transfer. The selection process varies from State to State but the nature of the selection process does not matter as much as how it is conducted. What
37
“Training for judges and prosecutors involves not only the acquisition of the professional capabilities necessary for access to the profession but equally permanent training throughout their career”; paragraph 44 of the Explanatory Note
is important in selection is that prosecutors are properly screened to obtain candidates who possess the requisite integrity and legal ability to prosecute and that the selection process itself is conducted in a fair, impartial and transparent (emphasis added).
manner. Some methods of selection are a national competitive examination, programmes aimed at young law graduates, a multifaceted interview process, and examination and appointment by the government.”; p. 24 (footnotes omitted).
38
Thus, Recommendation Rec(2000)19 states that: “7. Training is both a duty and a right for all public prosecutors, before their appointment as well as on a permanent basis. States should therefore take effective measures to ensure that public
29
Thus, it is observed in the UNODC/IAP Guide that: “It is to be expected that prosecution services will have systems and processes and criteria to ensure that only properly qualified persons are eligible to be appointed as prosecutors […] Many prosecutors have appropriate education and training, both before and after their appointment”. Furthermore, the Explanatory Note to CCPE Opinion No.9 (2014) provides that: “63. States should therefore take effective measures to ensure that
States have taken steps to establish well-defined protocols for the hiring and monitoring of prosecutors, thus leading to enhanced transparency and trustworthiness of the prosecution service in the eyes of the public”; p. 24. prosecutors have appropriate education and training, both before and after their appointment and in a report by the United Special Rapporteur on the independence of judges and lawyers, it is stated that: “89. […] In addition to training prior to
30
E.g., the Venice Commission has observed of three draft laws that “[...] [I]t is mandatory to ensure that appointments of prosecutors and deputy prosecutors are made on the basis of objective criteria. These criteria in turn must be or on appointment as a prosecutor […] 124. Prosecutors should receive adequate training both on initial appointment and periodically throughout their career”; A/HRC/20/19, 7 June 2012. In addition, in the UNODC/IAP Guide
established in advance by law or in conformity with the procedure provided by law, on the basis of a transparent procedure and that decisions must be reasoned” (CDL-AD (2013)006, Opinion on the Draft amendments to the Law on the it states that: “Training should commence in the induction phase”’ p. 26. Furthermore, the need for public prosecutors (as well as judges) to undergo some initial training is the predicate on which the da Vinci Guidelines have been elaborated.
Public Prosecution of Serbia, para. 34); “The appointment process starts with a public announcement of vacancies that must be well-publicised. The announcement is followed by nominations of candidates by special departments set up
39
Thus, Recommendation Rec(2000)19 states that: “In particular, public prosecutors should be made aware of: a. the principles and ethical duties of their office; b. the constitutional and legal protection of suspects, victims and witnesses; c. human
by the judicial or prosecutorial sub-councils of the HJPC for nominations for vacancies in the different courts and prosecutors’ offices consisting of four or five judges or prosecutors. This suggests that candidates cannot apply for a certain rights and freedoms as laid down by the Convention for the Protection of Human Rights and Fundamental Freedoms, especially the rights as established by Articles 5 and 6 of this Convention” (para. 7) and this is reaffirmed in paragraph 63 of the
position directly, but only through the sub-councils. Such a practice could be seen as problematic, as it could undermine the transparency and openness of the process” (CDL-AD(2014)008, Opinion on the draft Law on the High Judicial Explanatory Note to CCPE Opinion No.9 (2014). Furthermore, the Venice Commission considers that: “Such training should include legal, including human rights, training”; The Prosecution System, para. 70. In addition, the need for human rights
and Prosecutorial Council of Bosnia and Herzegovina, para. 76); and “This Article, which regulates the nomination and election of candidates for public prosecutor’s office, is rephrased and seems not to have introduced any major changes, education is emphasised in two reports of the United Nations Special Rapporteur on the independence of judges and lawyers: “29. Courses for judges, prosecutors and lawyers should be grounded in the international human rights standards
except for the introduction of the obligation to publish the list of candidates on the Internet site of the State Prosecutorial Council. The obligation to publish the list of candidates is to be welcomed” (CDL-AD (2013)006, Opinion on the Draft concerning the administration of justice, in particular article 14 of the International Covenant on Civil and Political Rights and the Basic Principles on the Independence of the Judiciary” (A/HRC/14/26, 1 April 2015) and “Training should mandatorily
amendments to the Law on the Public Prosecution of Serbia, para.31). Furthermore, CCPE Opinion No. 11 (2016) states that “To promote quality, it is indispensable that the selection, recruitment, promotion and relocation of prosecutors be include regional and international human rights norms and standards. Training on the gender-sensitive handling of cases should be also provided” (A/HRC/20/19, para. 124 7 June 2012). See also the statement in the da Vinci Guidelines that the
based on clear and predictable criteria laid down in law or internal guidelines in written form” (para. 24) and the UNODC/IAP Guide states that: “As mentioned in the preceding section, the selection of prosecutors is an important function priority goals for initial training should include: “Deepening the trainee’s understanding of the features of the figure of the prosecutor within the constitutional and legal framework of each country, together with the real challenges and problems
and should be governed by fair and impartial procedures for recruitment, promotion and transfer. The selection process varies from State to State but the nature of the selection process does not matter as much as how it is conducted. What of the profession that the trainees are going to embrace” and “Assumption by the trainee of the functions of a prosecutor in accordance with legal principles as well as ethical and deontological values”; Title 1, Chapter 3.
is important in selection is that prosecutors are properly screened to obtain candidates who possess the requisite integrity and legal ability to prosecute and that the selection process itself is conducted in a fair, impartial and transparent
40
Thus, two priority goals for initial training specified in the da Vinci Guidelines are: “Promoting a professional identity and the acquisition of the necessary skills of the profession” and “Acknowledgment of the social, political, professional,
manner. Some methods of selection are a national competitive examination, programmes aimed at young law graduates, a multifaceted interview process, and examination and appointment by the government”; p. 25 (footnotes omitted). economical and cultural environment in which the prosecutor discharges his/her duty”; Title 1, Chapter 3
The need for fair and impartial recruitment procedures is also emphasised in Title 6 of the IAP Standards.
41
Recommendation Rec(2000)19 states that the training should cover: “d. principles and practices of organisation of work, management and human resources in a judicial context; e. mechanisms and materials which contribute to consistency
31
E.g., Recommendation Rec(2000)19 provides that: “States should take measures to ensure that: b. the careers of public prosecutors, their promotions and their mobility are governed by known and objective criteria, such as competence in their activities. Furthermore, states should take effective measures to provide for additional training on specific issues or in specific sectors, in the light of present-day conditions, taking into account in particular the types and the
and experience” (para. 5). development of criminality, as well as international co-operation on criminal matters”; para. 7. The Explanatory Memorandum to this Recommendation further states that: “The expression “in a judicial context” refers to the fact that many
32
Thus, the United Nations Guidelines state that: “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 legal systems require public prosecutors, judges and other officers of the law to work together in the same functional administrative structures or in structures that, although separate, are closely linked and increasingly interconnected.
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 Moreover, there are certain specific features of legal management and administration that differ from those of mainstream administrative management and must be taken into account. Lastly, greater equality of treatment for persons
office to be a national of the country concerned” (para. 2). In addition, the UNODC/IAP Guide provides that: “Prosecution services should ensure that their screening process does not exclude any person due to prejudice against any group appearing before the courts depends on achieving greater consistency in the work of the prosecution service at local, regional and central levels, and not only with regard to individual decisions. Training must therefore include information
and should ensure that steps, including legislative protections, are enacted to prohibit any inequality in employment opportunities in the prosecution service. Rigorous attention to the Guidelines and the IAP Standards regarding recruiting about the different mechanisms that can promote consistency. […] At a practical level, and in the light of developments in crime, there is a good case for additional training in specific sectors, such as: - cross-border crime and other
and promotion practices also has the benefit of ensuring that corruption in the form of favouritism in recruitment or promotion does not find its way into a prosecution service, with consequent negative impact on operational effectiveness forms of crime of international concern; - organised crime; - computer crime; - international trafficking in psychotropic substances; - offences relating to complicated financial transactions, such as money laundering and large-scale
and subsequent loss of public confidence. Steps should be taken to prevent political considerations from being a factor in the appointment of career prosecutors”; p. 25 (footnotes omitted). fraud; - international co-operation on criminal matters; - comparative criminal justice systems and comparative law; - prosecution strategies; - vulnerable witnesses and victims; - the contribution of criminal law to the protection of the
33
Thus, the Venice Commission has observed of three draft laws that: “[…] Normally one would expect that appointments would be made only of persons who had succeeded in the competitive examination and that they would be made in the order environment, in particular the Council of Europe texts in this field, namely Resolution (77) 28 and the Convention on the Protection of the Environment through Criminal Law (ETS 172); - scientific-based evidence, in particular the use of
in which the candidates had been successful unless there was very good reason to the contrary” (CDL-AD(2008)019, Opinion on the draft law on the Public Prosecutor’s service of Moldova, para. 45), “As regards the system for entering on a prosecutor’s recently developed technologies such as DNA profiling.” See also the stipulation in Recommendation Rec(2001)11 of the Committee of Ministers to member states concerning guiding principles on the fight against organised crime that “28.
career, implementing regulations should clearly indicate the existence of objective proof such as written papers in the competitive examination concerned” (CDL-AD(2011)007, Opinion on the Draft Organic Law of the Public Prosecutor’s Office of Bolivia, Member states should provide the necessary means for training law enforcement agencies and, where appropriate, other components of the criminal justice system, in the area of financial investigations and new methods of investigation”;
para. 52) and “There is a written qualifying exam for the appointment as a judge, prosecutor or an associate or expert (Article 45 of the draft Law). The introduction of such an exam, recommended by the Venice Commission in its 2012 Opinion is to footnote omitted. See also the view in the da Vinci Guidelines that the focus of an initial training programme should be on: “Acquiring the necessary skills to write judgments, rulings, indictments, reports, papers, etc., required by the
be welcomed” (CDL-AD(2014)008, Opinion on the draft Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, para. 77). Such an approach has also been supported in a report by the United Nations Special Rapporteur on the duties of a prosecutor/judge; Acquiring the relevant communicative skills required by the duties of a judge/prosecutor; Enhancing international cooperation through activities such as exchange programmes, study visits and studying
independence of judges and lawyers: “a public competitive selection process (an examination) is an objective way to ensure the appointment of qualified candidates to the profession”; A/HRC/20, 191, 7 June 2012, para. 62. However, UNODC/IAP Guide foreign languages, etc.; Promoting the strategic approach of working in groups for better exchange of experiences among future judges/prosecutors; Promoting the professional relationship between the future prosecutor/judge and other
only observes that: “Some methods of selection are a national competitive examination, programmes aimed at young law graduates, a multifaceted interview process, and examination and appointment by the government”; p. 24. court staff, legal professionals, citizens and members of civil society through specific training activities; Using modern technologies in order to perform functions optimally; Managing and controlling stress situations during professional
34
E.g., the Venice Commission has observed of a draft law that: “Candidates who pass the written exam are then called for an interview conducted by the departments who are responsible for rating the candidates. The department is work; Training future judges and prosecutors in the techniques and skills involved in the handling of cases; Raising social awareness by understanding the different subjects that reflect the complexity of life in society; Integrating the
required to assess the candidate’s motivation to work in the judiciary in the position applied for, ability to perform the function responsibly, independently and impartially, understanding of the importance of judicial and prosecutorial European legal framework in the curriculum, especially in the EU Member States. This dimension should be present in the training approach and the activities to be developed during the initial training period; Developing awareness among
ethics, communication and presentation skills, analytical capabilities and the ability to solve legal problems. The interviews and written qualifying exams are to be audio visually recorded for the purpose of any subsequent appeal. The prosecutors/judges of their role in the active promotion of a European judicial culture”; Title 1, Chapter 3.
sub-councils then make a list of successful candidates with the nomination of candidates for appointment which they then submit to the HJPC. The candidates with the highest scores are appointed to relevant courts or prosecutor’s offices
42
Thus, CCPE Opinion (2012) No. 7 provides that: “43. Member States are encouraged to enable prosecution services to use IT equipment in their daily work, by introducing e-justice tools, electronic case management and data exchange
and take office after swearing an oath. It is not entirely clear how and on what basis candidates are allocated to courts and prosecutors’ offices, especially at a lower level”; CDL-AD(2014)008, Opinion on the draft Law on the High Judicial systems with the bodies in charge of the application of law that prosecutors are in contact with when carrying out their tasks. This would enable ensuring a more efficient case management, reducing the length of proceedings and
and Prosecutorial Council of Bosnia and Herzegovina, para. 77. guaranteeing the application of data protection and confidentiality measures”. See also Chapter 2 of Tile I of the da Vinci Guidelines.
35
E.g., the Venice Commission considers that: “In view of the special qualities required for prosecutors, it seems inadvisable to leave the process of their appointment entirely to the prosecutorial hierarchy itself. Various methods can help
43
CCPE Opinion No. 8 made the following recommendation: “vii. Where prosecutors have direct relations with the media, in order to ensure proper information, training in the field of communication should be provided as appropriate. This
to remove the danger that within a monolithic prosecution system instructions from above count more 1can be done ideally in the framework of an independent body like a democratically legitimised Prosecutorial Council or a board of training may be in common with/or be facilitated by experts and journalists”.
senior prosecutors, whose experience will allow them to propose appropriate candidates for appointment. Such a body could act upon a recommendation from the Prosecutor General with the body having the right to refuse to appoint
44
Thus, paragraph 47 of the Explanatory Note to the Bordeaux Declaration states that: “[...] Courses should not only cover the law and protection of individual freedoms, but should also include modules on management practices and the
a person but only for good reason”; The Prosecution System, para. 48. study of judges’ and the prosecutors’ respective missions” and paragraph 61 of the Explanatory Note to CCPE Opinion No.9 refers to this in connection training before prosecutors take their duties and CCPE Opinion No. 11 under the heading
36
Thus, the Venice Commission has observed of a draft law that: “[…] [T]he HJPC is both the body making the decision [on appointment] and hearing the appeal. There does not appear to be any provision for an appeal to a court of law, “Management of human resources: selection, recruitment, promotion and training of prosecutors” emphasises that: “Principles and guidelines on issues such as time management, adequate methodology or increased co-operation with
which should be added”; CDL-AD(2014)008, Opinion on the draft Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, para.78. other actors of the justice administration system should aim at facilitating everyday work and thus enhancing the quality and efficiency of prosecutorial work” (para. 28).
12 B. EUROPEAN AND INTERNATIONAL STANDARDS 13

