CM(2005)41 23 March 20051
924 Meeting, 20 April 2005
10 Legal questions
10.3 European Committee on Crime Problems (CDPC) –
a. Abridged report of the 54th meeting (Strasbourg, 7-11 March 2005)
b. Draft Recommendation Rec(2005)… of the Committee of Ministers to member states on the protection of witnesses and collaborators of justice
c. Draft Recommendation Rec(2005)… of the Committee of Ministers to member states on “special investigation techniques” in relation to serious crimes including acts of terrorism
1. The European Committee on Crime Problems (CDPC) met in Strasbourg from 7 to 11 March 2005. The agenda appears in Appendix I.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION
2. The CDPC invited the Committee of Ministers:
a. to adopt the draft Convention on laundering, search, seizure and confiscation of the proceeds from crime and on the financing of terrorism and take note of its Explanatory report (document CM(2005)35 and Addendum). The CDPC noted that the issue of the so-called “disconnection clause” (Article 52.4) raises important questions with legal and political implications, to be solved by the Committee of Ministers. One delegation (Russia) indicated that for legal and political reasons it was against the inclusion of specific provisions for regional bodies in the draft Convention;
b. to adopt the text of the draft Recommendation on the protection of witnesses and collaborators of justice and take note of its Explanatory memorandum (Appendix II and document CM(2005)41 Addendum I);
c. to adopt the text of the draft Recommendation on special investigation techniques and to take note of its Explanatory memorandum (Appendix III and document CM(2005)41 Addendum II);
d. to approve the increase of the membership of the CDPC Bureau from 7 to 9 members (see paragraph 5 below);
e. to approve the draft revised specific terms of reference of MONEYVAL (Appendix IV), extending the terms of office of the Chair and Vice-Chair from one to two years, in order that these terms of office remain in phase with the monitoring cycles;
f. to approve the draft specific terms of reference of the Consultative Council of European Prosecutors (CCPE), and to decide that the CCPE may send representatives to the CDPC and to the Consultative Council of European Judges (CCJE) (see paragraph 3b
below and Appendix V);
g. to approve the draft revised specific terms of reference of the Committee of experts on transnational criminal justice (PC-TJ) in particular to extend the terms of reference until 31 January 2006 and to cover the travel and subsistence expenses for one additional member who has been elected as the Chair (Appendix VI);
h. to approve the draft ad hoc terms of reference for the Council for Police Matters (PC-PM) relating to the regulation of private security services (Appendix VII).
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION
3. The CDPC invited the Committee of Ministers to note:
a. the adoption by the CDPC of the document on the revised working methods of the CDPC and its Bureau (Appendix VIII), as a result of which the CDPC will be able to work more effectively and, in particular, respond more rapidly to requests for opinions (see also paragraph e below);
b. its opinion on the institutionalisation of the Conference of Prosecutors General of Europe (CPGE) (Appendix IX);
Note c. the adoption by the CDPC of its Progress Report on the updating of the European Prison Rules and the feasibility of a European Prison Charter, to be presented to the 26th Ministers of Justice Conference in Helsinki, 7 – 8 April 2005 - as requested by the Committee of Ministers in its reply to Parliamentary Assembly Recommendation 1656 (2004) [CM/AS Rec. 1656 final, 11 June 2004] (Appendix X);
d. the priority nature of the activities of the CDPC and its standard setting role in the field of criminal justice and the need to ensure the availability of sufficient resources to enable it to carry out as rapidly as possible its programme of activities;
e. its regret that it had not been consulted on a number of important texts concerning criminal matters, given that its role in ensuring a coherent, consistent and comprehensive European criminal policy could not be carried out if its opinion was not sought on such questions (see paragraph a above).
4. The CDPC took note of:
a. the work carried out by MONEYVAL, the Council for Penological Co-operation (PC-CP) and the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC) and underlined the importance of this work;
b. the Conclusions of the 5th Conference of Prosecutors General of Europe (Celle, 23 to 25 May 2004);
c. the Conclusions of the Conference of Directors of Prison Administration, attended also by Directors of Probation Services (Rome, 25-27 November 2004);
d. the questionnaire prepared by the Council for Police Matters (PC-PM) to collect information on the implementation by member States of the European Code of Police Ethics and invited those States which had not done so, to send their replies by 18 March 2005;
e. the presentation by Mr Marcelo AEBI, Scientific expert of the PC-CP, concerning the replies to the questionnaire on the follow-up to Recommendation No. R (99) 22 on prison overcrowding and prison population inflation;
f. the presentation by Ms Linda CONINGS (Belgium), representative of the CDPC in the ad hoc Committee on action against trafficking in human beings (CAHTEH), on the draft Convention on action against trafficking in human beings;
g. the work of the Group of Specialists on the assistance to victims and prevention of victimisation
(PC-S-AV). The CDPC noted that, at the CDPC Bureau meeting which preceded the opening of the CDPC on 7 March 2005, the Bureau decided to authorise the admission of the United Nations Interregional Crime and Justice Research Institute (UNICRI), the United Nations Office for Drugs and Crime (UNODC) the United Nations High Commissioner for Human Rights (UNHCHR) and the European Forum for Victim-Offender Mediation and Restorative Justice as observers to the Group of Specialists on the assistance to victims (PC-S-AV) (see also paragraphs 7c and 8 below);
h. the work of the Group of Specialists on the Protection of Children against Sexual Exploitation (PC-S-ES) and in particular the analysis of the governmental replies to the tool “REACT”.
i. the preparation of the 6th Conference of Prosecutors General of Europe (Budapest, 29 to 31 May 2005);
j. the preparation of the 26th Conference of European Ministers of Justice (Helsinki, 7 and 8 April 2005);
k. the preparation of a Conference on probation and aftercare, to be held in Turkey in the autumn of 2005;
l. the preparation of a Conference which is being organised by the Council of Europe and the Government of Slovenia, in co-operation with UNICEF, in Ljubljana on 8-9 (morning) July 2005, as a review of the Commitments made by States at the 1st and 2nd World Congresses Against Commercial Sexual Exploitation of Children in 1996 and 2001 and in the Council of Europe Recommendation Rec(2001)16 on the protection of children against sexual exploitation;
m. the preparation of the Regional Consultation for the United Nations on the Study on Violence against children in Europe and Central Asia, Ljubljana, 5–7 July 2005;
n. the preparation of a Conference on economic crime, to be held in Cascais, Portugal, from 28 to 30 September 2005 and the request to CDPC delegations to ensure that replies to the questionnaire concerning the organised crime situation in the member states are returned to the Secretariat by 10 May 2005;
o. the work carried out under its authority and other activities carried out by the Council of Europe.
5. The CDPC elected Mr Claude DEBRULLE (Belgium) as Chair for a period of two years and Mr Branislav BOHÁČIK (Slovakia) as Vice-Chair for a period of one year. It elected Mr Roland MIKLAU (Austria) and Ms Andreja LANG (Slovenia) as members of the Bureau for a period of four years and, subject to the decision of the Committee of Ministers under 2d above, elected Mr Jesper HJORTENBERG (Denmark) and Mr Alexander ZMEYEVSKIY (Russian Federation) as members of the Bureau for a period of four years.
6. The CDPC confirmed the appointment of Ms Isabelle RORIVE (Belgium) as its representative at the future meetings of the ad hoc Committee of Experts on the Information Society (CAHSI).
7. The CDPC requested its Bureau:
a. to consider the question of the work of the Criminological Scientific Council (PC-CSC) and its future work, noting the importance of its activities, in particular in making proposals for future activities;
b. to consider the possible means to enable account to be taken of views of all member States on texts drafted by subordinate committees which are composed of a limited number of states or of specialists before these texts are sent for approval by the CDPC;
c. to consider the policy to be adopted by the CDPC concerning requests for observer status in the CDPC;
d. to consider ways in which States are designated as members or substitute members of restricted subordinate committees of the CDPC, such as the Committee of Experts on transnational criminal justice (PC-TJ);
e. to finalise, in the light of written and oral comments made by CDPC delegations, the texts of the draft Recommendation on the European Prison Rules and the commentary. The Bureau will be enlarged to enable those delegations, which so wish, to participate (at their own expense) in this meeting of the Bureau together with the Chair of the PC-CP and one of its scientific experts. The Bureau is instructed, after finalising the texts and completing a written approval procedure with the full membership of the CDPC, to forward these texts directly to the Committee of Ministers for adoption (see paragraphs 10 and 13 below);
f. to consider, in the light of discussions on this point to be held at the 26th Ministers of Justice Conference in Helsinki, the question of a possible European Prison Charter and to report back to the CDPC;
g. to finalise the draft ad hoc terms of reference relating to the drafting of European Rules for juvenile offenders deprived of their liberty or subject to community sanctions and measures and, after completing a written approval procedure with the full membership of the CDPC, to forward the text directly to the Committee of Ministers for adoption.
