OPINIONS

1. The Consultative Council of European Prosecutors (CCPE) was set up by the Committee of Ministers on 13 July 2005 to prepare opinions on issues related to the prosecution service and promote the effective implementation of Recommendation Rec(2000)19 of 6 October 2000 on the role of public prosecution in the criminal justice system. The rule of law and respect for human rights constitute basic underlying principles for public prosecutors, as "... public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system[1]".

2. The Warsaw Declaration and the Plan of Action adopted by the third Summit of Council of Europe Heads of State and Government of the member states of the Council of Europe[2] highlighted, at the highest political levels, the Council of Europe's role in promoting human rights, democracy and the rule of law and its commitment to combating terrorism, corruption and organised crime and to further develop the Council of Europe’s legal instruments and mechanisms of legal cooperation. The Warsaw Summit also included a commitment to strengthening cooperation and interaction with the European Union, particularly in the field of human rights[3], democracy and the rule of law.

3. Paragraphs 37 to 39 of the Recommendation Rec(2000)19 include a number of provisions on international co-operation in criminal matters, which are expanded on in the subsequent Explanatory Memorandum. In particular, the Committee of Ministers notes that "given the number of existing international instruments and recommendations and the fact that this field is under specific scrutiny within the Council of Europe itself, the committee concentrated on identifying practical measures for improving the current situation, bearing in mind the important role normally played by the public prosecutor in international judicial co-operation on criminal matters." The Committee of Ministers is aware of the obstacles to international cooperation that exist in institutional practice and of the need for coordination mechanisms, above all within each country. In the Recommendation, it indicates that public prosecutors "participate ....., either directly or by submitting memoranda, in all procedures relating to the execution of requests for mutual legal assistance". In most national systems public prosecutors have responsibilities both as active participants in international cooperation and when their countries received requests for cooperation, whether in the form of extraditions, arrest warrants or rogatory commissions. This dual responsibility implies a range of knowledge geared to all aspects of cooperation and of the possibilities of coordination at a more general level.

4. This Opinion has been prepared according to the Framework overall Action Plan for the work of the CCPE adopted by the Committee of Ministers on 29 November 2006[4]. It aims to underline the essential elements which contribute to strengthening international cooperation in criminal matters and judicial mutual assistance from the point of view of prosecutors, as legal practitioners and main players of such cooperation.

5. The CCPE is aware that the issues of international cooperation in criminal matters are not important matters of concern only for the prosecutors. Extradition, arrest warrants and the gathering of evidence abroad are mainly the responsibility of our colleagues, the judges, who have their own representative body in the Council of Europe, the Consultative Council of European Judges (CCJE). There are other committees in the Council of Europe, like the European Committee of Crime Problems (CDPC), namely through the Committee of Experts on the Operation of European Conventions on Co-operation in Criminal Matters (PC-OC) which have a pre-eminent role to play in this field[5], as well as the European Commission for the efficiency of Justice (CEPEJ).

6. Within the framework of this Opinion, the CCPE has taken into account universal and regional legal instruments, and in particular the relevant conventions of the Council of Europe which appear in the Appendix. It refers also to the Opinion N°(2006) 9 of the Consultative Council of European Judges (CCJE) on the role of national judges in ensuring an effective application of international and European law.

7. The CCPE has taken into account the work and conclusions of various fora where political and law enforcement authorities and representatives of public prosecution offices have addressed issues related to international cooperation in the field of criminal justice, and in particular the 1st pan-European Conference of public prosecutors specialised in cases relating to organised crime (Caserte, 2000)[6], the 7^th European Conference of General Prosecutors (Moscow, 2006)[7] and the High level Conference of the ministers of Justice and the Interior (Moscow, 2006)[8].

8. To prepare this Opinion, the CCPE analysed, with the support of a scientific expert[9], the answers by 30 member states to a questionnaire[10] drafted for this purpose. The subsequent report was discussed at the European Conference of prosecutors on international co-operation in the criminal field (Warsaw, 4-5 June 2007)[11], in the presence of representatives of the public prosecution services of most of the member states and judicial cooperation bodies of the European Union (Eurojust and the European Judicial Network in criminal matters).

9. In its approach, the CCPE also wanted to be consistent with the Council of Europe - EU Memorandum of Understanding[12], whose "shared priorities and focal areas for co-operation" include "human rights and fundamental freedoms; rule of law, legal co-operation and addressing new challenges".

PRESENT SITUATION AND EXISTING SHORTCOMINGS

10. Strengthening international co-operation in the criminal justice field is essential as the community of states' answer to the attacks levelled at society by international crime, terrorism and corruption. Although the Resolution of the Committee of Ministers in 1997[13] was related specifically to corruption, it is worth mentioning it here because it also has a more general application: "corruption represents a serious threat to the basic principles and values of the Council of Europe, undermines the confidence of citizens in democracy, erodes the rule of law, constitutes a denial of human rights and hinders social and economic development".

11. The Recommendation Rec(2000)19 was enriched by a number of significant achievements in the field under consideration:

§ major conventions have been adopted within the Council of Europe, such as the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (CETS No 182), the Convention on Cybercrime (CETS No 185) and its Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (CETS No 189), the Protocol amending the European Convention on the Suppression of Terrorism (CETS No 190), the Convention on the Prevention of Terrorism (CETS No 196), the Convention on Action against Trafficking in Human Beings (CETS No 197) or the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No 198). Moreover, the UN Palermo Convention against Transnational Organised Crime[14], the UN Convention against corruption[15], the International Convention for the Suppression of Acts of Nuclear Terrorism[16], the Convention on Mutual Assistance in Criminal Matters between the member states of the European Union[17] and the CIS Convention on judicial assistance and legal relations in civil, family and criminal matters[18] have also served to strengthen judicial cooperation. However it must be noted that not all the states concerned have yet become party to these Conventions and some of them have not entered into force so far. This minimizes their impact and slows down their effective implementation by legal practitioners. Furthermore, shortcomings in the existing relevant Council of Europe's instruments were underlined in the above mentioned European Conference of General Prosecutors in Moscow.

