Strasbourg 24 May 2012

CCPE-GT(2012)6

WORKING GROUP OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

Report of the 10th meeting

Strasbourg, 11 and 12 April 2012

Secretariat document prepared by the

Directorate General of Human Rights and Rule of Law

I. INTRODUCTION

1. The Working Group of the Consultative Council of European Prosecutors (CCPE-GT) held its 8th meeting in Strasbourg on 11 and 12 April 2012. The meeting was chaired by Mr João Manuel da SILVA MIGUEL (Portugal).

2. The agenda and list of participants are reproduced in Appendices I and II respectively.

II. PREPARATION OF OPINION No. 7 ON THE MANAGEMENT OF THE MEANS OF PROSECUTION SERVICES

3. The Chair thanked Ms Gabriela SCUTEA (Romania) for having prepared a questionnaire on the management of the means of prosecution resources, to which a large number of replies (29) had been received, providing a clearer overview of the situation in member States in this field (see the replies on the CCPE website, www.coe.int/ccpe).

4. The CCPE-GT examined two documents prepared by the Secretariat. The first, entitled “Analysis of replies to the questionnaire circulated with a view to preparation of CCPE Opinion No. 7” (Document CCPE-GT(2012)2), dealt with the following themes: status of the prosecution services, financial rules and regulations of the prosecution service, resources of the prosecution service, budget for investigations, and system of management by results. The appendix to the document also detailed the budgets allocated to the prosecution services by various States between 2008 and 2011. The second document contained items for discussion on the structure of the Opinion to be prepared (Document CCPE-GT(2012)3), and addressed the sub-themes examined in the above-mentioned Analysis.

5. The CCPE-GT welcomed the opportunity which this Opinion gave it to highlight practical prosecution service management methods in the various States which had proved their efficacy, while also singling out those which had been criticised. It nevertheless stressed the need to avoid imposing specific management methods, as these were closely bound up with national procedures and with legal traditions in individual States.

6. On the basis of this exchange of views, the CCPE-GT was preparing a detailed draft structure (Document CCPE-GT(2012)3, reproduced in Appendix III to this document) comprising the following items:

    - Introduction (reference texts, scope and aims of the Opinion);

    - The core needs of the prosecution services (general financial regulations and specific needs inside and outside the criminal justice system);

    - Possible solutions (in terms of human, financial and equipment and material resources);

    - The means of prosecution services and government austerity plans

    - Management by results;

    - Conclusions and recommendations.

7. A number of group members volunteered to write different sections of the structure (see Appendix III for contributors’ names in brackets), to be sent to the Secretariat by 15 May 2012. The latter had been instructed to compile the contributions, to send the draft Opinion as prepared for translation and subsequently to put it up on the CCPE website before the next CCPE-GT meeting to enable its members to prepare any comments they wished to make on the text. It was also decided that the members of the CCPE Bureau would ensure the consistency and finalisation of the recommendations and conclusions.

IV. DRAFT RECOMMENDATION ON THE ROLE OF PUBLIC PROSECUTORS OUTSIDE THE CRIMINAL JUSTICE SYSTEM, AS PREPARED BY THE CDCJ

8. The CCPE-GT considered the draft recommendation on the role of public prosecutors outside the criminal justice system which had been prepared by the European Committee on Legal Co-operation (CDCJ) and approved by its Bureau at the 90th meeting (Strasbourg, 28 and 29 February 2012). The CCPE Chairperson, whom the CDCJ had appointed as consultant to prepare this draft Recommendation, outlined the text and informed the Working Group that it would be submitted to the CDCJ for approval at its next plenary meeting (Strasbourg, 18-20 June 2012).

9. Some Working Group members stressed the importance of including such a text in the Council of Europe’s standard-setting corpus, particularly for States where prosecutors had wide-ranging powers outside the criminal justice system. This draft largely incorporated the provisions set out in CCPE Opinion No. 3 (2008) on the same subject. Other CCJE-GT members wondered why the text failed to set limits on tasks conducted outside the criminal justice system, given that prosecutors were not necessarily responsible for such work, which could be carried out by the administrative authorities.

10. It was decided that the CCPE-GT would forward its comments on the draft Recommendation to the CDCJ before its plenary meeting. The deadline of 7 May 2012 was set for sending these comments to the CCPE Secretariat, which would undertake to transmit them to the CDCJ Secretariat.

V. APPOINTMENT OF THE GENDER EQUALITY RAPPORTEUR

11. The Secretariat informed the CCPE-GT that under its new terms of reference the CCPE, like all other Council of Europe intergovernmental committees, had to appoint a Gender Equality Rapporteur. The Committee of Ministers’ decision to include such a rapporteur in each committee followed on from the Declaration which the Committee of Ministers had adopted in Madrid on 6 May 2009 entitled “Making gender equality a reality” (see Document CM(2009)68final).