8. The CDPC will revert to the outstanding request of the European Forum for Victim-Offender Mediation and Restorative Justice to be admitted as an observer once it will have adopted the policy referred to under paragraph 7c above (see also paragraph 4g)
9. The CDPC requested the PC-OC to consider the question of judicial co-operation and the protection of witnesses and collaborators of justice in the light of Article 23 of the Second Additional Protocol to the European Convention on mutual assistance in criminal matters and the information prepared by the Committee of Experts on the protection of witnesses and collaborators of justice (PC-PW).
10. The CDPC requested delegations to the CDPC to send the Secretariat by e-mail (firstname.lastname@example.org) by the end of April 2005, any comments they wish to make concerning the texts of the draft Recommendation on the European Prison Rules and its commentary. Such comments should contain, in particular, any proposed textual amendments (see paragraph 7e above).
11. The CDPC requested the PC-CP, following the conference in Turkey in late 2005, and in consultation with the Standing European Conference on Probation (CEP), to propose draft specific terms of reference to address the issues of probation and aftercare, particularly in the context of prison services, and to submit them to the next plenary of the CDPC (see paragraph 4k above).
12. The CDPC requested its Bureau, the PC-CP, the PC-OC and the PC-CSC to give their views to the CDPC concerning possible future activities of the CDPC and its subordinate committees including the follow-up to be given to the 26th Conference of European Ministers of Justice, to matters relating to Parliamentary Assembly Recommendation 1621 (2003) on the promotion of art history in Europe and to the question of counterfeiting.
13. The CDPC decided to hold its next meeting during the week beginning 27 March or 3 April 2006. The Bureau decided to hold it next meeting from 13 to 15 June 2005 (see paragraphs 7e and 10 above).
14. The CDPC invited the Committee of Ministers to take note of this report as a whole.
Note Appendix I
1. OPENING OF THE MEETING
2. ADOPTION OF THE DRAFT AGENDA
3. ELECTIONS / APPOINTMENTS
3.1 Election of the Chair, Vice Chair and Bureau members
3.2 End of term of office of two members of the Criminological Scientific Council (PC-CSC)
3.3 Appointment of a CDPC representative to the Multidisciplinary ad hoc Committee of Experts on the Information Society (CAHSI)
4. ADOPTION OF THE REVISED WORKING METHODS OF THE CDPC AND ITS BUREAU
5. APPROVAL OF THE DRAFT CONVENTION ON LAUNDERING, SEARCH, SEIZURE AND CONFISCATION OF THE PROCEEDS FROM CRIME AND ON THE FINANCING OF TERRORISM, AND AUTORISATION OF THE PUBLICATION OF ITS DRAFT EXPLANATORY REPORT
6. MONEYVAL: APPROVAL OF THE DRAFT REVISED TERMS OF REFERENCE
7. COMMITTEE OF EXPERTS ON THE PROTECTION OF WITNESSES AND COLLABORATORS OF JUSTICE (PC-PW)
7.1 Approval of the draft recommendation on the protection of witnesses and collaborators of justice and its explanatory memorandum
7.2 Consideration of the report on issues that should be addressed by means of international binding legal instruments and of the possible extension of the specific terms of reference of the committee
8. APPROVAL OF THE DRAFT RECOMMENDATION ON SPECIAL INVESTIGATION TECHNIQUES AND AUTORISATION OF THE PUBLICATION OF ITS EXPLANATORY MEMORANDUM
9.1 Examination of the European Prison Rules
9.2 European Prison Charter
9.3 Remand in custody
9.4 Information on the draft ad-hoc terms of reference relating to the drafting of European Rules for juvenile offenders deprived of their liberty or subject to community sanctions and measures
10. OTHER WORK IN THE PENOLOGICAL FIELD
10.1 Organisation of future work in the penological field
10.2 Replies to a questionnaire concerning Recommendation No. R (99) 22 on prison overcrowding and prison population inflation
11.1 Adoption of an opinion on the institutionalisation of the Conference of Prosecutors General of Europe (CPGE)
11.2 Approval of draft terms of reference for a Consultative Council of European Prosecutors (CCPE)
11.3 Other information
- 5th Conference of Prosecutors General of Europe: conclusions
- 6th Conference of Prosecutors General of Europe: preparation
12. EXTENSION OF THE SPECIFIC TERMS OF REFERENCE OF THE COMMITTEE OF EXPERTS ON TRANSNATIONAL JUSTICE (PC-TJ)
13. COUNCIL FOR POLICE MATTERS (PC-PM) – APPROVAL OF THE DRAFT AD HOC TERMS OF REFERENCE ON THE REGULATION OF PRIVATE SECURITY SERVICES
14. EXCHANGE OF VIEWS ON THE FUTURE WORK OF THE CDPC
14.1 General exchange of views
14.2 Exchange of views on possible specific work
Counterfeiting in general (including medicines, drugs, art and money)
Committee of Experts on Pharmaceutical Questions (P-SP-PH) opinion on the PACE Recommendation 1673 (2004) “Counterfeiting: problems and solutions”, dealing with the issue of counterfeit medicines – possible contribution of the Committee on Assistance to Victims and Prevention of Victimisation (PC-S-AV). See also under item 16. 5 below.
15. CONFERENCE OF EUROPEAN MINISTERS OF JUSTICE, HELSINKI, 7 AND 8 APRIL 2005
16. OTHER ACTIVITIES
16.1 Ad Hoc Committee on Action against Trafficking in Human Beings (CAHTEH)
Information on the work of the Committee and the draft Council of Europe Convention on action against trafficking in human beings
16.2 Committee of Ministers Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder
16.3 Draft convention on the prevention of terrorism
16.4 Group of specialists on the Assistance to Victims and Prevention of Victimisation (PC-S-AV) (for information)
a. Terms of Reference
b. Contribution to the discussions on problems and solutions to counterfeit medicine
16.5 Information on the work of the Committee of Experts on Pharmaceutical Questions (P-SP-PH) - “Counterfeit Medicines Project”
16.6 Information on the work of the PC-OC
16.7 Report of the Executive Secretary of GRECO on ongoing and planned work
16.8 Report by the Secretariat on Assistance Activities in the field of economic crime
16.9 Programme of action on “Children and Violence”
16.10 Information on the work of the Group of Specialists on the protection of children against sexual exploitation (PC-S-ES) and work concerning violence against children
17. BUREAU OF THE CDPC
18. AGENDA OF THE NEXT MEETING OF THE CDPC
19. CALENDAR OF FUTURE MEETINGS
20. DATES OF THE NEXT MEETINGS OF THE BUREAU AND THE CDPC
21. ANY OTHER BUSINESS
Note Appendix II
Draft Recommendation Rec(2005) of the Committee of Ministers to member states on the protection of witnesses and collaborators of justice
(Adopted by the Committee of Ministers on …,
at the … Meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Recalling that the aim of the Council of Europe is to achieve greater unity among its members;
Aware of the need for member states to develop a common crime policy in relation to witness protection;
Noting that there is growing recognition of the special role of witnesses in criminal proceedings and that their evidence is often crucial to securing the conviction of offenders, especially in respect of serious crime;
Considering that in some areas of criminality, such as organised crime and terrorism, there is an increasing risk that witnesses will be subjected to intimidation;
Considering that the final report of the Multidisciplinary Group on International Action against Terrorism (GMT) and the subsequent decisions of the Committee of Ministers recognise the protection of witnesses and collaborators of justice as a priority area of the Council of Europe's legal action against terrorism;
Recalling that in Resolution No. 1 on Combating International Terrorism approved at the 24th Conference of European Ministers of Justice (Moscow, 4-5 October 2001), the Committee of Ministers was invited to adopt urgently all normative measures considered necessary for assisting states to prevent, detect, prosecute and punish acts of terrorism, such as the improvement of the protection of witnesses and other persons participating in proceedings involving persons accused of terrorist crimes;
Recalling that in Resolution No. 1 on Combating Terrorism approved at the 25th Conference of European Ministers of Justice (Sofia, 9-10 October 2003), the Committee of Ministers was invited to, inter alia, pursue without delay the work with a view to adopting relevant international instruments on the protection of witnesses and collaborators of justice;
Convinced that, while all persons have a civic duty to give sincere testimony as witnesses if so required by the criminal justice system, there should also be greater recognition given to their rights and needs, including the right not to be subject to any undue interference or be placed at personal risk;
Considering that member states have a duty to protect witnesses against such interference by providing them with specific protection measures aimed at effectively ensuring their safety;
Considering that it is unacceptable for the criminal justice system to fail to bring defendants to trial and obtain a judgment because witnesses have been effectively discouraged from testifying freely and truthfully;
Aware that the protection of witnesses and collaborators of justice requires confidentiality and that efforts should be made to ensure that effective measures are taken to thwart attempts to trace witnesses and collaborators of justice, in particular by criminal organisations, including terrorist organisations;
Bearing in mind the provisions of the European Convention on Human Rights (ETS No. 5) and the case-law of its organs, which recognise the rights of the defence to examine the witness and to challenge his/her testimony;
Taking into account Recommendation No. R (97) 13 concerning intimidation of witnesses and the rights of the defence, in particular with respect to the measures to be taken in relation to vulnerable witnesses, especially in cases of crime within the family; Recommendation No. R (85) 4 on violence in the family, Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure, Recommendation No. R (87) 21 on assistance to victims and the prevention of victimisation, Recommendation No. R (91) 11 concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults and Recommendation No. R (96) 8 on crime policy in Europe in a time of change,
Recommends that governments of member states:
i. be guided, when formulating their internal legislation and reviewing their criminal policy and practice, by the principles and measures appended to this recommendation;
ii. ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies, such as judicial organs, investigating and prosecuting authorities, bar associations, and relevant social institutions.
