Strasbourg, 23 September 2013
WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
Report of the 13th meeting
Strasbourg, 27-28 June 2013
Document prepared by the Secretariat
Directorate General I - Human Rights and Rule of Law
1. The Working Group of the Consultative Council of European Prosecutors (CCPE-GT) held its 13th meeting in Strasbourg on 27-28 June 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 informed the CCPE-GT of his participation in various events at international level (for more details, see the report of the 19th meeting of the CCPE Bureau, document CCPE-BU(2013)4).
4. Mr MURA underlined the importance for the CCPE to reinforce the co-operation and the exchange of experience and information with the European Commission for the Efficiency of Justice (CEPEJ).
5. The President also mentioned the work on developing the CCPE’s website noting that, in order to make the website more informative and up-to-date, an input by its users was needed. Therefore he invited the members of the CCPE-GT to send any relevant information, including news, to the Secretariat. The website should contain wide spectrum of documents concerning the profession of prosecutors and exercise of their duties. The President also asked the CCPE-GT members to check the texts and documents provided by their countries in the past.
III. PREPARATION OF THE OPINION No. 8 ON RELATIONS BETWEEN PROSECUTORS AND MEDIA
6. The CCPE-GT examined the consolidated draft Opinion No. 8 (Document CCPE-GT(2013)4) with integrated comments by the CCPE Bureau and GT members as well as the compilation of the relevant case law of the European Court of Human Rights, both documents prepared by the Secretariat.
7. The members of the CCPE-GT wished this Opinion to be quite different from other CCPE Opinions as it would be presented like a practical guide of how should be the relations between prosecutors and medias, from the point of view of the prosecutors. It was also proposed to reduce the text to concrete indications of potential problems which may arise in the process of communication with media. Such indications should be followed by showing the possible responses by the prosecution offices.
8. On the basis of detailed discussion of the draft Opinion, the CCPE-GT decided to structure the document as follows:
- Introduction (reference texts and scope)
- Basic principles
- Why and what prosecutors communicate to media?
- How prosecutors communicate with media?
- Challenges and responses
9. The new version of the draft Opinion (Document CCPE-GT(2013)4Rev5) is reproduced in Appendix II to this report. The CCPE-GT entrusted the Bureau to finalise the draft, then to examine it during the summer period. It would be sent to all members of the CCPE in September for possible comments before the 8th plenary meeting in October.
IV. THE PROSPECTS FOR PREPARING THE MAGNA CARTA FOR PROSECUTORS
10. The CCPE-GT thanked the President for having prepared the document with reflections on possible points for updating 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 (Document CCPE-BU(2013)2Rev1).
11. The President emphasised that a compendium of principles concerning public prosecution, elaborated by the CCPE would be an alternative solution to the revision of the recommendation by the European Committee on Crime Problems (CDPC).
12. The members of the CCPE-GT agreed that such a compendium of principles concerning public prosecution, may be the task for near future. It would become the Magna Carta for prosecutors: an important document drafted in a similar way as the Magna Carta for judges prepared by the Consultative Council of European Judges (CCJE).
13. The procedural aspects were discussed. It was stressed that such Magna Carta for prosecutors could not be drafted in parallel with the regular Opinion of the CCPE to be prepared next year. These would be two important exercises difficult to be conducted at the same time. The CCJE experience was recalled by the Secretariat, when a five-member working group was established for preparing their text. On the other side, an expert could be involved to prepare the draft of the text. Dialogue with the CDPC would be ensured during the whole process, via a direct relation between the presidents of both committees.
14. This issue would be further discussed in the course of the forthcoming plenary meeting of the CCPE.
V. OTHER BUSINESS
15. The 8th plenary meeting of the CCPE would take place on 8-9 October 2013 in Yerevan, Armenia, at the invitation of the Prosecutor General, as one of the main events organised within the framework of the Armenian Chairmanship of the Committee of Ministers of the Council of Europe.
