CM(2012)118 9 August 20121
1151 Meeting, 19 September 2012
10 Legal questions
10.1 European Committee on Legal Co-operation (CDCJ) –
a. Abridged report of the 87th plenary meeting (Strasbourg, 18-20 June 2012)
b. Draft Recommendation CM/Rec(2012)… of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system and its Explanatory Memorandum
c. Ad hoc terms of reference on the draft recommendation on the rights and legal status of children and parental responsibilities – reply of CDCJ
Item to be considered by the GR-J at its meeting on 6 September 2012
The European Committee on Legal Co-operation (CDCJ) held its 87th meeting in Strasbourg on 18-20 June 2012. The meeting was chaired by Mr Eberhard Desch (Germany), chair of CDCJ. The agenda as adopted by the committee appears in Appendix I. The list of participants can be obtained from the Secretariat.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS
(i) The Committee of Ministers is invited to examine and adopt the draft recommendation on the role of public prosecutors outside the criminal justice system and take note of its explanatory memorandum (see paragraphs 2 and 3 below).
(ii) CDCJ submits its reply to the ad hoc terms of reference relating to the draft recommendation on the rights and legal status of children and parental responsibilities (see paragraph 4 below and Appendix III).
DECISIONS AND ITEMS DISCUSSED
A. Completed activities
Role of public prosecutors outside the criminal justice system
1. CDCJ took note of the reports of the final meetings of the Group of Specialists on the Role of Public Prosecutors outside the Criminal Field (CJ-S-PR) responsible for preparing the draft recommendation and warmly thanked them for their work.
2. CDCJ examined the draft recommendation on the role of public prosecutors outside the criminal justice system. After an exchange of views and taking account of the various comments received, CDCJ approved the text as it appears in Appendix II2. It instructed the Secretariat to transmit the text to the Committee of Ministers with a view to its adoption at the 1151st meeting of the Ministers’ Deputies (18-19 September 2012).
3. In the light of its examination of the draft recommendation on the role of public prosecutors outside the criminal justice system, CDCJ examined and modified the draft explanatory memorandum to the draft recommendation. The committee adopted the text as it appears in document CM(2012)118 add and authorised its publication subject to adoption of the recommendation by the Committee of Ministers and any consequent changes that may be required.
Rights and legal status of children and parental responsibilities
4. In response to the ad hoc terms of reference given to it by the Committee of Ministers, CDCJ held an exchange of views on the draft recommendation and its explanatory memorandum with the chair of the Rapporteur Group on Legal Co-operation (GR-J). The committee adopted the reply as appears in Appendix III.
B. On-going activities
Protecting public and private sector employees who make disclosures in the public interest (whistleblowers)
5. CDCJ examined the study on the feasibility of developing a legal instrument for the protection of public and private sector employees who make disclosures in the public interest (document CDCJ (2012) 9). The committee instructed its Bureau, together with its members from France, Ireland and the United Kingdom, to prepare a preliminary draft legal instrument on the basis of the conclusions of the feasibility study. It further agreed that all members of the committee should be consulted on the process in preparing the text and on the steps to be taken thereafter, including, if necessary, the preparation of terms of reference for a subordinate committee of experts.
6. The committee also agreed to approve publication of the feasibility study under the responsibility of its authors and after it had been revised to take account of any additional information that might be submitted by members of the committee on the situation and changes in this field in their countries since 2009.
Nationality law and families
7. CDCJ examined the study on the feasibility of developing a legal instrument in the area of nationality law and families (document CDCJ (2012) 11) and took note of its conclusions. Supporting, in general, future work in this area, it agreed to further deliberate on the feasibility of a legal instrument. For this purpose, it invited member States to submit proposals on the scope of such an instrument to the Secretariat, and instructed the Bureau, together with the Secretariat, to submit proposals to the members of the committee for consultation and decision by written procedure before its next plenary meeting, including, if necessary, the preparation of terms of reference for a subordinate committee of experts.