26. The da Vinci Guidelines also emphasise the need for the training to be “pluralist in order to 30. It is considered important that practitioners should be involved in the training but that it
guarantee and strengthen the open-mindedness of the […] prosecutor”51. should not be restricted to them57. However, only the da Vinci Guidelines emphasise the
need for all trainers — whether full-time, part-time or occasional — to be trained58.
27. Only the da Vinci Guidelines address the issue of the actual length of any initial training,
providing that 31. However, there is also recognition that there can be diverse approaches to training59 and
Depending on the existence and length of previous professional experience, training should be of significant that joint training with judges can be beneficial60.
length in order to avoid its being purely a matter of form52.
32. Furthermore, there has been some emphasis on the need for the effectiveness of any training
28. Furthermore, there is seen to be a need for expertise in the formulation of the planning of to be evaluated61, as well as on the need for those being trained to be paid62.
the training that is to be undertaken53.
5. Conclusion
29. The Venice Commission envisages the body responsible for training being “independent
from other state bodies”54. In addition, the need for the autonomous character of the 33. There is thus an unambiguous requirement in European and international standards that
institution in charge of organising training for public prosecutors to be assured has also persons appointed as public prosecutors should be appropriately qualified, with some
been emphasised in the Bordeaux Declaration55. There is no explicit requirement as to the important elaboration as to what that entails.
nature of the institution responsible for the training but it seems implicit that this should be
a discrete professional body rather than an academic one56. 34. Furthermore, ensuring that this requirement is fulfilled necessitates a selection process that
is objective and impartial by persons who are qualified to make the necessary assessment
of candidates.

35. In addition, the need for initial training before appointment as a public prosecutor is
increasingly seen as necessary, even if the approach taken as to its form can vary.

36. What is involved in such training can undoubtedly contribute to those who become public
45
T hus, paragraph 44 of the Explanatory Note to the Bordeaux Declaration states that training “addresses the most diverse aspects of their professional life, including the administrative management of courts and prosecution departments,
and must also respond to the necessities of specialisation”. Moreover the Rome Charter provides that: “XIII. The highest level of professional skills and integrity is a pre-requisite for an effective prosecution service and for public trust in that prosecutors being appropriately qualified.
service. Prosecutors should therefore undergo appropriate education and training with a view to their specialisation” and paragraph 62 of its Explanatory Note states that: “Prosecutors should benefit from appropriate specialised training
in order to adequately fulfil their responsibilities within and outside the criminal justice system, including in relation to the management of budgetary resources and in the field of communication”. See also Chapter 2 of Title I of the da
Vinci Guidelines.
46
Thus, the Yerevan Declaration provides that: “Prosecutors should have the necessary and appropriate means to exercise their competences with juveniles or these means should be attributed to other competent services in charge of juveniles. 37. There is, however, no clear demarcation in most European and international standards between
In particular, a system of recruitment, appropriate training as well as necessary staff, means and specialised services should be provided to them. Moreover, member States should consider setting up specialised units or officers for juvenile
delinquency.” (para. 18). the training that is to be undertaken before appointment and that which can come afterwards.
47
Thus, paragraph 64 of the Explanatory Note to CCPE Opinion No.9 states that: “New criminal challenges as well as the growing complexity of certain types of criminality are due to the speedy development of new technologies, the globalisation and
expanding international trade and data flow. Special training to enable prosecutors face the threats posed by the above mentioned phenomena is also required”. In addition the United Nations Special Rapporteur on the independence of judges
and lawyers has observed that: “the development of new forms of criminality and the need for appropriate responses from prosecutorial authorities.53 In this vein specialisation constitutes an important aspect of the training of prosecutors, who
should also be provided with the adequate human and technical resources to properly investigate crimes, when they have the mandate to do so”; A/HRC/20/19, para. 90, 7 June 2012 (footnote omitted from quotation). 38. The general absence of prescription in this regards undoubtedly stems from the recognition
48
Chapter 2 of Title I of the da Vinci Guidelines.
49
Ibid. that there can be diversity in the approaches taken as regards selection and training, for which
50
Thus, CCPE Opinion No. 1 (2007) provides that: “27. Relying namely on Recommendation Rec(2000)19 (in particular Article 38), on the Opinions of the Consultative Council of European Judges (CCJE) N° 4 (2003) on appropriate initial and
in-service training for judges at national and European levels and n° 9 (2006) on the role of national judges in ensuring an effective application of international and European law, as well as on the conclusions of the European Conference of the prior education and experience of potential candidates will undoubtedly be relevant.
prosecutors in Warsaw, the CCPE recommends that the training of prosecutors engaged in international judicial cooperation as well as other players in such cooperation is strongly developed. Improved professional training on international
cooperation should take account not only of existing conventions on the subject but also operational information collated by existing organisations and systems. It should equip practitioners with the necessary skills to better draft their
requests for assistance and better understand and execute the requests that are addressed to them. Efforts for raising awareness of the international judicial cooperation players could also be undertaken in order to develop their skills so as
to formulate their request for assistance more precisely and to avoid overloading third systems with misdemeanour requests. 28. It might not be necessary or even possible that every prosecutor or judge should be well aware of the relevant
international instruments and channels. But it is essential that some of them are specialists on this issue and thus specifically trained. Therefore the CCPE recommends that each member state sets up an appropriate structure by which
this specialisation should be guaranteed. 29. This training focused on international cooperation in the criminal justice field must include human rights training for judges and prosecutors, as well as for defence lawyers where specifically
appropriate. In addition to the general overview of the fundamental elements of human rights law, it is essential to explicitly identify those basic rights and relevant standards which concern directly individuals in criminal proceedings
related to the execution of requests for international assistance in criminal matters. This should result in commentaries on each of the relevant law sources, as the applicable rights and standards differ according to the cooperation forms.
Such commentaries or specialised documents should also rely on the prevailing practice and case-law. 30. This knowledge must be disseminated by appropriate means, and by training organisations, in particular judicial and prosecutorial
national training institutions. The relevant European bodies for judicial and prosecutorial training such as the Lisbon Network of the Council of Europe and the European Judicial Training Network could also play a leading role in this context.
57
T hus paragraph 47 of the Explanatory Note to the Bordeaux Declaration states that: “In this context, much importance attaches to the direct contribution of judges and prosecutors towards training courses, since it enables them to provide
31. This training should also be completed by training in foreign languages, namely to contribute to improve direct contacts between practitioners, the quality of their assistance requests and a better understanding of the requests opinions drawn from their respective professional experience […] At the same time, additional lawyers’ and academic contributions are essential to avoid taking a narrow-minded approach”.
addressed to them”. Similarly, the da Vinci Guidelines specify that a priority goal for initial training should be: “Fostering in trainees appreciation for matters relating to legal cooperation in civil and criminal law as a crucial element in the
58
Title III.
construction of a European judicial area and international cooperation in general”; Title 1, Chapter 3.
59
Ibid. This is reaffirmed in paragraph 58 of the Explanatory Note to the Rome Charter.
51
Chapter 2 of Title I.
60
Thus the Venice Commission considers that: “For reasons of cost and efficiency, synergies could be found in common training for prosecutors and judges”; The Prosecution System, para. 70. Furthermore, the Bordeaux Declaration states that:
52
Ibid. “10. The sharing of common legal principles and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice […] Where appropriate, joint training for judges, public prosecutors and
53
Thus, the Venice Commission has observed that “an expert body like a Prosecutorial Council could play an important role in the definition of training programmes”; The Prosecution System, para. 70. lawyers on themes of common interest can contribute to the achievement of a justice of the highest quality”. Paragraph 45 of the Explanatory Note adds that “This common training should make possible the creation of a basis for a common
54
The Prosecution System, para. 65. legal culture”. The value of common training is reaffirmed in paragraph 59 of the Explanatory Note to the Rome Charter, in which it is stated that: “If it is appropriate, joint training for judges, prosecutors and lawyers on themes of common
55
Thus, paragraph 46 of the Explanatory Note states: “Different European legal systems provide training for judges and prosecutors according to various models. Some countries have established an academy, a national school or other interest can contribute to improving the quality of justice”. Moreover, the United Nations Special Rapporteur on the independence of judges and lawyers “is of the opinion that, in addition to the necessary specific and separate training for
specialised institution; some others assign the competence to specific bodies. International training courses for judges and prosecutors should be arranged. It is essential, in all cases, to assure the autonomous character of the institution in prosecutors, joint training for judges, prosecutors and lawyers on themes of common interest could enhance mutual understanding and cooperation […] In addition to the necessary specific and separate training for prosecutors,
charge of organising such training, because this autonomy is a safeguard of cultural pluralism and independence”. joint training for judges, prosecutors and lawyers on themes of common interest should be encouraged as it could enhance mutual understanding and cooperation”; A/HRC/20/19, paras. 91 and 125, 7 June 2012.
56
As with all the institutions covered by the country studies below, the National Institution for Magistracy (NIM) in Romania is not part of the national educational system and is not subject to legislation governing certification of higher
61
Thus, the Bordeaux Declaration states that: “10. […] training should be […] regularly and objectively evaluated for its effectiveness and paragraph 47 of the Explanatory Note also refers to such evaluation covering the “quality” of training.
education institutions. Initial training for future prosecutors and judges is provided exclusively by the NIM. For an insightful discussion of the issues surrounding the establishment and maintenance of an independent judicial training In addition, paragraph 59 of the Explanatory Note to CCPE Opinion No.9 states that: “Such training should be […] regularly and objectively evaluated for its effectiveness”. See also Chapter 3 of Title III of the da Vinci Guidelines.
institution, see Building & Operating Judicial Education Institutes. http://www.iojt-dc2013.org/~/media/Microsites/Files/IOJT/11042013-Building-Operating-Judicial-Institutes.ashx.
62
Thus, the United Nations Special Rapporteur on the independence of judges and lawyers has noted: “with some concern that in some countries the training activities of prosecutors are at their own expense” and has recommended that “The
training of prosecutors should be paid by the State as an important incentive to their qualifications”; A/HRC/20/19, paras. 90 and 126, 7 June 2012.
14 C. COUNTRY STUDIES 15