Appendix to Recommendation Rec(2005)
concerning protection of witnesses and collaborators of justice
For the purposes of this recommendation:
– "witness" means any person who possesses information relevant to criminal proceedings about which he/she has given and/or is able to give testimony (irrespective of his/her status and of the direct or indirect, oral or written form of the testimony, in accordance with national law), who is not included in the definition of “collaborator of justice”;
– "collaborator of justice" means any person who faces criminal charges, or has been convicted of taking part in a criminal association or other criminal organisation of any kind, or in offences of organised crime, but who agrees to co-operate with criminal justice authorities, particularly by giving testimony about a criminal association or organisation, or about any offence connected with organised crime or other serious crimes;
– "intimidation" means any direct or indirect threat carried out or likely to be carried out to a witness or collaborator of justice, which may lead to interference with his/her willingness to give testimony free from undue interference, or which is a consequence of his/her testimony;
– "anonymity" means that the identifying particulars of the witness are not generally divulged to the opposing party or to the public in general;
– "people close to witnesses and collaborators of justice" includes the relatives and other persons in a close relationship to the witnesses and the collaborators of justice, such as the partner, (grand)children, parents and siblings;
– "protection measures" are all individual procedural or non-procedural measures aimed at protecting the witness or collaborator of justice from any intimidation and/or any dangerous consequences of the decision itself to co-operate with justice;
– "protection programme" means a standard or tailor-made set of individual protection measures which are, for example, described in a memorandum of understanding, signed by the responsible authorities and the protected witness or collaborator of justice.
II. General Principles
1. Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation.
2. While respecting the rights of the defence, the protection of witnesses, collaborators of justice and people close to them should be organised, where necessary, before, during and after the trial.
3. Acts of intimidation of witnesses, collaborators of justice and people close to them should, where necessary, be made punishable either as separate criminal offences or as part of the offence of using illegal threats.
4. Subject to legal privileges providing the right of some persons to refuse to give testimony, witnesses and collaborators of justice should be encouraged to report any relevant information regarding criminal offences to the competent authorities and thereafter agree to give testimony in court.
5. While taking into account the principle of free assessment of evidence by courts and the respect of the rights of the defence, procedural law should enable the impact of intimidation on testimonies to be taken into consideration and statements made during the preliminary phase of the procedure to be allowed (and/or used) in court.
6. While respecting the rights of the defence, alternative methods of giving evidence which protect witnesses and collaborators of justice from intimidation resulting from face-to-face confrontation with the accused should be considered.
7. Criminal justice personnel should have adequate training and guidelines to deal with cases where witnesses might require protection measures or programmes.
8. All the stages of the procedure related to the adoption, implementation, modification and revocation of protection measures or programmes should be kept confidential; the unauthorised disclosure of this information should be made punishable as a criminal offence where appropriate, especially to ensure the security of a protected person.
9. The adoption of protection measures or programmes should also take into account the need to strike an adequate balance with the principle of safeguarding the rights and expectations of victims.
III. Protection measures and programmes
10. When designing a framework of measures to combat serious offences, including those related to organised crime and terrorism, and violations of international humanitarian law, appropriate measures should be adopted to protect witnesses and collaborators of justice against intimidation.
11. No terrorism-related crimes should be excluded from the offences for which specific witness protection measures/programmes are envisaged.
12. The following criteria should, inter alia, be taken into consideration when deciding upon the entitlement of a witness/collaborator of justice to protection measures or programmes:
- involvement of the person to be protected (as a victim, witness, co-perpetrator, accomplice or aider and abetter) in the investigation and/or in the case;
- relevance of the contribution;
- seriousness of the intimidation;
- willingness and suitability to being subject to protection measures or programmes
13. When deciding upon the adoption of protection measures it should also be considered, in addition to the criteria mentioned in paragraph 12, whether there is no other evidence available that could be deemed sufficient to establish a case related to serious offences.
14. Proportionality between the nature of the protection measures and the seriousness of the intimidation of the witness/collaborator of justice should be ensured.
15. Witnesses/collaborators of justice being subjected to the same kind of intimidation should be entitled to similar protection. However, any protection measures/programmes adopted will need to take into account the particular characteristics of the matter and the individual needs of the person(s) to be protected.
16. Procedural rules aimed at the protection of witnesses and collaborators of justice should ensure that the balance necessary in a democratic society is maintained between the prevention of crime, the needs of the victims and witnesses and the safeguarding of the right to a fair trial.
17. While ensuring that the parties have adequate opportunity to challenge the evidence given by a witness/collaborator of justice, the following measures aimed at preventing identification of the witness may, inter alia, be considered :
- audiovisual recording of statements made by witnesses/collaborators of justice during the preliminary phase of the procedure;
- using statements given during the preliminary phase of the procedure as evidence in court when it is not possible for witnesses to appear before the court or when appearing in court might result in great and actual danger to the witnesses/collaborators of justice or to people close to them; pre-trial statements should be regarded as valid evidence if the parties have, or have had, the chance to participate in the examination and interrogate and/or cross-examine the witness and to discuss the contents of the statement during the procedure;
- disclosing information which enables the witness to be identified at the latest possible stage of the proceedings and/or releasing only selected details;
- excluding or restricting the media and/or the public from all or part of the trial;
- using devices preventing the physical identification of witnesses and collaborators of justice, such as using screens or curtains, disguising the face of the witness or distorting his/her voice;
- using video-conferencing.
18. Any decision to grant anonymity to a witness in criminal proceedings will be made in accordance with domestic law and European human rights law.
19. Where available, and in accordance with domestic law, anonymity of persons who might give evidence should be an exceptional measure. Where the guarantee of anonymity has been requested by such persons and/or temporarily granted by the competent authorities, criminal procedural law should provide for a verification procedure to maintain a fair balance between the needs of criminal justice and the rights of the parties. The parties should, through this procedure, have the opportunity to challenge the alleged need for anonymity of the witness, his/her credibility and the origin of his/her knowledge.
20. Any decision to grant anonymity should only be taken when the competent judicial authority finds that the life or freedom of the person involved, or of the persons close to him or her, is seriously threatened, the evidence appears to be significant and the person appears to be credible.
21. When anonymity has been granted, the conviction should not be based solely, or to a decisive extent, on the evidence provided by anonymous witnesses.
22. Where appropriate, witness protection programmes should be set up and made available to witnesses and collaborators of justice who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses/collaborators of justice, and people close to them, aiming in particular at providing the appropriate physical, psychological, social and financial protection and support.