8. Furthermore, the committee approved the publication of the feasibility study under the responsibility of its authors and after it had been revised to take account of information from member States that had so far not replied to the questionnaire and who were requested to do so before 30 September 2012.
9. CDCJ took note of the progress in completing the revision of the handbook, « The Administration and You » and agreed to approve its publication by written procedure.
10. CDCJ took note of the oral information provided by the Secretariat on contacts with OECD in respect of the convention on mutual administrative assistance in tax matters and its protocol (respectively ETS No. 127 and CETS No. 208).
Preparation of the 31st Council of Europe Conference of Ministers of Justice
11. CDCJ took note of the information on the 31st Council of Europe Conference of Ministers of Justice (Vienna, 19-21 September 2012) provided by the Secretary for the conference and of the elements for the draft resolution.
12. In connection with its on-going activities, the committee agreed that the organisers of the conference should be invited to include the issue of whistleblowers (see paragraph 5 above), with its link to the civil aspects of corruption, among the topics for the planned “fire-side chat”, and include a reference to it in the draft resolution.
13. CDCJ took note of the progress in modernising the Data Protection Convention (ETS No. 108) and of the fact that the work of the T-PD will be carried out, as much as possible, in line with the on-going discussions on the same topic at EU level. In its opinion any modernisation of the convention should maintain its general character, avoid becoming unduly detailed and prescriptive, and remain open to third parties.
C. Future activities
Parental dispute resolution
14. CDCJ took note and gave its approval of the draft terms of reference for a committee of experts to prepare a legal instrument with standards on dispute resolution in the exercise of parental responsibilities that had been submitted to the Committee of Ministers. It made the following decisions with a view to starting the activity so soon as the Committee of Ministers adopts the terms of reference:
- invited members of the committee to submit proposals for membership of the committee of experts to the Secretariat no later than 15 July;
- instructed its Bureau to appoint a committee member as chair of the committee of experts.
European Convention on Information on Foreign Law (ETS No. 062)
15. CDCJ instructed the Secretariat to make contact with the European Commission and the Hague Convention on Private International Law on the reasons and interest for a possible revision of the European Convention on Information on Foreign Law and report to the Bureau.
Possible future standard-setting activities
16. CDCJ regretted that it did not have time to discuss this item. Instead, and with a view to finalising a work programme for 2014-15 before its next plenary meeting, it instructed the Secretariat to invite members to submit proposals for future work which it instructed the Bureau to evaluate in consultation with the other members of the committee by written procedure.
17. The committee also recalled the decisions taken at its last plenary meeting concerning the comparative studies to be undertaken with a view to identifying possible new activities and invited the Bureau, together with the Secretariat, to implement them as soon as possible.
18. The committee also instructed the Secretariat to submit revised proposals to the Bureau for the committee’s working methods in order to reflect the reform and changes to the structures and working methods of the Organisation.
D. Other items discussed
Work of other Council of Europe bodies
19. The Secretariat presented the European Programme for Human Rights Education for Legal Professionals (HELP) funded by the Human Rights Trust Fund and encouraged members of the committee to make use of the training materials available on the project website http://www.coe.int/help.
Elections and appointments
20. Mr Eberhard Desch (Germany) was unanimously elected as chair for a second term of one year.
21. Mr Francesco Crisafulli (Italy) was unanimously elected vice-chair for a second term of one year.
22. Ms Zuzana Fišerová (Czech Republic) was unanimously elected to the Bureau for a second term of two years.
23. Mr Lennart Houmann (Denmark) was unanimously elected to the Bureau for a first term of one year (rule Article 13.c).
24. As result of the above elections, the Bureau of CDCJ is composed as follows:
Chair: Mr Eberhard Desch (Germany)
Vice-chair: Mr Francesco Crisafulli (Italy)
Bureau members: Ms Zuzana Fišerová (Czech Republic)
Mr Lennart Houmann (Denmark)
Ms Diana Scobiólă (Republic of Moldova)
Mr Sjaak Jansen (Netherlands)
Mr João Arsénio de Oliveira (Portugal).