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 relations between prosecutors and media / Préparation de l’Avis n°8 sur les relations entre procureurs et médias
5. Other work of the CCPE / Autres travaux du CCPE
6. Any other business / Divers
Strasbourg, 2 July 2013
WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
OPINION No. 8
OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
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 public 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 CCPE to adopt an opinion in 2013 for its attention on relationship between prosecutors and the media1.
3. The CCPE has drafted the present Opinion on the basis of replies received from 36 member States to a questionnaire2.
4. According to these replies, it appears that the various aspects of relationship between prosecutors and the media are determined either by the Constitution and/or national laws, or by internal regulatory instruments (ex: orders and instructions by the Prosecutors General, Rules of Conduct, etc.).
5. The diversity of the legal systems of member states explains the diversity in communication methods by prosecutors, assigning them different tasks and roles, while always respecting the fundamental principles and human rights.
A. Reference texts
6. 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).
7. The CCPE examined in particular the proper balance that could exist between the fundamental right to freedom of expression and information as guaranteed by Article 10 of the ECHR and the right and duty of media to inform the public regarding criminal proceedings, and the rights to presumption of innocence, to a fair trial and to respect for private and family life as guaranteed by Articles 6 and 8 of the ECHR.
8. The CCPE took into consideration the Recommendations concerning prosecutors:
· Rec(2000)19, and in particular paragraph 6 on the effective right of prosecutors to freedom of expression, paragraph 7 on their training, paragraph 20 on the obligation of objectivity and fairness of the prosecutors as well as all their duties and responsibilities regarding individuals (paragraphs 24 to 36).
· Rec(2012)11 on the role of prosecution services outside criminal justice system.
9. The CCPE also took into consideration the following instruments adopted by the Council of Europe: the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and the following Recommendations of the Committee of Ministers to member States: Rec(2002)2 on access to public documents and Rec(2003)13 on the provision of information through the media in relation to criminal proceedings.
10. The CCPE also relied on the principles contained in its joint Opinion with the Consultative Council of European Judges (CCJE) on relations between judges and prosecutors in a democratic society – “Bordeaux Declaration” (2009) – as well as in the CCJE Opinions No. 7 (“Justice and society”) (2005) and No. 14 (“Justice and information technologies (IT)”) (2011).
11. The CCPE also took into account the relevant documents of the United Nations such as the Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)3.
12. This Opinion aims at enabling the prosecutors to provide adequate information to the media and to promote communications in an appropriate manner.
13. The Opinion, in line with the mandate of the CCPE, is addressed to prosecutors. It is not to be understood as recommendations for journalists, since this would be outside the CCPE mandate, and moreover, the CCPE is not entitled to impose on journalists specific guidelines for action. The CCPE is committed to assisting in developing a continuing understanding by the media and public in general on the role of the prosecutor and the justice system. The CCPE invites journalists, as well as all other concerned professionals, to get acquainted with the Opinion and to contribute to its dissemination.
14. The fundamental right to freedom of expression and information is a requirement which is applicable to the various tasks of prosecutors in general. This present Opinion concerns all kinds of prosecutorial activities within as well as outside the criminal field.
15. Whenever the public prosecution service adopts new means of communications to disseminate information, the principles expressed in this Opinion, will be applicable, since it is expected that information disseminated by the public prosecution service are of the public interest.
II. BASIC PRINCIPLES
16. The relationship between prosecutors and media can be understood as relating to three basic groups of principles:
· guaranteeing a fair balance between the need to ensure an independent, impartial and transparent justice and the need to guarantee other fundamental rights, such as the freedom of expression and press, which can themselves be subject to limitations provided that such limitations have a legal base, conform with democratic principles and are proportional to one or several legitimate aims, such as: the protection of vulnerable persons, the smooth running of investigations or the protection of private life4;
· protecting individuals’ rights – especially those of defendants, victims (especially the right to dignity, a private life and security of person as well as the presumption of innocence).
