Strasbourg 28 May 2013

CCPE-GT(2013)5

WORKING GROUP OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

Report of the 12th meeting

Strasbourg, 21 and 22 March 2013

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 12th meeting in Strasbourg on 21 and 22 March 2013. The meeting was chaired by Mr Antonio MURA (ITALY), President of the CCPE.

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

II. COMMUNICATION BY THE PRESIDENT AND MEMBERS OF THE BUREAU AND WORKING GROUP OF THE CCPE

    3. The President of the CCPE and other members of the Bureau provided the CCPE-GT members with information concerning meetings they had attended in order to represent the CCPE (for details, see the report of the 18th meeting of the CCPE Bureau, document CCPE-BU(2013)1, paragraphs 3 to 8).

    4. Ms Raija TOIVIAINEN (Finland), Vice-President of the CCPE and Ms Alessandra GIRALDI (Denmark), member of the Bureau of the CCPE, provided additional information on their participation in the 17th Annual Conference of the International Association of Prosecutors (IAP) in October 2012 in Bangkok (Thailand).

    5. In addition, Ms Alessandra GIRALDI conveyed to the members that the IAP will hold its 18th Annual Conference in September 2013 in Moscow, Russian Federation. She mentioned in particular that approximately 150 countries will be represented by about 700 prosecutors, and many of the delegations to be headed by Prosecutor Generals. United Nations will be represented by the Under-Secretary-General and the Office of the UN High Commissioner for Human Rights. It will be important for the CCPE to be closely involved in this event.

III. PREPARATION OF OPINION No. 8 ON THE RELATIONSHIP BETWEEN PROSECUTORS AND MEDIA

    6. The President of the CCPE thanked the Secretariat for having prepared the following documents :

      - Draft structure of Opinion No. 8 (document CCPE-GT(2013)3);

      - Summary of the replies to the questionnaire by the member States (document CCPE-GT(2013)2)1;

      - Thoughts for reflection and key issues (document CCPE-GT(2013)1).

    7. The President also thanked Mr Hasan DURSUN (Turkey), member of the CCPE-GT, for having prepared a compilation of replies listing question by question (Document CCPE (2013)3) which greatly facilitated the review of the replies as well as the preparation by the Secretariat of the above-mentioned documents.

    8. The CCPE-GT also examined a new draft structure of Opinion No. 8 prepared by the Bureau during their meeting on 20 March 2013 (document CCPE-GT(2013)4).

    9. The members of the CCPE-GT emphasised in particular that reference texts should be highlighted providing an overview of the international legal instruments concerning the relationship between prosecutors and media. Furthermore, this Opinion should have a specific practical value and formulate concrete guidelines that could be useful both for prosecutors and media.

    10. On the basis of an extensive discussion, the CCPE-GT prepared a detailed draft structure (Document CCPE-GT(2013)4REV3), reproduced in Appendix II to this report comprising the following chapters:

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

    - Basic principles (like freedom of expression, rights to information, fair trial, privacy and dignity, presumption of innocence and other key rights and principles);

    - Why prosecutors communicate with media (information on the proper functioning of justice system as a necessity in a democratic society; need of transparency; accountability of the prosecution services to the public; communication as a tool of investigation and other aspects);

    - What and how do prosecutors communicate with media (proactive media approach; what kind of information may be disclosed by prosecutors and at which stages in the procedure; issue of prosecution services’ spokespersons and other relevant issues);

    - Challenges (such as, for example, finding a proper balance between the reasons to communicate and the rights of the parties and individuals; respect of confidentiality, different risks associated with disclosure of information etc.);

    - Possible solutions (training including joint events where possible; media policy; codes of ethics; avoiding discrimination or improper privileged relations with media or journalists; developing best practices at domestic and international level and other suggestions);

    - Conclusions and recommendations.

