NB_CE

CCPE-GT(2012)7

Strasbourg 4 September 2012

WORKING GROUP OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

Report of the 11th meeting

Strasbourg, 6 and 7 June 2012

Document prepared by the Secretariat

Directorate General I – Human Rights and Rule of Law

    I. INTRODUCTION

1. The Working Group of the Consultative Council of European Prosecutors (CCPE-GT) held its 11th meeting in Strasbourg on 6 and 7 June 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.

3. The Secretariat introduced Mr Artashes Melikyan, a new Administrator in the Division for the Independence and Efficiency of Justice.

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

4. The members of the Working Group presented the different chapters of the draft Opinion written up by them in accordance with the distribution of tasks established at the 10th meeting of the CCPE-GT in April, and provided the necessary clarifications.

5. The CCPE-GT members agreed that, taken as a whole, the draft reflects all the main preoccupations of the prosecution services in the current context of economic and financial crisis. However, it was underlined by the members of the Working Group on several occasions that the Opinion should enumerate key principles applicable to the management of the resources of prosecution services at any time, and not only at times of crises. The members of the CCPE-GT then reviewed and discussed the draft chapter by chapter.

6. The CCPE-GT further decided to improve the structure of the Opinion (based on the document CCPE-GT(2012)3 adopted at its 10th meeting in April) so as to make it more clear and concise. As a result, the CCPE-GT has adopted a new version of the draft Opinion No. 7 as set out in document CCPE-GT(2012)4Prov3 (see Appendix III to this Report).

7. The CCPE-GT members decided that, after the draft will have been edited by the Secretariat, they will provide new comments on it and suggest modifications they deem necessary. A new text will then be prepared by the Secretariat and reviewed by the Working Group members before being submitted to all CCPE members.

    III. OTHER ACTIVITIES OF THE CCPE

a) Cooperation with the European Committee on Legal Co-operation (CDCJ)

8. Following the invitation to members of the CCJE to provide their comments on the draft Recommendation on the role of public prosecutors outside the criminal justice system prepared by a Working Group of the CDCJ, the president informed that only five members of the CCPE forwarded their comments to the Secretariat. A summary of these comments was reviewed by the Bureau of the CCPE and forwarded to the CDCJ Secretariat. A copy of the document was sent to all CCPE members for information.

b) Other works of the CCPE

9. The President of the CCPE reminded the Working Group members that the next year’s opinion will be dedicated to the relations between prosecutors and the media, as required by the CCPE Terms of Reference for 2012-2013 (Doc. CM(2011)131Final). He therefore invited the CCPE-GT members to formulate their possible proposals to approaching this work, including preparing a questionnaire as appropriate, and put these proposals forward at the next plenary meeting of the CCPE (26 and 27 November).

10. Ms Raija Toiviainen (Finland) informed the other members of the Working Group about the state of affairs regarding the creation of the European Public Prosecutor’s Office (EPPO). In particular, she informed on the ongoing discussion of the “Model rules for the procedure of the EPPO”1. The members of the Working Group underlined that not all EU member states are in favour of creating this new body; therefore the CCPE should continue following closely this development and express its position at a later stage as appropriate.

    IV. OTHER BUSINESS

11. Mr Peter Polt (Hungary) informed the members of the Working Group about the 5th Plenary Meeting of the Network of EU Prosecutors General (in Budapest on 26 May 2012) that he hosted on behalf of his country. He further pointed out that the means and resources of prosecution services (in particular in the context of economic and financial crisis) were in the focus of this meeting; its conclusions were approved unanimously and set out in its Final Document2.

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

5. Other work of the CCPE

    a. Cooperation with the CDCJ – Comments to the draft Recommendation on the role of public prosecutors outside the criminal justice system

    b. Other works

6. Any other business

APPENDIX II

LIST OF PARTICIPANTS

MEMBERS OF CCPE-GT

ARMENIA

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

DENMARK

Ms Alessandra GIRALDI, Assistant Deputy Director, Office of the Director of Public Prosecutions, Frederiksholms Kanal 16, 1220 Copenhagen

FRANCE

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

GERMANY

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

HUNGARY

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

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

RUSSIAN FEDERATION

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

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

Ms Evgenia BAZARKHANDAEVA, interpreter

SPAIN (excused)

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

SWITZERLAND (Deputy Member)