23. Protection programmes implying dramatic changes in the life/privacy of the protected person (such as relocation and change of identity) should be applied to witnesses and collaborators of justice who need protection beyond the duration of the criminal trials where they give testimony. Such programmes, which may last for a limited period or for life, should be adopted only if no other measures are deemed sufficient to protect the witness/collaborator of justice and persons close to them.
24. The adoption of such programmes requires the informed consent of the person(s) to be protected and an adequate legal framework, including appropriate safeguards for the rights of the witnesses or collaborators of justice according to national law.
25. Where appropriate, protection measures could be adopted on an urgent and provisional basis before a protection programme is formally adopted.
26. Given the essential role that collaborators of justice may play in the fight against serious offences, they should be given adequate consideration. Where necessary, protection programmes applicable to collaborators of justice serving a prison sentence may also include specific arrangements such as special penitentiary regimes.
27. Protection of collaborators of justice should also be aimed at preserving their credibility and public security. Adequate measures should be undertaken to protect against the risk of the collaborators of justice committing further crimes while under protection and therefore, even involuntarily, jeopardising the case in court. The intentional perpetration of an offence by a collaborator of justice under protection should, according to the relevant circumstances, imply the revocation of protection measures.
28. While respecting the fundamental principles of administrative organisation of each state, staff dealing with the implementation of protection measures should be afforded operational autonomy and should not be involved either in the investigation or in the preparation of the case where the witness/collaborator of justice is to give evidence. Therefore, an organisational separation between these functions should be provided for. However, an adequate level of co-operation/contact with or between law-enforcement agencies should be ensured in order to successfully adopt and implement protection measures and programmes.
IV. International co-operation
29. While respecting the different legal systems and the fundamental principles of administrative organisation of each state, a common approach in international issues related to the protection of witnesses and collaborators of justice should be followed. Such a common approach should aim at ensuring proper professional standards, at least in the crucial aspects of confidentiality, integrity and training. Member states should ensure sufficient exchange of information and co-operation between the authorities responsible for protection programmes.
30. Measures aimed at fostering international co-operation should be adopted and implemented in order to facilitate the examination of protected witnesses and collaborators of justice and to allow protection programmes to be implemented across borders.
31. The scope and the effective and rapid implementation of international co-operation in matters related to the protection of witnesses and collaborators of justice, including with relevant international jurisdictions, should be improved.
32. The following objectives should, for example, be considered:
– to provide assistance in relocating abroad protected witnesses, collaborators of justice and persons close to them and ensuring their protection, in particular in those cases where no other solution can be found for their protection;
– to facilitate and improve the use of modern means of telecommunication such as video-links, and the security thereof, while safeguarding the rights of the parties;
– to co-operate and exchange best practices through the use of already existing networks of national experts;
– to contribute to the protection of witnesses and collaborators of justice within the context of co-operation with international criminal courts.
Note Appendix III
Draft Recommendation Rec(2005)… of the Committee of Ministers to member states on “special investigation techniques” in relation to serious crimes including acts of terrorism
(Adopted by the Committee of Ministers on …,
at the … Meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe;
Recalling that the aim of the Council of Europe is to achieve a greater unity among its members;
Recalling that in Resolution No. 1 on combating international terrorism adopted at the 24th Conference of European Ministers of Justice (Moscow, 4-5 October 2001), the Committee of Ministers was invited to adopt urgently all normative measures considered necessary for assisting states to prevent, detect, prosecute and punish acts of terrorism;
Considering that the final report of the Multidisciplinary Group on International Action against Terrorism (GMT) and the subsequent decisions of the Committee of Ministers recognise the use of special investigation techniques as a priority area of the Council of Europe's legal action against terrorism;
Recalling that in Resolution No. 1 on combating terrorism, adopted at the 25th Conference of European Ministers of Justice (Sofia, 9-10 October 2003), the Committee of Ministers was invited, inter alia, to pursue without delay work with a view to adopting relevant international instruments on the use of special investigation techniques;
Bearing in mind the final report on special investigation techniques in relation to acts of terrorism prepared by the Committee of Experts on Special Investigation Techniques in relation to Acts of Terrorism (PC-TI) and the opinions of the Committee of Experts on Terrorism (CODEXTER) and of the European Committee on Crime Problems (CDPC) thereon;
Bearing in mind the surveys on “best practices” against organised crime carried out by the Group of Specialists on Criminal Law and Criminological Aspects of Organised Crime (PC-S-CO), as well as the reports adopted in the framework of the Council of Europe's technical co-operation programmes for the fight against corruption and organised crime;
Taking into account Recommendation No. R (96) 8 on crime policy in Europe in a time of change and Recommendation Rec(2001)11 concerning guiding principles in the fight against organised crime;
Taking into account the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108, 28 January 1981) and its Additional Protocol on Supervisory Authorities and Transborder Data Flows (ETS No. 181, 8 November 2001); Recommendation No. R (87) 15 regulating the use of personal data in the police sector; and Recommendation No. R (95) 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services;
Taking into account the existing Council of Europe conventions on co-operation in the penal field, as well as similar treaties which exist between Council of Europe member states and other states;
Mindful of the Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002;
Mindful of the obligation on member states to maintain a fair balance between ensuring public safety through law enforcement measures and securing the rights of individuals, as enshrined in the provisions of the European Convention on Human Rights and the case-law of the European Court of Human Rights in particular;
Considering that special investigation techniques are numerous, varied and constantly evolving and that their common characteristics are their secret nature and the fact that their application could interfere with fundamental rights and freedoms;
Recognising that the use of special investigation techniques is a vital tool for the fight against the most serious forms of crime, including acts of terrorism;
Aware that the use of special investigation techniques in criminal investigations requires confidentiality and that any efforts to pursue the commission of serious crime, including acts of terrorism, should where appropriate be thwarted with secured covert means of operation;
Aware of the need to reinforce the effectiveness of special investigation techniques by developing common standards governing their proper use and the improvement of international co-operation in matters related to them;
Recognising that the development of such standards would contribute to further build public confidence as well as confidence amongst relevant competent authorities of the member states in the use of special investigation techniques,
Recommends that governments of member states:
i. be guided, when formulating their internal legislation and reviewing their criminal policy and practice, and when using special investigation techniques, by the principles and measures appended to this recommendation;
ii. ensure that all the necessary publicity for these principles and measures is distributed to competent authorities involved in the use of special investigation techniques.
Appendix to Recommendation Rec(2005)…
Chapter I – Definitions and scope
For the purpose of this recommendation, “special investigation techniques” means techniques applied by the competent authorities in the context of criminal investigations for the purpose of detecting and investigating serious crimes and suspects, aiming at gathering information in such a way as not to alert the target persons.
For the purpose of this recommendation, “competent authorities” means judicial, prosecuting and investigating authorities involved in deciding, supervising or using special investigation techniques in accordance with national legislation.
Chapter II – Use of special investigation techniques at national level
a. General principles
1. Member states should, in accordance with the requirements of the European Convention on Human Rights (ETS No. 5), define in their national legislation the circumstances in which, and the conditions under which, the competent authorities are empowered to resort to the use of special investigation techniques.
2. Member states should take appropriate legislative measures to allow, in accordance with paragraph 1, the use of special investigation techniques with a view to making them available to their competent authorities to the extent that this is necessary in a democratic society and is considered appropriate for efficient criminal investigation and prosecution.
3. Member states should take appropriate legislative measures to ensure adequate control of the implementation of special investigation techniques by judicial authorities or other independent bodies through prior authorisation, supervision during the investigation or ex post facto review.
b. Conditions of use
4. Special investigation techniques should only be used where there is sufficient reason to believe that a serious crime has been committed or prepared, or is being prepared, by one or more particular persons or an as-yet-unidentified individual or group of individuals.
5. Proportionality between the effects of the use of special investigation techniques and the objective that has been identified should be ensured. In this respect, when deciding on their use, an evaluation in the light of the seriousness of the offence and taking account of the intrusive nature of the specific special investigation technique used should be made.
6. Member states should ensure that competent authorities apply less intrusive investigation methods than special investigation techniques if such methods enable the offence to be detected, prevented or prosecuted with adequate effectiveness.
7. Member states should, in principle, take appropriate legislative measures to permit the production of evidence gained from the use of special investigation techniques before courts. Procedural rules governing the production and admissibility of such evidence shall safeguard the rights of the accused to a fair trial.
c. Operational guidelines
8. Member states should provide the competent authorities with the required technology, human and financial resources with a view to facilitating the use of special investigation techniques.
