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Office of the Prosecutor

last modified Sep 13, 2013 10:15 PM

In most (but not all) civil law countries, the Office of the Prosecutor is treated as part of the judiciary, and the general rules of transparency that apply to the judiciary apply equally to the Office of the Prosecutor. See section on Judicial Branch. In addition, a few countries (see samples on this page) have special provisions that apply to the prosecutor, reflecting the important role that the office plays in criminal prosecutions, and the fact that disclosure may implicate rights to due process and privacy of criminal defendants, as well as public interests in effective prosecutions. In most common law countries, the Office of the Prosecutor or Attorney General is treated as an executive agency.

Argentina

The Procuración General de La Nación has established that all its opinions should be made public – except those that, according to the law, cannot be published – based on the republican rule of publicity that calls for justice to be open to the public and recognizes the need for public control over government acts.[1] However, as of September 2007, only the decisions of the Procuraduría General de la Nación, and not those of the Ministerio Público Fiscal, were in fact being published, and the decisions of the Procuraduría General were published as part of database that was neither well organized nor well maintained. As of September 2007, the public could only gain access to a limited number of opinions, and only via the website.

The Procuración has established a mixed system, publicizing its opinions in full on its website, but withholding some information when information is included in a database, based on a series of exceptions, namely to protect minors, family matters and privacy; when the reserve is necessary to ensure the interests of justice; or when the files refer to secret information or are related to criminal investigations.

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Chile

The Law on the Office of the Prosecutor establishes that its public function will be transparent, in such a way as to allow and promote knowledge about its procedures and their content, as well as the reasoning for every decision.[2] The law clearly establishes that the administrative information from this body, including background information, is deemed public. Access may be denied, however, if its secret character is established by law or statute; when publicity collides with the accomplishment of the office’s functions; when the person affected by such disclosure requests that the information be withheld; when the dissemination affects the rights or interests of third parties; or when it affects national security or related interests.[3] The Regional Prosecutor is required to offer an annual public account of the activities of its office, including statistics, the use of funds, and problems.[4]

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Colombia

The law requires transparency to be a criterion in the development of functions of the Office of the Public Prosecutor. Its statute requires its administrative acts to be public, subject to exceptions established by law. Information related to investigations is also not to be disclosed.[5]

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Hungary

The public prosecutor and his office are covered by the ATI Act.

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Latvia

The Regional Court of Appeals determined that the Prosecutor General’s office was an administrative institution for purposes of the ATI Law. By the time the case was decided, however, the status of the Prosecutor General’s Office as an administrative body had already been confirmed by a law relating to the structure of government and administration.[6]

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Panama

Panama’s Access to Information Act, passed in January 2002, expressly states that its provisions are applicable to the Office of the Prosecutor in addition to the Judicial Branch. [7]

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Uruguay

In a decision of 2002, a Court of Appeals ordered the executive branch to release information related to an arrest request by Argentina concerning two former members of the military and an ex-policeman for alleged human rights abuses. The information included reports of the Public Prosecutor and the Attorney General. The Court ruled that exceptions to the principle of access to information shall be clearly stated, noting the importance of international human rights provisions, freedom of information as a means to build public opinion, and the essential character of public opinion in a democratic society.[8]

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[1] Procuración General de la Nación, Ministerio Público, Res. PGN No. 15/07, 07 March, 2007.

[2] Ley 19640, Organizational Law of the Office of the Prosecutor (Ley Orgánica del Ministerio Público) Art. 8.

[3] Ley 19640, Organizational Law of the Office of the Prosecutor (Ley Orgánica del Ministerio Público) Art. 8.

[4] Ley 19640, Organizational Law of the Office of the Prosecutor (Ley Orgánica del Ministerio Público), Art. 36.

[5] Statute of the Office of the Public Prosecutor, Art. 14.

[6] Transparency  International – Latvia (Delna) v. Prosecutor General’s Office, Judgment of January 27, 2005, Nr. AA 51-05/4 of the Regional Administrative Court. This case is discussed at greater length in the section on Law Enforcement Records.

[7] Ley No.6 que dicta normas para la transparencia en la gestión pública, establece la acción de Hábeas Data y dicta otras disposiciones, at Art. 1.8.

[8] A. Alsina c. Estado, 4 March 2002, para XVIII to XX.