Strasbourg, 10 March 2014
BUREAU OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
Report of the 20th meeting
Strasbourg, 3 - 4 February 2014
Document prepared by the Secretariat
Directorate General I – Human Rights and Rule of Law
1. The Bureau of the Consultative Council of European Prosecutors held its 20th meeting on 3 and 4 February 2014 in Rome (Italy), with Mr Antonio MURA (Italy), President of the CCPE, in the Chair.
2. The following Bureau members were also present:
- Ms Raija TOIVIAINEN (Finland), Vice-president of the CCPE;
- Mr Cedric VISART de BOCARME (Belgium);
- Ms Alessandra GIRALDI (Denmark).
The agenda is reproduced in appendix I.
II. INFORMATION PROVIDED BY THE PRESIDENT AND OTHER BUREAU MEMBERS
3. The Secretariat thanked the President of the CCPE and the General Prosecution Office at the Court of Cassation of Italy for the invitation to hold this meeting in Rome and pointed out that it had been decided to organise this meeting at the beginning of the year in the light of the CCPE's heavy workload for 2014.
4. The President of the CCPE informed the Bureau members that he had participated in two events:
· a hearing during the 65th meeting of the CDPC (Strasbourg, 2 – 5 December 2014) on the possible updating of Recommendation Rec(2000)19; at that meeting, the President had mentioned the opinion which the CCPE was tasked with drawing up in 2014, entailing a summary of international standards concerning prosecutors, which, once completed, would give a clearer idea of whether it was expedient to update the Recommendation;
· a hearing before the Committee of Ministers held on 22 January 2014, followed by a lunch hosted by the Chair of the Committee of Ministers, with the Deputy Secretary General of the Council of Europe among those in attendance.
5. The Vice-president informed the Bureau of her visit to Turkey on 22-25 October 2013 at the invitation of the European Judicial Training Network, on which she represented both the International Association of Prosecutors and the CCPE.
6. The Vice-president informed the other Bureau members of her participation in the training day for rapporteurs on gender equality and suggested that a person in charge of these matters at the Council of Europe attend the next meeting of the CCPE-GT (Strasbourg, 27-28 March 2014) to specify what was expected from a committee such as the CCPE. The Bureau instructed the Secretariat to make the necessary arrangements for this exchange of views.
7. The President of the CCPE said that the last two opinions of the CCPE had been translated into Italian and then published on the CCPE website; the publication had sparked interest among Italian law specialists outside the circle usually working with the Council of Europe. The Bureau thought that the States should be encouraged to translate the CCPE's opinions into their national languages as swiftly as possible, particularly those States currently experiencing difficulties with their judicial system.
8. The Bureau also reiterated the importance of ensuring that the opinions of the CCPE were identical in English and French. To that end, the Bureau decided that, in future, it would carry out a final proof-reading of the two versions itself.
V. ORGANISATION OF THE 9TH PLENARY MEETING OF THE CCPE (ROME, ITALY, 4 – 5 DECEMBER 2014)
9. The Bureau took note of the invitation sent to the Director General of legal affairs by the Italian Judicial Council for the Judiciary to hold the CCPE's next plenary meeting in Rome; the meeting would be preceded by an international conference on the status of the prosecutor from a European perspective.
10. The Bureau welcomed this invitation and held an exchange of views on how to organise the meeting in such a way that the conference could take place while ensuring that the CCPE had enough plenary session time to adopt an opinion of high quality.
11. The Bureau instructed the Secretariat to ensure that an official reply was sent by the Council of Europe to the Italian judicial authorities as soon as possible so that, where applicable, this important event could be scheduled.
12. The Bureau held an exchange of views on the future possibility of fulfilling its function, provided for in the terms of reference1, of bilateral assistance to States for difficulties relating to prosecutors. The exchange of views had been prompted by various requests from States addressed officially or informally to members of the CCPE.
13. The President of the CCPE told the Bureau members that he had raised the question with the Deputy Secretary General of the Council of Europe and the Chair of the Committee of Ministers, and specifically the need, given the numerous justice-related problems in the member States, to set up CCPE assistance activities that were visible and effective, along the lines of those of the Venice Commission.