9. Member states should ensure that, with respect to those special investigation techniques involving technical equipment, laws and procedures take account of the new technologies. For this purpose, they should work closely with the private sector to obtain their assistance in order to ensure the most effective use of existing technologies used in special investigation techniques and to maintain effectiveness in the use of new technologies.
10. Member states should ensure, to an appropriate extent, retention and preservation of traffic and location data by communication companies, such as telephone and Internet service providers, in accordance with national legislation and international instruments, especially the European Convention on Human Rights and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108).
11. Member states should take appropriate measures to ensure that the technology required for special investigation techniques, in particular with respect to interception of communications, meets minimum requirements of confidentiality, integrity and availability.
d. Training and co-ordination
12. Member states should ensure adequate training of competent authorities in charge of deciding to use, supervising and using special investigation techniques. Such training should comprise training on technical and operational aspects of special investigation techniques, training on criminal procedural legislation in connection with them and relevant training in human rights.
13. Member states should consider the provision of specialised advice at national level with a view to assisting or advising competent authorities in the use of special investigation techniques.
Chapter III – International co-operation
14. Member states should make use to the greatest extent possible of existing international arrangements for judicial or police co-operation in relation to the use of special investigation techniques. Where appropriate member states should also identify and develop additional arrangements for such co-operation.
15. Member states are encouraged to sign, to ratify and to implement existing conventions or instruments in the field of international co-operation in criminal matters in areas such as exchange of information, controlled delivery, covert investigations, joint investigation teams, cross-border operations and training.
Relevant instruments include, inter alia:
– the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988;
– the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990 (ETS No. 141);
– the Criminal Law Convention on Corruption of 27 January 1999 (ETS No. 173);
– the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 8 November 2001 (ETS No. 182);
– the Convention on Cybercrime of 23 November 2001 (ETS No. 185);
– the United Nations Convention against Transnational Organized Crime of 15 November 2000 and the Protocols thereto;
– the United Nations Convention on Corruption of 31 October 2003.
16. Member states are encouraged to make better use of existing relevant international bodies, such as the Council of Europe, the European Judicial Network, Europol, Eurojust, the International Criminal Police Organization (Interpol) and the International Criminal Court, with a view to exchanging experience, further improving international co-operation and conducting best practice analysis in the use of special investigation techniques.
17. Member states should encourage their competent authorities to make better use of their international networks of contacts in order to exchange information on national regulations and operational experience with a view to facilitating the use of special investigation techniques in an international context. If needed, new networks should be developed.
18. Member states should promote compliance of technical equipment with internationally agreed standards with a view to overcoming technical obstacles in the use of special investigation techniques in an international context, including those connected with interceptions of mobile telecommunications.
19. Member states are encouraged to take appropriate measures to promote confidence between their respective competent authorities in charge of deciding to use, supervising or using special investigation techniques with a view to improving their efficiency in an international context, while ensuring full respect for human rights.
Note Appendix IV
Note Draft revised terms of reference of MONEYVAL
1. Name of Committee
Select Committee of experts on the evaluation of anti-money laundering measures (MONEYVAL)
2. Type of Committee:
3. Source of terms of reference:
European Committee of Crime Problems (CDPC)
4. Terms of reference:
a. Money laundering, i.e. the process through which criminals give an apparently legitimate origin to proceeds of crime, is an expanding and increasingly international phenomenon. It may particularly affect economies which are undergoing transformation and which offer significant opportunities for foreign investment. The financial regulatory framework, both in banking and non-banking sectors, is often less stringent in these countries than in others, which make them vulnerable to money laundering operations. Given the diverse illegal activities, including money laundering, of organised crime groups in some of these countries and, in exceptional cases, their alleged infiltration into entire national economies, it seems that it is in their vital interest to create and maintain a credible financial system capable of detecting, preventing and controlling money laundering.
In addition, recent experience has shown that organised terrorist groups also misuse the world's financial system to fund their illegal operations, thus posing a serious risk to financial institutions of being used for hiding terrorist money. Measures aiming at the prevention and deterrence of money laundering therefore need to be extended to terrorist financing.
b. The establishment of an efficient anti-money laundering system is due in many countries to the enforcement of national and international anti-money laundering measures and their regular monitoring through international bodies, such as the Financial Action Task Force on Money Laundering (FATF)2. The monitoring, which implies evaluating each other's performance in so-called “peer groups”, greatly enhances the compatibility of national norms with international standards in the financial, law enforcement and judicial sectors.
c. Taking into account the procedures and practices used by the FATF, the IMF and the World Bank, the Committee shall:
- elaborate appropriate documentation, including questionnaires for self- and mutual evaluations;
- evaluate, by means of self- and/or mutual evaluation questionnaires (and/or other documentation agreed between MONEYVAL and the IMF/World Bank representing a common AML/CFT methodology) and periodic on-site visits, the performance of those member states of the Council of Europe which are not members of the FATF (subject to paragraph 5(a)ii below)3 in complying with the relevant international anti-money laundering and countering terrorist financing standards, as contained e.g. in the recommendations of the FATF, including the Special Recommendations on Financing of Terrorism and Terrorist Acts and related
Money Laundering, the 1998 UN Convention on illicit traffic in narcotic drugs and psychotropic substances, the United Nations Convention against Transnational Organised Crime, the relevant European Union Directives on the prevention of the use of the financial system for money laundering and the 1990 Convention on laundering, search, seizure and confiscation of the proceeds from crime, concluded within the Council of Europe, and, where necessary, provide assistance, upon request, to enable them to comply with the recommendations;
- evaluate, by means of questionnaires (and/or other documentation agreed between MONEYVAL and the IMF/World Bank representing a common AML/CFT Methodology) and periodic on-site visits, the performance of those applicant states for membership of the Council of Europe which are not members of the FATF in complying with the international anti-money laundering and countering terrorist financing standards enumerated in the paragraph above, provided the following requirements are met: the applicant state must make the request in writing; the request must be accepted by the Committee of Ministers; the applicant state must undertake in its request to participate fully in the evaluation procedure and comply with the results and recommendations formulated by the MONEYVAL; and the applicant state must contribute to the cost of the evaluation procedure;
- adopt reports on each evaluated country's situation as to:
i. the features and magnitude of money laundering, including typologies,
ii. the efficiency of measures taken to combat money laundering and terrorist financing in the legislative, financial regulatory, law enforcement and judicial sectors;
- where appropriate, make recommendations to the evaluated countries, with a view to improving the efficiency of their anti-money laundering and countering terrorist financing measures and to furthering international co-operation;
- submit to the CDPC an annual summary of its activities and any recommendations it deems appropriate with a view to furthering the adoption or implementation of anti-money laundering measures.
5. Membership of the Committee:
a. i. (Council of Europe member states not members of the FATF, subject to paragraph 5(a)ii below): three experts appointed by the Governments of each of the following member States: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Georgia, Hungary, Latvia, Liechtenstein, Lithuania, Moldova, Malta, Poland, Romania, Russian Federation, San Marino, Serbia and Montenegro, Slovakia, Slovenia, “The former Yugoslav Republic of Macedonia”, Ukraine;
ii. three experts appointed by the Government of any Council of Europe member state referred to under (a)i above which has become a member of the FATF and thus would, save for this paragraph, cease to be a member of MONEYVAL, but decides to remain a member of the latter as well. Such a state may also agree to submit to the evaluation process of MONEYVAL;
iii. (FATF): two experts appointed by the Presidency of the FATF from FATF countries for two-year periods;
iv. three scientific experts appointed by the Secretariat.
b. The Council of Europe's budget4 bears the travel and subsistence expenses of three experts from each of the member states mentioned under a.i. and a.ii, as well as those of the three scientific experts. These member states may send additional experts at their own expense.
c. Members' desirable qualifications: senior officials and experts with responsibility for supervision of financial institutions, senior members of law enforcement or judicial bodies, with particular knowledge of questions related to money laundering, including national and international anti-money laundering instruments, (e.g. FATF recommendations).
d. The Commission of the European Communities and the Secretariat General of the Council of the European Union may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses.
e. The following observers with the Council of Europe may send a representative without the right to vote or defrayal of expenses to meetings of the Committee:
- Holy See
- United States of America.
f. The following observers with the Committee may send representatives, without the right to vote or defrayal of expenses:
- Members of the FATF other than those referred to in 5.a.ii,
- Secretariat of the Financial Action Task Force on Money Laundering (FATF),
- Commonwealth Secretariat,
- International Monetary Fund (IMF),
- United Nations Drug Control Programme (UNDCP),
- United Nations Counter-Terrorism Committee (CTC),
- United Nations Crime Prevention and Criminal Justice Division,
- World Bank,
- European Bank of Reconstruction and Development (EBRD),
- Offshore Group of Banking Supervisors (OGBS),
- Egmont Group.
g. The Bureau of the CDPC may authorise the admission of other observers to the Committee.