    11. The CCPE-GT members volunteered to write different chapters of the Opinion (see Appendix II for distribution of responsibilities and contributors’ names in brackets), to be sent to the Secretariat by 15 May 2013. The Secretariat will draft the Introduction to the Opinion, including the reference texts, scope and purpose of the Opinion. The Secretariat will also prepare a compilation of relevant case law of the European Court of Human Rights as regards the basic principles concerning relationship between prosecutors and media. When all contributions are ready and submitted by all members of the CCPE-GT, the Secretariat will compile the contributions and send the text of the draft Opinion to the CCPE Bureau and then to the CCPE-GT.

IV. COOPERATION WITH THE EUROPEAN COMMITTEE ON CRIME PROBLEMS (CDPC)

    12. The Bureau members shared their conclusions made during the CCPE Bureau meeting on 20 March 2013 concerning the possibility of a cooperation with the CDPC with a view to improving the Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice (for details, see the report of the 18th meeting of the CCPE Bureau, document CCPE-BU(2013)1, paragraphs 12 to 14).

    13. The CCPE-GT agreed that the principles of this Recommendation remain relevant, therefore the idea is not to change it, but rather to address some new aspects. Taking into account that the formal process of updating the Recommendation may take quite long time, the CCPE-GT agreed that an alternative solution could be to prepare a separate complementary document to be adopted by the CCPE. Such document may bring together the main principles of the CCPE.

V. OTHER BUSINESS

    14. The members of the CCPE-GT and Secretariat discussed the issue of promoting the CCPE website and raising public awareness about it. Mr Antonio MURA mentioned that he gave suggestions to the Secretariat on how to improve the website. He underlined in particular the importance of every CCPE member contributing to the website and especially to its country pages which as a result may regularly be updated. The current news may also be included.

    15. It was also suggested that as many documents as possible, concerning the work of prosecutors, topics of informational value, legislative and regulatory texts and information on developments in the member States, should be available on the website.

    16. The issue of further development and promotion of the website will be put in the agenda of the CCPE’s plenary meeting focusing on how to use it in a more active manner so that it becomes a platform for the exchange of information.

    17. The next meeting of the CCPE-GT will take place in Strasbourg on 27-28 June 2013.

APPENDIX I

AGENDA / ORDRE DU JOUR

    1. Opening of the meeting / Ouverture de la reunion

    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 Opinion No.8 on the relationship between prosecutors and media / Préparation de l’Avis n°8 sur les relations entre procureurs et médias

    5. Exchange of views on the opportunity to update Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system / Echange de vues sur l’opportunité de mettre à jour la Recommandation Rec(2000)19 sur le rôle du ministère public dans le système de justice pénale

    6. Participation of CCPE in preparing the draft international convention to combat the manipulation of sports competitions / La participation du CCPE dans la préparation d’un projet de convention internationale contre la manipulation des compétitions sportives

    7. Other work of the CCPE / Autres travaux du CCPE

    8. Any other business / Divers

APPENDIX II

    DRAFT STRUCTURE

    OPINION No. 8

OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

    ON RELATIONSHIP BETWEEN PROSECUTORS AND MEDIA

INTRODUCTION (SECRETARIAT)

    A. Reference texts

- Terms of Reference of the CCPE for 2012-2013

- European Convention on Human Rights (ECHR)

- Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108)

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

- Recommendation Rec(2002)2 of the Committee of Ministers to member States on access to public documents

- Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information through the media in relation to criminal proceedings

- Recommendation Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecution outside criminal law field

- Opinion No. 4 (2009) of the CCPE on judges and prosecutors in a democratic society, or “Bordeaux Declaration”

- Opinions of the CCJE No. 7 (“Justice and society”) and 11 (“Justice and information technologies (IT)”)

- United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (adopted by the General Assembly in its Resolution 40/33 of 29 November 1985)

    B. Scope and purpose of the Opinion

    (i) Scope

    The present Opinion concerns all kinds of prosecutorial activities within as well as outside criminal field

    The Opinion is addressed to prosecutors and is not intended to issue recommendations for journalists

    (ii) Purpose

    Establish the transparency necessary in a democratic society

    Contribute to a better justice

    Need to focus on problems in the state members and to propose specific solutions.