25. CDCJ confirmed the appointment of Ms Zuzana Fišerová (Czech Republic) as the committee’s gender equality rapporteur.
Date and place of next meeting
26. CDCJ agreed to hold its next plenary meeting in Strasbourg on 17-19 June 2013.
I. Opening of the meeting
II. Adoption of the agenda
III. Statement of the Chair and Secretariat
IV. Rights and legal status of children and parental responsibilities
V. Role of public prosecutors outside the criminal justice system
VI. Work of the European Committee on Legal Co-operation (CDCJ)
a. Work plan for CDCJ activities in 2012-13
b.. CDCJ working methods
c. Family law and children’s rights
d. Justice and Rule of Law
f. Administrative law
g Other work of the CDCJ
VII. Council of Europe Conferences of Ministers of Justice
VIII. CDCJ opinions
IX. Operation and evaluation of instruments of the CDCJ
X. Work of other Council of Europe bodies
XI. External Co-operation
XII. Elections and appointments
XIII. Any other business
XIV. Date and place of the next meeting
Draft Recommendation CM/Rec(2012)… of the Committee of Ministers to member States
on the role of public prosecutors outside the criminal justice system
(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 between its members, inter alia for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
Recalling also that every member of the Council of Europe has accepted the principle of the rule of law and of the enjoyment by all persons within its jurisdiction of the human rights set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5);
Aware that in many member States, because of their legal traditions, public prosecutors also play a role outside the criminal justice system and that this role varies considerably between different national legal systems;
Noting, in particular, that in different national legal systems this role may include representing the general or public interest, providing legal support to individuals in the protection of their human rights and fundamental freedoms, representing the State before the courts, supervising public bodies and other entities, and an advisory role to courts and that, moreover, the nature of this role may vary in private and public law;
Taking account of the relevant case law of the European Court of Human Rights, in particular in the area of fair trial principles;
Recalling its Recommendation Rec(2000)19 to member States on the role of public prosecution in the criminal justice system;
Bearing in mind Opinion No. 3 (2008) of the Consultative Council of European Prosecutors (CCPE) on the role of prosecution services outside the criminal law field and the conclusions of the Conferences of Prosecutors General of Europe in Budapest (29-31 May 2005) and in St Petersburg (2-3 July 2008);
Recalling the principles set out in the joint opinion of the Consultative Council of European Judges (CCJE) and the CCPE on the relations between judges and prosecutors in a democratic society (“Bordeaux Declaration”) of 18 November 2009, and, in particular, as they relate to public prosecutors who have functions outside the criminal law field;
Taking note of the 2010 report of the European Commission for Democracy through Law (Venice Commission) on European standards as regards the independence of the judicial system (Part II: The prosecution service) and of its various opinions on the subject;
Noting the absence of common international legal standards regarding the tasks, function and organisation of prosecution services outside the criminal justice system;
Convinced, therefore, of the need to establish common principles for member States on the role of public prosecutors outside the criminal justice system,
Recommends that, where public prosecution services have a role outside the criminal justice system, member States take all necessary and appropriate steps to ensure that this role is carried out with special regard to the protection of human rights and fundamental freedoms and in full accordance with the rule of law, in particular with regard to the right to a fair trial, and, for this purpose, that they take full account of the principles set out in the appendix hereto.
Appendix to Recommendation CM/Rec(2012)… on the role of public prosecutors outside the criminal justice system
1. This recommendation and the principles set out in this appendix apply in all cases where the national legal system establishes a role for public prosecutors outside the criminal justice system.
B. Mission of public prosecutors
2. Where the national legal system provides public prosecutors with responsibilities and powers outside the criminal justice system, their mission should be to represent the general or public interest, protect human rights and fundamental freedoms, and uphold the rule of law.
C. Common principles
3. The responsibilities and powers of public prosecutors outside the criminal justice system should in all cases be established by law and clearly defined in order to avoid any ambiguity.
