Strasbourg, 5 March 2010 CCPE-GT(2010)2

    WORKING GROUP OF THE
    CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

    (CCPE-GT)

    Report of the 6th meeting

    Strasbourg, 24 – 26 February 2010

    Secretariat document, prepared by the

    Directorate General of Human Rights and Legal Affairs

    I. INTRODUCTION

    1. The Working Group of the Consultative Council of European Prosecutors (CCPE-GT) held its 6th meeting in Strasbourg from 24 to 26 February 2010. The meeting was chaired by Mr Olivier de BAYNAST (France).

    2. The agenda and the list of participants are set out in Appendices I and II respectively.

    II. Communication by the President of the CCPE, Bureau members and the Secretariat

    3. The President welcomed the productive co-operation between the CCPE and the CCJE, which had resulted in the adoption in 2009 of the joint opinion entitled “Judges and prosecutors in a democratic society”. He and the President of the CCJE, Ms Julia LAFFRANQUE (Estonia), had taken part in an exchange of views with the Ministers’ Deputies on 20 January 2010, at which they had been made aware of member states’ very strong support for their work.

    4. The President said that it was for each member of the CCPE to circulate and explain the opinion in his or her own state.

    III. Preparation of CCPE joint Opinion No. 5 on the principles of public prosecution as regards juvenile justice

    5. The President thanked CCPE members for replying in such large numbers (34) to the questionnaire on the principles of public prosecution as regards juvenile justice (see the compilation of replies: document CCPE-GT(2010)1). It was pointed out that, as it had been decided not to ask a scientific expert to prepare the preliminary draft opinion, each member of the CCPE-GT who was asked to prepare a part of the draft opinion would have to make his or her own analysis of the replies to the questionnaire.

    6. The CCPE-GT set the following priority aims for those preparing the draft opinion:

    · prepare a concise and useful document;

    · cover all minors, those to be punished and those to be protected, i.e. offenders, victims, witnesses, migrants, etc;

    · ensure that the opinion conveys a clear message about criminal policy and the role of prosecutors vis-à-vis minors: the emphasis should be on prevention rather than punishment;

    · focus exclusively on the role of the prosecutor in juvenile justice, and, in particular, examine the resources that should be available to prosecutors to improve the circumstances of children who have dealings with the judicial system (as victims, offenders or in some other capacity), and not deal with juvenile justice in general terms;

    · in accordance with the terms of reference, prepare Opinion No. 5 in the light of Resolution No. 2 on child-friendly justice, adopted by the 28th Conference of European Ministers of Justice (Lanzarote, October 2007) (see Appendix III to this document);

    · familiarise themselves with all the work currently being done in the sphere of juvenile justice, particularly at the Council of Europe, with a view to playing a complementary role and avoiding duplication; a particularly useful tool could be Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures;

    · study the relevant case-law of the European Court of Human Rights;

    · make careful use of terminology in French and in English (minor/juvenile/young person, etc), preferably using the word “jeunesse” (young persons) in French where possible and “juveniles” in English.

    7. Ms S CAJOLI, Secretary of the Group of Specialists on child-friendly justice (CJ-S-CH) presented the CCPE-GT with the 4th draft of the Council of Europe guidelines on child-friendly justice, which should be adopted by the Committee of Ministers towards the end of 2010, at the same time of year as Opinion No. 5. It was agreed to co-ordinate the two activities. The Group of Specialists would next meet from 26 to 28 April, and Mr H Range (Germany) would be the CCPE’s representatative at that meeting.

    8. The Working Group examined the outline prepared by the CCPE Bureau, in which it was suggested that minors and public prosecutors should be dealt with separately. It was felt that this type of structure was likely to lead to repetition when, for example, the public prosecutor’s actions were the same whether the juveniles concerned were offenders or victims. Consequently, the CCPE-GT preferred the structure set out below:
    1) Introduction
    2) Public prosecutors and the prevention of offences committed by and against minors

    3) Public prosecutors and minors, before and during trials and when decisions are being enforced

    4) The organisation of public prosecution departments and the kind of person needed to carry out public prosecutors’ duties

    5) Summary of recommendations

    9. On this basis, the Working Group prepared a detailed outline (see Appendix IV to this document) and appointed a drafting committee (A Boskovic (Montenegro), A Giraldi (Denmark), P Polt (Hungary), A Tasyurt and S Kaymaz (Turkey), C Visart de Bocarme (Belgium), J Zezulova (Czech Republic), V Zymin (Russian Federation)).