§ within the European Union, new instruments such as the Council’s Framework Decision of 2002 on the European arrest warrant and the surrender procedures between member states of the European Union were adopted, and new bodies such as Eurojust, liaison magistrates and the European Judicial Network in criminal matters were set up, which give effect to the principle of mutual recognition.

§ direct contacts in the field of judicial mutual assistance, through bilateral, regional or international agreements between judicial bodies[19] of the various member states are becoming increasingly frequent.

12. However, the real innovation lies in the further option provided for in these agreements. The agreements referred to provide for the spontaneous transmission of information from one national judicial authority[20] to that of another country. Legal instruments that are fully operative in most of the Council of Europe member states authorise national judicial authorities to report criminal offences and transmit the relevant information. This practice was advocated by the Committee of Ministers in Recommendation Rec(2000)19, according to which "lastly, the possibility should be considered of extending existing mechanisms facilitating spontaneous exchange of information between public prosecutors of different countries"[21].

13. Consideration should now be given to the practical responses to these innovations, namely whether the international agreements concerned have led to significant changes in the member states' domestic law and practice and, at least, whether, and to what extent, public prosecutors use these new instruments and are aware of the recent changes that have taken place.

14. The preliminary study by the CCPE[22] shows that international cooperation has been improved since the nineties, sometimes thanks to pragmatic solutions implemented through cooperation and the setting up of direct contacts between the players in the process concerned. Some states underline an increased specialisation of the relevant players and smoother internal information regarding the opportunities offered within the framework of the mutual legal assistance system.

15. However, many elements are stressed as hampering he necessary development of mutual legal assistance in criminal matters and as being the cause of excessive length in international cooperation procedures today, in particular:

§ pan-European mechanisms of legal cooperation are not always in line with the today’s challenges and demands;

§ the drafting of requests for assistance (e.g. too brief or with too many details, not signed or poorly researched, incorrectly translated, not precise or not following the proper procedure, etc.) can undermine the cooperation process; the lack of training, the complexity of procedures, the shortage of resources provided can mostly explain these shortcomings;

§ the transmission of requests remains too often linked only to diplomatic channels, though the European Convention on mutual judicial assistance in criminal matters (CETS N° 30) and its Second Additional Protocol (CETS N° 182) make possible direct contacts between competent judicial authorities to submit and execute requests; the lack of information (details of the competent authorities) often forces requests to go through central authorities; moreover, the simultaneous use of different channels of communication is a disruptive factor for the smooth implementation of the cooperation procedure;

§ the increase in the number of mutual assistance requests is a factor contributing to the paralysis of the procedures, requested authorities being repeatedly bogged down by the execution of requests sometimes relating to minor cases;

§ as regards the execution of the requests, the lack of a European culture of judicial cooperation and a degree of resistance in practical terms result in cooperation procedures being systematically relegated by internal procedures.

16. But serious difficulties arise from the differences between legal systems. The means by which evidence is obtained, the problem of dual criminal liability or ne bis in idem, the competence of the requesting authority or the system of judgments in absentia are main examples of concepts and procedures which would benefit from being more coherent with each other at international level to facilitate the cooperation between the systems. A better mutual knowledge of these systems would also enable to favour this cooperation.

17. Such difficulties are increased when addressing extradition. For example cases of extradition procedures aborted after political grounds were mentioned, interpretation of the same legal concept differed or the impossibility of extraditing nationals reiterated.

18. Another generally criticised negative aspect is that of delays for no objective reason. Here, one is no longer talking about structural or legal problems but simply about professional dysfunctions with no legal complications.

19. Therefore measures and tools should be developed so as to build a genuine culture of international judicial cooperation in criminal matters, both at the level of central authorities and at the level of individual players in this cooperation.

20. In that regard, the CCPE recalls that the First pan-European Conference of public prosecutors specialising in cases relating to organised crime[23] formulated recommendations in this way and proposed "to organise contacts and exchanges of information between public prosecutors, in a more structured way" and invited "the Council of Europe to set up a liaison group, made up of a small number of public prosecutors, informally to organise contacts and exchanges of information between public prosecutors in general, supplementing existing arrangements, and, in particular, between public prosecutors specialising in cases involving organised crime" while specifying that "contacts should be established between the Council of Europe’s liaison group and Eurojust (…)".

21. Similarly, the European ministers of Justice and of the Interior who met in Moscow in November 2006[24] supported the idea that "a network of national contact points be developed in order to facilitate contacts between those responsible for international judicial co-operation, notably in the areas of combating terrorism, corruption and organised crime, trafficking in human beings and cybercrime".

RECOMMENDATIONS BY THE CCPE

22. The CCPE stressed the major improvements in international cooperation in criminal matters, as regards the European and international instruments adopted in the recent years, the institutional structures set up to facilitate exchanges between the players of this cooperation as well as the effective contacts developed between the practitioners. The CCPE encourages relevant bodies of the Council of Europe and member states to pursue and intensify their efforts so as to set up the institutional, normative and inter-personal conditions for the development of a genuine European legal culture of cooperation in the criminal field between the various member states, and even beyond.