4. As in the criminal law field, public prosecutors should exercise their responsibilities and powers outside the criminal justice system in full accordance with the principles of legality, objectivity, fairness and impartiality.
5. Recommendation Rec(2000)19 of the Committee of Ministers to member States on the role of public prosecution in the criminal justice system should apply, mutatis mutandis, to public prosecutors with responsibilities and powers outside the criminal justice system so far as it relates to:
– safeguards for them to carry out their functions;
– their relationship with the executive, the legislature and the judiciary; and
– their duties and responsibilities towards individuals.
6. Public prosecution services should adopt an approach to their work that is as transparent and open as possible, while fully respecting their duty of confidentiality.
7. The conduct of public prosecutors should be governed by appropriate codes of ethics.
8. Public prosecution services should have at their disposal the necessary financial and human resources and benefit from appropriate training in order to adequately fulfil their responsibilities outside the criminal justice system.
9. With a view to harmonising policy and practice throughout the national jurisdiction, the public prosecution services may consider circulating guidelines and information on best practices outside the criminal justice system to the public prosecutors concerned.
D. Principles applicable to specific responsibilities and powers of public prosecutors outside the criminal justice system
10. The competences of the public prosecutor outside the criminal justice system should not be such as to restrict the right of any natural or legal person to initiate or act as a defendant to defend his or her interests before an independent and impartial tribunal, even in cases where the public prosecutor is or intends to be a party.
11. Where the public prosecutor is entitled to make a decision affecting the rights and obligations of natural and legal persons, such powers should be strictly limited, defined by law and should not prejudice the parties’ right to appeal on points of fact and law to an independent and impartial tribunal. The public prosecutor should act independently from any other power and his or her decisions should be reasoned and communicated to the persons concerned.
12. The powers of the public prosecutor to initiate legal proceedings or act as a defendant should not compromise the principle of equality of arms between the parties to litigation.
13. The public prosecutor should not withhold evidence relevant to the issues in dispute.
14. The power to pursue pre-trial inquiries should be provided for by law. Its exercise should be proportionate and not confer an unreasonable advantage on the public prosecutor.
15. In cases where an individual’s interests are represented by the public prosecutor, that person should be entitled to be a party to the proceedings. This should not prevent the public prosecutor from remaining a party to the proceedings when the general or public interest is involved.
16. The rights of the public prosecutor to appeal or otherwise have a decision of a court reviewed by a superior court should be no different from those available to the other parties to the proceedings and also subject to the same conditions, including the time limits for lodging the appeal.
17. The parties to the proceedings should be informed either by the public prosecutor or by the court of the decision of the public prosecutor to intervene or be joined to the proceedings.
18. Where the public prosecutor presents a written opinion before the court hearing, the opinion should be made available to all parties in sufficient time to be considered. Otherwise, the hearing may be adjourned.
19. The parties to the proceedings should have the opportunity to comment on the opinion of the public prosecutor and to submit counter-arguments.
20. The public prosecutor should neither participate in the deliberations of the court, nor give the impression of doing so.
21. The principles laid out in paragraph 16 apply under this sub-heading.
In relation to the principles of legal certainty and res judicata
22. In order to comply with the principles of legal certainty and res judicata, the grounds upon which the public prosecutor may seek a review of the final decision of a court should be limited to exceptional cases and the review processed within a reasonable time limit. Except in cases where the review does not concern the rights and obligations of the parties, as set out in the decision under review, the parties to the original proceedings should be informed of the review and, should they so wish, given the opportunity to be joined to the proceedings.
E. Role of public prosecutors as a supervisory organ
23. Where public prosecutors have a supervisory role in relation to national, regional and local authorities, and also in relation to other legal entities, for the purpose of ensuring their proper functioning in accordance with the law, they should exercise their powers independently, transparently and in full accordance with the rule of law.
24. In relation to private legal entities, the public prosecutor should only be able to exercise his or her supervisory role in cases where there are reasonable and objective grounds to believe that the private entity in question is in violation of its legal obligations, including those derived from the application of international human rights treaties.