    10. Mr Range (Germany) was asked to co-ordinate the work of the drafting committee according to the following timetable:
    · 6 April 2010: Contributions to be sent in.
    · Mid-May: Preparation by Mr Range of an initial draft based on these contributions.
    · End of May: Translation, consultation of the Working Group.
    · 15 June: Deadline for the Working Group’s comments on the first draft and preparation by Mr Range and the Secretariat of a second draft in the light of these.
    · 23 and 24 June 2010: 2nd meeting of the CCPE-GT.
    · Summer: Consultation of CCPE members on the second draft.
    · September: Examination by the Working Group of CCPE members’ comments.
    · October: Preparation of the third draft by Mr Range and the Secretariat in the light of CCPE members’ comments.
    · 17-19 November 2010: Plenary CCPE meeting and adoption of the draft.

    11. It was agreed that the contributions at the various stages of preparation of the draft should be sent to the Secretariat in English or French, but that e-mail exchanges between the members of the drafting committee and the Secretariat would be in English.

    IV. Preparation of the CCPE’s opinion for 2011 on the European Prison Rules of the Council of Europe

    12. Having discussed the theme of Opinion No. 6, to be prepared for 2011, the Working Group stressed at this early stage how important it was to define the scope of the subject and recommended that the work should focus specifically on relations between public prosecutors and prison authorities, and relate to prison only as the possible place of detention. Mr Peter Polt (Hungary) was asked to prepare a questionnaire on the theme of the opinion by October 2010, to be adopted by the CCPE at its next plenary meeting.

    13. The Working Group highlighted the need to work in consultation with the European Committee on Crime Problems (CDPC) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which had more information on the application of the European Prison Rules.

    14. The Secretariat informed the Working Group of the possibility, in 2011, during the Turkish Chairmanship of the Committee of Ministers, of holding a conference in Turkey in co-operation with the CDPC on prison rules and directors of prison administration.

    V. Celebration of the 10th anniversary of Recommendation Rec(2000)19

    15. As part of the celebration of the 10th anniversary of Rec(2000)19, each member was asked to help to promote the Recommendation at his or her own level. CCPE members were invited to notify the Secretariat of events relating to public prosecutors in their own countries during 2010 at which it would be possible to present Recommendation Rec(2000)19.

    16. To make Recommendation Rec(2000)19 better known, the Working Group raised the idea of posting it on the Intranet sites of national public prosecutors’ departments, as several member states had already done.

    17. Another suggestion endorsed was that of commissioning a scientific expert to carry out an impact study, which would give an accurate picture of the extent to which the Recommendation was known and implemented in the member states. An impact study of this type was a prerequisite for any discussion of the possibility of revising or updating the text. Who to consult was still an open question, however, and it was proposed that each CCPE member should identify potential contacts (such as prosecutors, parliaments, training institutes, government departments, professional organisations, judicial service commissions and bar associations). The questionnaire could also be posted on the CCPE site with an open invitation to reply.

    18. At international level, a CCPE representative could present the Recommendation at the next annual conference of the International Association of Prosecutors (IAP), which was to be held in the Netherlands in 2010.

    VI. Co-operation with other Council of Europe bodies

    19. The Secretariat gave an overview of the activities to which the CCPE had contributed, including work with the European Committee on Legal Co-operation (CDCJ) on a possible draft recommendation on the role of prosecution services outside the criminal law field and the draft Council of Europe guidelines on child-friendly justice (see paragraph 7 above) and with the Parliamentary Assembly of the Council of Europe (PACE) on Recommendation 1896 (2010) on Judicial corruption. It referred to the report of the 12th Bureau meeting (document CCPE-BU(2010)2) for the relevant CCPE Bureau decisions.

    VII. Other business

    20. The Working Group decided to change the date of its next meeting, as proposed by the Bureau. It would be held on 23 and 24 June 2010 (over two full days) instead of from 15 to 17 September 2010, to give all CCPE members more time to comment on the draft of Opinion No. 5, which would be prepared by the CCPE-GT after its second meeting.

