The Prosecution of Public Figures and the Separation of Powers: Confusion within the Executive Branch - a Conceptual Framework

25 Pages Posted: 13 May 2004

See all articles by Anne van Aaken

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Eli Salzberger

University of Haifa - Faculty of Law

Stefan Voigt

University of Hamburg - Institute of Law & Economics; CESifo (Center for Economic Studies and Ifo Institute)

Abstract

Criminal investigation and prosecution of politicians, top civil servants and other public figures are topics frequently discussed in the media. The nature of the investigating or prosecuting authority varies between countries - from the general public prosecutor, through magistrates to independent counsels or parliamentary investigation commissions. This paper analyzes the role and status of public prosecutors within the separation of powers-concept. Prosecutors are usually part of the executive and not the judicial branch, which implies that they do not enjoy the same degree of independence as judges, and are ultimately subordinated to the directives of the minister of justice or the government. Conflicts of interest may hence arise if members of government can use the criminal process for their own or partisan interests. The incentives of public prosecutors in different jurisdictions are compared.

Keywords: Separation of Powers, Public Prosecution, Government Offences, Positive Constitutional Economics

JEL Classification: H11, K40, K42

Suggested Citation

van Aaken, Anne and Salzberger, Eli M. and Voigt, Stefan, The Prosecution of Public Figures and the Separation of Powers: Confusion within the Executive Branch - a Conceptual Framework. Constitutional Political Economy, Vol. 15, No. 3. Available at SSRN: https://ssrn.com/abstract=545322

Anne Van Aaken

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

Eli M. Salzberger

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel
972-4-8240005 (Phone)
972-4-8240681 (Fax)

Stefan Voigt (Contact Author)

University of Hamburg - Institute of Law & Economics ( email )

Johnsallee 35
Hamburg, 20148
Germany
+49-40-428385782 (Phone)
+49-40-428386794 (Fax)

CESifo (Center for Economic Studies and Ifo Institute)

Poschinger Str. 5
Munich, DE-81679
Germany

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