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

***

MEMBERS OF CCPE-BU

BELGIUM

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

FINLAND

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

ITALY

(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

DGI - Human Rights and the Rule of Law

Division for the Independence and Efficiency of Justice

E-mail: ccpe@coe.int

Fax: + 33 (0) 88 41 37 43

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

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

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

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

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

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

APPENDIX III

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

prepared by the CCPE Working Group at its 11th meeting

I. INTRODUCTION

1. The Consultative Council of European Prosecutors (CCPE) was established by the Committee of Ministers of the Council of Europe in 2005 with the task of rendering Opinions regarding the functioning of prosecution services and promoting the effective implementation of Recommendation Rec(2000)19 of the Committee of Ministers to member States on the role of public prosecution in the criminal justice system.

2. The Committee of Ministers instructed the CCPE3 in 2012 to adopt an opinion for its attention on the management of the means of prosecution services.

3. The CCPE has drafted the present Opinion on the basis of 30 replies received from member States to a questionnaire4. According to these replies the level of financial autonomy seems to have an impact on the tools at disposal of prosecution services for managing their resources. The competence for establishing a budget is almost invariably shared between the prosecution and the ministry of justice; often the ministry of finance is also directly involved. Approximately a half of the States indicate that the budgets of their prosecution services are governed by the system of management by results including such objectives as efficiency and productivity.

4. In addition, a significant number of countries indicated that the budgets allocated to prosecution services are regarded as insufficient; this situation is bolstered by the current financial crisis. As such, the current economic situation in many countries represents a challenge to the efficiency of justice; however, it can also be an opportunity for introducing changes in the way the means of prosecution services are managed. Prosecutors should bear in mind the need to use the available resources in an efficient manner.

    A. Reference texts

5. The CCPE underlines the importance of referring to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the case-law of the European Court of Human rights (the Court)5.

6. The CCPE took into consideration the Recommendation Rec(2000)19, and in particular the part concerning the guarantees to the prosecution service for exercising its role. It also took into account the recommendations contained in the previous Opinions of the CCPE, especially in Opinion No. 4 (2009) on the relations between judges and prosecutors in a democratic society.

7. The CCPE also took into consideration the European Guidelines on ethics and conduct for public prosecutors – the Budapest Guidelines6, Opinion No. 2 (2001) of the Consultative Council of European Judges (CCJE) on the funding and management of courts with reference to the efficiency of the judiciary and to article 6 of the ECHR, as well as the Report of the European Commission for the Efficiency of Justice (CEPEJ) entitled “European Judicial Systems: Edition 2010” and the Report of the Venice Commission on European Standards as regards the independence of the judicial system – Part II: the Prosecution Service7.

8. Lastly, the CCPE also took note of the instruments adopted by international organisations such as the UN, as well as the Final Document of the 5th Plenary Meeting of the Network of EU Prosecutors General, adopted in Budapest on 26 May 2012.

    B. Scope and purpose of the Opinion

9. The present Opinion applies to prosecution services as regards the execution of all functions entrusted to them in accordance with the law. Where they have functions outside the criminal law field, the principles and provisions of this Opinion also apply to these functions. The prosecution assumes a key role in the justice system and ensures the respect of human rights in places of detention. In particular, as the authority charged with monitoring the application of the law and prosecuting any divergent behaviour, the prosecution service must respond to the common need to combat domestic and international crime.

10. At present the prosecution service is confronted with an increasing density of crime that gives rise to a growing feeling of insecurity. Due to the serious danger they represent for the society, the expansion of organised crime, acts of terrorism and cybercrime requires an increased efficiency of the prosecutors’ action and enhanced protection of human rights and public interests.

11. Even though the power of prosecution services to manage autonomously their own budgets and resources varies from one member State to another, management autonomy represents a guarantee of their independence and efficiency. Therefore, relying on management professionals and elaborating common principles as regards the management of means, particularly financial, is indispensable.

12. This Opinion aims at elaborating proposals and recommendations permitting to identify the needs, allocate and use the resources of prosecution services in an efficient manner.

II. NEEDS OF THE PROSECUTION SERVICES

A. Preparation of the budget

13. The budget of any prosecution service should be integrated into the state budget as a separate line. Despite the fact that allocation of funds to the prosecution service is deemed to be a political decision, the legislative and executive authorities concerned should not be in the position to influence unduly the prosecution service when making a decision on its budget. The decision on the allocation of means to the prosecution service should be made in strict accordance with the principle of its independence.