· Respecting procedural rights and obligations, especially when prosecutors act as an equal party of the litigation, for example, the requirement of the equality of arms and fair trial.
In applying these principles, a conflict may appear. If this is the case, balance should be maintained to preserve the essential role of these rights.
Freedom of expression and press
17. Everyone, including participants in criminal proceedings, is entitled to the right of freedom of expression. The ECHR case-law has frequently stressed that the freedom of expression plays a fundamental role in a democratic society.
18. Prosecutors also have the right to freedom of expression, while having the duty of confidentiality (discretion) and objectivity.
19. Freedom of press should be guaranteed during judicial proceedings. According to its case-law under Article 10 of the ECHR, the press has a duty to impart information or ideas on matters of public interest5 which includes the right of the public to receive them, enabling the press to play its role of a “public watchdog” In doing so, the press will be protected all the more if it contributes to the discussion of issues that have a legitimate public interest6.
20. The exercise of these freedoms can be restricted only in compliance with democratic principles, under conditions specified by law, only to the necessary extent and in proportion of the objective wished to be achieved.
21. The freedom of expression and freedom of press should not violate the lawful rights and interests of individuals including highly vulnerable persons such as children, victims, defendants’ family members, the requirement of data protection and the obligation of confidentiality, as well as the right to defense.
22. The right of the public to receive information must also be secured. However, the way this is done may depend on and may be influenced by the specific circumstances of the proceedings and may be subject to restrictions as appropriate to ensure inter alia the integrity of investigations and prosecutions as well as is necessary in order to ensure that other basic principles are respected.
23. The information provided to the media by prosecutors should not undermine the purpose of the investigation. Neither it should breach the rights of the third parties nor allow to influence those involved in the investigation or prosecution. It should not influence the outcome of the trial.
24. Investigations are one stage of criminal proceedings which are not disclosed to the public. As a result, in order to secure the success of investigations, information provided to the defendant and his/her defense counsel may also be restricted, considering the fact that defendants and their defense counsel enjoy more freedom than criminal justice authorities in informing the press. Other stages of criminal proceedings should nevertheless be subject of reasonable publicity, without prejudice to communications which can be made by lawyers and other participants in the procedure.
25. While exercising the right to freedom of press and information rights, both the media and the bodies administering justice should be especially sensitive to defendants’ right to freedom of speech (freedom of expression), the presumption of innocence, to their right to defense and their right to be informed.
26. In their communications, the prosecutors should ensure not to compromise the rights of defense by distributing information in a premature manner and not allowing the defense to respond to it. They should also be careful not to transmit information which does not respect the rights of victims to be informed in an appropriate manner. Providing information should not undermine the individuals’ right to a fair trial.
27. In their official communications, the prosecutors should ensure to never compromise the security of those involved, including judges dealing with sensitive cases.
28. A balance has to be established, through respecting the presumption of innocence, between the public interest in information and the protection of honour and integrity. The prosecutor should take care that a detainee is not publicly exposed to media curiosity and that the persons involved in a case are protected from media, more specifically that victims are protected in such a way as to avoid any risk of being harassed by the media.
29. At any stage of legal proceedings, the participants, whatever their role, have the right to dignity, respect for private and family life and personal security.
30. As far as possible, during the investigation phase, the identity of suspects should not be disclosed.
III. WHY AND WHAT PROSECUTORS COMMUNICATE TO MEDIA?
31. The principle of transparency in the exercise of prosecutors’ functions is a key component of the rule of law and one important guarantee of a fair trial.
32. Criminal justice must be done and must be seen to be done. In order to ensure this principle, the media must be allowed to report on criminal and other legal proceedings.
33. Openness in the work of prosecutors is a way of ensuring public confidence and transparency in the exercise of their powers. Thus, the image of the prosecution service forms an important element of public trust in the proper functioning of justice system. The media’s widest possible right of access to information on the activities of prosecutors also serves to strengthen democracy and to develop open societal interaction.