6. Working structures and methods:
The term of office of the Chairman and Vice-Chairman shall be two years. It may be renewed once.5
The Committee may elect a Bureau to facilitate its discussions and adopt internal rules of procedure.
These terms of reference will expire on 31 December 2007.
Adopted: see CM/Del/Dec(97)600, item 10.2a and Appendix 17
Extended: see CM/Del/Dec(99)679, item 10.4a
Revised: see CM/Del/Dec(99)690, item 10.1 and CM(99)158 item 3 and Appendix II
see CM/Del/Dec(2002)794, item 10.2, CM(2002)47 item 4, Appendix IV.
see CM/Del/Dec(2003)853, item 10.1aF
Note Appendix V
Note Draft specific terms of reference of the Consultative Council of European Prosecutors (CCPE)
1. Name of Committee:
Consultative Council of European Prosecutors (CCPE)
2. Type of Committee:
3. Source of terms of reference:
Committee of Ministers
4. Terms of reference:
a. To prepare a framework overall action plan for the work of the CCPE to be approved by the European Committee on Crime Problems (CDPC) and the Committee of Ministers;
b. to prepare opinions for the attention of the CDPC on difficulties concerning the implementation of Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system;
c. following a specific request from the Committee of Ministers, the CDPC or any other Council of Europe body, to prepare opinions concerning issues related to the prosecution service;
d. to promote the implementation of Recommendation Rec(2000)19, in particular by the organisation of conferences on topics of common concern to the profession;
e. to collect information about the functioning of prosecution services in Europe.
5. Membership of the committee:
a. All member states may be represented on the CCPE. Members should be chosen in contact, where such authorities exist, with the national authorities responsible for prosecutors and with the national administration responsible for managing the prosecution service, from among serving prosecutors having a thorough knowledge of questions relating to the functioning of the prosecution system combined with utmost personal integrity.
The travel and subsistence of members shall be at the expenses of their States.
b. The European Union may take part in the work of the CCPE, but without the right to vote or to reimbursement of expenses.
c. The following Council of Europe observers may send a representative to meetings of the CCPE but without the right to vote or to reimbursement of expenses:
- Holy See
- United States of America
d. The following observers with the CCPE may attend the meetings of the CCPE, without the right to vote or defrayal of expenses:
- the International Association of Prosecutors,
- he association “Magistrats européens pour la démocratie et les libertés” (MEDEL).
e. The CCPE may appoint one representative to attend meetings of the CDPC and one representative to attend meetings of the Consultative Council of European Judges (CCJE) and the CDPC and the CCJE may each appoint one representative to attend meetings of the CCPE. The Council of Europe will cover the travel and subsistence expenses of these representatives.
6. Structures and working methods:
The CCPE is an advisory body of the Committee of Ministers. The Consultative Council works in co-operation, in particular, with the CDPC and the CCJE and also, depending on the subjects dealt with, other committees or bodies. The CCPE reports on its activities to the Committee of Ministers and to the CDPC and all texts for the Committee of Ministers will be forwarded through the CDPC to ensure proper coordination and consistency on matters relating to criminal justice policy.
In order to discharge its terms of reference, the CCPE will be assisted by a Bureau of eleven members appointed by the CCPE. The Bureau shall provide assistance as requested by the CCPE and to this end, the Bureau may seek the advice of external experts and have recourse to studies by consultants.
The travel and subsistence expenses of the Bureau members will be paid by the Council of Europe.
These terms of reference expire on 31 December 2006 and may be renewed.
Note Appendix VI
Note Draft revised specific terms of reference of the Committee of Experts on Transnational Justice
1. Name of Committee:
Committee of Experts on Transnational Criminal Justice (PC-TJ)
2. Type of Committee:
Committee of Experts
3. Source of terms of reference:
European Committee on Crime Problems (CDPC)
4. Terms of reference:
Taking into account the report submitted to the CDPC by the Reflection Group on developments in international co-operation in criminal matters (PC-S-NS) [document CDPC (2002) 1], the Committee is to:
- study the chapter “Renewal” of the above-mentioned report, with a view to making proposals for follow-up action, in particular on the questions concerning the rights and guarantees of the individual;
- report back to the CDPC.
5. Membership of the Committee:
a. The governments of all member States are entitled to appoint members with the following desirable qualifications: experts on criminal law, criminal procedure, individual rights and guarantees and international co-operation in criminal matters.
b. The Council of Europe will bear the travelling and subsistence expenses of the Chair of the Committee and of one expert for each of the following 17 member States: Austria, France, Georgia, Germany, Hungary, Ireland, Italy, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Switzerland, "the former Yugoslav Republic of Macedonia", Turkey, Ukraine.
c. Two scientific experts to be appointed by the Secretary General.
d. The European Commission and the Secretariat General of the Council of the European Union may send representatives to the meetings of the Committee, without the right to vote or defrayal of expenses.
e. The Bureau of the CDPC may authorise the admission of observers to the Committee.
6. Structures and working methods:
The Committee may set up working parties.
These terms of reference will expire on 31 January 2006.
Note Appendix VII
Note Draft ad hoc terms of reference for the Council for Police Matters (PC-PM) relating to the regulation of private security services
1. Name of the Committee:
Council for Police Matters (PC-PM)
2. Source of the terms of reference:
European Committee on Crime Problems (CDPC)
3. Date by which the terms of reference must be carried out:
31 December 2006
4. Terms of reference:
A growing concern in member States is the important increase in the provision and use of private security services, taking a great variety of forms. Recent research estimates that in the member States of the Council of Europe the number of staff involved in private security exceeds the number of those employed by the police. From being rather limited in scope and action, private security services are increasingly moving into areas which traditionally have been reserved for the public police.
Ensuring security in society through the Rule of law is a fundamental mission of public authorities. It is recognised that private security services make a useful contribution in ensuring this security. However, the lack of public control over these services, the scope of their activities and the professional conduct of their staff might well endanger the protection of human rights and fundamental freedoms.
National regulations developed by member States on this issue present a large variety and in some member States such regulation is non-existent.
Among the issues to be addressed the following merit particular consideration:
· tasks and limits of private security services primarily with regard to criminal justice functions,
· links between private security services and public police,
· professional conduct of private security staff,
· the accreditation, control and accountability (legal and administrative aspects),
· personnel issues such as recruitment and training requirements,
· the use of force and other professional activities affecting individual rights
Due account should be taken of:
- The European Convention on Human Rights
- European Convention on the Control of the Acquisition and Possession of Firearms by Individuals (ETS No. 101)
- Convention for the protection of individuals with regard to automatic processing of personal data (ETS No. 108) and its additional protocol (ETS N° 181)
- Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141)
- Rec. R (82) 15 on the role of criminal law in consumer protection
- Rec. R (84) 10 on the criminal record and the rehabilitation of convicted persons
- Rec. R (84) 23 on the harmonisation of national legislations relating to firearms
- Rec. R (87) 15 on regulating the use of personal data in the police sector
- Rec. R (87) 19 on the organisation of crime prevention
- Rec. R (91) 10 on the communication to third parties of personal data held by public bodies
- Rec. R (88) 18 concerning liability of enterprises having legal personality for offences committed in the exercise of their activities
- Rec(2000)10 on codes of conduct for public officials
- Rec(2001)10 on the European Code of Police Ethics
- Rec(2003)21 concerning partnership in crime prevention
- Current national regulatory systems of relevance in this field
- Norms developed by professional organisations of the private security sector
and any other texts adopted or work in progress within the Council of Europe, the European Union and other international organisations which could have an impact on the work of the Committee
The work should lead to a report identifying recent developments in this field including examples of good practice and ways and means to exchange those good practices.
In order to perform this task, it would need the assistance of two scientific experts with specific knowledge of relevant legislation and practice of member States in this field as well as of recent developments in research. It would also need to consult, as and when appropriate, representatives from the private security sector as well as other bodies involved in this area.