14. The prosecution service should participate, along with the executive branch, in the elaboration of its budget. In countries where the system allows it, the right of the prosecution office to contact the parliament directly in order to express its opinion concerning its needs may be one of the forms of active involvement in the elaboration of its own budget. In any event the procedure for adopting the budget of the prosecution service in the parliament should provide for taking into consideration the opinion of the prosecution service itself.

15. To allow for sufficient allocation of means by the parliament, the estimated costs need to be calculated in advance. This calls for reliable schemes of budget planning. Criminal statistics of previous years as well as activities of the prosecution services may serve as a basis for elaborating an overall minimum budget for the year or time period to come. Management by results offers a number of helpful tools for establishing budgets for the future periods.

16. It is not important whether the budget of the prosecution service is run independently or together with that of the courts. What is needed is a strong advocate for the course of justice who is in an adequate position for the necessary negotiations with parliament.

17. In any case it is important that the responsibility for all administrative decisions related to allocation of resources which directly affect the prosecution service activities should be laid on the services concerned.

18. The management of budgetary resources should be conducted by the prosecution service itself in an efficient and responsible manner. Therefore an appropriate training of prosecutors should be arranged. Prosecution services should also recruit, where appropriate, specialised personnel with background in finance and management to carry out such function and ensure an appropriate use of resources. However, prosecutors should be aware that they could link with such specialised personnel and highlight their needs which are to be transposed in resources.

B. Allocation of a sufficient budget

19. The efficiency of prosecutorial activities depends, to a great extent, on the resources allocated to the prosecution service. Member States are responsible for allocating the necessary resources, including funds linked to the needs of prosecution service, in particular as regards training and IT. It is also necessary to encourage the prosecutors to use modern techniques of criminal proceedings, including e-justice processes. The resources allocated for carrying out prosecutors’ activities should be commensurate with the tasks and functions imposed on them, including for the protection of human rights and fundamental freedoms.

20. The core need for the prosecution services is to be able to accomplish their tasks. For example, in states where prosecution offices are governed by the principle of legality, they have to be able to prosecute all crimes that as a matter of law need to be prosecuted. The rule of law is not to be impaired by monetary restrictions. The efficiency of prosecutions should not be limited by a budget predefined by the executive. It is important to ensure that the procedures for establishing budgets for prosecution services and allocating additional financial resources to them is provided for in the law on the budget or other financial regulations.

21. The budget of the prosecution service must in all circumstances allow for quick reaction to unforeseen developments. This includes a redistribution of funds within the prosecution service as well as a general allocation of further means by the parliament to comply with the necessities of effective human rights protection, law enforcement and good administration of justice.

22. The proximity and complementary nature of the missions of judges and prosecutors require that their numbers in the first, appellate and cassation instances are in an adequate proportion to each other. Likewise, requirements and guarantees in terms of the status of prosecutors, including remuneration and social protection, should be similar to those of judges.

C. Needs of the prosecution service

23. The growing complexity of certain types of criminality is due to the increasing international integration and globalisation, the expanding international trade and data flow. This reality has enabled new ways to commit crimes, which implies the need to cooperate in their detection and the prosecution of criminals. A special training to enable to face the threats posed by the above mentioned phenomena is also required.

24. At the time of crisis, when poverty and inequality of the citizens can provoke an increase of criminality and make all kinds of fraud and injustice committed by those who violate the law all the more unbearable for the population, the means of the prosecution services should be maintained at the same level, or possibly increased, so as to allow them to be the watchdog of liberties.

25. There is an expanding demand for human resources in public prosecutors’ offices, as well as for the necessary material and budgetary means to carry out prosecutorial tasks. Taking into account the fact that in a number of countries prosecutors also perform tasks outside the criminal law field, this demand certainly becomes much more evident.

26. While carrying out their functions in the criminal law field or outside of it, prosecutors (and if appropriate, members of their families) should work in appropriate conditions related to their safety. For this purpose member States should ensure that prosecutors and their families are physically protected when their personal safety is threatened as a result of the proper discharge of their professional duties. Minimal standards should be observed as provided for by the relevant international documents.