14. The Bureau thought that some of these requests could not go unanswered, while stressing that the Bureau should adopt a precise procedure for dealing with these requests, which requests posed a number of difficulties:
· how could the reliability and objectivity of the alleged facts be checked?
· how could swift and effective action be taken with the resources currently available (budget, availability of CCPE members and members of the Secretariat)?
· how could endorsement for initiatives be obtained from the CCPE, which held only one meeting a year?
· what kinds of initiatives were possible (fact-finding visits, statement by the CCPE, expert legal appraisal of legislative drafts)?
15. The Bureau decided to adopt the following procedure and to write to the Committee of Ministers, stating its readiness to respond to requests for assistance received by the CCPE:
· setting up of a Task Force of 4 or 5 experts appointed from among the CCPE's members to examine the request;
· for a request not coming from a member of the CCPE, consultation of the CCPE member for the State concerned in order to assess the genuine nature of the request;
· decision taken by the Task Force (in close co-operation with the Bureau of the CCPE) on the type of action to take and the document to adopt: targeted co-operation or mere reminder of the international standards.
16. The Bureau had received information via letters received by some members of the CCPE concerning justice-related problems in Georgia but considered that, at this stage, no response was necessary, as the CCPE had not received any official communication.
17. MEDEL had informed the President of the CCPE of the alarming situation in Turkey regarding the status of the judiciary and the draft law on the High Council for Judges and Prosecutors (HCJP). Members of the HCJP had also alerted the international judicial community, including the CCPE.
18. The Bureau thought that the CCPE could either prepare a statement on Turkey which would simply reiterate the importance of respecting international standards, which appeared to be eroded in the present situation, or undertake a more in-depth analysis of the situation, examining the reforms envisaged in detail through on-the-spot visits to meet with the judicial authorities concerned. It decided, initially, to opt for a statement.
19. The Bureau decided that the situation in Montenegro, directly highlighted by the CCPE member for Montenegro, differed from that of Turkey but also required a swift response from the CCPE. It suggested targeted co-operation, to be organised rapidly by the Secretariat, which could begin with a fact-finding visit by the Task Force.
20. The Bureau examined the replies from the members of the CCPE-GT to the short questionnaire prepared by the President and the Secretariat, asking them to list the aspects to be covered in the future opinion and which documents should be used by the CCPE as the basis for preparing its "reference document".
21. To begin working effectively on the opinion, the Bureau thought it useful to consider two questions:
· what would be the added value of such a document? It had to be used by anyone who did not have the time to read the existing documents concerning prosecutors. It also had to give a few pointers as to the future outlook for the status of prosecutors;
· at whom was this document aimed? At public policy-makers, prosecutors, the judicial community and more generally anyone with an interest in justice issues.
22. The Bureau agreed that the opinion must have a short, attractive title, such as "European Charter for prosecutors" or "European standards and principles concerning prosecutors". The members of the Bureau were invited to suggest different titles and discuss the proposals.
23. The Bureau noted that there were several possible options for the form of the future document:
· Short or long text,
· principles outlined in the form of a "charter" which may be read separately, supplemented by an explanatory report,
· short text with numerous footnotes providing the necessary explanations and references to relevant ECHR case-law,
· longer text incorporating the necessary explanations but highlighting the main principles which would be rapidly identifiable.
24. It was noted that, as opposed to the Magna Carta adopted by the CCJE, the CCPE already had Recommendation Rec(2000)19, laying down the main principles concerning prosecutors. Accordingly, for the CCPE, it was not a matter of merely repeating the principles set out in the Recommendation.
25. It was suggested that a short text was more effective and that an explanatory report was not always read. One solution might be, at this stage, to prepare a set of topics and, for each one, to list the European standards that were important for the CCPE. Where the definition of prosecutor was concerned, for example, it was useful to take stock of existing definitions, as the one given in Recommendation Rec(2000)19 dated from 13 years ago and should be supplemented by the definition given in Recommendation Rec(2012)11 and the Venice Commission report in particular. Another example was the management of resources, on which Recommendation Rec(2000)19 said little; in particular, it was indispensable to point out in the new text that these resources must not be cut in times of crisis. Similarly, training had been viewed differently in 2000 compared with now: the prosecutor general now had to be able to communicate with the media and needed training for the task. Alternatives to prosecution, which were covered in CCPE opinion No. 2, were also seen differently in 2014.