    APPENDIX I
    AGENDA / ORDRE DU JOUR

    1. Opening of the meeting / Ouverture de la réunion

    2. Adoption of the agenda / Adoption de l’ordre du jour

    3. Communication by the President, members of the Bureau and the Secretariat / Communication du Président, des membres du Bureau et du Secrétariat

    4. Preparation of the CCPE joint Opinion No.5 on the principles of public prosecution as regards juvenile justice / Préparation de l’Avis n°5 sur les principes d’action publique en matière de justice des mineurs

    5. Discussion of the overall working programme for 2010 / Discussion du programme de travail général pour 2010

    § State of the implementation of the Recommendation 2000(19) in view of the celebration of its 10th anniversary / L’état de la mise en œuvre de la Recommandation 2000(19) à la lumière de la célébration de son 10ème anniversaire

    § Reflection on the relationship between prosecutors and prison administration (task for 2011) / Réflexion sur les relations entre les procureurs et l’administration pénitentiaire (tâche pour 2011)

    § Co-operation with the European Committee of Legal Co-operation (CDCJ) and with the Parliamentary Assembly of the Council of Europe (PACE) / Coopération avec le Comité européen de coopération juridique (CDCJ) et avec l’Assemblée parlementaire du Conseil de l’Europe (APCE)

    6. Any other business / Divers

    APPENDIX II

    LISTE DES PARTICIPANTS

    BELGIUM / BELGIQUE

    M. Cedric VISART de BOCARME, Procureur Général de Liège, LIEGE

    CZECH REPUBLIC / REPUBLIQUE TCHEQUE

    Ms Jana ZEZULOVA, Public Prosecutor, Supreme Public Prosecutor’s Office, Analytic and Legislative Department, BRNO

    DENMARK / DANEMARK

    Ms Alessandra GIRALDI, Deputy Chief Prosecutor, COPENHAGEN

    FINLAND / FINLANDE

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

    FRANCE

    M. Olivier de BAYNAST, Procureur Général près de la Cour d’Appel d’Amiens, AMIENS (President of the CCPE / Président du CCPE)

    GERMANY / ALLEMAGNE

    Mr Harald RANGE, General Prosecutor, CELLE (Member of the Bureau / Membre du Bureau)

    HUNGARY / HONGRIE

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

    ITALY / ITALIE

    M. Antonio MURA, Deputy Prosecutor General of the Supreme Court, ROME (Member of the Bureau / Membre du Bureau)

    MONTENEGRO

    Ms Ana BOSKOVIC, Assistant for International Cooperation, Supreme State Prosecutor's Office, PODGORICA

    PORTUGAL

    M. João Manuel DA SILVA MIGUEL, Procureur Général Adjoint, LISBON (Vice President of the CCPE / Vice-Président CCPE)

    RUSSIAN FEDERATION / FÉDÉRATION DE RUSSIE

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

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

    Ms Olga TOUMBROUKAKI, interpreter

    SPAIN / ESPAGNE

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

    Apologised / excusé

    TURKEY / TURQUIE

    Mr Ahmet TASYURT, Public Prosecutor, Court of Cassation, GANKAYA / ANKARA

    Mr. Seydi KAYMAZ,   Public Prosecutor, Court of Cassation, GANKAYA / ANKARA

    ***

    COUNCIL OF EUROPE’S SECRETARIAT /

    SECRETARIAT DU CONSEIL DE L’EUROPE

    Directorate General of Human Rights and Legal Affairs

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

    E-mail : ccje@coe.int

    Fax : +33 (0) 88 41 37 43

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

    Tél: +33 (0)3 90 21 44 55, E-mail : muriel.decot@coe.int

    Mme Christel SCHURRER, Co-Secretary of the CCJE, Co-Secrétaire du CCJE

    Tél : + 33 (0)9 21 56 12, E-mail : christel.schurrer@coe.int

    Mme Emily WALKER, Assistant / Assistante,

    Tel. +33 (0)3 90 21 48 39, E-mail: emily.walker@coe.int

    ***

    INTERPRETERS / INTERPRÈTES

    Mme Christine TRAPP-GILL

    Mme Christine FARCOT

    M. Nicolas GUITTONNEAU

    M. Didier JUNGLING

    APPENDIX III

    28th Conference of the European Ministers of Justice

    (Lanzarote, Spain, 25-26 October 2007)

    RESOLUTION No. 2

    on child-friendly justice

    THE MINISTERS participating in the 28th Conference of the European Ministers of Justice (Lanzarote, 25-26 October 2007),

      1. Having regard to the report of the Minister of Justice of Spain on “Emerging issues of access to justice for vulnerable groups, in particular: migrants and asylum seekers, children, including children perpetrators of crime”, and welcoming the contributions made by other delegations;

      2. Having discussed access to justice for children, including children perpetrators of crime;

      3. Having regard in particular to the European Convention on Human Rights, the United Nations Convention on the rights of the child and its optional protocols, the European Convention on the exercise of children’s rights and the Council of Europe Recommendations concerning juvenile delinquency;