34. Prosecution services also play a training role and should in this capacity contribute to explaining how the justice system functions. They should make available, as appropriate, information to the media and the public in general in order to foster a better understanding and knowledge of that system.
35. Also, openness of the work of prosecutors is likely to add to improving the standard of the activities carried out by prosecution authorities. Law enforcement authorities and prosecution services may, by informing the media on on-going investigations, obtain information from the general public crucial to furthering the investigation.
36. Also, prosecutors can provide information to the general public through the media in order to prevent further crime from taking place.
37. In some member states, prosecutors, while providing general information to the media on policy matters or on the general role and function of the prosecution service, do not comment publicly on any individual case, other than as part of appropriate legal argument during a prosecution in court. In other member states, each individual prosecutor might communicate actively with the media about the cases he or she is dealing with, or might only provide limited factual information about a case already in the public domain.
IV. HOW PROSECUTORS COMMUNICATE WITH MEDIA?
38. It is for the prosecution service in each member state to decide to what extent and how best to communicate with the media. However relations with the media should be built on the basis of respect, mutual trust, non-discrimination and responsibility. Furthermore, in the exercise of their functions, prosecutors should be impartial with all the members of the media.
39. When prosecutors provide the media with information, they have to be clear and unambiguous information.
40. Providing information to the media may be done at all stages of proceedings within their competence with due respect to legal provisions concerning protection of personal data, privacy, dignity, the presumption of innocence, ethical rules of relations with other participants in the proceedings, as well as the legal provisions precluding or restricting disclosure of certain information.
41. In any case, legal provisions on secrets protected by law, including the confidentiality of the investigation, should be respected.
42. In general terms, the prosecutors in most member states are authorised to communicate directly with the media. However, each member state has its own criteria as to how this may be done, what may be communicated and who may do so.
43. In some member states, any communication may need to be channeled through a spokesperson, who will not necessarily be a prosecutor, or through a dedicated press office or, in other member States, information may need to be authorised or communicated by the head of the prosecution service or of the prosecution office7.
44. Prosecutors may have a not purely reactive approach to demands of the press; if needed, they may take the initiative to inform the public via the media, either regarding general questions related to justice, or exceptionally, where false information has become part of public opinion, regarding specific procedures for the rectification of such false information.
45. In order to carry out its functions fairly, impartially, objectively and effectively, the prosecution service may consider it appropriate to issue a press release, briefing or other communication to the media, holding press conferences, giving interviews, participating in seminars and round tables. Use should be made of new information technologies to inform the public in a timely manner about prosecutorial activities and about activities which maintain public order in the State.
46. The prosecution service may, if appropriate, cooperate with the police or other relevant investigation agencies in the preparation of any such press release, briefing or other such communication. This can contribute to demonstrating the coordination of different services, and to avoiding and preventing the dissemination of false information and negative consequences for the society following particularly serious crimes. Such cooperation should reflect the general principles set out in paragraphs 22 and 23 of Recommendation Rec (2000)19.
V. CHALLENGES AND RESPONSES
47. Prosecutors should not communicate under an improper media pressure. Prosecutors should resist to expressing an opinion or disclosing information that runs contrary to the fundamental principles of good communication. They should always communicate independently and objectively, avoiding expressing personal opinions or value judgments regarding persons or events.
48. When a prosecutor is subject to an unfair attack, he is entrusted with a right of having the information rectified according to the legal system. Nevertheless, in such cases as well as when false information is spread about persons or events involved in proceedings he is entrusted with, any reaction should preferably come from the head or a spokesperson of the prosecution office and, in major cases, by the Prosecutor General or the highest authority in charge of the service. Such an institutional reaction minimizes the need for the concerned prosecutor to make use of his right of response guaranteed to every citizen, and the risk of excessive “personalization” of the conflict.