C
39. However, the overriding consideration seen in European and international standards is
that those appointed as public prosecutors should actually be capable of discharging the
significant responsibilities entrusted to them.

40. In view of the extensive knowledge and competences required for this purpose, it will
probably only be in the most exceptional cases that someone could be expected to act as a
public prosecutor without first undergoing some form of initial training.
COUNTRY STUDIES
41. Moreover, while the initial training should obviously build on the existing knowledge and
competences of those intending to become public prosecutors, this will need to be more
than “a matter of form” in order to be sure that entrusting them with this important role
is justified. 1. Introduction
42. The four country studies all concern countries in which part of the initial training programme
is — following the selection process — common for both intending public prosecutors and
intending judges but most of the initial training is undertaken by them separately. In all
cases, the initial training involves both theory and practice, with the balance between these
two elements varying.

43. Three of the four countries studied — Bulgaria, Poland and Romania — have seen a
significant evolution in the role of the public prosecution system, involving a departure
from the former Socialist model to one consistent with Council of Europe standards. This
has necessarily influenced the current shape of the initial training programmes for public
prosecutors in them. However, further change is now underway in Poland and the final
shape of the programme has still to be settled.

44. There has also been some evolution in the structure of the public prosecution service in
the Netherlands and that has led to some revisions to the initial training programme being
provided there.

45. Each of the country studies considers the following issues: the pre-requisites for appointment
and entry to training; the selection process for admission to the training; the nature of the
training institution (i.e., its formal status, organisation and resources); the background of
those who do the training; the body responsible for determining the curriculum (including
the way that this is determined and any quality assessment arrangements); the length of the
training; the nature of the training (i.e., topics and methods, including the balance between
theory and practice); and the method of assessment (including the use of probation and
any evaluation before confirmation of appointment).

46. Bulgaria and Romania provide routes to becoming a prosecutor without taking initial
training. In Bulgaria, individuals who have served in a position requiring higher legal
education are able to apply for newly announced positions in the prosecution service in
a competition process based on performance appraisals. If successful, they do not have
to complete any formal initial training, presumably because they are already experienced
16 C. COUNTRY STUDIES 17

prosecutors. But as a result, a significant percentage of Bulgaria’s prosecution service may c. The selection process for admission to the training
never have had the benefit of an initial training course that receives favourable reviews. In
Romania the ordinary way to become a prosecutor is to graduate from the National Institute 49. Applicants participate in annual centralised competition. The Supreme Judicial Council
of Magistracy (“the NIM”). Another separate and extraordinary way to become a prosecutor (“the SJC”)68, on the advice of the Prosecutor General, determines the available positions
only takes place when there is shortage of magistrates and does not entail taking a course for junior prosecutors for each upcoming year69. The SJC designates by a draw of lots,
at the NIM. Since these ways of becoming a prosecutor do not involve formal initial training 20 percent of the number of positions available in the prosecution office. The available
programmes, they will not be considered below in any detail. positions are announced by the SJC through publication in the State Gazette, in a central
daily, and on the website of the SJC. The announcement sets out:
2. Bulgaria • The number and type of positions;
• The documents required to be submitted;
a. Overview • The deadline and location for their submission;
• The programme for the competition; and
47. 
Bulgaria’s latest Judicial Reform Strategy63 acknowledges that the development of • The date, time and venue for the competition.
the judicial system depends on the state of its human resources and therefore aims at
ensuring that justice there will be administered by highly-skilled specialists with high 50. An applicant may take part in a competition for junior prosecutor if she/he meets the above
morals and adequate motivation64. Bulgaria has comprehensive legislation — Judiciary requirements and files the required documents with the administration of the SJC. One of
System Act (“the JSA”) — regulating all aspects of its judicial system, including the the SJC’s commissions70 inspects the submitted documents and admits to the competition
initial training programme for prosecutors and judges65. The first step for those seeking all candidates who satisfy the pre-requisites. The lists of individuals admitted and not
to become prosecutors through an initial training process is to achieve success in an admitted (with reasons given) are announced on the website of the SJC at least 7 days prior
annual, centralised competition66. The second step is to complete a 9-month training to the competition.
programme at the National Institute of Justice (“the NIJ”) with a “pass” grade. The number
of junior prosecutors graduating from the NIJ fluctuates each year, with between 40 51. The competition is carried out by members from the Commission referred to in para. 50,
and 50 graduating annually. Those passing then become junior prosecutors and work consisting of a chairperson, four regular and two reserve members. Depending on the
for 2 years with an experienced mentor, effectively providing them with a total of two number of candidates, the SJC may set up more than one board. The names of each board
years and 9 months for the initial training that has to be undergone. The mentorship- member are designated in a resolution of the SJC. The competition consists of written
trainee relationship plays an integral part of the education of new prosecutors and and oral examinations and marks are given on a scale of six. The written examination is
mentors receive extensive training on how to most effectively perform their role. Positive anonymous and consists of a case study.
reviews of reforms at the NIJ indicate it has strengthened its capacity by curriculum and
methodology improvement and the application of novel interactive teaching methods. 52. The results of the written examination are posted at a public location inside the building of
the SJC and on its website. A candidate who passes the written examination with a mark
b. Pre-requisites for appointment and entry to the training not lower than 4.5 is admitted to take the oral examination. The competition commission
posts the results of the oral examination within 7 days of the examination at a public location
48. Applicants must be Bulgarian citizens and have:
inside the building of the SJC and on its website. A candidate who has successfully passed the
• a higher education in the specialty area of law;
competition files — within 7 days of the publication of the results — a statement confirming
• undergone the internship provided in the JSA and obtained legal competency;
participation in the ranking for a particular position and for the judicial system body (i.e.,
and
prosecutor, judge, or investigating magistrate) for which he or she is applying.
•the required standard of ethics and professionalism complying with the rules of
professional ethics for prosecutors, judges and investigating magistrates67.

63
http://www.justice.government.bg/Files/UPDATED_STRATEGY_EN_ADOPTED__EN_635576978036934663.pdf. 68
T he SJC is a permanent acting body of twenty-five members, which represents the judicial power and secures its independence, determines its personnel and the work organisation of the judicial system, and manages its activities without
64
Bulgarian Institute for Legal Initiatives and the American Bar Association Rule of Law Initiative, Judicial Reform Review for Bulgaria, February 2013, p.17. interfering with the independence of its bodies. Permanent and temporary commissions are created within the SJC to support its activities.
65
The last update is in State Gazette issue 69 of 5.08.2008: http://www.vks.bg/English/vksen_p04_06.htm. 69
The number of positions cannot be altered after the announcement of the annual competition.
66
Lawyers with a minimum of three years’ experience as prosecutors, investigators, attorneys or a variety of other official legal positions may be appointed directly to the magistracy, without first serving as a junior prosecutor or judge. These 70
The Commission on proposals and the performance appraisals of judges, prosecutors, and investigating magistrates. The competition is carried out by a competition board consisting of a chairperson, four regular and two reserve members.
direct appointees do not go through a formal initial training programme and will not be discussed further. Depending on the number of candidates, the SJC may set up more than one board. At least one habilitated legal scientist shall be a regular commission member. Members of an initial appointment commission shall have a rank equal to or
67
A Bulgarian citizen who has been sentenced to imprisonment for a deliberate criminal offence or who suffers from a mental illness cannot be appointed as a prosecutor, judge, and investigating magistrate. higher than that of the announced available position. The names of each commission member shall be designated in a resolution of the SJC.
18 C. COUNTRY STUDIES 19