Acting on the normative framework of international cooperation

23. To strengthen the normative framework of international cooperation and allow the improvement of the day to day work of judicial practitioners entrusted with the concrete application of mutual assistance, the CCPE recalls that it is essential that the relevant Conventions, namely those mentioned under paragraph 11 above, are swiftly ratified and effectively applied by the states concerned, and in particular the Council of Europe's member states.

24. Furthermore, the CCPE fully supports the ongoing work within the PC-OC which aims to modernise the relevant Council of Europe's instruments. Following the conclusions of the 7th European Conference of General Prosecutors (Moscow, 2006)[25], the CCPE invites the Committee of Ministers and the relevant committees of the Council of Europe to keep priority on the work of updating instruments on extradition, mutual assistance and transfer of criminal proceedings in order to set up more flexible cooperation procedures, based on mutual trust and confidence between the systems to speed up a procedure for handing persons over, by simplifying it, on the basis of the consent of the individual whose extradition is requested and whose fundamental rights would obviously remain fully guaranteed.

25. In this regard the CCPE recommends the Committee of Ministers to think about the preparation of a comprehensive Council of Europe convention on international co-operation in criminal matters.[26]

26. The CCPE also invites the legislature in the member states to study the possibility of simplifying national procedures targeted to the effective functioning of international cooperation, so that the weight of these procedures does not hamper the application of cooperation requests, in particular as regards extradition procedures. In any case, such simplified procedures would have to respect fully the rights of the persons concerned.

Acting on the quality of international cooperation

27. Relying namely on Recommendation Rec(2000)19 (in particular Article 38), on the Opinions of the Consultative Council of European Judges (CCJE) N° 4 (2003) on appropriate initial and in-service training for judges at national and European levels[27] and n° 9 (2006) the role of national judges in ensuring an effective application of international and European law[28], as well as on the conclusions of the European Conference of prosecutors in Warsaw[29], the CCPE recommends that the training of prosecutors engaged in international judicial cooperation as well as other players in such cooperation is strongly developed. Improved professional training on international cooperation should take account not only of existing conventions on the subject but also operational information collated by existing organisations and systems. It should equip practitioners with the necessary skills to better draft their requests for assistance and better understand and execute the requests that are addressed to them. Efforts for raising awareness of the international judicial cooperation players could also be undertaken in order to develop their skills so as to formulate their request for assistance more precisely and to avoid overloading third systems with misdemeanour requests.

28. It might not be necessary or even possible that every prosecutor or judge should be well aware of the relevant international instruments and channels. But it is essential that some of them are specialists on this issue and thus specifically trained. Therefore the CCPE recommends that each member state sets up an appropriate structure by which this specialisation should be guaranteed.

29. This training focused on international cooperation in the criminal justice field must include human rights training for judges and prosecutors, as well as for defence lawyers where specifically appropriate. In addition to the general overview of the fundamental elements of human rights law, it is essential to explicitly identify those basic rights and relevant standards which concern directly individuals in criminal proceedings related to the execution of requests for international assistance in criminal matters. This should result in commentaries on each of the relevant law sources, as the applicable rights and standards differ according to the cooperation forms. Such commentaries or specialised documents should also rely on the prevailing practice and case-law.

30. This knowledge must be disseminated by appropriate means, and by training organisations, in particular judicial and prosecutorial national training institutions. The relevant European bodies for judicial and prosecutorial training such as the Lisbon Network of the Council of Europe and the European Judicial Training Network could also play a leading role in this context.

31. This training should also be completed by training in foreign languages, namely to contribute to improve direct contacts between practitioners, the quality of their assistance requests and a better understanding of the requests addressed to them.

32. Furthermore, the CCPE recommends that necessary information tools for practitioners are developed by the competent national authorities. It underlines in particular the usefulness of setting up a handbook on mutual judicial assistance containing a wide range of information on national investigation systems, like the so-called Fiches belges[30], which the European Judicial Network in criminal matters uses as a working tool and which facilitate the understanding of the states' legal systems. Circulars or guidelines summarising the applicable machinery, compendia of good practices and multilingual forms aimed at making uniform and facilitating the implementation of the most usual assistance measures could be developed, updated and disseminated among the practitioners, including through the Internet.

Where appropriate, this should be done with the support of the CCPE. In this context, the CCPE recalls that the European ministers of Justice and the Interior encouraged in Moscow in November 2006[31] "the establishment of a database of procedures in force in the member states concerning the various types of co-operation which would allow for easier access to this information" and reiterates its support of this proposal. The above mentioned tools could be transmitted to the Council of Europe in order to enrich such a data base.

33. As regards professional training and information of prosecutors, the CCPE could also play a role in organising meetings of specialised prosecutors from member states, such as the above mentioned Caserta conference, where appropriate in cooperation with other interested bodies within the Council of Europe, and in partnership with other relevant European and international institutions and organisations.

34. The efficiency of the transmission of assistance requests and the way they are addressed depend also on the development of the transmission methods. The CCPE underlines that the opportunities offered by the new information technologies could thus be widely used to facilitate namely the exchanges through secure electronic channels provided that the principle of confidentiality and the authentication of documents are fully guaranteed.

