Strasbourg, 3 August 2009 CCPE-GT(2009)9

WORKING PARTY OF

THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

Report of the 4th meeting

Bordeaux, 1-2 July 2009

Secretariat memorandum
prepared by the Directorate General of Human Rights and Legal Affairs


The CCPE-GT and the CCJE-GT held two half-days joint meeting to co-ordinate their work on the drafting of the Opinion No. 4 on “the relationship between judges and prosecutors”.

I. INTRODUCTION

1. The Working Party of the Consultative Council of European Prosecutors (CCPE-GT) held its 4th meeting from 1 to 3 July 2009 in Bordeaux, in the premises of the “Ecole Nationale de la Magistrature”. The meeting was chaired by Mr Olivier De Baynast (France). The joint meeting was co-chaired by Mr Orlando Afonso (Portugal, CCJE). The list of participants appears in Appendix I and the agenda in Appendix II to this report.

II. PREPARATION OF THE CCJE – CCPE JOINT OPINION No. 4 ON THE RELATIONSHIPS BETWEEN JUDGES AND PROSECUTORS FOLLOWING THE CONFERENCE DISCUSSIONS AND CONCLUSIONS

2. The first European conference of judges and prosecutors with the topic “The exercise of the missions of judges and prosecutors: complementarity and autonomy?” which was held in Bordeaux from 30 June to 1 July, revealed an important number of areas and ways for the judges and prosecutors to cooperate together. In view of the drafting of the CCPE – CCJE joint opinion and following the discussions and conclusions of the conference, the CCPE-GT and the CCJE-GT members during their joint meeting agreed that the joint opinion will contain:

    A. A declaration called the “Bordeaux Declaration on “Judges and prosecutors in a democratic state” (see bellow Appendix III) ; and
    B. An explanatory note following the structure adopted during the 3rd meeting of the CCPE working party.

3. It was also agreed that the Presidents of the CCJE and CCPE will continue to work on a final version of the explanatory note, in particular bringing it closer to the principles set out in the Declaration and which will be put at the disposal of the members by October 2009. The text will be adopted by the joint plenary meeting which will take place in Ljubljana, Slovenia, on 18 – 20 November 2009.

APPENDIX I

AGENDA

1. Opening of the meeting

2. Adoption of the agenda

3. Communication by the President, members of the Bureau and the Secretariat

4. Preparation of the CCJE – CCPE joint Opinion No.4 on the relationships between judges and prosecutors following the Conference discussions and conclusions

5. Discussion of the workplan of the CCPE for the second half of the year 2009 and conclusions

6. Any other business

APPENDIX II

LIST OF PARTICPANTS

DENMARK / DANEMARK

Ms Alessandra GIRALDI, Deputy Chief Prosecutor, Copenhagen

FINLAND / FINLANDE

Ms Raija TOIVIAINEN, State Prosecutor, Head of the International Unit

FRANCE

(Chair/Président CCPE) (CCPE-BU)

M. Olivier de BAYNAST, Procureur Général près de la Cour d’Appel d’Amiens, Palais de justice

GERMANY / ALLEMAGNE (CCPE-BU)

Mr Harald RANGE, Generalstaatsanwalt, Generalstaatsanwaltschaft Celle

HUNGARY / HONGRIE (CCPE-BU)

Mr Peter POLT, Chief Prosecutor, Head of Criminal Trial Cases, Office of the Prosecutor General

IRELAND / IRLANDE (CCPE-BU)

M. Peter McCORMICK, Office of the Director of Public Prosecutors

ITALY / ITALIE

M. Antonio MURA, Procureur de la République, Corte di Cassazione, Cour Suprême de Cassation

PORTUGAL

(Vice-Chair/Vice-Président CCPE) (CCPE-BU)

M. João Manuel DA SILVA MIGUEL, Procureur Général Adjoint, Procuradoria-Geral da República

RUSSIAN FEDERATION / FÉDÉRATION DE RUSSIE

Mr Alexander Grigorievich ZVYAGINTSEV, Deputy Prosecutor General, Office of the Prosecutor General

Mr Vladimir ZIMIN, First Deputy Chief, Prosecutor General’s Office, the General Department of International Legal Co-operation

SPAIN / ESPAGNE

Mr Antonio VERCHER NOGUERA, Deputy Attorney General, Fiscalia General del Estado,

TURKEY/ TURQUIE

Mr Ahmet TASYURT, Public Prosecutor, Court of Cassation, Nevzat Tandogan

***

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

Directorate General of Human Rights and Legal Affairs

/ Direction Générale des Droits de l’Homme et des Affaires Juridiques

Mrs Anna Capello, Secretary of the CCPE, Head of Justice Division, Secrétaire du CCPE, Chef de la Division de la Justice