25. The authorities or other legal entities concerned by any action undertaken by the public prosecutor in accordance with paragraphs 23 and 24 should be entitled to make representations and challenge such action before a court.
F. National and international co-operation
26. In fulfilling their mission, public prosecution services should establish and, where appropriate, develop co-operation or contacts with ombudspersons or similar institutions, other national, regional and local authorities, and with representatives of civil society, including non-governmental organisations.
27. There should be support for international co-operation among public prosecution services with similar responsibilities outside the criminal justice system and mutual practical assistance both within and beyond the framework of relevant international treaties.
Ad hoc Terms of reference on the draft recommendation on the rights and legal status of children and parental responsibilities
Reply of the European Committee on Legal Co-operation to the Committee of Ministers
The European Committee on Legal Co-operation held an exchange of views at its 87th plenary meeting in accordance with the ad hoc terms of reference from the Committee of Ministers to re-examine the draft recommendation on the rights and legal status of children and parental responsibilities. Its reply is set out below3.
(i) The committee considers that there is no prospect at present of an additional or amending protocol to the European Convention on the legal status of children born out of wedlock, or indeed of a new convention, achieving the necessary consensus to be adopted or, if adopted, to secure a significant number of ratifications.
(ii) A clear majority of members of the committee present at the meeting expressed their preference for a Committee of Ministers recommendation. In favour of this option, they gave the following reasons:
- A recommendation would be the most appropriate instrument for establishing standards to improve the provisions of the European Convention on the legal status of children born out of wedlock, whilst giving the necessary flexibility to take account of, and respect, the wide diversity of political and legal traditions in the member States in the area of family law and, more particularly, in the areas covered by the draft recommendation. Accordingly, a recommendation would be the form most likely to achieve the necessary consensus.
- In this context, the committee noted that the reference in the draft explanatory memorandum (paragraph 7) to the standards of the draft recommendation being intended to replace those of the 1975 Convention was not accurately expressed - the purpose of the draft recommendation being rather to further improve the rights and legal status of children born outside marriage (as set out in the Convention) and extend this protection to all children whatever the circumstances of their birth.
(iii) The majority of members of the committee are not in favour of the option of guidelines, considering this option to be more appropriate for a text that gives operational guidance on the implementation of already established principles or standards rather than as a statement of general principles as in the case of the current draft text. This option was seen by some delegations as a possible alternative to a recommendation.
(iv) In discussing the options for the form, the committee reiterated its awareness of the diversity of the political and legal traditions in member States and its opinion that the principles in the text as currently drafted, including those mentioned in the ad hoc terms of reference, respond to important current challenges and constitute clear and relevant legal principles.
(v) The committee noted that at present there are no relevant legislative initiatives in this area by other international organisations and recalled that the case law of the European Court of Human Rights had been taken into account in the preparatory work, as recorded by the draft explanatory memorandum.
(vi) Whilst recognising the challenges of securing agreement on all the principles in the text as currently drafted, the committee, in its majority, considers that a recommendation would be the most appropriate instrument. The CDCJ expresses its willingness to continue working on the legal aspects of the text, provided the existing policy obstacles can be overcome.
1 This document has been classified restricted at the date of issue. In accordance with the Deputies’ decision (CM/Del/Dec(2001)765/10.4), it will be declassified after examination by the Committee of Ministers.
2 The vote was as follows: 30 votes in favour (Armenia, Austria, Belgium, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Republic of Moldova, Netherlands, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine, United Kingdom); 2 abstentions (Azerbaijan, Poland); no votes against. Poland abstained due to the need to consult internally the final text of the draft recommendation, including amendments introduced during the meeting.
3 The Italian representative requested that the following declaration be recorded: “Italy does not wish to stand in the way of the consensus on the proposed answer to the Committee of Ministers, but it reiterates that this is without prejudice to the concerns that some provisions of the draft recommendation still raise.”