12. Ms Raija TOIVIANEN (Finland) volunteered and was appointed as the CCPE’s Gender Equality Rapporteur.

VI. OTHER BUSINESS

13. The Working Group was informed that its next meeting would take place in Strasbourg on 6 and 7 June next.

APPENDIX I

DRAFT 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 CCPE Opinion No.7 on the management of the means of the prosecution services

5. Discussion of the overall working programme for 2012

6. Appointment of the Gender Equality Rapporteur

7. Any other business / Divers

APPENDIX II

LIST OF PARTICIAPNTS

MEMBERS OF CCPE-GT / MEMBRES DU CCPE-GT

ARMENIA / ARMENIE (excused / excusée)

Ms Nelly HARUTIUNYAN, Head of Department, Office of the Prosecutor General, Vazgen Sargsyan 5, 0010 Yerevan

DENMARK / DANEMARK

Ms Alessandra GIRALDI, Assistant Deputy Director, Frederiksholms Kanal 16, 1220 Copenhagen

FRANCE

M. Olivier de BAYNAST, Procureur Général, Cour d'Appel de Douai, 1 place Pollinchove, 59507 Douai

GERMANY / ALLEMAGNE

Mr Harald RANGE, Generalbundesanwalt beim Bundesgerichtshof, Brauerstrasse 30, 76135 Karlsruhe

HUNGARY / HONGRIE

Mr Peter POLT, Prosecutor General of Hungary, Markó utca 16 – BP 438, 1055 Budapest

MONACO

M. Jean-Pierre DRENO, Procureur Général, Parquet Général, Palais de Justice, 5 rue Colonel Bellando de Castro, 9800 Monaco

ROMANIA / ROUMANIE

Mrs Gabriela SCUTEA, Prosecutor's Office attached to the High Court of Cassation and Justice, Bd. Libertatii 14, sector 5,050706 Bucharest

RUSSIAN FEDERATION / FÉDÉRATION DE RUSSIE

Mr Alexander Grigorievich ZVYAGINTSEV, Deputy Prosecutor General, Office of the Prosecutor General, Ul. Bolshaya Dmitrovka 15A, 125993 GSP-3 Moscow

Mr Vladimir P. ZIMIN, First Deputy Head, General Department of International Legal Cooperation, Office of the Prosecutor General, 17A, B. Dmitrovka, 125 993 GPS-3 Moscow

Tel: + 7 495 692 22 39; Fax: + 7 495 692 29 79; E-mail: zimin@genproc.gov.ru

Mr. Vladimir DOBRITSA, Vice-Chief of Executive Secretariat of General Prosecutor’s Office of Russia, Moscow

SPAIN / ESPAGNE

Mr Antonio VERCHER NOGUERA, Deputy Attorney General, Fiscalia General del Estado, c/ Jose Ortega y Gasset, 57- 3 floor, 28006 Madrid

SWITZERLAND / SUISSE (Deputy member / membre suppléant)

Mme Maria-Antonella BINO, Procureur général suppléant, Chef d'antenne, Ministère public de la Confédération MPC, Antenne de Lausanne, Av. des Bergières 42, CH-1004 Lausanne

Tel: + 41 21 644 33 90 ; Fax: + 41 21 644 33 20 ; E-mail: maria-antonella.bino@ba.admin.ch

***

MEMBERS OF CCPE-BU / MEMBRES DU CCPE-BU

BELGIUM / BELGIQUE

M. Cedric VISART de BOCARME, Chef de Cabinet, Ministère de l’Intérieure, 2 rue de la loi, 1000 Bruxelles

FINLAND / FINLANDE

Ms Raija TOIVIAINEN, State Prosecutor, Head of the International Unit, Po Box 333, Albertinkatu 25a, FIN - 00181 Helsinki

ITALY / ITALIE

(Vice-Chair of CCPE /Vice-Président du CCPE)

M. Antonio MURA, Deputy Prosecutor General of the Supreme Court, Piazza Cavour 1, Palazzo di Giustizia, 00193 Roma

PORTUGAL

(Chair of CCPE/Président du CCPE)

M. João Manuel DA SILVA MIGUEL, Eurojust, Maanweg 174, 2516 AB The Hague

***

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

Division for the Independence and Efficiency of Justice / Division pour l’indépendance de la justice

E-mail: ccpe@coe.int

Fax: + 33 (0) 88 41 37 43

Muriel DECOT, Secretary of the CCPE / Secrétaire du CCPE, Tel: + 33 (0)3 90 21 44 55 ; E-mail: muriel.decot@coe.int

Ms Maria ORESHKINA, Co-Secretary of the CCPE / Co-Secrétaire du CCPE; Tel: + 33 (0)3 90 21 40 26; e-mail: maria.oreshkina@coe.int