53. The competition commission ranks the candidates for each position by ordering them in 59. The management board:
accordance with their score, which is a sum of the marks at the written, the oral examination i. appoints and terminates the Director and Deputy Directors of the NIJ;
and the grade point average of their state examinations. The chairperson of the competition ii. adopts the training programmes;
commission files a proposal with the SJC for the appointment of the candidates. The SJC iii. approves the draft NIJ budget and submits it to the SJC;
adopts a resolution for the appointment of candidates in accordance with the order of their iv. a dopts internal rules;
ranking until the number of available vacancies is exhausted. v. approves the composition of the programme board of the NIJ;
vi. sets the number of staff;
54. A candidate who successfully passes the competition is, after taking the oath of office, vii. adopts a three-year business plan; and
appointed as a junior prosecutor and assigned to a regional prosecution office. The junior viii. o rganises, directs and controls the participation of the NIJ in the EJTN73.
prosecutor is appointed for a term of two years, which may be extended by 6 months
pursuant to a SJC resolution. The administrative head of the prosecution office to which 60. The NIJ is managed on a day by day basis by a Director appointed by the management
the junior prosecutor is assigned is required to order an experienced prosecutor to monitor board for a term of 3 years, with a right to reappointment after a performance evaluation by
and assist the professional development of the junior prosecutor (mentoring)71. The mentor the management board.
provides expert guidance to facilitate the trainee’s integration into the judicial system.
The experience of mentors is instrumental in providing the trainees with practical tools to e. The trainers
handle their day to day duties.
61. Prosecutors, judges, investigating magistrates, legal science professors and research workers
55. Immediately after entering office, junior prosecutors undergo the mandatory 9 month may be permanent instructors at the NIJ. They are on official leave when they perform this
“inception training course” at the NIJ. During initial training, trainees receive a monthly role, or may be seconded by the SJC at the proposal and expense of the NIJ. The selection
allowance from the NIJ amounting to 70% of a junior magistrate’s base salary. They do not of trainers is a joint commitment of the supporting partners of the NIJ (e.g., the SJC, the
pay tuition fees but are required to cover their own room and board during their stay in Ministry of Justice, international donors and programmes). Trainers are taught adult
Sofia. educational techniques in line with the “Training for Trainers” system. During their training
they prepare training materials and carry out mock presentations. Foreign professionals
56. Following the expiry of the 2-year term, the junior prosecutors sit a pass/fail examination72. may also participate in some training sessions.
If the junior prosecutor passes the examination, he or she is appointed prosecutor at a
regional prosecution office. If a position is not available at a local office, the prosecutor is 62. The NIJ knows that the training of its trainers is the educational cornerstone of an effective
offered a vacant position in another office. and sustainable institution. The NIJ is committed – through its Strategic Plan, its Internal
Regulations and Procedures, and the structure of its curriculum – to ensure that trainers have
d. The nature of the training institution mastered the principles of training. To this end, the NIJ has created a cadre of prosecutor
“Master Trainers” who train other prosecutors to train and established “Correspondent
57. Training is provided at the NIJ, which is a public institution and a “moral person” under Magistrates” in most Prosecutor Offices to institutionalise the reach of well-trained trainers.
Bulgarian law. It is located in Sofia. The institution is funded from the budget of the judiciary, Bulgaria’s use of workplace mentors and trainers allows a smooth transition of trainee
from programmes and projects, from donations, and through its own business related prosecutors into the judicial system and places particular emphasis on the practical side of
to training. The SJC provides resources to the NIJ budget for the delivery of all trainings training on an individualised basis. The mentor is normally a highly experienced prosecutor
envisaged in the law. with good pedagogical skills. The goal of workplace mentoring is to maintain the level of
effective governance and to create opportunities and conditions for tacit, experience-based
58. A management board heads the NIJ. It includes four representatives of the SJC and three knowledge as well as appropriate grounds for discussion on performance and effectiveness.
representatives of the Ministry of Justice. The chairperson of the Supreme Court of Cassation
is an ex lege member of the management board from the quota of the SJC and is the chair
of that board. The Minister of Justice is an ex lege member of the management board from
the quota of the Ministry of Justice.

71
The mentors are trained by the NIJ and periodically meet to exchange good practices. The goal is to keep the performance of junior judges and prosecutors in line with the initial training they have received at NIJ. With the exception of resolutions relating to i – iv above, management board resolutions have to be adopted by a majority of more than half its members. Resolutions relating to i – iv above have to be adopted by a majority of two-thirds
73 

72 
If the junior prosecutor receives a “fail” grade, she/he sits the examination again three months later. If the junior prosecutor fails the subsequent examination, the individual is relieved of the position she/he occupies. of the members.
20 C. COUNTRY STUDIES 21

f. The body determining the curriculum 68. T he underlying approach is based on the rationale that trainees have demonstrated they
already have adequate grounding in theoretical subjects during the rigorous recruitment
63. A programme board provides the NIJ with advisory support. This board is approved by process. Thus, the programme is focused on:
the management board and includes prominent specialists of legal theory and practice. • acquiring practical knowledge and professional skills;
The programme board members are involved in the preparation and updating of training • developing greater familiarity with areas of immediate relevance to future work (including
programmes, which are endorsed by the management board at the proposal of the Director. the rights of prosecutors and judges) and duties;
• ethical rules;
64. Following the completion of initial training and before assuming office, a new prosecutor • media relations;
continues to receive assistance from the NIJ. The NIJ is obliged by law to follow up the • psychology;
performance of its graduates during their first two years of service. This provides the NIJ • forensic science and accounting;
with feedback about how the initial training programme (content, organisation, etc.) meets • obtaining exposure to the working environment in the judicial system; and
the requirements of practice. • creating a team spirit and fostering collegiate relations among the three branches of
magistrates.
g. The length of training
i. The method of assessment
65. Effective January 1, 2012, the length of the initial training course was increased from 6 to
9 months. The length of training for the purpose of this Study, however, is — as already 69. In the course of their nine months of training at the NIJ junior prosecutors sit interim tests
noted74 — treated as 2 years 9 months, since those who become a junior prosecutor after and participate in mock trials. When they begin their active professional work, they still
completion of the 9-months initial course must spend two more years working under the need the expert guidance of a mentor to facilitate their integration into the prosecution
supervision of an experienced mentor. service and to provide them with practical tools to handle their day-to-day obligations. The
NIJ is mandated by law to follow up the performance of its graduates during their first two
h. The nature of the training years within the legal profession. The mentors are trained by the NIJ and periodically meet
together to exchange ways on how to keep the performance of the prosecutors in line with
66. The NIJ, notably its initial training programme, has growing significance and elicits positive the initial training received at the NIJ.
feedback from magistrates. It has also received favourable international reviews75. The
United States Agency for International Development (USAID) considers it the finest judicial 70. The mentors are also involved in the evaluation of junior prosecutors and judges, which is
training institution in Eastern Europe. The NIJ has steadily strengthened its capacity by carried out by the Supreme Judicial Council (SJC). The mentors submit reports to the NIJ on
curriculum and methodology improvement and the application of novel interactive a quarterly basis detailing their activities as mentors, the cases they have examined, events
teaching methods76. Its sustainability rests on attention to strategic planning, attention to attended, observations on the mentee’s performance, etc. The NIJ Initial Training Department
adult learning theory, and an intensive outreach programme keeping it in touch with the places all data received in the personal file of each junior magistrate and submits it to SJC.
best and brightest minds in the Bulgarian judiciary77.
3. The Netherlands
67. The initial training programme includes the following major topics:
• civil law and procedure, a. Overview
• criminal law and procedure;
• constitutional law; 71. The Netherlands has reformed its prosecution system so that there are now three types
• ethics and corruption; and of prosecutor: full prosecutors following their initial training, assistant-prosecutors and
• topics related to European Union law and the Convention for the Protection of Human adjunct-prosecutors.
Rights and Fundamental Freedoms.

74
See para. 47 above.
75
European Commission, Judicial Training Structures in the EU, Bulgaria, National Institute of Justice, September, 2012.
76
USAID, Strengthening Bulgaria’s Judiciary, 1999-2007
77
American Bar Association Rule of Law Initiative, Judicial Reform Review for Bulgaria, February 2013.
22 C. COUNTRY STUDIES 23

72. The latter two types of prosecutors were introduced in response to a new idea about how d. The nature of the training institution
work within the prosecution service should be done. Thus, it was thought that in more
simple cases the person responsible for preparing a case — an assistant-prosecutor — 79. Training that is course-based is undertaken by the Studiecentrum Rechtspleging (“the SSR”),
should be the one to present it in court. Formerly, these two tasks were done respectively i.e., the Dutch Training and Study Centre for the Judiciary but the practical part is provided
by a legal advisor and a prosecutor. An adjunct-prosecutor is an assistant in large cases. He in prosecution offices and other traineeships.
or she has the authority to represent the prosecution in hearings before an investigative
judge and may also be the second prosecutor of the case, representing the prosecution in 80. T he SSR is an institution owned by and funded by the organisations of the judges and
formal sessions like a ‘pro-forma’ hearing. prosecutors, meaning that it is indirectly funded by the Ministry of Security and Justice.
However, actual amount of funding that is made available for the education of judges and
73. 
The training requirements for assistant-prosecutors and adjunct-prosecutors are less prosecutors is decided upon by the board of SSR, consisting of a member of the Council of
exacting than that for full prosecutors. the Judiciary and a procurator-general of the Prosecution Service.

b. Pre-requisites for appointment and entry to the training e. The trainers

74. All candidates for the programme must have graduated as a master in law and generally need 81. Most of the trainings are given by judges and prosecutors so as to ensure that the education
to have at least two years’ relevant legal experience (e.g., working as a clerk in a court or in the provided is in close contact with working practice. However, it also draws upon other
office of a prosecutor or lawyer). However, students who have just finished their university teachers involved, notably from universities and specialised bureaus, the latter being used
education and got their law-degree can also be candidates to become assistant-prosecutors. for example when communication skills are being taught.

c. The selection process for admission to the training 82. There are trainings available to provide the prosecutors and judges involved in the training
with teaching skills but these are not obligatory. These trainings extend to the workplace
75. The selection procedure for becoming a prosecutor has in the past been centralised, with trainers and mentors who instruct, train, coach and guide the trainee, and provide feedback
four prosecution services having been appointed as ‘educational services’. However, because on their performance. A varied programme of courses and other activities has thus been
of the number of prosecutors in training, all of the regional offices of the prosecution service developed for the workplace trainers and mentors aimed both at beginners and those with
will now be allowed to train new prosecutors. more experience.

76. After publication of a vacancy, candidates apply in writing and those who pass an initial 83. The programme includes coaching, peer consultation sessions and master classes and in
sifting are received for a pre-selection interview. Those who are still under consideration 2012 a digital handbook for workplace trainers and mentors was published. In addition,
after that then undergo an assessment by the Organisation of the Public Prosecution Service, a Day at the Workplace event is regularly organised for the trainers and mentors, which
which is followed by an interview with the selection committee. enables them to share experiences and strengthen their networks.

77. In the selection process the focus is more on competences than on the legal skills. The f. The body determining the curriculum
competences considered important include the ability to cooperate, initiative, group-
sensitivity, sensitivity to developments in society and the ability to communicate clearly 84. The SSR is responsible for the curriculum but the various elements of the programme
in writing and orally. The personality of the candidate is also important. Sometimes a case- continue to change in response to both new demands and feedback received.
study assignment will be part of the procedure. The object is not to look for brilliant lawyers
but for good ones who also have a good understanding of people and society. 85. Evaluation of the training provided is currently done in cooperation between the prosecution
service and the SSR. It is expected that there will be a formal visitation to assess the training.
78. Candidates must always send in a declaration on their behaviour, i.e., a formal declaration issued
by the municipality in which they live that is proof of not having been convicted of an offence.
24 C. COUNTRY STUDIES 25

g. The length of the training 93. T here are different types of “education-coordinators”, one for the duration of the whole
education and one for every specific period in which the student is working within a specific
86. The actual length of each part of the educational programme is dependent upon the type working environment. The former, together with the candidate concerned, will identify with
of prosecutor concerned and the knowledge and experience that the student brings with him or her his or her training need, both in practice and in theory.
him/her, which can be vary considerably.
i. The method of assessment
87. Thus, for full prosecutors, the duration can vary from 18 months to 4 years and will be
determined by personal education programme formulated jointly by the student, the SSR  ssessment of potential full prosecutors is not by examinations but by each candidate’s
94. A
and the prosecution service where he or she will work. personal portfolio, in which he or she gathers his work and assignments. These portfolios
are seen as giving an insight into what has been learned and the competences that have
88. In the case of assistant-prosecutors there is a standardised programme that lasts for 12 been acquired. Thus, there are competences formulated that the student must master at
months. The programme for adjunct-prosecutors is more tailor-made and lasts 18 months. the end of the programme. These are translated into end-terms, related to each part/period
of the programme. In that way it is made explicit how the student can show that he or she
h. The nature of the training has mastered the different skills required.