27. The participation of prosecutors in international cooperation in criminal matters is increasingly expensive. To ensure that this function is carried out expeditiously and efficiently, modern technologies are needed (such as videoconferencing and encryption); additional funds and human resources are required, for example, for drafting international conventions, seconding liaison officers to national embassies in foreign states, funding joint investigation teams and the relevant coordination bodies (Eurojust, European Judicial Network, Consultative Council of Prosecutors General of the CIS States, and Consultative Council of European Prosecutors).

28. Due to the importance of the protection of human rights in places of deprivation of liberty, sufficient resources should be devoted to carrying out their supervision, where prosecution services are entrusted with such functions.

1. In the criminal law field (prosecution and investigation)

29. Adequate allocation of resources for ensuring prosecution activities is a necessary precondition for implementing the principle of the prosecutors’ independence, including when they act in the criminal law area.

30. Financial independence of prosecutors guarantees fairness of criminal prosecution, protection of human rights and fundamental freedoms in criminal proceedings in general, and finally, a proper administration of criminal justice.

31. The management of financial resources of ongoing investigations varies significantly in the different member States. The same diversity applies to the role of prosecution services in the course of investigation: in some member States the prosecution service itself has certain or full investigative powers; in other member States it has no investigative power, but it has the right to order the investigative authorities to carry out investigative acts.

32. The costs of such investigative act are usually advanced (paid up front) by the investigating authority actually executing it. In many members States prosecutors therefore often face the problem that investigating authorities – with reference to their low budgetary means – are unable, or reluctant, to execute the prosecutorial order to carry out investigative acts. This problem is especially pertinent in cases where extra costs occur (e.g. when expertise on DNA and homogenetics or the use of special investigative techniques is needed).

33. Member States should allocate to prosecution services sufficient means for all investigations ordered by the prosecutions to be carried out. This kind of approach would significantly contribute to ensuring that investigations are comprehensive and there are no loopholes in criminal proceedings.

34. Thus, the member States where investigation is one of the functions entrusted in the prosecution service should:

- ensure an immediate and unhindered access of prosecutors to funds allocated for conducting any actions necessary for effective and impartial investigation;

- enable them to use modern technologies for investigation and for ensuring the rule of law during investigations (computer search tools, forensic equipment, electronic data bases, videoconferencing equipment etc.).

35. In addition, special attention should be paid to the full payment and – where this is provided for in the law – a subsequent recovery of the costs borne during the criminal proceedings by the different authorities. The necessary mechanisms should be set up to ensure such recovery. This aspect is of particular importance for the member States and their judicial bodies at the time of financial and economic crises.

36. Prosecution services should be permitted to access additional resources. Member States are encouraged to explore developing confiscation policies that enable the capitalisation of confiscated goods and the use of receipts to fund the activity of the prosecution services and the judiciary in general.

37. Prosecution service should not be unduly restricted in managing the budget resources allocated for the investigation purposes. But the utilisation of such resources should be rational, effective and transparent.

2. Outside the criminal law field

38. The prosecutorial activities outside the criminal law field which, to a different extent, are performed in most member States of the Council of Europe, sometimes require special forensic examinations and involvement of specialists from different areas of expertise (for instance, psychologists in cases related to family law, accountants and financial experts on bankruptcy, chemists and biologists in the matters related to environmental protection).

39. Depending on the variety and extent of work the need may arise to create within a prosecution service specialised units to perform activities outside the field of the criminal law in general or in particular domains (for instance, in the area of corruption or environmental protection). The specific nature of such activity may require special training of the personnel.

III. POSSIBLE SOLUTIONS

A. Human resources

40. The current situation leads to an increase in the need for human resources which need to receive a sufficient remuneration in line with the importance of the prosecutors’ tasks and an appropriate training8.

41. Generally speaking, there are three different professional levels in a modern public prosecutors’ office:

- Prosecutorial functions are carried out by prosecutors themselves. In case of need, legal specialists may be hired for specific legal functions;

- Experts in specific fields, for instance psychologists or psychiatrists may be essential to deal with cases of juvenile delinquency, of mentally ill criminals, or to assist victims. Sociologists and experts in statistics may be of great use when there is a need to rely on statistical data, computer engineers – to research anything which has to do with cybercrime, or biologists or chemists to investigate environmental crime etc.;

- Administrative staff is an essential part of a public prosecutor’s office. This staff must be qualified to cope with the workload of cases processed which inevitably increases in parallel with the specialisation or complexity of matters dealt with by the prosecutor.