Ms Ana Rusu, Co-Secretary of the CCPE, Division of Justice, Co-Secrétaire du CCPE, Division de la Justice

Mme Muriel DECOT, Secretary of the CCJE, Secrétaire du CCJE

M. Jean-Pierre GEILLER, Documentalist

Mme Emily WALKER, Assistant / Assistante

APPENDIX III

BORDEAUX DECLARATION

“JUDGES AND PROSECUTORS IN A DEMOCRATIC SOCIETY”1

2 JULY 2009

(Draft)

The Consultative Council of European Judges and the Consultative Council of European Prosecutors, at the request of the Committee of Ministers of the Council of Europe to provide an opinion on relationships between judges and prosecutors, agreed on the following:

    1. It is in the interest of society that the rule of law be guaranteed by the impartial and effective administration of justice. Public prosecutors and judges shall ensure, at all stages of the proceedings, that individual rights and freedoms, including those of victims of crime, are guaranteed, and public safety is protected, always respecting the rights of the accused to a full defence and to receive a fair trial before an impartial and independent judge.

    2. In member States where the Prosecution Service has a number of competences outside the criminal law field, the principles mentioned herewith apply to all these functions, (mutatis mutandis). (Proposal to move this paragraph at the end of the Declaration, after the current paragraph 12).

    3. The fair administration of justice requires that there shall be equality of arms between prosecution and defence, as well as respect for the independence of the court, the principle of separation of powers and of the binding force of final court decisions.

    4. The proper performance of the distinct but complementary roles of judges and public prosecutors is a necessary guarantee for the fair and impartial administration of justice. Judges and public prosecutors must both enjoy independence in respect of their functions and also be independent from each other.

    5. The role of judges – and, where applicable, of juries – is to adjudicate cases properly brought before them by the prosecution service. Judges’ independence and impartiality are based, in particular, on freedom from any undue influence by the prosecution or defence.

    6. The enforcement of the law, the equality of arms and, where applicable, the discretionary powers of the prosecution at the pre-trial stage require that the status of public prosecutors be guaranteed by law at the highest possible level, in a manner analogous to that of judges. They shall be independent and autonomous in their decision-making and carry out their functions fairly, objectively and impartially. Adequate organisational, financial, material and human resources should be put at their disposal.

    7. The CCJE and the CCPE refer to the consistent case-law of the European Court of Human Rights in relation to articles 5.3 and 6 of the Convention. In particular, they refer to the decision in the case Schiesser v. Switzerland, whereby the Court recognised the requirement of independence from the executive and the parties on the part of any “officer authorised by law to exercise judicial power” , but which does not exclude subordination to higher independent judicial authority. Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions of a financial nature.

    8. For an independent status of prosecutors, some minimal requirements are necessary:

- that their position and activities are not subject to influence or interference from any source outside the prosecution service itself.

- that their recruitment, career development, security of tenure [including mobility, irremovability] and remuneration be safeguarded through guarantees provided by the law .

    9. In a state governed by the rule of law, and in a hierarchical prosecution structure, effectiveness of prosecution is, regarding the public prosecutors, strongly linked with transparent lines of authority, accountability, and responsibility. Directions to individual prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria. Any review according to the law of a decision by the prosecutor to prosecute or not to prosecute should be carried out impartially and objectively, either within the prosecution service itself or by a judicial authority. In any case, due account shall be given to the interests of the victim.

    10. The sharing of common legal and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice. Training, including management training, is a right as well as a duty for judges and public prosecutors. Where appropriate, joint training for public prosecutors and judges, as well as for lawyers, is important for the achievement of a justice of quality. Such training should be organised on an impartial basis and regularly and objectively evaluated.

    11. The interest of society also requires that the media are provided with the necessary information to allow them to inform the public on the functioning of the justice system, with due regard in particular to the presumption of innocence of the accused, to the right to a fair trial, and to the right to private and family life. Both judges and prosecutors should draw up guidelines or a code of good practice for each profession on its relations with the media.

    12. Both public prosecutors and judges are key players in international cooperation in criminal matters. The enhancement of mutual trust between judicial authorities of different countries is needed. In this context it is imperative that judges have available to them transparent and full information gathered by public prosecutors through international cooperation, so that an effective protection of human rights and fundamental freedoms may be ensured.

1 This Declaration is accompanied by an Explanatory Note.



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