26. In the light of this discussion, it was suggested that the document be presented as an update of the principles. Each principle should be covered on no more than one page, setting out the main aspects and outlining the relevant European standards. The document could be supplemented by footnotes referring to specific paragraphs of CCPE opinions, other texts and ECHR case-law.
27. The Bureau pointed out that it would have to be decided after the opinion had been discussed and adopted whether or not to suggest an update of the Committee of Ministers Recommendation, in keeping with the CCPE's terms of reference, while nevertheless noting that this text was already of very high quality.
28. In the light of the questionnaire replies, the Bureau prepared a draft document outline (see appendix II to the present document). It instructed the Secretariat to prepare a compilation of the principles, structured on that outline, on the basis of the documents mentioned in the questionnaire replies. This initial working document was to be sent to the Bureau at the beginning of March, and then to the members of the working group in mid-March so that they could submit comments before the meeting to be held on 27-28 March 2014). It also tasked the Secretariat with preparing a compilation of all the ECHR case-law concerning prosecutors.
29. The Bureau reiterated the importance, where reference documents were concerned, of ensuring that all the contributions enriching it were of high quality. The Bureau proposed to ensure that a high level of quality was maintained by checking the document's overall consistency and content at regular intervals. This would require a new Bureau meeting to be organised in September.
30. A special page on the CCPE website would be dedicated to the preparatory work on this opinion and feature inter alia all useful texts concerning prosecutors. The reference documents should also include PACE texts relating to prosecutors. The CCPE-GT would have to base its considerations on the principles set out in Council of Europe instruments as well as in other relevant instruments such as those of the United Nations or the International Association of Prosecutors.
It was also suggested that, for practical reasons, the working group's first meeting be held in Strasbourg and the second meeting in Paris (19-20 June 2014). The Bureau proposed to hold an informal meeting during the dinner held on the occasion of the working group's next meeting on 26 March, at 7.30 pm.
Appendix I - Agenda
1. Introduction and adoption of the agenda
2. Information provided by the President and other Bureau members
3. Gender equality
4. Translation of opinions
5. Organisation of the 9th plenary meeting of the CCPE
6. Bilateral assistance to States
7. Preparation of the 2014 opinion
Reference document on European norms and principles
Opinion No.9 (2014) of the CCPE
Terms of reference of the CCPE for 2014 and 2015, as adopted by the Committee of Ministers at its 1185th meeting (20-21 November 2013)
Definition and aims of this compilation
“The foundations of public prosecutors’ functions”
The aim is to adopt a reference document on the European standards and the fundamental principles governing the status of public prosecutors and the performance of their functions in the Council of Europe (CE) member countries.
It would be advisable to find an umbrella title for this document, such as “The Public Prosecutors’ Charter”.
Recommendation Rec (2000)19, which has served as a reference for all Council of Europe countries but also for many outside it, remains the essential authority for laying down the basic principles that govern the functioning of the public prosecutor’s office.
However, since 2000 the world has changed and with it the conceptions of justice and the values which it upholds. The case-law of the European Court of Human Rights (ECHR) bears witness to this development, and is to serve as a guide for defining the fundamental principles that should govern public prosecution.
The CCPE has delivered 8 opinions in various subject areas which have provided additional perspectives regarding both the status and the action of public prosecutors.
Significant new Council of Europe recommendations have appeared in the field of justice, the Venice Commission has delivered opinions of principle in the performance of its missions; other organisations of public prosecutors or international agencies have also produced major documents on the subject.
The CCPE therefore found it essential to take stock, 14 years on from the inception of Rec (2000)19, and to identify the most notable trends as regards both the status of the public prosecution department and its manner of operation or action in the Council of Europe countries.
Among the most conspicuous developments a few salient points can be noted, as the aim of the forthcoming CCPE document is to identify and make a conspectus of them for possible addition to Rec (2000)19.
As examples, attention may be drawn to:
1. Higher expectation of independence for public prosecutors. This is never attained with finality, as is still apparent from recent events in some countries. It is essential to redefine its boundaries in the light of the latest ECHR case-law.
2. It is also observed that the role of public prosecution has evolved and that it is regularly entrusted with new assignments, particularly outside the criminal justice system. It is a matter of importance to re-delineate public prosecutors’ assignments and redefine the limits and conditions of their action.