Extending exchanges between legal practitioners

35. At the level of the Council of Europe, the CCPE invites the Committee of Ministers to reflect on the relevance of setting up structured cooperation and information exchange along the lines of the European Judicial Network in criminal matters and Eurojust, which would in particular enable the member states which are not party to such bodies of the European Union to benefit from similar services, on the basis of the relevant Council of Europe's instruments.

36. Based on the arguments and undertakings in the "Memorandum of Understanding between the Council of Europe and the European Union"[32], one possible approach could be to assign a formal or informal mediation role to the Council of Europe wherever problems arise concerning cooperation within the criminal justice field.

37. Without challenging the direct and decentralised ways of transmission, the member states could also consider the issue of identifying in each country, at an appropriate level according to the national legal system, a "specialised unit" entrusted with assisting to solve the difficulties met by practitioners of the requesting and requested states regarding judicial assistance requests. This unit would be entrusted in particular to deal with problems that impede or slow down assistance procedures.

38. The CCPE also calls member states to strengthen the willingness as regards international cooperation in the criminal justice field and to facilitate the full and direct participation of legal practitioners. The CCPE invites member states to compile a list of contacts and addresses giving the names of the relevant contact persons, as well as their fields of specialisation, their areas of responsibility, etc., and to publish this list on a restricted web site which might be administered by the Council of Europe. This list should be regularly updated by the states, so as to ensure the efficiency of the system. This would enable, while respecting the relevant Conventions, direct exchanges between practitioners, without going through the diplomatic channels which might be heavy procedures.

39. Moreover, the CCPE considers that the exchange of liaison judges / prosecutors between states, as encouraged by Article 38 of Recommendation Rec(2000)19, constitutes good practice which should be developed as far as possible, as it facilitates contacts between national justice systems, fosters a better mutual knowledge of these systems and therefore contributes to enhancing mutual trust and confidence between the international cooperation players.

40. The CCPE recommends that the prosecution services foster mutual cooperation also at the stage of drafting and executing requests, where appropriate.

Fostering cooperation with third countries and criminal international courts

41. Within the framework of the Council of Europe's activity, as regards international cooperation in criminal matters, an increased attention should be given to the problems arising from the cooperation with international criminal courts. Such an approach should also consider the necessary efforts for ensuring the full cooperation of member sates with international criminal courts, subject to legal recognition of the competence of these courts by the member states concerned.

42. It should also be taken into consideration more increasingly that the relevant conventions of the Council of Europe are also applicable to some non-European countries.

43. In order to widen the legal basis for cooperation of the member states with third countries, the CCPE recommends that the Committee of Ministers considers the issue of inviting some states outside Europe to accede the European Convention on Extradition and the European Convention on Mutual Legal Assistance in Criminal Matters, and the protocols thereto.

Acting on the resources allocated to international cooperation

44. The CCPE recommends that the member states' governments allocate appropriate financial, material and human resources so that international cooperation in criminal matters can be increased both in quantity and in quality, namely at the level of courts and prosecution offices. Such efforts should mostly be targeted at considering the appointment within the courts concerned specialised of judges and prosecutors for judicial mutual assistance in criminal matters. These efforts should also allow practitioners to dedicate the necessary time for addressing properly the requests, both as regards the way there are drafted and the way they are answered. Resources should finally be allocated for improving the linguistic quality of international cooperation, giving to courts and prosecution services the appropriate translation and interpretation means.

CCPE’S AVAILABILILTY TO COOPERATE WITH OTHER BODIES

45. Where appropriate, the CCPE is prepared to cooperate with any such initiative. It reiterates its full availability to work firstly together with the other relevant committees within the Council of Europe, as well as with other relevant European and international institutions and organisations. Public prosecution services that were increasingly well prepared, professionally, to deal with such matters could then become the "custodians of the interests of international co-operation" as it is pointed out in Recommendation Rec(2000)19[33].

SUMMING UP OF THE RecommEndations

In order to improve the institutional, normative and inter-personal conditions for the development of a genuine European legal culture of cooperation in the criminal field, the CCPE recommends to the Committee of Ministers and the Council of Europe's member states:

§ to act on the normative framework of international cooperation in:

- keeping priority on the work of updating the existing European conventions in the sphere of criminal justice, especially the European Convention on extradition;

- accelerating the ratification and effective application of the relevant conventions and in seeking to simplify internal procedures to favour mutual assistance;

§ to act on the quality of international cooperation:

- in developing appropriate training of prosecutors as well as other players in international judicial cooperation,

- in setting up in each member state an appropriate structure to guarantee the specialisation of some prosecutors and judges as regards international cooperation,

- in issuing specialised documents or commentaries on the applicable human rights and standards in international criminal proceedings, to be regularly updated,

- in giving to practitioners mutual information tools on judicial systems and procedures, including through the establishment within the Council of Europe of a data base,

- in multiplying the opportunities for practitioners from the various member states to meet and exchange, namely through specialised colloquies and seminars for prosecutors,

- in improving the transmission of assistance requests and the way they are addressed through new information technologies and the improvement of the quality of the request as regards their drafting and foreign language issues;

- in facilitating the spontaneous and direct transmission of information;

§ to extend exchanges between legal practitioners:

- in setting up at the level of the Council of Europe structured cooperation and information exchange properly articulated with the European Judicial Network in criminal matters and Eurojust;

- in setting up in each country, at an appropriate level according to the national legal system, a "specialised unit" entrusted with assisting to solve the difficulties met by practitioners of the requesting and requested states regarding judicial assistance requests;

- in compiling a list of contacts and addresses giving the names of the relevant contact persons, as well as their specialist fields, their areas of responsibility, etc. and to publish this list on a restricted web site administered by the Council of Europe;

- in developing the exchange of liaison judges / prosecutors;

- in cooperating also that the stage of drafting and executing requests for assistance;

§ within the framework of the Council of Europe, to foster cooperation with third countries, international criminal courts and relevant European and international institutions and organisations;

§ to increase budgetary and human resources allocated to international cooperation in criminal matters within the courts and the prosecution offices.