89. The training programme for full prosecutors is organised according to the following 95. A team leader is responsible for the formal evaluations during the training and will hold
principles: a meeting with the candidate every three months to discuss his or her progress. The
• each candidate is the “owner” of his or her own learning process, is expected to show an assessment at the end of the educational programme is by a manager of the prosecution
active approach as to contents and progress of the training and is offered a stimulating service where the new prosecutor is going to work. An explicit choice has been made to
environment in which he/she is able to acquire the required knowledge and skills; keep the coordinators/mentors of the students separate from the assessment procedure.
• theory and practice are combined so there is no discrete theoretical part; However, there is still an on-going debate about this element of the system.
• the need to get to know the legal environment and so be aware and informed about
the functioning of the organisations linked with the prosecutorial process (the court 96. A candidate who twice fails the proof of proficiency to represent in court and design his or
system, the police and the bar, as well as other penitentiary or forensic institutions); her training plan for the entire training period has to quit the service.
and
• the ability to represent the prosecutor’s office in court being a prerequisite. 4. Poland

90. In the initial training programme, there are many mandatory courses on substantial as well a. Overview
as procedural criminal law. During this period, each candidate will spend 1-2 days at the
SSR and the remainder of the time at the prosecutor’s office where they will later work. 97. The main route to becoming a public prosecutor is through completion of a two-stage
However, as they will have assignments relating to the courses taken at the SSR they cannot training programme — with the first part being a mixture of theory and practice and the
be regarded as really working at the prosecutor’s office concerned. second one being entirely practical — followed by a year as an assessor — essentially a
form of probation — before becoming eligible for appointment as a prosecutor. There is a
91. The training provided by the SSR also includes performance and soft-skills. competition for admission to this training programme. However, it is also possible to become
a prosecutor by taking an examination after 5 years spent as a prosecutorial assistant.
92. The next period has four different stages: 3-15 months’ practical training in the prosecutor’s
office and in court; 2-6 months at the prosecutor’s office before the appeal courts; 6-36 months’ 98. The main scheme is currently being reformed and it is likely that this will lead to the training
practical training at the prosecutor’s office, the court and a traineeship outside the judiciary becoming even more practical but the details have not yet been settled.
(e.g., a law firm, an international organisation, the Ministry of Justice or a penitentiary or forensic
institution); and 3-6 months in depth training at a branch of the prosecutor’s office.
26 C. COUNTRY STUDIES 27

b. Pre-requisites for appointment and entry to the training 105. The first stage is a test of 150 questions which covers mainly subjects on civil, criminal and
administrative law, both substantive and procedural matters, as well as in constitutional
99. Every graduate who has finished 5 years of study at a law faculty and has obtained the title law. In the second stage candidates are required to write solutions to three case studies
of master78 is considered to be a “lawyer” but such a person cannot, without undergoing on civil, criminal and administrative law. All the candidates’ papers are sealed and checked
further training, perform any specialised tasks or act before court. In order to become a by the independent inquiry. The maximum amount of points for the test is 150 and for
prosecutor, graduates must complete initial training provided in the National School of the case studies it is 75. The number of points received by each candidate determines his
Judiciary and Public Prosecution (Krajowa Szkoła Sądownictwa i Prokuratury) (“the NSJPP”). place on the ranking list. In 2016 1998 persons applied to take on the exam, 1710 wrote
the first part and 218 were admitted to the training. The number of places on the training
100. In addition to have the title of master in law, intending prosecutors must be of Polish is determined each year by the Minister of Justice.
nationality, enjoy full civil and civic rights, have impeccable personal morals, have a clean
criminal record and have sufficiently good health to perform the tasks of a trainee. 106. There will be a single selection procedure for the new judicial and prosecutorial training
programmes. This will be a two-stage contest comprised of a test verifying candidates’
101. At present this initial training is in two-stages, a general training shared with intending knowledge of the various fields of law and a written paper checking the candidates’ ability
judges that last for 12 months, followed by a prosecutorial training programme which lasts to apply legal reasoning, the principles of interpretation of law and classification of facts.
30 months. Trainees receive a scholarship during the general initial training and employed as The second stage of the contest will be open to those candidates who have scored at least
prosecutorial trainees by prosecutors’ offices under employment contracts during the second a minimum number of points in the test, each time specified by the Minister of Justice. The
stage. Those trainees who pass the final exam can be appointed for a position of prosecutor’s number of such candidates may not be higher than twice the admission limit. The test and
assessor and as such are able to fulfil most of the prosecutor’s duties. After spending at least written tasks will be prepared by the contest team appointed by the Minister of Justice who
a year as a prosecutor’s assessor they can then be appointed as a prosecutor. then approves the contents of the test and tasks. Following completion of the selection
process, tests, and tasks are published on the NSJPP’s website. After the contest the board
102. The present system will be replaced in the course of 2017 or 2018 by a one-stage appointed by the Minister of Justice will submit to the NSJPP’s Director a ranking list of
prosecutorial training programme that will last for 36 months79. candidates for the judicial and prosecutorial training programme. The order on the list will
depend on a sum of the points scored by candidates in both stages of the contest.
103. Independently of the training dispensed by the National School of Judiciary and Public
Prosecution, any law graduate who has worked as a prosecutorial assistant for five years 107. Those persons who are on this list will be able to apply to the NSJPP’s Director to be
may also take the prosecutor’s exam. A list of fixed term prosecutorial posts (assessor) admitted to a training programme. A refusal can be appealed against to the Minister of
is offered by the Prosecutor General to the examinees who can choose out of the list Justice, whose decision is subject to review by an administrative court.
according to their place in the ranking. Judges — as well as advocates and notaries who
have worked in this capacity for three years — can be appointed assessors or prosecutors d. The nature of the training institution
without any additional exam — if only there is a vacancy in a prosecutor’s office.
108. The NSJPP was established as a legal entity on the basis of the Act of 23 January 200980 and
c. The selection process for admission to the training started its activities on 4 March 2009. It is the only central institution responsible for the
initial and continuous training of the judiciary and prosecution staff in Poland.
104. Candidates for the current initial training at the NSJPP are selected pursuant to a centrally-
managed procedure with a two-stage written competition verifying candidates’ knowledge 109. The NSJPP operates on the basis of a statute that defines its structure, headquarters, logo,
of law and their ability to apply it in practice. and the mode and manner of implementing training activities. The statute is enacted by the
Minister of Justice by way of regulation. The Minister of Justice also monitors compliance
of the NSJPP’s activities with the legal regulations and the statute.

78
This can be obtained from a faculty of law in Poland or from a foreign institution of higher education recognised in Poland.
79
There will be a separate, similar programme for intending judges. 80
Journal of Laws No. 2012, item 1230.
28 C. COUNTRY STUDIES 29

110. The financial resources for the functioning of the NSJPP and the implementation of its g. The length of the training
statutory tasks are granted from the part of the budget of the state that is under the
supervision of the Minister of Justice. The NSJPP also generates its own income, which is 116. As already noted, the current arrangement involves a general initial training lasting 12
allocated for conducting its activities. Furthermore, it also accomplishes its tasks with the months and then further, separate training for judges and prosecutors that lasts for 30
use of funds obtained from the European Union. months in both cases.

e. The trainers 117. The first initial training programme was launched on 30 November 2009 and, since then,
six classes of participants have completed the course. In 2016 a seventh group of trainees
111. In order to become a lecturer for the NSJPP it is necessary to be a judge, prosecutor or started their training and an eighth group is expected to start their training this year.
an expert on subject in demand and to receive a positive reference from the NSJPP’s
Programme Board81 but the Minister of Justice has the right to object any candidate 118. Those who complete the general initial training programme may then work as prosecutor’s
approved by the Board. assistants or seek admission to the specialised prosecutorial training. Their admission to the
latter is determined by their ranking in a list determined by the number of points scored
112. Those who do the training also include the workplace trainers and mentors – i.e., prosecutors by them in all examinations and an arithmetic mean of grades received in apprenticeship
in prosecution offices — in the practical phases. These instruct, train, coach and guide the programmes. The admission limits for the specialised training is set by the Ministry of
trainee and provide feedback on their performance. Justice but admission to it is determined by the NSJPP’s Director. The latter’s decision is
subject to appeal by the Minister of Justice and subsequent judicial review.
113. There is no systematic or obligatory programme resembling training of trainers for those who
do the training. However, the NSJPP offers a variety of workshops and seminars dedicated 119. Between 2013 and 2015 the first three classes of prosecutorial trainees completed the
to the lecturers and the workplace trainers and mentors concerning teaching methodology 30-month prosecutorial training programme and were appointed as assessors of a
and improvement of their didactic skills, which is aimed both at beginners and those with common organisational unit of the public prosecution by the General Public Prosecutor.
more experience. Issues related to the methodology of teaching are also elaborated in Prosecutorial tasks were then delegated to them for a period of up to three years, taking
documents prepared for organisational purposes for each meeting (meetings/classes for into account all applicable statutory limitations. The assessment period is the last stage
trainees take 1 week every month). There are also editorials describing ways of conducting that needs to be completed by assessors before they can be appointed prosecutors. On 8
workshops with legal trainees and the composition of study materials. December 2015 the General Public Prosecutor appointed the first two trainees who had
completed the prosecutorial training programme as district public prosecutors.
f. The body determining the curriculum
120. As already noted, the present scheme will be replaced by a one-stage prosecutorial
114. The NSJPP’s Programme Board — currently appointed by the Minister of Justice – is training programme that will last for 36 months, whose content and organisation is still
comprised of 18 members: the Minister of Justice, the General Prosecutor, three members to be determined. Thus, it is not yet known what, if any, formal education will need to be
nominated by the National Council of the Judiciary and the National Council of Prosecutors undertaken in addition to any time that will be spent in prosecutors’ offices, as well as
and one member appointed by the First President of the Supreme Court, the President of what, if any, role will be played by the NSJPP.
the Supreme Administrative Court, the President of the Supreme Bar Council, the President
of the National Council of Legal Advisers, the President of the National Council of Notaries h. The nature of the training
and the basic organisational units of universities conducting courses in law. A member
of the Programme Board can only be a judge, a prosecutor, a person holding the title of 121. During each month of the existing general initial training, the trainees have a one week
professor or a post-doctoral degree in law, or a retired judge or prosecutor. The term of session of theoretical training (5 days – 40 hours). These classes are concentrated on the
office for members of the Programme Board lasts 4 years. analysis of case law and case files, as well as on solving cases. Occasionally, the trainees
take part in simulated court proceedings. Only a small percentage of classes are classical
115. The responsibilities of the Programme Board include drafting the annual schedules of lectures.
training activities of the NSJPP and adopting curricula for initial legal training.