49. Member States should provide protective mechanisms to help prosecutors that fall victim to articles or press campaigns.
i. Prosecution services should have a media policy of communications. Also, guidelines on the relations with media and journalists could also be included in the ethical codes of prosecutors.
ii. Communications between prosecutors and the media should respect the following principles: freedom of expression and of the press, right to information, right to private life and dignity as well as confidentiality of investigations, presumption of innocence, right to defense and fair trial.
iii. Relations of prosecutors with all media should be built on the basis of respect, mutual trust, non-discrimination and responsibility.
iv. Member States should establish a policy aiming to ensure that the media have access to the appropriate information necessary to better inform the public of the work of prosecution services.
v. In their relations with the media, prosecutions services may consider using both a reactive and proactive approach.
vi. It seems desirable that the prosecution offices have direct relations with the media. In order to ensure that communications are professional and contain quality information, sufficient training in the field of communication should be provided to prosecutors. Such training should focus on ethics, rights of media, information technics and should include practical exercises for radio and television interviews as well as writing press releases. This training may be facilitated by experts and journalists. It may also be considered that media relations of public prosecutors are entrusted to units or prosecutor who are specialised in public relations.
vii. Communications should always appear as emanating from the public prosecution service in general, in order to avoid activities being presented in a personalised manner and to minimise the risks of personal criticisms.
viii. When faced with unfair press campaigns or the spreading of incorrect information, it falls to the Prosecutor General or the Director of public prosecutions to give an official response. Besides legal means at disposal of individual prosecutors, reactions to incorrect information or unfair press campaigns should preferably come from the head or a spokesperson of the prosecution office and, in major cases, by the Prosecutor General or the highest authority in charge of the service.
ix. Use should be made of new information technologies, including websites of the prosecution offices, to inform the public in a timely manner about prosecutorial activities.
x. Prosecutors may if appropriate cooperate with the police and other crime prevention and law enforcement authorities, to draft the information to be communicated to the media.
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
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
Mr Jean-Pierre DRENO, Procureur Général, Parquet Général, Monaco
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
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
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: email@example.com
Mr Artashes MELIKYAN, Co-Secretary of the CCPE / Co-Secrétaire du CCPE, tel: + 33 (0)3 90 21 47 60; e-mail: firstname.lastname@example.org
Mr Jean-Pierre GEILLER, Administration and Finances / Administration et Finances, tel: + 33 (0)3 88 41 22 27; e-mail: email@example.com
Ms Annette SATTEL, Administration et réseaux / Administration and Networks, tel: + 33 (0)3 88 41 39 04; e-mail: firstname.lastname@example.org
Ms Emily WALKER, Assistant / Assistant; tel: + 33 (0)3 90 21 48 39, e-mail: email@example.com
INTERPRETERS / INTERPRETES
1 As regards the term “media”, the principles, formulated primarily with regard to the print media, apply also to the audiovisual media and internet (to be completed).
2 See the replies of member States to the questionnaire on the CCPE website (www.coe.int/ccpe) under “Preliminary works – relationships between the prosecutors and the media”.
3 Adopted by the UN General Assembly in its Resolution 40/33 of 29 November 1985.
4 Article 10 of the ECHR on the freedom of expression is structured in two paragraphs: 1) the first one defines the freedoms protected; 2) the second stipulates the circumstances in which a state may legitimately interfere with the exercise of freedom of expression. In the context of effective political democracy and respect for human rights, freedom of expression is not only important in its own right, but also plays a central part in the protection of other rights under the ECHR. The Court has repeatedly stated that the “freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment” (See Lingens v. Austria, 1986; Sener v. Turkey, 2000; Thoma v. Luxembourg, 2001; Maronek v. Slovakia, 2001; Dichand and Others v. Austria, 2002, etc.).
5 See, inter alia, The Observer and Guardian v. the United Kingdom. To put the year
6 Bladet Tromso et Stensaas v. Norway.
7 Footnote to be completed by Vladimir