42. A system for calculating the workload of prosecutors must be designed in order to identify their evolving needs. This system should be also able to measure those factors that influence or affect their tasks, so that those tasks are carried out properly.

B. Financial resources

43. In some cases it occurs that the funds allotted from the state budget are not enough to cover more complex tasks. In some legal systems prosecution services may also access external public funds mainly originating from the EU, World Bank or donor developed states. Yet, such funds only target specific aspects of the activity of prosecution services such as specialised staff training, implementation of modern management or investigation techniques or promoting international cooperation. Usually the states have to provide further funding to ensure the sustainability of such tasks, and sometimes this becomes an extra burden for the state budget. In the long term such funding proves its benefits, and prosecution services are strongly encouraged to access extra funds.

44. Where prosecution services are allowed to receive funds from non-governmental organisations, this should be done in the conditions of strict control, ensuring an appropriate level of transparency and clear criteria for the acceptance and use of such funds. If this is not the case, such funds should be refused. Any possibility of damage to the reputation of the prosecution service linked to such funds should be avoided.

45. The general principles of using the public resources, both from state allocations and extra funding, should be observed: the principle of opportunity, the principle of effectiveness and the principle of legality. When more than one body is involved in the use of resources (e.g. the prosecution service, the police and the tax authorities), these principles must be observed in parallel with a careful coordination to avoid duplication of efforts and ensuring that resources are used to achieve the final goal.

46. Prosecution services are encouraged to conclude agreements with other state authorities with a view to share facilities and administrative services or participate in joint actions.

47. As an effect of the principle of legality on the use of public resources, the financial management performed by prosecution services independently should be subject to supervision by the state authorities entrusted with control and audit competencies, similarly to other public institutions.

C. Equipment and material resources

48. Prosecution services are urged to put in place and use compatible IT systems for planning, monitoring and comparing the expenditure of prosecution services. This may be a practical and efficient method to balance the use of resources versus the workload of the territorial services, generating benchmarks for using resources at the level of different offices, enabling quick reallocation of resources when needed and finally ensuring accountability of the expenditure.

49. Member States are encouraged to enable prosecution services to use IT equipment in their daily work, by introducing e-justice tools, electronic case management and data exchange systems with the bodies in charge of the application of law the that the prosecutors are in contact with when carrying out their mission. This would enable to ensure a more efficient case management, reduce the length of proceedings and guarantee the data protection.

50. Member States are also required to support the need of the prosecution services to have adequate premises where the public can be received, in order to support and facilitate access to justice.

D. The means of prosecution services and government austerity plans

51. Economic and financial crises, if not properly considered, may affect the functioning of prosecution services. The magnitude of this effect seems to vary from one member State to another: from the introduction of a general policy towards making savings and redistributing resources to core activities at the expense of capital investment, on the one hand, to radical cuts in the salaries of prosecutors, on the other. Most respondents assessed the resources currently at the disposal of the prosecution services of their countries as insufficient. Obtaining additional human and financial resources, better technical equipment, better access to training for the staff as well as to technical expertise required in support of evidence used in courts is seen as a priority in a number of member States.

52. At the time of crisis many member States’ prosecution services also have to face new challenges. In many countries criminality increased or its structure has changed significantly. Taking into account the counter-productive effect that austerity may have, in the present situation member States should endeavour to provide sufficient resources for the prosecution services.

53. The prosecution services themselves have a role to play in refuting or at least minimising the negative effect of economic crises on their everyday work. To do so, a balance should be found between the resources available and the results to be attained. By better cooperation and coordination between the European and domestic actors of fight against crime such situation can improve considerably. At the European level the different possibilities for cooperation in criminal matters (e.g. through Eurojust or by conducting joint investigations) should be used much more extensively. At the domestic level agreements with other local, regional and national authorities permitting to share administrative services, office facilities and support staff, or improved cooperation with other controlling authorities (such as tax inspectorates) may help in overcoming the present problems.