Appendix

Council of Europe's Conventions regarding legal cooperation in criminal matters

024	European Convention on Extradition
030	European Convention on Mutual Assistance in Criminal Matters
051	European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders
052	European Convention on the Punishment of Road Traffic Offences
070	European Convention on the International Validity of Criminal Judgments
071	European Convention on the Repatriation of Minors *
073	European Convention on the Transfer of Proceedings in Criminal Matters
082	European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes
086	Additional Protocol to the European Convention on Extradition
088	European Convention on the International Effects of Deprivation of the Right to Drive a Motor Vehicle
090	European Convention on the Suppression of Terrorism
097	Additional Protocol to the European Convention on Information on Foreign Law
098	Second Additional Protocol to the European Convention on Extradition
099	Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters
101	European Convention on the Control of the Acquisition and Possession of Firearms by Individuals
112	Convention on the Transfer of Sentenced Persons
116	European Convention on the Compensation of Victims of Violent Crimes
119	European Convention on Offences relating to Cultural Property *
141	Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
156	Agreement on illicit traffic by sea, implementing Article 17 of the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances
167	Additional Protocol to the Convention on the Transfer of Sentenced Persons
172	Convention on the Protection of Environment through Criminal Law *
173	Criminal Law Convention on Corruption
182	Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters
185	Convention on Cybercrime
189	Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems
190	Protocol amending the European Convention on the Suppression of Terrorism *
191	Additional Protocol to the Criminal Law Convention on Corruption
196	Council of Europe Convention on the Prevention of Terrorism
197	Council of Europe Convention on Action against Trafficking in Human Beings *
198	Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism *

The Conventions followed by * have not entered into force so far.

Opinion N°2 (2008)

of the Consultaive Councuil of European Prosecutors

to the Committee of Ministers of the Council of Europe

Alternatives to prosecution

INTRODUCTION

2. Article 3 of this Recommendation states that "in certain criminal justice systems, public prosecutors (…) decide on alternatives to prosecution". Article 24-c of this Recommendation also provides that public prosecutors should in particular "seek to ensure that the criminal justice system operates as expeditiously as possible".

3. This Opinion was prepared in accordance with the Terms of Reference given to the CCPE by the Committee of Ministers[34], taking into account the Framework overall action plan for the work of the CCPE[35] and the conclusions of the Conference of Prosecutors General of Europe held in Celle (Germany) on 23 - 25 June 2004 on the theme: “Discretionary powers of public prosecution: opportunity or legality principle - advantages and disadvantages”.

4. At this Conference, the Prosecutors General of Europe noted with satisfaction a tendency for the goals pursued in Europe to be harmonised around the principles of public interest, the equality of all persons before the law and individualisation of criminal justice, in accordance with the Recommendation Rec(2000)19. The Conference of Prosecutors General of Europe called for the application of the following principles:

a. there should be the possibility of choice between the criminal justice response and other types of response to criminal acts, whatever system of mandatory or discretionary prosecution operates, while bearing in mind that it is necessary in the public interest to punish serious offences;

b. the need for an alternative to prosecution to be serious, credible and capable of preventing re-offending, while taking into account the interest of the victims;

c. the need for an alternative to criminal procedure to be applied in accordance with the stipulations of the law, balancing the rights of the victims with objectively fair and impartial treatment of the offender.

5. In drafting this Opinion, the CCPE also considered the following Recommendations of the Committee of Ministers Rec(87)18 concerning the simplification of criminal justice, Rec(85)11 on the position of the victim and Rec(99)19 concerning mediation in penal matters as well as the work of the Council of Europe in the field of restorative justice[36]. It also took into account the Framework Decision of the Council of the European Union of 15 March 2001 on the standing of victims in criminal proceedings.[37]

6. To address this issue, the CCPE decided to carry out a study on alternatives to prosecution in order to identify and promote the best practices followed in the Council of Europe member states. For this purpose, it conducted a survey among the national members of the CCPE, asking them to deliver their answers in order to sustain the discussion to be held on this theme at the 2^nd plenary meeting of the CCPE (Strasbourg, 28 – 30 November 2007). This Opinion takes into account the replies by 23 member states.

DEFINITIONS

7. For the purposes of this Opinion, “alternative measures to prosecution” are understood to mean measures which go together with final, temporary or conditional discontinuation of prosecution where an offence has been committed, that would otherwise render the perpetrator liable to a criminal sanction such as a suspended or unsuspended prison sentence or fine, together with ancillary penalties such as deprivation of certain rights.

8. Consequently, it is agreed that the procedure of “pleading guilty” before a court does not come within the scope of this Opinion, as it does not obviate criminal proceedings and leads to a conviction.

9. Likewise, the “discharge” that exists in some member States is not regarded as an alternative to prosecution, since it follows a conviction.

GENERAL CONSIDERATIONS

10. Recourse to alternative measures to prosecution is not in contradiction with Europe’s mainstream system of mandatory prosecution, usually to be understood in these terms: for each offence against the law there is a response, without the type of response being limited to sentencing alone; such measures are known in all systems.