Note Appendix VIII
Note Revised working methods of the CDPC and its Bureau
1. In the context of events which require a rapid and efficient response, and in view of the fact that the CDPC's plenary sessions are held on a yearly basis, the CDPC instructed the Bureau in 2003 (see paragraph 23 of document CDPC (2003) 9), to prepare a proposal focussing especially on the distribution of tasks between the Plenary and the Bureau. In doing so, the Bureau drew upon a document on the distribution of tasks between the Plenary and the Bureau which was endorsed by the CDPC at its 43rd plenary session in June 1994 (CDPC (94) 5) and also on experience of other steering committees, such as the CDCJ. The CDPC is invited to discuss, and, if appropriate, to adopt the present proposals.
2. While the CDPC Plenary must remain the principal forum for all decisions on policy, for normative acts (Conventions and Recommendations) and elections, the Bureau should be empowered to take decisions on more procedural matters and on any other matter delegated to it by the Plenary. This should also ensure that important issues receive full consideration by the Plenary.
3. Thus it is crucial to establish clear guidelines for the distribution of tasks between the Plenary and the Bureau of the CDPC. With a view to the requirement, in Resolution (76) 3 for the Bureau to, inter alia, "ensure continuity between meetings as necessary" it should be empowered to deal with urgent issues which cannot wait until the next Plenary Session.
It is clear that, notwithstanding the provisions of paragraphs 5 and 6 below, the Bureau can always renounce the possibility to take a decision on its own in favour of a written consultation procedure or a referral for decision to the Plenary and likewise can renounce the possibility to use the written consultation procedure in favour of a referral to the Plenary for decision.
4. It is also essential for maximum efficiency that the CDPC, its Bureau and the Secretariat make use of the technological tools available, in particular the use of e-mail and the CDPC website (www.coe.int/cdpc).
Proposals for Distribution of tasks between the CDPC and its Bureau
5. Decisions to be taken by the Bureau acting on its own authority:
a) follow-up and ensuring the implementation of decisions of the CDPC wherever it is not possible to wait for the Plenary Session of the CDPC;
b) proposing procedural changes to the terms of reference of Committees of Experts, for example by adjusting their timetable of work (including an extension of the time limit of such a committee) or changes to the list of countries whose experts are entitled to receive travel and subsistence expenses;
c) admitting observers to Conferences and Colloquia;
d) designating new members to its existing subordinate committees;
e) approving publication of conference proceedings;
f) requesting information from CDPC representatives to other standing or ad hoc committees;
g) between the meetings of the Plenary Committee taking any necessary measures to ensure the monitoring by the CDPC of the activities of the expert committees which are subordinate to it, in particular by requesting information from, and giving guidance to, these subordinate committees;
h) any other matter which may be delegated on an exceptional basis by the Plenary.
6. Decisions to be taken by the Bureau acting in consultation with the full membership of the CDPC, using the written procedure:
a) giving advisory opinions to the Committee of Ministers and other Steering Committees;
b) deciding on requests from international organisations and NGOs for observer status on Committees of Experts or on the CDPC itself;
c) deciding on requests from non-member States for observer status on Committees of Experts or on the CDPC itself;
d) appointing CDPC representatives to other standing or ad hoc committees as well as giving them instructions;
e) finalising or adjusting the terms of reference of Committees of Experts (with the exception of procedural changes pursuant to paragraph 5b);
f) any other matter which may be delegated on an exceptional basis by the Plenary.
7. These arrangements are subject to the following general rules:
a) They are without prejudice to the competence of the Committee of Ministers.
b) The Bureau would be obliged to submit the matter for decision to the CDPC if there is no consensus in the Bureau.
c) Decisions taken by the Bureau will be reported to CDPC delegations for information, as soon as possible.
d) Any proposal which meets with a fundamental objection from one of the CDPC delegations (for example with regard to the admission of a non-member state as an observer) shall be referred either to the Plenary, or, in cases of emergency, to the Committee of Ministers
e) Matters not covered by paragraphs 5 and 6 above shall always be referred to the Plenary session for decision.
Preparation of meetings of the CDPC
8. In order to prepare and facilitate the work of the Plenary, the Bureau shall examine interim reports of Committees of Experts, and propose priorities for action by the CDPC. Both the efficiency of decision-making in the CDPC, and the quality of its discussions, will be enhanced by more effective preparation of its meetings. The Bureau shall, therefore:
a) propose the draft agenda of the Plenary meeting;
b) identify matters which might be agreed without debate;
c) make proposals for the order of business.
9. The Bureau and the Secretariat shall be jointly responsible for ensuring that both the draft agenda and the documents for the meeting are available well in advance. As a rule, all documents should be circulated at least two weeks beforehand. All draft normative texts to be submitted for adoption by the CDPC should normally be distributed at least four weeks prior to the Plenary Session, and delegations should be warned if, exceptionally, this will not be possible. To this end, subordinate committees preparing normative texts should, whenever practicable, aim to finalise their work three months prior to the Plenary Session. If it is not possible to finalise the draft agenda until shortly before the meeting, a draft provisional agenda should be made available. The practice of making available a draft annotated agenda is also extremely helpful for delegations, and such a draft annotated agenda should be available at least two weeks before the meeting.
10. The Bureau shall also assist the CDPC by preparing a working document, in consultation with the Secretariat, on the available budgetary resources and options for the CDPC's future programme of activities.
11. Whenever detailed information is provided to the CDPC at its meetings, this should normally be in written form. However, brief oral reports to the CDPC by the Secretariat and participants may be made especially where a decision has to be taken.
12. The Bureau must use the written procedure whenever taking one of the decisions referred to in paragraph 6. This procedure is as follows:
i) On behalf of the Bureau, the Secretariat will circulate by e-mail to the CDPC delegations, via the contact points communicated to the Secretariat in accordance with paragraph 13 a), as well as to observers for information the text of the decision which it proposes to take, supported by any necessary background information and reasoning (background documents on the CDPC website will be referred to but not sent by e-mail).
ii) Except in situations of urgency, the period allowed for reply must be at least two weeks.
iii) The Secretariat will inform delegations that silence will be interpreted as approval for the proposed decision.
iv) Shortly before the end of this period, the Secretariat will send a reminder by e-mail to all CDPC delegations.
v) At the end of the period, the Secretariat will inform the members of the Bureau of any views expressed by CDPC members.
vi) The Bureau will decide whether to maintain its earlier proposal, amend it, or refer the matter to the next Plenary Session, or to the Committee of Ministers.
vii) The Bureau will decide whether any amended proposal should be submitted to a further written procedure, should be presented for adoption by the Plenary or can be adopted by the Bureau.
Consultation by e-mail
13. The CDPC delegations shall:
a) ensure that the Secretariat always has an appropriate contact point (Head of Delegation) including two appropriate e-mail addresses (e.g. Head of Delegation/Permanent Representation) for CDPC information and for use during the written procedure; and
b) use the CDPC e-mail address (email@example.com) when contacting the Secretariat;
c) consult, on a regular basis, the CDPC website.
Use of the CDPC website
14. The Secretariat shall inform heads of CDPC delegations by e-mail whenever texts that require action by delegations are included on the web-site6, including information about any relevant deadlines (e.g. draft international instruments or other texts such as draft Opinions where delegations are invited to send drafting proposals).
Note Appendix IX
Note Opinion of the CDPC on the Institutionalisation of the Conference of Prosecutors General of Europe (CPGE)
1. The CDPC considered, at its 53rd Plenary Session (16-19 March 2004), Parliamentary Assembly Recommendation 1604 (2003): ”Role of the public prosecutor's office in a democratic society governed by the Rule of Law” and the Reply adopted by the Committee of Ministers7, at the 870th meeting of their Deputies, inviting the CDPC to debate the issues raised therein, taking into account the Conclusions of the 4th Conference of Prosecutors General of Europe (CPGE) in Bratislava8. The CDPC discussed in particular the proposal to institutionalise the Conference as a permanent Council of Europe body with appropriate resources.
2. The CDPC reconsidered these issues at its 54th Plenary Session (7-11 March 2005) also taking into account the Conclusions of the 5th Conference of Prosecutors General of Europe in Celle9 (Germany 23-25 May 2004) and the proposals by the Bureau of the CPGE contained in an “exploratory note on the institutionalisation of the CPGE” 10dated 14 May 2004 and submitted to the CDPC.