      4. Welcoming the results achieved so far by the Council of Europe programme “Building a Europe for and with children” and encouraging the Council of Europe to continue with this important work and noting in particular the results of the Conference on “International Justice for Children” (Strasbourg, 17 and 18 September 2007);

      5. Underlining the importance of the recent Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse;

      6. Welcoming the drafting of European Rules for juvenile offenders subject to community sanctions or measures or deprived of their liberty;

      7. Recognising that the best interests of children are a primary consideration;

      8. Acknowledging the need to provide and facilitate children’s access to effective remedies, to mediation and to court proceedings, in order for their rights to be fully respected and promoted including through the enforcement of decisions and judgments;

      9. Convinced that children’s participation, as appropriate in judicial proceedings in which they are involved, is an important element of a modern and fair justice system where children’s views, needs and concerns should effectively be taken into account;

      10. Aware of the necessity to establish measures and safeguards to reduce the negative impact of, and to protect children from suffering harm when encountering the justice system;

      11. Noting that special attention and guarantees are required for child victims or witnesses of crime to protect their welfare and prevent them from repeat victimisation by inappropriate judicial procedures;

      12. Aware that the development of a secure and friendly environment for children involved with the justice system, with specially trained persons and efficient procedures, reduces the harm suffered by children and enhances the efficiency of justice;

      13. Underlining that alternatives to custody should be developed for children perpetrators of crime and that, where deprivation of liberty is absolutely necessary as a measure of last resort, the conditions and regime of detention should take into account their specific needs as children;

      14. Underlining in particular that children should be detained separately from adults, including in cases of preventive detention, unless this is considered to be against the best interests of the child;

      15. Underlining that the Memorandum of Understanding is now a new basis for co-operation between the Council of Europe and the European Union for any activity undertaken in this matter;

      16. Referring to the Declaration and Action Plan adopted during the Third Summit of Heads of State and Government of the Council of Europe, in particular Chapter III.2 on “Building a Europe for children”.

    ***

      17. RECALL the particular vulnerability of children and the necessity to ensure respect for their rights and attention to their specific needs and concerns in all aspects of the justice system;

      18. CALL UPON member states to respect the principle, in all justice matters involving children, that the best interests of children shall be a primary consideration;

      19. CALL UPON states to become parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse, and those states which have not yet done so to become parties to the Council of Europe Convention on action against trafficking in human beings, the European Convention on the exercise of children’s rights and the Convention on cybercrime;

      20. INVITE the Committee of Ministers to promote and encourage the implementation of the above-mentioned instruments and to appoint a thematic co-ordinator on children;

      21. ENCOURAGE the relevant Council of Europe bodies to finalise as soon as possible the European Rules for juvenile offenders subject to community sanctions or measures or deprived of their liberty;

      22. AGREE on the importance of taking measures to develop child-friendly justice;

      23. INVITE the Committee of Ministers to entrust the European Committee on Crime Problems (CDPC), the European Committee on Legal Co-operation (CDCJ), the Steering Committee for Human Rights (CDDH) as well as the European Commission for the efficiency of justice (CEPEJ) in co-operation with other competent bodies of the Council of Europe, to:

        a. examine the access and the place children have prior to, during and after judicial proceedings;

        b. examine the way in which the views of children can be taken into account during such proceedings;

        c. examine ways of improving the manner in which authorities provide information to children on their rights and access to justice, including to the European Court of Human Rights;

        d. gather information on child-friendly procedures implemented in member states;

        e. prepare elements for European guidelines for child-friendly justice;

      24. ASK the Secretary General of the Council of Europe to report on the steps taken to give effect to this Resolution, on the occasion of their next Conference.

APPENDIX IV

Structure of the Opinion No. 5 as agreed by of the CCPE-GT

    I. Introduction

    A. Main relevant guidelines/definitions concerning criminal justice involving juveniles (in particular stated in the international corpus juris) (C. VISART DE BOCARME)

    · Aims of the criminal policy for juveniles: education should be preferred to sanction (by mediation, “rappel à la loi”, etc.), reducing the delinquincy

    · Should justice (prosecutor or others?) be more present for juveniles?

    · Different and new approach of the Rights of the juvenile: evolution towards the Rights of the juvenile within his family

    · Lacuna of the daily functionning of the justice system in the justice of juveniles

    · Definition of juveniles offenders/young adults offenders, etc. (Cf Rec (2008)11 and Rec(2003)20).