11. Some member states have the discretionary prosecution system. Other member states have the mandatory prosecution system, but their codes of criminal procedure provide for such exceptions as:

- cases where prosecution is plainly inexpedient having regard to the stated objectives, one of which is to prevent the recurrence of the offence;

- cases where financial or other redress is made;

- cases involving a juvenile offender.

12. In some countries, the obligation to prosecute can only be avoided for juveniles, in the context of “reformatory measures” and in very special cases concerning petty offences committed by first-time offenders, or where an offence of medium gravity is sincerely regretted.

13. The prosecuting authority in most countries is in an especially good position to propose and see to the application of alternatives validly constituting a judicial response to the offences committed. Sometimes, this is a matter of the prosecutor’s sole choice but the judge may need to assent to this arrangement to discontinue the proceedings.

14. In other countries however, the prosecutor’s role is far less significant than that of the judge, who has sole decision as to discontinuation, the prosecutor being bound to strict observance of the principle of mandatory prosecution.

15. Alternative measures have to be consistent with the goals by which the action of criminal justice must be guided, namely to prevent re-offending, assist redress of the damage incurred by society, have regard to the interest of victims, uphold the rights of the defence, form a valid response to illegal acts, and to avoid the repetition of the offence.

16. Legislation in some countries stipulates that alternative measures should be used when a criminal sanction appears unnecessary to avert repetition of the offence.

17. The concept of an act not significantly threatening society is reflected in the legislation of many countries. However, the use of alternative measures to prosecution is sometimes strictly framed as regards the most serious types of crime such as trafficking in human beings or terrorism and the serious crimes where public interest is deeply involved.

18. Alternative measures to prosecution, whose range of possibilities can be progressively enriched, illustrate an evolutionary phase in the development of society and the modernisation of justice (which is most welcome) vis-à-vis the traditional system consisting solely of suspended or non-suspended prison sentences or fines, particularly in respect of juvenile offenders or juveniles who have not previously been convicted.

19. These measures are conducive to acceptance of the judicial response by the offender and possibly the victim, if the latter is suitably associated with them. Sometimes the code provides that the victim can object to a prosecution being dropped. This is done through a review of the decision taken by the prosecution authority, either to the hierarchical superior of the prosecutor or to the higher instance court. In some member states, there is no alternative measure without the victim's agreement.

20. Alternative measures also have the advantage of not making offenders social outcasts, and instead encouraging their rehabilitation: in some countries the criminal procedure recommends the adoption of such measures when the offence seems to have been the outcome more of thoughtlessness than of disregard for laws and legal prohibitions.

21. Alternative measures often make redress more visibly meaningful to society than mere payment of money (too superficially conscience-salving) or imprisonment.

22. As alternatives to imprisonment, they lower the prison population in a Europe where many prisons are overcrowded and the prison budget often takes up a crippling proportion of the justice budget.

23. Alternative measures can reduce the workload of courts, but often present the prosecution departments with a very large amount of work in arranging them.

24. However, they are not to be regarded as measures of a better use of means; in fact they require considerable material resources – premises especially – and human resources, careful preparation, public education and information about the nature of alternative measures to prosecution, well-trained individuals of calibre to implement and follow them up (for example mediators), alongside the prosecutors; these people must receive suitable remuneration and be professionals rather than philanthropic volunteers, just as associations discharging public service functions qualify for subsidies.

25. In some member states the legislation enumerates and restricts the cases where alternative measures can be applied. In other cases, this is done through non binding legal instruments. In accordance with Recommendation Rec(2000)19[38] and with a view to promoting a fair, consistent and efficient activity of public prosecutors in this field, members states should seek to:

- define general guidelines for the implementation of this criminal policy;

- define general principles and criteria to be used by way of references against which decisions of individual cases should be taken, in order to guard against arbitrary decision making.

26. The public must be informed of the above-mentioned system, guidelines, principles and criteria. It is advisable that specific arrangements be drawn up aimed at giving an account of the concrete implementation of the above mentioned guidelines.

27. Before adopting alternative measures to prosecution, the economic, administrative and structural conditions should be evaluated to check the ability to implement these measures in a practical and concrete manner.

EXAMPLES OF ALTERNATIVES TO PROSECUTION FROM THE PRACTICE OF THE COUNCIL OF EUROPE COUNTRIES

28. Various good practices for implementing alternative measures to prosecution can be noticed in the member states of the Council of Europe. The CCPE wishes to draw the attention to some of them.

29. The “rappel à la loi” (judges' warning) is very frequently employed in some member states where it is called a “caution” when issued with some formality by a specially qualified facilitator, and particularly for minors: the prosecutor or any competent judicial authority holds a serious talk with the offender or his/her representative, during which the latter must be reminded of the legal provisions and the risks of punishment incurred for renewed lawbreaking. The objective is to foster realisation by offenders of the consequences of their act for society, the victim and themselves. This warning is used in the case of minor disturbances to society or to individuals committed by persons with no previous conviction. Another similar formula is applied in systems of restorative justice, which involves discussion concerning the gravity of the acts, etc.

30. Offenders can be referred to a medical, social or professional facility: the prosecutor or any competent judicial authority enjoins the perpetrator of the wrongful acts to contact a designated type of body, for instance an association where he/she will undergo training or instruction on a theme related to the offence; for example, in the case of traffic offences, a course which includes, in addition to driving regulations, encounters with persons severely disabled as a result of accidents, and will help offenders realise the consequences of bad driving. Another example: where the upbringing of juveniles is seriously deficient, a course in “parenting” may be offered to parents “unable to cope”. For an alcoholic offender: food hygiene services may organise sessions; for young offenders guilty of disorderly or racist or antisocial conduct, instruction in citizenship may be proposed so that the minors realises the seriousness of their acts and alter their conduct.