3. In its very conception, while the prosecution still constitutes a judicial authority of high importance to the functioning of the state, today it must give pride of place to service rendered to the citizen and take the appropriate measures to optimise this service, for example with regard to information for persons amenable to justice, prevention of offences, and the effectiveness of its action.
4. The action of the public prosecution department has evolved over the last few years. Whereas it chiefly had a retributive purpose, alternatives to criminal proceedings have been developed in most CE countries, thereby compelling the prosecution to diversify its action and to promote educative and not solely retributive measures.
5. The working methods of the prosecution have sometimes been complained of by persons amenable to justice, compelling it to direct its concerns towards stronger insistence on respect for persons and victims in particular, and on greater respect for the rights of the defence.
6. The status of the public prosecution department has considerably evolved towards increased rights, but also obligations and responsibilities, for public prosecutors.
7. Greater stringency regarding quality of the public prosecutor’s action has prompted initiatives and new demands as to recruitment, training and appraisal of public prosecutors.
8. Economic recession and reduction of available resources have weakened public institutions, not excepting the judicial sector. More rigorous management of courts has often been imposed, necessitating the performance of more extensive tasks and heavier managerial responsibilities for public prosecutors.
9. Today’s communication society and development of new modern media offers a new working context for public prosecutors who have had to build greater communication towards the public and adapt their working methods.
10. Finally, crime has evolved, owing in particular to its internationalisation. This reality has compelled public prosecution departments to develop international relations, identify faster communication channels and co-operate more intensively with other countries.
The members of the working group are invited, on the basis of the questionnaire sent out, to examine each of its items and possibly to propose the drafting of a text which outlines a foundation for the public prosecutor’s functions.
Definition of a prosecutor
Status and functions in criminal proceedings and outside criminal proceedings (civil, social, administrative, prison and other)
Status of prosecutors
Relations with all state powers and institutions
Rights and duties of prosecutors
Ethics, conduct and accountability of prosecutors
Safeguards provided to prosecutors for carrying out their functions
Origin of the safeguards (constitution, law)
Independence of prosecutors and its guarantees
Hierarchy; assignment and re-assignment of cases; instructions; relations with chief prosecutors
Conditions of service:
- Incompatibility, dismissal, etc.
Guarantees in proceedings:
- in disciplinary proceedings
- in any other proceedings (e.g. criminal, civil or administrative)
Freedom of expression and association of prosecutors
Protection of persons (prosecutors, family, etc.)
Relations with other actors and institutions
Relations with judges and lawyers
Relations with police and other law enforcement agencies
Relations with prison administration
Relations with defendants, suspects of crime, citizens/civil society, victims of crime
Relations with media
Relations with executive and legislative powers and institutions
Evaluation of professional skills
Transfer and mobility
Appointment of heads of offices
Organisation of prosecution services
Management of the means
Alternatives to prosecution
· European Convention on Human Rights
· All relevant case-law of the European Court of Human Rights concerning prosecutors
· Recommendation of the Committee of Ministers Rec(2000)19 on the role of public prosecution in the criminal justice system
· Recommendation of the Committee of Ministers Rec(2012)11 on the role of public prosecutors outside the criminal justice system
· Recommendation Rec(2000)10 of the Committee of Ministers to Member states on codes of conduct for public officials
· Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings
· 8 Opinions adopted by the CCPE (including the Bordeaux Declaration, elaborated together with the CCJE)
· The Venice Commission’s “Report on European Standards as regards the Independence of the Judicial System: Part II – The Prosecution Service” (adopted in December 2010)
· Relevant documents adopted by the Conferences of the Prosecutors General of Europe (CPGE) including the “Budapest Guidelines” (i.e. the European guidelines on ethics and conduct for public prosecutors, adopted in 2005
1 The CCPE shall "(…)
(iii) provide targeted co-operation at the request of member States, CCPE members, prosecutorial bodies or relevant associations of prosecutors, to enable States to comply with Council of Europe standards concerning prosecutors;
(iv) prepare texts or opinions concerning the specific situation of prosecutors at the request of the Committee of Ministers or other bodies of the Council of Europe such as the Secretary General or the Parliamentary Assembly."