Mr Hassan HENDEK, Special advisor / Conseiller spécial; Tel: + 33 (0)3 90 21 58 74; E-mail: hassan.hendek@coe.int

Jean-Pierre GEILLER, Documentation, Tel: + 33 (0)3 88 41 22 27; E-mail : jean-pierre.geiller@coe.int

Annette SATTEL, Communication, Tel: + 33 (0)3 88 41 39 04; E-mail: annette.sattel@coe.int

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

***

INTERPRETERS / INTERPRETES

Cynera JAFFREY

Christopher TYCZKA

Sylvie BOUX

APPENDIX III

    DRAFT STRUCTURE

(as adopted during the 10th meeting of the ccpe-gt,

strasbourg, 11-12 april 2012)

OPINION No. 7

OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

    ON THE MANAGEMENT OF THE MEANS OF PROSECUTION SERVICES

I. INTRODUCTION

- Terms of reference of the CCPE for 2012-2013

- Questionnaire prepared by the CCPE as the basis, number of states that replied (27 to date)

      A. Reference texts (SECRETARIAT)

- Overview of the ECHR case-law on the issue

- Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system

- Other opinions of the CCPE (in particular Opinion No. 4(2009))

- European Guidelines on Ethics and Conduct for Public Prosecutors – the Budapest Guidelines (May 2005, adopted by the 6th Conference of Prosecutors General of Europe)

- Opinion no 2 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the funding and management of courts with reference to the efficiency of the judiciary and to article 6 of the European Convention on Human Rights

- European Judicial Systems: Edition 2010, Report of the European Commission for the Efficiency of Justice (CEPEJ)

- Report on European Standards as regards the independence of the judicial system – Part II: the Prosecution Service (adopted by the Venice Commission at its 85th plenary session in Venice, 17-18 December 2010)

      B. Scope and purpose of the Opinion (Maria –Antonella BINO)

    1. Scope of the opinion

- Main tasks of prosecutors today – traditional (fight against common crime) and new (fight against terrorism, money laundering, cybercrime etc.). Prosecutors should be in the position to react swiftly to all these challenges, in particular in view of the expectations of the public. Facing these new challenges requires significant means. Thus the fear of budgetary cuts due to the crisis

- For all types of competences: independent application of the law by prosecutors

- The extent to which prosecution services are in the position to manage the funds and resources allocated to them vary from one member State to another. The Opinion should highlight these differences

- Budget autonomy as a safeguard of independence and efficiency of the prosecution service

- Current trend towards more independence in the management of prosecution services:

      (i) the need for both structural and financial independence
      (ii) therefore the need for staff with managerial competencies

    1. Purpose of the Opinion

Taking stock of the current situation in the member States, to elaborate proposals and recommendations for determining the needs and ensuring an efficient use of resources of prosecution services

II. NEEDS OF THE PROSECUTION SERVICES

A. Core needs of prosecution services and financial regulations (Harald RANGE)

- What tools and mechanisms are required to ensure the availability of resources for performing the duties in an efficient manner:

(i) Providing a fixed basis permitting the elaboration of budgets
(ii) Allowing a modulation in the use of the budgets

- Separate or common budgets for courts and prosecution offices? Can CCPE take a view on this? Advantages and disadvantages of the two solutions:

(i) a common budget because of common interests, is important for the coherence of action but does it allow enough autonomy?
(ii) budgets partly or totally separate allowing to act independently and at the same time save costs

- In case of common budgets for courts and prosecution offices, need of co-operation for a good use of resources and courts

- Mechanisms for rapid redistribution of resources: their importance, degree of flexibility and limits. Due to the special mission of the prosecution, a higher degree of flexibility is required as compared to other state bodies.

- Controlling and auditing of prosecution services: scope and limits.

- Necessary coordination with managers of services

- Interdependence with other government and judicial bodies.

A. Specific needs (Peter POLT/Vladimir ZIMIN)

1. Needs of the prosecutor in the criminal law field

a. With regard to investigations

- A separate chapter could be dedicated to the needs of the prosecutors with regard to investigations (e.g. for phone tapping in some cases, the law should be clear and costs low).

- The need to have qualified and effective investigators. The refusal to put such investigators at the disposal of prosecution services can be perceived as a way of putting pressure on the prosecution (e.g. in case of investigations of politically exposed persons).

b. With regard to other functions of prosecution

1. Needs of the prosecutor outside the criminal law field

III. Possible solutions

A. Human resources (Antonio VERCHER)

- Human resources are a very important element in all member States. It is therefore necessary to highlight the main principles in this sphere.

- Establish a link between the organisation of prosecution services, their costs and the performance of prosecutors.