1. BASIC PRINCIPLES (P.POLT and J.MIGUEL)

In accordance with the ECHR and general principles of justice, all the communications with media must always respect the following rights and principles2:

    · Freedom of expression

    · Right to information

    · Right to a fair trial

    · Presumption of innocence

    · Rights of the defense

    · Rights of privacy and dignity

    · Protection of vulnerable persons (minors, victims etc.)

    · Protection and integrity of investigations

    · Security of persons

    · Principle of proportionality

    · Duty of discretion, confidentiality and secrecy of investigations3.

Compilation of ECtHR relevant case law: (SECRETARIAT)

2. WHY PROSECUTORS COMMUNICATE WITH MEDIA? (R.TOIVIAINEN, A.GIRALDI and N.HARUTIUNYAN).

    · Providing and circulating information are necessities in a democratic society in general and specifically as far as the proper functioning of justice system is concerned

    · Necessity of transparency because: (i) the justice works under the eye of media; (ii) for better understanding of the functioning of justice4; (iii) transparency helps to build public confidence in the work of prosecutors as well as their impartiality; (iv) the public and media may contribute to the search of truth in certain cases

    · Accountability of the prosecution service to the public

    · Communication as a response to media policy by other parties such as defendant lawyers

    · Communication as a tool of investigation

    · Communication for preventing or contributing to ceasing offences and violations of law

    3. WHAT AND HOW DO PROSECUTORS COMMUNICATE WITH MEDIA? (A. VERCHER, A.ZVYAGINTSEV, V.ZIMIN and P.MCCORMICK)

      · A proactive media approach can only be applied when combined with the need to be prudent (necessity to respect the principle of proportionality in communication). Cooperation or interaction with media. Coordination with other institutions

      · What kind of information may be disclosed by prosecutors and at which stages in the procedure can information be communicated to the media?

      · Are prosecutors authorised to have direct relations with the media? All prosecutors or spokespersons? If yes, status of spokespersons (journalists or prosecutors). Specialised office within the prosecution service for communication with media

      · Shall communication be established with all media or only with some? Right to exclude some media?

      · Communication and interaction through traditional means of communication and/or new media (internet5, social media etc.)

      · In order to offer an objective perspective, the public prosecution service may, if appropriate, cooperate with police and other investigative bodies when preparing and releasing press notes.

4. CHALLENGES (C.VISARD, H.DURSUN and J-P DRENO)

    · Find the proper balance between the reasons to communicate and the rights of the parties and individuals; need to be prudent; respect of confidentiality, integrity and the role of prosecutors

    · This balance varies according to the various tasks of the prosecutors and also according to different legal systems in member states

    · Risk of unfair trial

    · Risk of lack of impartiality by media or infringement on image of impartiality of prosecution service.

    · Risks for the independence of the prosecution services from any undue influence

    · Risks for the effectiveness of their work

    · Risk of civil damage liability imposed on prosecutor

    · Right to response by prosecutors

    · Cultures of prosecutors and media6

    · No interference between actions of communication and investigations

    · Necessity to ensure the security of individuals and prosecutors (anonymity in communications, etc.)

    · Harassment of individuals and prosecutors; challenging the institution

    · Overexposure of a case and a prosecutor: risk of personalisation of the case to the detriment of the prosecution service

5. POSSIBLE SOLUTIONS (H.RANGE and O. DE BAYNAST)

    · Improve training (joint training?)

    · Use of reactive/preventive/proactive media approach for better communication

    · Bearing in mind the need of all legal systems to be transparent in communications, the form and means of communications vary from country to country, depending on the interests at stake.