31. The regularisation of a situation which constitutes an offence tends to dispel rapidly and effectively the disturbance arising from the breach of the law: for example, drivers unable to produce a driving licence at a road check will be invited to do so the next day. In the field of environmental protection and town planning, restoration to the original condition is often a particularly suitable and deterrent remedy though the work that it entails.

32. The suffering caused by the acts can sometimes be redressed, whether by return of fraudulently transferred property, or by monetary compensation, or by apologies to the victim. Redress is sometimes arranged as part of a process of mediation between the culprit and the victim which ascertains the parties’ agreement on the conditions thereof and, where contact between them is likely in future, guards against a fresh offence - community work for instance.

33. Criminal reparation for juvenile offenders can be an educational action to which a minor is bound, for instance unpaid work in the home of an elderly person, a letter of apology to a victim, etc.

34. Family separation may be imposed on a perpetrator of domestic violence.

35. The person can be placed under observation with no subsequent criminal action against him/her if he/she is no longer suspected of having committed or intending to commit further offences.

36. Settlement can be proposed to the offender, who accepts a sanction which will be validated by justice: handing over the driving licence, unpaid work, being forbidden to appear in certain places, payment of a sum of money. This arrangement, validated by a judge, is very like a plea of guilty but regarded as an “alternative to prosecution” in that it does not constitute a conviction as such and is not placed on the record of convictions. In some countries the fiscal fine can be found as a kind of alternative measures.

37. Instruction can be given to drug addicts to have treatment (in some countries criminal proceedings are no longer brought for the simple use of narcotics; treatment is in fact preferred).

38. In some countries, consideration is also given to the motives for the act and to the author’s demeanour: certain motives such as racism, discrimination or gender may preclude any recourse to an alternative.

39. "Active repentance" may be applied under the following conditions: commission of the offence being not serious and for the first time; surrender of the offender with his/her full admission of the guilt: assistance in detection of the offence; the offender becomes a collaborator to the justice system: reparation of the damage incurred as a result of the offence and the offence has no more social danger due to such repentance.

40. Mediation and conciliation in criminal matters can usefully be implemented, where appropriate, together with alternative measures to prosecution.

41. If the persons concerned comply with the alternative measures, they are not prosecuted. In some countries, reference to the measure does not appear in the record of convictions. Otherwise, when the measure is not followed, prosecution and conviction may be considered by the prosecutor.

PLACE OF THE VICTIM

42. It is essential that the rights of victims be safeguarded and, in states recognising discretionary prosecution, that victims, whether individuals or officially entitled groups, are able to seek a review if the complaint has been dropped as a result of an alternative measure to prosecution. In some countries, it even rests with the victim, in certain restrictively defined cases of offences not damaging to the community, to decide whether or not a prosecution should be brought.

43. The alternative measure should moreover represent a sound response proportionate to the offence committed and to the disruption or suffering which it has caused.

44. It appears particularly desirable and effective in preventing the development of vigilante tendencies, lack of understanding towards victims and persistence of dangerous disputes, to associate victims in choosing the procedure and determining the substance of the measure (case of mediation, redress or composition).

CONCLUSIONS

45. In the light of the survey conducted among the Council of Europe member States, and in accordance with the recommendations of the Conference of Prosecutors General that preceded it, the CCPE is of the opinion that:

a. a modern criminal justice suited to the needs of our societies should use alternatives to prosecution when the nature and the circumstances of the offences allows this and the relevant state authorities should ensure the provision of public education and information about the nature and advantages in the public interest of alternative measures to prosecution;

b. the imposition of financial penalties and prison sentences, in itself, does not constitute a sufficiently effective and sensitive response to the lawbreaking of the early 21st century, whether to guard against re-offending, redress damage, extinguish disputes, or meet the expectations of society and victims;

c. member states should take into account instruments and new possibilities forming suitable and various responses to crime;

d. with a view to promoting a fair, consistent and efficient activity of public prosecutors, clear rules, general guidelines and criteria should be defined for the implementation of the criminal policy related to alternatives to prosecution; the relevant state authorities are therefore advised to adopt such provisions which will be made public in order to effectively implement such alternative measures;

e. alternative measures must be applied fairly and consistently in accordance with national guidelines, where they exist, in accordance with the principle of equality before the law and with a view to guarding against arbitrary decision-making in individual cases.

f. in order to guarantee transparency and accountability, prosecutors should be able to report on the reasons of using alternative measures at local, regional or national level, through the media or public reports, while not interfering unjustifiably in the independence or autonomy of the prosecutor;

g. appropriate material and human resources should be allocated to public prosecution services and other relevant state authorities so that an efficient, relevant and rapid reply can be given through alternative measures;

h. the introduction of alternative measures should not be guided by motives of economy but with a view to achieving high-quality justice, speedy and effective outcomes;

i. prosecutors should initiate and where they have the necessary powers apply effectively such alternative measures; there should be no undue intervention in the activities of prosecutors when they use their discretionary powers in relation to such measures;

j. member states and the relevant public authorities should develop relevant training structures and programmes and support associations and professional organisations capable of providing quality assistance in implementing alternatives to prosecution;

k. alternative measures must safeguard victims’ interests and moreover allow them to be more fully taken into account through the quality of redress, the speed of the response, and, as appropriate the dialogue thereby opened between offender and victim;