- It may be useful in this context to delimit the different categories of persons working in prosecution offices and the tasks they perform (prosecutors and, where applicable, assistant or trainee prosecutors, administrative/technical/support staff).

- Tasks that can be accomplished by prosecutors or other staff members: magistrates/prosecutors, lawyers, assistants. Some tasks entrusted to prosecutors can be discontinued or entrusted to others. To examine the added value of the personal involvement of prosecutors.

- A system for calculating the workload of prosecutors must be designed in order to identify their evolving needs (human and technical resources): e.g. due to the rise in criminality, the need to supply statistical data etc.

- In case more autonomy is granted: use of external or internal expertise (e.g. technical consultants for prosecutors, IT specialists, translators). There is a need to recruit experts, it is not enough to train the available staff.

- Foresee the possible gender balance issues in this context.

B. Financial resources (Gabriela SCUTEA)

- It may be useful to list here the main sources of funding available to prosecution services (state budget allocations, external public funds – originating from the EU, the World Bank – and other assets where applicable) as well as main types of expenditure.

- Indicate which external sources of funding are acceptable in order to avoid corruption (prohibition of grants from political parties etc.).

- The need to set out principles of an efficient management of resources and efficient coordination when other bodies are involved in investigations.

- Prosecution services should enjoy as much autonomy in budgetary matters as possible. If they are given such autonomy, there is a need to train prosecutors in management and recruit qualified managers.

- Can prosecutors’ activity generate profit/revenue? Prosecution services develop confiscation policies (they are encouraged), is it possible to use this as a source of funding?

- To what extent should prosecution services be involved in the elaboration of budgets? Prosecution service is best placed to estimate its financial needs.

- Who is to supervise the financial management performed by the prosecution independently?

- Who assumes liability for prosecutors’ mistakes? Damages to be paid, insurance to be foreseen.

C. Equipment and material resources (Gabriela SCUTEA)

- Use of centralised IT systems for planning, monitoring and comparing the expenditure of prosecution services.

- Use of IT equipment in daily work (e.g. videoconferencing). E-justice. Common IT systems with the judiciary. Electronic case management permitting to reduce the length of proceedings. Data protection.

- Need for adequate premises where public can be received.

D. The means of prosecution services and government austerity plans (Peter POLT/Olivier DE BAYNAST)

- It is necessary that, as one of the core organs of the state, the prosecution always has access to adequate resources if it is to accomplish its mission, and in particular to fight criminality successfully. The prosecutor should be able to do work of high quality. The society should not be made to sacrifice security (in exchange for savings).

- The situation of economic crisis currently requires additional efforts from prosecutors. Justice needs to be done, even if the situation is difficult.

- Not all member States are touched by the current economic crisis in the same way.

- Prosecutors must be consulted on the savings to be made.

E. Management by results (Raija TOIVIAINEN/Alessandra GIRALDI)

- Not all countries seem to have the same approach to (concept of) management by results. It may be interesting to examine the main features and advantages of such system, linking it to the visibility of the prosecutors’ action and its social impact.

- Generally speaking, if prosecution services have accomplished their tasks correctly demonstrating good results, they are in a stronger position when requesting additional means. This should also imply that the prosecutor should be accountable for his actions.

- Management by results is a useful tool for evaluating the needs of prosecution services.

- Management approach in the judiciary:

      (i) What management methods to use?
      (ii) What objectives are to be achieved?
      (iii) Who sets these objectives?

- Flexibility in the allocation of additional means is necessary. Statistics are a helpful tool in preparing estimates for future budgets.

- However, trying to achieve better results prosecutors should not tend to more repression (number of persons detained). Is the number of convictions a reliable element in the assessment of results of prosecutors’ activity? Approaches quantitative (the time a prosecutor and other authorities involved in proceedings spend to process a case) and qualitative (good cooperation between the different persons involved in proceedings in some priority areas, professionalism and new working methods).

IV. CONCLUSIONS AND RECOMMENDATIONS

To be completed

1. Prosecution services must have sufficient means in order to fulfil their various mission (cf CEPEJ report)

2. Prosecutors should estimate their needs, negotiate their budget and decide how to use the resources allocated

3. Prosecution services have final responsibility for the budgets allocated to them. Links with results of the services

4. Modern management methods should be used. Necessary transparency

5. Need for a flexibility in the management of budgets

6. Management training for prosecutors to be ensured

7. Resources to be adapted to the new challenges related to the globalisation.

8. The situation of economic crisis currently requires additional efforts from prosecutors. Justice needs to be done, even if the situation is difficult

9. Prosecutors must be consulted on the savings to be made

10. Is the management by results the solution?

11. Necessary coordination between the prosecutor and the manager of the prosecution services

V. APPENDICES

To be decided: whether an explanatory report setting out various models of competencies with regard to establishing and managing the budgets of prosecution services should be attached to the Opinion.



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