    B. Compilation of relevant texts and case-law, namely: (SECRETARIAT)

    · Declaration of Lanzarote

    · Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse  (CETS 201)

    · ECHR (articles 3 and 6) and case law of the Court (the large situation facing the juvenile justice system, seeing as defined by the subject, eg Mubilanzila Mayeka Kaniki Mitunga v. Belgium case No. 13178/03)

    · Recommendation(2000)19

    · Other relevant texts (Recommendations, European Prison Rules, etc.) of the Council of Europe concerning justice involving juveniles

    · UN Convention on the Rights of the Child and other relevant UN documents

    · Rules of the International Criminal Court (in particular for juveniles witnesses)

    · 7th Conference of European General prosecutors (Moscow, 2006)

    C. Scope (H. RANGE)

    · Focus on the role of the prosecutor in the field of juvenile justice. Opinion should not deal with juvenile justice in general.

    · All offences will be dealt with.

    · Opinion will concern:

    - Juveniles offenders

    - Juveniles victims

    - Other juveniles: Juveniles involved in any procedure (witnesses, etc.) who should be protected/defended, juveniles migrants

    II. The prosecutor and the crime prevention for juveniles (offences committed by and against juveniles) (C. VISART DE BOCARME AND V. ZIMIN)

    · Role of the prosecutor concerning prevention and protection

    · Prevention can also have the form of co-operation with other institutions (social services, protection services, ombudsman on juveniles, etc.)

    · Importance of prevention in order to avoid delinquincy

    · Prevention items contained in the general criminal policy

    · The prosecutor as legal adviser for juveniles (and parents) concerning new forms of juvenile delinquincy (Happy slapping, massive unlawful download, etc.)

    III. The prosecutor and the juvenile before, during the trial and for the enforcement

    · Balance in the work of the prosecutor to protect various interests (society in one hand, juveniles in the other hand)

    A. Before the trial (A. GIRALDI)

    · Is there a specific modalities for the prosecutor to exercise his discretional power /the legality principle when juveniles involved?

    · Alternatives to prosecution

    · Intervention of professionals for specific questions: which professionals, level of need for juveniles, external or internal assistance

    · Supervision of investigation services activities

    · Cases adults/juveniles: coordination with prosecutors in charge of adults and prosecutors in charge of juveniles

    · Technical means (material for anonymity, etc.) and experts (psychologist, etc.) for prosecutors

    · Role of the prosecutor and timeframes of procedure where a juvenile is involved

    · Detention of juveniles

    · Relationship with press

    B. During the trial (A. GIRALDI)

    · Specific measures during the trial: defense rights, fair trial, participation of the juvenile to hearing, in camera hearing, special court rooms, assistance of psychologist (important as it is often the first contact between the prosecutor and the juvenile)

    · Role of the prosecutor in the choice of the penalty (promotion of educational measures to the detriment of repressive measures) (First offenders juveniles/ Recidivist juveniles)

    · Effectiveness of measures - educational or safety - that can be requested by the prosecutor (lack of space in juvenile detention buildings, no care facilities available etc.)

    · Right of appeal of the prosecutor

    · Relationship with press

    C. Enforcement of the decision (P. POLT)

    · Reference to the different national systems (in some systems the prosecutor has no role concerning enforcement, judges or probation are competent)

    · Supervision of services implementing the measures imposed

    · Detention / Imprisonment after trial

    · Role of the prosecutor in case of a request of released on parol

    · Juvenile prisons must be known to the prosecutor (visit etc.), the établisserments hosting juveniles, staff of these institutions

    D. Role of the prosecutor after the juvenile left the prison (P. POLT)

    · Role of the prosecutor after the juvenile left the prison (housing, employment, etc.) to prevent recurrence

    IV. The prosecutor and the juvenile in the non criminal justice (P. POLT AND V. ZIMIN)

    · Involvment of the prosecutor each time the juvenile interests are concerned

    · Protection measures (initiative)

    · The role of the prosecutor in family law

    · The prosecutor and the juvenile migrant

    V. Which organisation of prosecution services and which prosecutors for these missions ?

    A. Organisation of the work of Prosecution Services (A.TASYURT AND S. KAYMAZ)

    · Adoption of guidelines or best practices concerning the work of prosecutors with juveniles

    · Persons (attached to the prosecutor or to an administrative institution) in charge of juveniles shoud have a specific training and specialisation.

    · Coordination of the work of these services with the work of the prosecutor

    · Existence of a specialised staff?

    · Sufficient means (financial, technical and human ressources)

    B. Specialisation and training of prosecutors (A. BOSKOVIC)

    · Shall the prosecutor receive a specific training?

    · Content of specialisations

    C. Selection and appointment of prosecutors (J. ZEZULOVA)

    VI. Synthesis of recommendations (H. RANGE)



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