81
As to which, see further para. 115 below.
30 C. COUNTRY STUDIES 31

122. Every week of theoretical training is followed by three weeks of practical training in public assessment is on matters such as the quality of the lecturers and particular sessions and
prosecution units, courts, police units, as well as in tax administration units, penitentiary the difficulty of the exam. The NSJPP’s Research and Analysis Department evaluates the
administration units etc. (the curriculum is unique for every trainee), i.e., learning by doing. completed questionnaires and produces a report for the NSJPP’s Director and Programme
In the framework of their practical training, the trainees work — under the tutorship of Board. The conclusions of these reports are closely analysed and, where necessary, changes
internship supervisors (i.e. experienced prosecutors, judges etc.) — on the specific issues are made to the organisation of specific trainings. Furthermore, the performance of lecturers
which were discussed during the previous session of theoretical training (i.e. they draft is carefully assessed by the Programme Board given its responsibility for selecting them.
specific decision or motions).
5. Romania
123. Under the new scheme, prosecutorial trainees will be employed in prosecutors’ offices and
their apprenticeship programmes will be arranged by regional prosecutors rather than a. Overview
the NSJPP’s Director. The reformed programme will mean that prosecutorial trainees will
be given the competences enjoyed by prosecutors’ assistants. In addition, after 12 months 127. 
The initial training process for prosecutors and judges in Romania is regulated by
of training prosecutorial trainees will take a test verifying their knowledge and skills with legislation82. Both professions are considered magistrates and undergo the same initial
respect to the entire prescribed curriculum covered so far. Having successfully passed this training at the National Institute of Magistracy (“the NIM”) for 2 years. At the end of the
internal test, prosecutorial trainees will then be qualified to appear before district courts first year, trainees elect their future profession: prosecutor or judge. The second year takes
as public prosecutors in cases in which the preparatory proceedings have been completed place mainly within first instance courts and prosecution offices attached to these courts.
in the form of inquiry.
128. The study of law in initial training is mainly practical, preparing future prosecutors and
i. The method of assessment judges for an effective and responsible participation in their profession. The assessment
of the knowledge and skills acquired during initial training consists both of formative
124. Each theoretical training session begins with a test. However, it must be noted that such and final assessments. Successful completion of the NIM graduation examination confers
a test never takes the form of an essay or an MCQ. As a rule, the trainees have to write a the status of junior prosecutor or judge for one year, following which candidates take a
decision or a motion on the basis of an authentic case file. The subject of the test is always capacity examination. Those who pass are confirmed in office by the Superior Council of
related to the previous theoretical training session and to the practical training which Magistracy (“the SCM”).
followed that session. Before the test, a seminar is held by the members of the examining
board who discuss with the trainees any doubt related to the subject of the test. Another b. Pre-requisites for appointment and entry to the training
seminar conducted by the members of the examining board takes place immediately after
the test. In the practical training trainees are assessed by their supervisors. 129. Candidates seeking to become prosecutors or judges are expected to have a university
degree in law. The usual way to enter the magistracy is by passing the NIM entrance
125. After completing the whole training cycle, the trainees take the final examination (the examination and becoming “an auditor of justice”83.
prosecutor’s exam). The questions for the examination are submitted by a commission
appointed by the Minister of Justice. However, the examination as such is carried out by 130. The other way of entering the magistracy is extraordinary and only takes place where there
another commission which is also appointed by the Minister of Justice. The ranking of is a shortage of magistrates. It does not involve the completion of any formal initial training
graduates is arranged in accordance with the grades received at the final examination programme.
(the assessments issued by the internship supervisors, as well as the results of the tests
described above can be taken into account on a subsidiary basis). c. The selection process for admission to the training

126. The NSJPP’s Programme Board is responsible for assessing both the general initial training 131. The judicial recruitment process is provided exclusively by the NIM. Candidate selection is
and the respective initial training for judges and prosecutors. This takes place at the end based on a comprehensive process that assesses professional competence and reputation.
of the monthly seminars and workshops and of each training as a whole. The focus of the The professional competency examination is complex and divided into three stages. The first

82
L aw no. 303/2004 regarding the status of judges and prosecutors. Decision of the Superior Council of Magistracy no. 127/2007 on approving the Regulation on the National Institute of Magistracy. The official site of the Romanian Ministry
of Justice (in the Romanian language) is http://legislatie.just.ro.
83
Described as the “ordinary way” in the relevant legislation.
32 C. COUNTRY STUDIES 33

stage consists of 100 multiple-choice questions covering the main branches of civil law, civil • a prosecutor from the prosecutor’s office attached to the Bucharest Court of Appeal;
procedure law, criminal law and criminal procedure law. For each of these subjects there • 3 professors representing the most prestigious universities in Romania;
are 25 questions. To pass the first stage of the examination, the candidates must provide a • 4 representatives of the NIM training staff; and
minimum of 70 correct answers. The weight in the final mark average is 75%. • a representative of the auditors of justice (prosecutorial and judicial trainees).

132. The second stage is a test on logical reasoning with a 100 multiple choice questions assessing: 137. The NIM is partly funded from the state budget and partly from funds provided by
a) logical reasoning, b) analytical thinking, and c) capability to understand a complex written international programmes or further to collaboration with a number of partners in
test. The examination’s weight in the final mark average is 15%. To pass the second stage, Romania and abroad. The NIM budget is distinctly specified within the SCM budget; with
an applicant has to provide at least 30 correct answers. The third stage of the examination approximately half of the entire NIM budget dedicated to initial training activities. Most of
involves an interview focusing on a) motivation, b) ethics, and c) verbal and non-verbal this budget represents scholarships for auditors of justice.
communication skills. The weight of the interview in the final mark average is 10%.
e. The trainers
133. Candidates pass the professional competency examination in decreasing order of the mark
averages within the limit of available judicial places and by obtaining a minimum 5/10 in 138. The NIM believes the quality of the training it provides depends on the trainers it uses. A
each subject and a general mark average minimum of 70%. The process is governed by document regulating the recruitment, assessment and possible termination of the NIM
principles of: trainers - the Statute of the NIM Training Staff – has been adopted by the Scientific Council
• transparency, and subsequently by the SCM. Trainers are recruited separately by the NIM for initial
• equality between the competitors, and training and for continuous training. The recruitment, training and assessment of trainers
• confidentiality of the tests. have the following specific goals:
• to implement a transparent, objective and flexible procedure to recruit and assess trainers;
d. The nature of the training institution • to train the trainers on substantive and procedural law, as well as on the pedagogical
techniques;
134. The NIM is a public institution with legal capacity. It is not part of the national educational • to develop the trainers’ network so as to cover all training areas;
system and is not subject to legislation governing certification of higher education and
institutions. The NIM exclusively provides initial training for future prosecutors and judges. • increase the number of full-time trainers, especially with serving prosecutors and judges.
The training is organised and coordinated at the national level. NIM is also responsible for
in-service training of prosecutors and judges and the training of trainers. The activities of 139. In the first stage of the appointment procedure, the trainer selection commission evaluates
the NIM are coordinated by the SCM. the application file. After this evaluation, the selection commission categorises the
application as ‘recommendable’ or ‘not recommendable’. Only the candidates categorised
135. The NIM is managed by a Director, two Deputy Directors (specialised in entry-level training as ‘recommendable’ are eligible to move onto the next stage.
and in-service training respectively), and by the NIM Scientific Council. The Scientific
Council decides all matters concerning the organisation and functioning of the Institute. It 140. The training staff of the NIM is usually composed of serving judges and prosecutors
is made up of 13 members, all elected for a term of 3 years84. endorsed by the Scientific Council and seconded on consent. In order to carry out the
professional training process, the NIM uses accredited academic staff from graduate law
136. The members of the Scientific Council include: schools, Romanian and foreign experts, and specialist law staff. The candidates for these
• a judge from the High Court of Cassation and Justice; positions are selected by a board appointed by a decision of the Scientific Council. The
• a prosecutor from the prosecutor’s office attached to the High Court of Cassation and board follows a public and transparent procedure, consisting of objective criteria decided
Justice; upon as a part of trainers’ recruiting strategy approved by the SCM.
• a judge from the Court of Appeal;

84
This term can be renewed except for the judicial trainees, who can only be renewed for 1 year.
34 C. COUNTRY STUDIES 35

141. Following a preliminary examination, the selection board interviews the candidates and • the Director and the 2 Deputy Directors of the Institute;
applies detailed criteria. The criteria include the ability to communicate and to interact • the coordinators of the training subjects;
when working with adults; in-depth specialised knowledge; the ability to research various • the full professors for each subject-matter; and
sources, both in the Romanian language and in other commonly-used foreign languages; • 2 practical training coordinators (one for groups of judges and one for groups of
the ability to plan and organise; knowledge of didactical skills; and the ability to co-operate, prosecutors)85.
contribute and integrate within a team. After the interview, the selection commission
classifies the candidates, giving marks from 1 to 10 for each of the criteria indicated above. g. The length of the training
Only the candidates who get the minimum grade of 8 qualify for the next stage. At the
third stage of the selection process, the candidates perform as trainers in a demonstration 146. The initial training course is 2 years in length.
seminar in front of a group of trainees. This is followed by a further interview of the best
candidates. It is a very rigorous process. h. The nature of the training
142. Once recruited, an end-to-end policy also governs the on-going evaluation of a trainer’s
147. Initial training has a practical character and does not repeat the knowledge already acquired
performance. All evaluations are recorded on the NIM’s central database. The database offers
by the auditors of justice in law universities. The practical character of the initial training is
a centralised view of the quality of training provided by the NIM and an individual assessment
given, on one hand, by the way in which trainees work during their seminars — they are
of each trainer (global, per year or per seminar). The Statute of the NIM training staff allows
given real “files” to which they are expected to give legal solutions and, on the other hand, by
the NIM to have a clear, objective, predictable selection procedure. Rights, obligations and
the trainers, who are mainly practitioners (70% are in-service judges and prosecutors).
situations when the trainer’s position can be terminated are also clearly determined. The
database that keeps the evaluation records allows the NIM to use a unitary evaluation process
148. 15% of initial training courses focus on fundamental disciplines, while 85% involve
to further improve the quality of the training it offers and the abilities of the trainer. The
assessments are the basis of proposals concerning the list of trainers for the following year. seminars/debates, extracurricular projects and conferences, study visits abroad (to the
European Court of Human Rights, the Court of Justice of the European Union, to other
143. The NIM trainers may work full-time (512 conventional hours a year, but no more than European schools or institutions having responsibilities in the field of training), bilateral
32 conventional hours per month) or part-time (a maximum of 32 conventional hours a exchange programmes, internships to various national and international institutions
month). Trainers are trained every year, based on a programme approved by the SCM. The relevant to the profession, academic debates, internal and international competitions and
train-the-trainers programme targets: contests for trainees, etc.
• newly-recruited trainers;
• the trainers who express their wish to attend such a programme; 149. The first year of initial training is held within the NIM and the second in traineeship within
• the trainers the NIM has decided should attend additional training courses, as a prosecutor’s offices or courts of first instance. The first year of study seeks to ensure that
consequence of the evaluation they received the previous year. future prosecutors and judges learn:
• necessary legal knowledge, without duplicating knowledge already acquired during faculty;
144. The NIM education sciences expert takes part in the trainers’ recruitment, training and • practical perspectives on the different law institutions;
assessment. He or she is also responsible for the setting up of a uniform framework to relating • the techniques specific to the magistrate profession;
to the training of trainers on the pedagogical methods used throughout the training activities. • a logical, structured way of thinking;
• European perspective on law;
f. The body determining the curriculum • an understanding of the exigencies that result from the direct application of –European
Union law and of the jurisprudence of the European Court of Human Rights;
145. The Pedagogical Council is an advisory body which, at the request of the Scientific Council, • awareness of the appreciation that they belong to a judicial profession;
submits proposals concerning the NIM’s educational policies (mainly regarding curriculum, • openness to other fields of social life; and
syllabi and programmes for the Training Department). The members of the Pedagogical Council • necessary knowledge of foreign languages and information technology.
are:

85
The two representatives of the practical training coordinators are elected annually at a general assembly convened and presided over by the Director of NIM.
36 C. COUNTRY STUDIES 37

150. The NIM’s first year of general training is mandatory, but trainees can also follow some 153. 20% of the topics included in the initial training curriculum are in non-legal disciplines.
facultative modules of training. At the end of their first year, the trainees chose the
profession they wish to follow (prosecutor or judge). During their second year, the trainees i. The method of assessment
receive specialisation according to the profession they have chosen. A pragmatic training
approach continues in the second year of initial training. It is almost exclusively devoted 154. After completing the 2-year period of initial training courses, the auditors of justice are
to practice in courts and the offices of prosecutors. In order to give trainees a complete required to pass a theoretical and practical capacity exam to ascertain whether they have
education, periods of practical work are also organised in other governmental agencies acquired the knowledge necessary to discharge the duties of a prosecutor or judge. The
involved in the judiciary or in the dispensation of justice, such as the Constitutional Court, auditors who pass the exam are usually appointed, pursuant to the law, in the profession
the Court of Audit, penitentiaries and rehabilitation centres for the underage, the Institute (judge/prosecutor) they chose after the first year of study within the NIM. The auditors
of Forensic Medicine, the National Institute of Criminology, and law firms. In addition, of justice who do not succeed in the graduation examination may sit for it once more,
tutors are assigned in the second year at the NIM and practical training in each prosecutor/ in the next session held by the NIM. If the auditors of justice unjustifiably fail to appear
court’s office is mentored by two practice coordinators who guide, supervise and assess for the examination or in case they do not pass the examination in the second session,
the performance of the auditors of justice. they cannot be appointed as judge or prosecutor and shall be obliged to reimburse the
scholarship and the tuition expenses.
151. During initial training, future prosecutors take courses on:
• Comparative Judicial Systems 155. Junior judges and prosecutors are appointed by the SCM, based on their general average
• Comparative Law marks, obtained by summing up the three average marks from the end of each year of
• European Law and Proceedings study and from the examination for graduation of the National Institute of Magistracy.
• Psychology Upon appointment the length of probation/traineeship is one year.
• Philosophy and Ethics
• Economics 156. The NIM graduates are required to serve for a period of 6 years as judges or prosecutors. If a
• History graduate of the NIM is released from office before the expiry 6 years, either at the graduate’s
• Foreign Languages initiative or for reasons imputable to the graduate, she/he is obliged to reimburse her/his
judicial training scholarship and the tuition expenses paid for her/his training.
152. The following general professional skills are taught:
• Communication 157. The Romanian training programmes for prosecutors and judges are held in high regard. At
• Information technology the initiative of the European Parliament, a project to identify good practice in training of
• Management judges and prosecutors in Europe was completed by 7 experts from the European Judicial
• Forensics Training Network in 201486. The study was conducted on the basis of a questionnaire
• Methodology of Justice Act distributed widely to all national training institutions in the EU and to three academic
• Administrative Law institutions.
• Commercial Law
• Constitutional Law 158. The following training practices submitted by the NIM were commended as good or best
• Family Law and Justice of Minors practices by the project:
• European Convention of Human Rights • training needs assessment,
• Intellectual Property Law • innovative teaching methods,
• Competition Law • innovative curricula or training plans,
• Environment Law • training tools to improve knowledge of EU law,
• Consumption Rights’ Legislation • international cooperation; and
• Fiscal Law • trainee and trainer assessment.
• International Cooperation in Civil and Criminal Matters
• Penology
86
Implementation of the Pilot Project – European Judicial Training - Lot 1 “Study on Best Practices in training of judges and prosecutors” April 2014.73 With

the exception of resolutions relating to i – iv above, management board resolutions
38 D. A COMPARATIVE ANALYSIS 39

D
163. The body generally enjoys a degree of independence from the executive branch of
government, whether because it is established under the auspices of professional self-
governance bodies or has a discrete legal status and is only indirectly funded by the
Ministry of Justice. However, in the case of Poland the body is effectively subordinated to
the Ministry of Justice despite being separately established by law.

A COMPARATIVE ANALYSIS b. Admission requirements

164. In all four countries intending public prosecutors must have a degree in which law was at least
the predominant element. Only in the Netherlands is there an additional requirement that a
period of relevant work experience be undertaken before being admitted to the initial training.
1. Introduction
165. In all the countries except the Netherlands, the selection process involves an examination.
159. This section of the Study first identifies both the common features of the initial training to For Poland and Romania this examination focuses on both knowledge of law and its
be found in the four country studies and certain aspects of them where the approach can application in a practical context whereas in Bulgaria the examination takes the form
be seen to differ. In the latter regard, it is important to bear in mind that the initial training of a case study and an oral. In the Netherlands there is no examination but a series of
of public prosecutors ought to reflect the characteristics of the justice system in which interviews, although there may be a requirement to do a case study. The primary concern
they will serve upon graduation and this can, therefore, be a factor behind such differences is to establish the competences of an applicant and the nature of his or her personality,
of approach. both being considered of particular importance for fulfilling the prosecutor’s role.

160. The section then reviews various training methods that have been recommended as
c. Length of the training
particularly effective in the EJTN Handbook and which are used in some or all of the four
countries that have been studied87.
166. The duration of the initial training varies in the four countries. However, there is some
2. The four countries similarity between that required in Bulgaria, Poland and Romania in that there is first a
period spent in the training institution that ranges from 9 months to a year and then a
a. The training body practical stage that lasts between a year and two and a half years.

161. In all four of the countries studied the initial training for intending public prosecutors 167. The approach in the Netherlands is quite different in that the period varies according to
begins with an element that is undertaken in common with intending judges. Generally the background of the person concerned and the type of public prosecutor he or she
this for the whole of the first period of the training but in the case of the Netherlands and seeks to become. Even for those intending to become full public prosecutors the duration
Poland it is only for several days each month as much of the time trainees are based in can vary between 18 months and 4 years, reflecting an approach to training that is highly
prosecution offices or in other institutions connected with law enforcement. individualised.

162. The fact that there is some common training for judges and lawyers does not seem to be of any
d. The trainers
significance since this covers matters which are relevant for both their functions and in all cases
the preponderance of the training for intending public prosecutors is focused on practical 168. The trainers in all four countries are predominantly drawn from judges and public
aspects of the prosecution role. Moreover, the use of the same institution for the initial training prosecutors but the training institutions also all draw upon university teachers in law and
of judges and public prosecutors in some instances can be a reflection of their common status other disciplines, as well as others with relevant skills.
as magistrates in the country concerned and/or a matter of economy of scale.
169. Those trainers who provide courses in the training body vary from those who work there full-
time to those who do so part-time or just occasionally. However, those providing the training
in the practical stage will be public prosecutors and other law enforcement professionals.
87
For a review of the approach training in all European Union Member States, see Implementation of the Pilot Project – European Judicial Training – Lot 1 “Study on Best Practices in training of judges and prosecutors”, April 2014
40 D. A COMPARATIVE ANALYSIS 41

170. In Bulgaria and Romania those who provide courses in the training body are required to f. Evaluation of the training
undertake training in adult education techniques. Although this is not obligatory in the
Netherlands and Poland, such training for trainers is available and is encouraged. Moreover, 176. There is no provision for formal outside evaluation of the training programmes in the four
in the latter two countries this training is made available not only to those who provide countries. In Bulgaria, Poland and Romania the training programme is kept under review
courses in the training body but also to those who undertake training in prosecution offices. and updated by the Programme Board or Pedagogical Council whereas in the Netherlands
The public prosecutors in Bulgaria who supervise junior prosecutors will also be ones with it is based on cooperation between the prosecution service and the training body, relying
good pedagogical skills and have received extensive training on how to perform this role. essentially on feedback. However, a more formal visitation in the case of the Netherlands
is envisaged at some point.
171. Romania is notable for having arrangements to undertake an on-going evaluation of those
who do the training. 3. Effective training methods
e. The training and its assessment a. Introduction

177. A summary of the most recent findings on best European practice in training methodology
172. In all four countries the training provided in the training body involves a combination of
can be found in the EJTN Handbook and certain points made in it are highlighted here.
providing knowledge and developing practical skills, with the emphasis always being on
blending theory with practice. Only in Romania does there seem to be some effort made 178. The EJTN Handbook notes that in the past, prosecutorial (as well as judicial) training has
to cover substantive areas of law but this is still combined with other courses designed to tended to use the same teaching techniques as those commonly employed in universities.
facilitate working as a public prosecutor. These techniques involve a professor or trainer lecturing from the front of the class and
students doing their best to record what he or she said. The learning success of those
173. In all four countries the courses taken in the training body are mandatory but in the taught in this way was then evaluated by a written examination, which usually indicated
Netherlands and Poland the more practical part of the first stage of the training allows for more about the trainee’s facility in writing examinations than it did about the trainee’s
an individualised programme to be devised by trainees. In both the latter countries, some mastery of the programme’s subject matter.
of the first stage is likely to be spent in bodies other than in prosecution offices and in the
Netherlands this will also be the case for the second, exclusively, practical, stage. 179. However, the EJTN Handbook stresses that rather than confronting passive and reactive
trainee prosecutors with a substantial amount of theoretical knowledge, initial training
174. The detailed content of the training programme in Bulgaria, Poland and Romania is set or should facilitate the professional development of future prosecutors in a hands-on,
recommended by a Programme Board or Pedagogical Council within the training body. In practical way by demonstrating the relevance of the issues taught. It is suggested that
the case of Bulgaria and Poland these bodies are not restricted to public prosecutors but such an approach will identify for adult learners the need to sustainably improve their
professional capabilities, skills and knowledge. In addition, it is considered that this should
also contain prominent specialists of legal theory and practice (Bulgaria) and professors
also help them realise that this should be understood in a broad sense that goes well
(Poland).
beyond legal and judicial questions.