    · Setting up a media policy (communicating as widely as possible); codes of ethics

    · Communication requires adequate means to cope with (i) the challenges of the internet (ii) the crisis situations

    · Possible establishment of spokespersons or other methods of communications through all available means, including websites and social media

    · Avoid discrimination or improper privileged relations with media or journalists

    · Develop and disseminate best practices at domestic and international level

    · Support prosecutors who were subjected to unfair media criticism. Possible role of public institutions7, professional boards or other institutions that deal with questions concerning media

CONCLUSIONS AND RECOMMENDATIONS

APPENDIX III

LIST OF PARTICIPANTS

MEMBERS OF CCPE-GT / MEMBRES DU CCPE-GT

ARMENIA / ARMENIE

Ms Nelly HARUTIUNYAN, Head of Department, Office of the Prosecutor General, Yerevan

FRANCE (excused / excusé)

Mr Olivier de BAYNAST, Procureur Général, Cour d'Appel de Douai, Douai

GERMANY / ALLEMAGNE (substitute member / membre suppléant)

Mr Harald RANGE, Generalbundesanwalt beim Bundesgerichtshof, Karlsruhe

HUNGARY / HONGRIE

Mr Peter POLT, Prosecutor General of Hungary, Budapest

IRELAND / IRLANDE

Mr Peter McCORMICK, Prosecutor, Office of the Director of Public Prosecutors, Dublin

MONACO

Mr Jean-Pierre DRENO, Procureur Général, Parquet Général, Monaco

PORTUGAL

Mr João Manuel DA SILVA MIGUEL, EUROJUST, The Hague, The Netherlands

RUSSIAN FEDERATION / FÉDÉRATION DE RUSSIE

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

Mr Vladimir P. ZIMIN, First Deputy Head, General Department of International Legal Cooperation, Office of the Prosecutor General, Moscow

Mr Vladimir DOBRITSA, Vice-Chief of Executive Secretariat, Office of the Prosecutor General, Moscow

SPAIN / ESPAGNE

Mr Antonio VERCHER NOGUERA, Deputy Attorney General, Madrid

TURKEY / TURQUIE

Mr Hasan DURSUN, Judge, High Council of Judges and Prosecutors, Ankara

***

MEMBERS OF CCPE-BU / MEMBRES DU CCPE-BU

BELGIUM / BELGIQUE

Mr Cedric VISART de BOCARME, Chef de Cabinet, Ministère de l’Intérieure, Bruxelles

DENMARK / DANEMARK

Ms Alessandra GIRALDI, Assistant Deputy Director, Office of the Director of Public Prosecutions, Copenhagen

FINLAND / FINLANDE

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

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

ITALY / ITALIE

(President of CCPE/Président du CCPE)

Mr Antonio MURA, Deputy Prosecutor General of the Supreme Court, Roma

***

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

Directorate General of Human Rights and Rule of Law/

Direction Générale des droits de l’homme et de l’état de droit

Division for the independence and efficiency of justice /

Division pour l’indépendance et l’efficacité de la justice

E-mail: ccpe@coe.int

Fax: + 33 (0) 88 41 37 43

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

Mr Artashes MELIKYAN, Co-Secretary of the CCPE / Co-Secrétaire du CCPE, tel: + 33 (0)3 90 21 47 60; e-mail: artashes.melikyan@coe.int

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

Ms Annette SATTEL, Administration and Networks / Administration et Réseaux, tel: + 33 (0)3 88 41 39 04; e-mail: annette.sattel@coe.int

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

***

INTERPRETERS / INTERPRETES

Ms Cynera JAFFREY

Ms Monique PALMIER

Mr Grégoire DEVICTOR

1 See also the details of the 36 replies from member States: http://www.coe.int/t/dghl/cooperation/ccpe/opinions/travaux/travaux_8_EN.asp

2 Including data protection. These principles are to be respected for all persons concerned, whether or not directly involved in legal proceedings.

3 Including confidentiality of sources of information.

4 As well as how the decisions are taken, how public resources are used etc.

5 E.g. various issues related to internet.

6 Differences of languages used by prosecutors and media: legal language of prosecutors versus everyday communication language of media. Specific mode of functioning by media: events-based approach versus the procedure-based work of the prosecution.

7 E.g. High Council of Justice, Ethics Committees.



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