3. The CDPC underlined the essential role of the public prosecutor in the criminal justice system of a democratic society, by safeguarding the rule of law, security and fundamental human rights and freedoms. It recognised that in this respect, and notwithstanding the variety of public prosecution models and of their constitutional status, the role played by the prosecutor's office is of fundamental importance in all member States.
4. The CDPC recalled the growing importance of the activities undertaken by the Conference of General Prosecutors of Europe, which since its creation in 2000, has greatly contributed to the promotion of international cooperation between prosecution services in Europe by the improvement of the mutual understanding of the different prosecution systems and their functioning, the development of a common understanding of the main objectives to be achieved by prosecution services throughout Europe, and the consideration of obstacles to achieve these objectives.
5. The CDPC, referring to the role played by the Consultative Council of European Judges (CCJE)11 was of the opinion that a similar body - a Consultative Council of European Prosecutors (CCPE) - should be established to advise the Committee of Ministers and its own Committee concerning issues related to the prosecution service.
6. The CDPC underlined that given its own general mandate in advising the Committee of Ministers on issues related to crime problems, a sufficient institutional link between the CCPE and its own Committee would be needed to ensure that a possible overlap of fields of interest and competency would not lead to a situation where the Committee of Ministers would be faced to two advisory bodies providing opinions on similar questions.
7. The CDPC was also of the opinion that, although the budgetary situation of the Council of Europe would not allow for the entire financing of the plenary meetings of the CCPE, and that the travel and subsistence expenses would therefore have to be borne by its members, the CCPE would need the assistance of a Bureau to discharge its terms of reference, as well as that of external experts and consultants. The CDPC was of the opinion that the costs inherent to the functioning of the CCPE-Bureau should be borne by the Council of Europe.
8. On the basis of the above, the CDPC approved draft specific terms of reference in view of the establishment of a Consultative Council of European Prosecutors (CCPE) and decided to submit them to the Committee of Ministers for adoption. The draft specific terms of reference are contained in Appendix I.
9. Referring to further proposals contained in the conclusions of the 4th Conference of Prosecutors General of Europe in Bratislava, the CDPC discussed at its 54th Plenary Session the proposal made to establish a monitoring mechanism for the implementation by member States of Recommendation Rec(2000)19 on the Role of public prosecution in the criminal justice system. The proposed mechanism would be based on peer-evaluation and on-the-spot verifications. Considering that the principles contained in the Recommendation are designed to provide guidelines to member States in view of the development of their legislation and practice, the CDPC would welcome if the European Prosecutors could continue their constructive role in gathering information and reflecting on the implementation of this Recommendation. However, the CDPC did not support the idea of attaching a fully-fledged monitoring mechanism to a non-binding instrument.
10. Finally, the CDPC took note of the Conclusions of the 5th Session of the CPGE in Celle and welcomed in particular the decision taken to entrust its Bureau with the preparation of a reflection document on the role of prosecution services outside the criminal field to be examined at its next plenary session in May 2005. The CDPC was of the opinion that such document could well be a starting point for the development of the detailed study proposed by the Parliamentary Assembly with a view to preparing an additional recommendation to member states on those aspects of the role of public prosecutors not addressed in Recommendation Rec(2000)19 .
Note Appendix X
Note Progress report12 on the updating of the European Prison Rules and the feasibility of a European Prison Charter
1. At its 50th plenary meeting the CDPC entrusted the Council for Penological Cooperation (PC-CP) with the task to update the European Prison Rules, the latest version of which is contained in Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe.
2. The PC-CP started its work at the end of 2003 and a first draft of the updated European Prison Rules (EPR) and their commentary were presented at the Conference of Directors of Prison Administration (CDAP) and Probation Service (Rome, 25-27 November 2004). The delegations were requested to make their comments either orally at the Conference or in a written form immediately afterwards.
3. Meanwhile the Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (CPT) was also consulted and the European Commission was involved in the work on the draft texts. All comments received from the national prison administrations and the other delegates, as well as those of the CPT were discussed in detail by the PC-CP. Quite a number of these were reflected in the revised draft text of the EPR and their commentary, which update the rules in the light of the changes since 1987 in the penitentiary field in the member-States, as well as in the light of the standards developed by the CPT as a result of their visits and the case law of the European Court of Human Rights in this domain.
4. At its 54th plenary meeting (7-11 March 2005) the CDPC discussed the revised draft EPR and their commentary. The CDPC praised the quality and the volume of work done by the PC-CP and pointed out that the European Prison Rules are very important, need updating and are taken very seriously by the national authorities. For these reasons the draft Rules would have to be finalised with care in order to ensure the widest possible consensus so that they can be fully implemented.
5. Hence the CDPC agreed that more time was needed to finalise the draft EPR and their commentary. In order to accelerate the work, it invited the CDPC delegations to send their written comments on the two draft texts by the end of April 2005. On the basis of these comments the PC-CP will prepare a working document at their meeting on 23-25 May 2005, containing an amended draft of the new EPR. In [June] 2005 an enlarged CDPC Bureau meeting (attended also by the PC-CP Chair and one of its scientific experts, as well as by all representatives of CDPC delegations, who so wish) will take place. The CDPC instructed this enlarged Bureau to take account of this working document and to revise the draft EPR and their commentary. These texts approved by the enlarged Bureau will then again be sent to all CDPC delegations for written comments (to be sent by the end of September 2005) and, after completing this written procedure, the texts will be forwarded to the Committee of Ministers for adoption.
6. The CDPC then turned its attention to another issue, which it was requested to examine by the Committee of Ministers13, namely the proposal contained in Recommendation 1656 (2004) of the Parliamentary Assembly of the Council of Europe (PACE) to draw up a European Prison Charter, comprised of a set of specific binding rules. Two options were tabled for discussion: a binding European Prison Charter or a non-binding European Prison Charter, containing the new European Prison Rules (which would be the “mother” text), as well as all Recommendations in the penitentiary field (such as on healthcare in prison, on education, on foreign prisoners, on remand in custody, on prison overcrowding, on conditional release, etc.). Such a Charter would also provide for a mechanism for regular revision of the EPR and the relevant Recommendations, as well as for adoption of new Recommendations on specific issues, if need be, with a view to achieving consistency in the standards developed. The PC-CP could be entrusted with this task, as it is a standing advisory body to the CDPC composed of high-level representatives of prison administrations and of services entrusted with the implementation of community sanctions and measures.
7. After some discussion the CDPC considered that until the new EPR are adopted it would be premature to take a stand on the legal status of a European Prison Charter as well as on the proposed mechanism to achieve consistency in the penitentiary standards. Hence it was decided to request the Bureau to consider the question of a possible European Prison Charter and to report back to the next plenary meeting of the CDPC.
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 Council of Europe member States members of the FATF: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom.
Note 3 Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Georgia, Hungary, Latvia, Liechtenstein, Lithuania, Moldova, Malta, Poland, Romania, Russian Federation, San Marino, Serbia and Montenegro, Slovakia, Slovenia, “The former Yugoslav Republic of Macedonia”, Ukraine. See also 5(a)(ii) above.
Note 4 A special account has been opened for that purpose.
Note 5 As decided by the Committee of Ministers at their … meeting on … 2005, in conformity with Article 21 of Appendix II to Resolution (76) 3 on committee structures, terms of reference and working methods and in derogation of Article 17 of this Appendix.
Note 6 The CDPC website is currently being further developed. Delegations are invited to consult the website on a regular basis but, pending completion of the work to bring it up-to-date, the Secretariat will continue to send out important documents by e-mail
Note 7 Parliamentary Assembly Recommendation 1604 (2003): ”Role of the public prosecutor's office in a democratic society governed by the Rule of Law” and the Reply adopted by the Committee of Ministers are contained in Appendix II to this note.
Note 8 The Conclusions of the 4th Conference of Prosecutors General of Europe in Bratislava appear in Appendix III.
Note 9 The Conclusions of the 5th Conference of Prosecutors General of Europe in Celle appear in Appendix IV.
Note 10 The “Exploratory note on the institutionalisation of the CPGE” prepared by its co-ordinating Bureau appears in Appendix V.
Note 11 The terms of reference of the CCJE appear in Appendix VI.
Note 12 Progress report as requested by the Committee of Ministers in its Reply to PACE Recommendation 1656 (2004) [CM/AS Rec. 1656 final, 11 June 2004]
Note 13 Reply to PACE Recommendation 1656 (2004) [CM/AS Rec. 1656 final, 11 June 2004]