175. The approach to assessment varies considerably in the four countries. Thus, in Bulgaria the 180. Amongst the practices considered to embody such a participant-centred approach were
only assessment comes after the 9-month course and is by examination whereas in Poland the use of group work, tutor/mentoring, e-learning and blended learning, externships and
there is continuous testing based on case files during the first stage of the training and a certain approaches to assessment.
written examination at the end of the whole training cycle. However, in Romania there is
only a theoretical and practical capacity examination at the end of the two-year programme b. Group work
and in the Netherlands there are no examinations but an assessment based on the trainee’s
portfolio based on work and assignments over the course of the entire training. 181. Participant centred training makes extensive use of group work which is entirely practice
orientated and interactive in nature. As a way of familiarising trainees with the handling
of case files, role-playing, mock trials and case studies based on “real” cases are seen as
particularly appropriate. In addition, it is considered beneficial to require the trainees to
prepare short presentations for their peers, especially on chosen procedural topics.
42 D. A COMPARATIVE ANALYSIS 43

182. As the active involvement in the process of each and every learning group member is the 186. Certainly, basic information on procedural rules, the proper handling of a case file and
ideal, the size of the group will have a significant impact on the success of these teaching conduct rules can be effectively delivered by e-learning tools where the programme
techniques. Research has suggested that group learning in initial training can only be truly makes proper use of the advantages of modern technological content management
effective if the group is small, with a maximum 20 trainees but a preference for groups of systems. Tests and exercises (multiple choice and track and drop, etc.) with self-assessment
12 to 18 trainees. mechanisms may usefully round out the programme. Certificates awarded on having
successfully taken one stage of the e-learning programme can be made a requirement for
183. Furthermore, as the goal of a stimulating learning environment should primarily be for the trainee’s continuing with the entire training curriculum.
trainees to focus their attention and energy on learning and not on ‘self-maintenance’, it
will be important for them to feel free and indeed encouraged to indicate what they find 187. It should also be noted that all the institutions from the four countries are members of the
difficult and what they want to improve. As a result the person who supervises trainees Council of Europe’s HELP Network. HELP is the European Programme for Human Rights
should not be the one who is (continually) assessing them88. Education for Legal Professionals, which exists to support the Council of Europe member
States in implementing the European Convention on Human Rights and other human rights
c. Tutor/Mentoring treaties at the national level89. HELP provides high-quality and tailor-made training tools to
all European legal professionals. These are made available through its e-learning platform
184. It is recognised that a future prosecutor going through initial training will be particularly
that has both distance learning courses and self-learning resources in the national languages
inclined to adopt best practices from seasoned practitioners, with the internalizing of
of member States. These courses and resources are designed according to a methodology
values and skills that otherwise would not be learned from books. However, in order for
that takes account of the heavy time pressure to which all legal professionals are subject.
such individual internships to prove successful for both the practice trainer and the trainee,
it is considered necessary for several requirements to be satisfied:
• only those prosecutors who gain a personal benefit from intense professional contact 188. The Network is the only peer-to-peer pan-European human rights training network and
with a young and necessarily inexperienced colleague should be selected since not the four institutions covered by the Study, as well as representatives from national training
every experienced practitioner is also a good tutor or mentor; institutions for judges and prosecutors and bar associations in the member States, are
• the tutor or mentor must have the didactical skills to motivate and encourage the trainee, not only able to make use of the resources on the platform but also to contribute to the
(i.e., to ensure he or she actively works on files without fearing personal, negative, development of those to be added to it.
demoralising feedback, even if mistakes occur, as they inevitably will);
• a prosecutor already struggling to handle his or her “normal” workload is not a suitable e. Externships
tutor or mentor. It needs to be borne in mind that guiding the trainee over several
weeks, or even several months, demands significant investment in time and in reflection. 189. In order to be effective, it is important that a prosecutor not only knows the organisation in
Furthermore, remuneration for tutoring or mentoring should never be the main incentive
which he or she will work but also the legal environment and the way of working of other
for providing this kind of training; and
practitioners who cooperate with the prosecutorial authorities. The EJTN Handbook thus
• a good tutor or mentor in initial training should be able to objectively assess the
suggests that it would be a valuable initiative if the initial training included mandatory
performance of the trainee in a written report at the end of the internship.
training periods at external institutions, such as courts, prisons and the offices of private
d. E-learning and blended learning lawyers and the legal departments of private enterprises. Such externships might even
extend to spending time in other legal systems90.
185. It is considered that well-designed e-learning can be a useful methodological tool in initial
training but it is also recognised that web-based training can never replace residential
learning in groups and peer-to-peer initial training. Nonetheless, good introductory
e-learning modules may result in a more uniform standard within a group of trainees
before the actual group training starts. These points to the need for blended learning, with
web-based learning and residential learning being combined.

89
See further http://www.coe.int/en/web/help/home.
90
In its AIAKOS Programme the EJTN has fostered such an exchange within EU Member States whereby each participant is obliged to participate in two one-week sessions, one as a host in the home country and one as a visitor to another
88
The EJTN Handbook at p. 17. country.
44 E. SOME CONCLUDING OBSERVATIONS FOR THE REFORM OF INITIAL TRAINING IN UKRAINE 45

E
f. Approaches to assessment

190. The assessment of trainees is of vital importance. The aim should be to exclude persons who
are not only unprepared and insensitive to the need to continuously update their disciplinary,
SOME CONCLUDING
procedural and experiential knowledge but also those who are temperamentally and ethically
unfit to perform delicate tasks that the state confers upon public prosecutors.
OBSERVATIONS FOR THE REFORM
191. In order to measure learning in initial training programmes, it is first necessary to identify
OF INITIAL TRAINING IN UKRAINE
what will be evaluated, namely, knowledge, skills and attitudes. Furthermore, these ought
to be measured both before and after training.
192. All assessment should reflect the participant-centred learning activities and should be
196. The formal requirements for becoming a public prosecutor in the Law of Ukraine “On the
both continuous and summative.
Public Prosecutor’s Office” can be seen as at least consistent with those found in European
and international standards.
193. Continuous assessment examines participants continuously over most of the duration of
their education. In other words, one will be assessed right through the learning process and
197. Thus, candidates for appointment must have the higher legal education degree and at least
not only after the learning process. Continuous assessment can track the improvement of
two-year work experience in the field of law92. Furthermore, selection is to be competition-
the learner, and more support and guidance can be given. The learner will thus have more
based pursuant to a proficiency test and is subject to judicial control, although there is no
opportunities to improve.
provision for an interview93. In addition, there is a requirement to undergo a year’s training at
the National Academy of Public Prosecutors of Ukraine “to obtain knowledge and practical
194. Summative assessment takes place after the learning has been completed and provides
skills of a public prosecutor as well as study legal drafting and the rules of prosecutorial
information that sums up the learning process. No more formal learning is taking place
ethics”, at the end of which there is “an examination consisting of an anonymous testing
at this stage, other than incidental learning that might take place through completion of
and practical assignment”94.
assignments. Rubrics, often developed around a set of standards or expectations, can be
used for summative assessment. Rubrics can be given to the intending public prosecutors
198. However, no further details are specified about the content of this initial training since
before they begin working on a particular project so they know what is expected of them
the curriculum, the training and methods of its assessment are left to be approved by the
for each criterion. Grades are an outcome of the summative assessment91.
Qualifications and Disciplinary Commission of Public Prosecutors95.

195. It should also be borne in mind that peer and self-assessment can foster a number of
199. Nonetheless, the existing legal framework generally provides a satisfactory basis on which
skills, such as reflection, critical thinking and self-awareness — as well as giving trainees an
to ensure that the initial training provided to intending public prosecutors fulfils European
insight into the assessment process.
and international standards and does so in a way that takes account of the approach and
practices followed in other Council of Europe member States, such as those discussed in
the country studies and in the EJTN Handbook.

92
A rticle 27. For the purposes of this provision a higher legal education degree is “a degree obtained in Ukraine (or in the former USSR before December 1, 1991) at the education qualification level of the Specialist or Master, as well as higher
education degree in the field of law at the respective education qualification level obtained abroad and recognised in Ukraine in the manner prescribed by law” and work experience in the field of law is “work experience in the field after
obtaining a Specialist’s or Master’s degree in Law”.
93
Articles 28-31. Pursuant to Article 31.1 “The proficiency test is administered to verify the level of theoretical knowledge in the field of law, European standards of human rights, proficiency in the state language, analytical and practical skills
of candidates and consists of anonymous tests and practical exercises”.
94
Article 33.1.
91
Types of summative assessment are examinations, projects, portfolios, participant evaluation of the course and trainer self-evaluation. 95
Article 33.3.
46 E. SOME CONCLUDING OBSERVATIONS FOR THE REFORM OF INITIAL TRAINING IN UKRAINE 47

200. In the first place, the work experience requirement, although not one seen in all countries, 208. Fifthly, although public prosecutors may form the core of those who do the training, there
clearly has the potential to ensure that candidates not only have some maturity but also is a need to ensure that trainees are also exposed to a broader perspective of thinking and
have a greater appreciation of the operation of the legal system and its impact on individuals experience relevant to the criminal justice system. Moreover, all trainers — including those
and enterprises. This advantage would be lost if this requirement were construed to mean based in prosecution offices — need to have an appropriate formation in adult education
only experience in the criminal justice system, particularly if this was derived from work in techniques and to be willing and able to act in this capacity. Furthermore, the effectiveness
law enforcement since this would probably result in candidates having too narrow a vision of individual trainers needs to be kept under review.
of the prosecution role.
209. Trainees should thus be trained by trainers from a wide range of relevant backgrounds and all
201. A wide construction should thus be given to “work experience”, with encouragement given such trainers should have the necessary skills, time and commitment for this role, with their
to applicants who have not worked in the criminal justice system or who have done so in effectiveness being regularly evaluated.
connection with person who are accused or suspects.
210. Sixthly, the training should focus primarily on inculcating the values, outlook and skills
202. Secondly, the proficiency test provides an opportunity to establish not only the potential required to undertake the role of a public prosecutor, including a sound appreciation of all
suitability of applicants to become public prosecutors but also to establish the extent the responsibilities that this role entails.
to which they already meet the knowledge, skills and outlook required for this role and
thereby allow their progress during the training to be measured. 211. The emphasis should thus be on training in a practical context, both through the use of a
participatory methodology in the elements taken at the National Academy of Prosecutors of
203. The proficiency test should thus be used not just to determine admission to the training but as Ukraine itself and through practical stages in prosecution offices and other relevant institutions.
a tool for measuring progress during the training programme.
212. Seventhly, although there is a need for some summative assessment at the end of the training
204. Thirdly, the use of interviews to determine a person’s suitability to become a public programme, the development of trainees will also benefit from continuous assessment so
prosecutor has been seen in some of the country studies and certainly it can be a better that they can appreciate what they have achieved and what needs strengthening. The
way of judging character than a formal test. development of trainees is also likely to be assisted by the use of tutor/mentoring over the
course of the programme, providing advice that is objective but not judgmental.
205. Consideration should thus be given to the use of interviews at the admission stage and, if
necessary, seeking legislative reform to permit this. 213. The assessment methods used should thus be both continuous and summative but those acting
as tutors/mentors should not also act as assessors.
206. Fourthly, the length of training required is relatively short by comparison with that seen in
some of the country studies. It is longer than that in Bulgaria but, in substance, the junior 214. Finally, it is important that the training programme does not become inward-looking and
prosecutor appointment involves a continuation of the efforts to develop the capacities develop a narrow prosecutorial focus. This risk can be mitigated by involving persons from
of those appointed to that position and is thus comparable to the longer practical stages outside the profession in the development and implementation of the curriculum for the
required elsewhere. programme, as well as by regular external evaluation of the programme’s effectiveness in
producing well-qualified appointees to the prosecution service.
207. Consideration should thus be given to emulating the Bulgarian approach after the completion
of the training at the National Academy of Prosecutors of Ukraine and it should play a role in 215. There should thus be provision for the inclusion of persons other than public prosecutors with
supporting the more senior public prosecutors who supervise the work of the new appointees. relevant experience on a body within the National Academy of Prosecutors of Ukraine that is
responsible for curriculum development and implementation. In addition, the programme
should be subject to an external evaluation that is both regular and searching.
 Continued support to the criminal
justice reform in Ukraine
The Project is implemented by the Council of Europe
and funded by the Danish Government

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