54. Where prosecution services have adequate means for the management of human and financial resources at their disposal, the quality of their work will not be affected in a negative way. The introduction of new structures within prosecution services (e.g. establishment of specialised units for the fight against economic crime and corruption) or in the system of financing the prosecution (e.g. providing budgetary autonomy in countries where prosecution services do not have it) can contribute on a large scale to maintaining professional quality.

55. In times of financial crisis it is especially important for prosecution services to streamline their organisations and improve management in order to ensure the optimal use of both financial and human resources.

E. Improving the management of prosecutions services

a. Auditing and controlling

56. Controlling and auditing are core elements to assure the diligent management of public funds. They have to be adapted to the specific tasks of the prosecution services. Due to its special mission the use of funds spent on investigating crimes cannot be assessed by ordinary cost performance calculation; by no means are investigations to be evaluated in terms of cost effectiveness. Auditing must be restricted to the administration of the prosecution services such as investments in infrastructure. Controlling may be a useful instrument to establish best practices within the prosecution service to compare the handling of cases in different units, but may not be used as a means to govern the prosecution service as such.

57. Only in exceptional circumstances should prosecution services revert to prioritising certain types of cases or crimes as a means of counteracting the limitation on resources. However, such prioritisation should not be to the detriment of the effective prosecution of other types of crime.

b. Management by results

58. Member States may also consider introducing a model whereby the activities of the prosecution service are managed according to the principle of management by results. This concept is an interactive, agreement-based steering model, where resources are allocated based on agreed and expected activity. The principal idea of management by results is to help the parties to strike an appropriate balance between the resources available and the results to be attained.

59. It is a steering instrument established on the basis of performance negotiations, between a fiscal government body (i.e. the ministry of finance, ministry of justice or parliament) and the prosecution service. The latter should itself participate in these negotiations as it is best placed to set the objectives for its outputs in order to guide prosecutors in their actual work. The prosecution service should have sufficient liberty for setting its objectives so as to achieve the best possible results.

60. The basis for evaluating performance and allocating resources are outcomes and outputs. The outcomes of the prosecution service consist of how well its social objectives (e.g. enforcement of criminal liability) have been attained. Outputs concern objectives which the prosecution service can itself influence through its own activities and how they are managed, i.e. operating efficiency, quality control and management of human resources.

61. Outputs and outcomes of the prosecution service should be closely linked to the prosecution service’s core activities and available resources, so that attainment of the objectives depends solely on what the agency does and how it is managed. Attention should be paid to the fact that definition of outputs will impact on the activities carried out by prosecutors.

62. Management by results requires the agency to report on the attainment of objectives. In particular, local prosecution offices report to the office of the prosecutor general, which in turn reports to the government body allocating the resources. Evaluation and measurement of results in a clear and reliable way is vital, but may represent a challenge. Good performance indicators show what has been achieved, not what action has been taken.

63. How well the objectives are attained will influence the objectives set and the resources allocated for the next operating period. An evaluation of whether the objectives of the prosecution service have been attained or not should always be followed by decisions on concrete measures to be taken by the prosecution service.

64. Whatever is the system of management adopted by the different member States, prosecutors should always ensure that the resources put at their disposal are used in an efficient and economic manner, and that a proper control and follow-up mechanisms are in place.

IV. CONCLUSIONS AND RECOMMENDATIONS

To be completed

1. Prosecution services must have sufficient means in order to fulfil their various mission (see the 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. The Prosecution Service should have a clearly defined strategic and operative responsibility for the results of its own operations and sufficient freedom to choose which actions to pursue to achieve the desired results

11. Agreeing on performance objectives should be based on genuine negotiation with a possibility to discuss alternatives

12. Exchange of experiences and good practices in the sphere of management by results with other countries is recommended.

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.

1 Elaborated within the framework of a joint project of the European Anti-Fraud Office, the Hercule II Programme of the European Union and the University of Luxembourg.

2 vailable at the CCPE Website under “Preliminary works” to the CCPE Opinion No. 7.

3 1127th meeting of the Ministers’ Deputies (23 November 2011).

4 See the replies of member States to the questionnaire on the CCPE website: www.coe.int/ccpe

5 See in particular….

6 Adopted at the 6th Conference of Prosecutors General of Europe in May 2006.

7 Adopted at the 85th plenary session of the Venice Commission (17-18 December 2010).

8 See “Report on European Standards as Regards the Independence of the Judicial System: Part II – The Prosecution Service” adopted by the Venice Commission.



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