l. alternative measures to prosecution should never deprive victims of their rights to request that their rights are safeguarded;[39]

m. alternative measures should never lead to circumvention of the rules of fair trial by imposing a measure on a person who is innocent or could not be convicted owing to procedural obstacles such as time-limits on prosecution, or when there is doubt as to the responsibility of the offender identified or the extent of the damage caused by the offence;

n. the acceptance of one alternative measure should preclude, once executed, any prosecution in respect of the same facts (ne bis in idem);

o. if suspects are offered an alternative measure, they should be informed whether a refusal or unsatisfactory compliance on their part renders them liable to criminal prosecution;

p. member states and the relevant public authorities provided especially by the information gathered by the CCPE could take account of good practices followed in other systems, in order to enhance the quality of their responses to crime;

q. member states may consider the issue of concluding bilateral or multilateral agreements in order to apply in the territory of another state certain alternative measures such as treatment orders, driver instruction, or parenting courses, etc.

46. The CCPE recommends that the Committee of Ministers of the Council of Europe considers the issue of alternative measures to prosecution with regard to their effective application in member states as well as to the possible elaboration of proper binding and non-binding instruments on alternative measures to prosecution and their transfrontier enforcement.

47. The CCPE wishes to invite to one of its meetings one or more prosecutors from different judicial systems, identified as having worked on the effective implementation of alternatives to prosecution, in order to receive his/her/their experience and prepare an audiovisual document for circulation to the competent authorities.

48. The CCPE is available to cooperate with the CDPC, the CCJE and the CEPEJ in order to bring the viewpoint of the prosecutors whom it represents to the proceedings of these bodies on the issue of alternative measures to prosecution.

Opinion N^o 3 (2008)

of the Consultaive Councuil of European Prosecutors

to the Committee of Ministers of the Council of Europe

The role of prosecution services outside the criminal law field

I. INTRODUCTION

1. The Consultative Council of European Prosecutors (CCPE) was set up by the Committee of Ministers of the Council of Europe on 13 July 2005 to prepare opinions on issues related to the prosecution service and promote the effective implementation of Recommendation Rec(2000)19 of 6 October 2000 on the role of public prosecution in the criminal justice system (hereinafter “the Recommendation”).[40]

2. This Opinion has been prepared according to the Framework Overall Action Plan for the work of the CCPE adopted by the Committee of Ministers of the Council of Europe on 29 November 2006,[41] as the CCPE was also instructed by the Committee of Ministers of the Council of Europe to collect information about the functioning of prosecution services in Europe[42].

3. The Recommendation specifies the situation of the public prosecutors and public prosecution services in the criminal justice system and their basic principles of operation, but it does not mention the role of prosecutors beyond the criminal justice system. However, in most member States this role and duties also cover, to varying extents, competencies, jurisdictional or not, outside the criminal law field.

4. A great variety of systems exist in Europe regarding the role of the prosecution services, including outside the criminal law field, resulting from different legal and historical traditions[43]. It is for member States to define their legal structures and their functioning, provided they fully respect human rights and fundamental freedoms, the rule of law principle and their international obligations, including those under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “The Convention”). The role of public prosecution services and the extent of its competences, including the protection of human rights and public interest, are defined by the domestic legislation of member States. The presence or absence and extent of non penal functions of public prosecutors are deeply rooted in the cultural heritage, the legal tradition and the constitutional history of nations[44].

5. The CCPE in the preparation of this Opinion took as its main reference point the case law of the European Court of Human Rights (hereinafter “the Court”) and paid special consideration to the aims of the Council of Europe, the rule of law principle, and the development of Europe's cultural identity and diversity. The Court has referred to violations of the Convention relating to the non-penal tasks of prosecutors and emphasised the requirement for proper procedures[45]. Recommendation 1604 (2003) of the Parliamentary Assembly on the Role of the public prosecutor’s office in a democratic society governed by the rule of law[46] and the reply from the Committee of Ministers to it were also taken into consideration.[47]

6. Right from their first considerations Prosecutors General of Europe were aware that “intervention by prosecution services beyond the criminal sphere could only be justified on account of its general task to act ‘on behalf of society and in the public interest, [to] ensure the application of the law’ as it is reflected in Recommendation N^o R (2000) 19, and that such functions could not call into question the principle of the separation of powers of the legislature, the executive and the judiciary, or the fact that it was ultimately for the competent trial courts, and them alone, to settle disputes, after hearing both parties.” [48] [49]

7. After the conclusion of the Bratislava Conference to overview non-criminal tasks of prosecutors, the starting point was the recognition by the Celle Conference that “...in most legal systems prosecutors had also responsibilities, sometimes substantial ones, in civil, commercial, social and administrative matters and even responsibility for overseeing the lawfulness of Governments’ decisions”[50]. However, that Conference had also recognized the lack of any international guiding principles in this sphere and instructed its Bureau to submit a reflection document at its next plenary session.

8. Consequently, the reflection document presented at the Budapest Conference in 2005[51], summarizing and evaluating the replies to a questionnaire prepared by the Bureau served as a first examination of the activities of public prosecutors outside the criminal law field, and conclusions of the CPGE sessions based on it were the first European considerations of the topic. This Conference “concluded that this important and complex issue deserved further consideration at a later stage[52].”

9. The Moscow Conference (2006) concluded that “..... the best practices discussed during the Conference concerning the efficient protection by public prosecution services of individuals …. outside the criminal law field which come within their competence could be examined with a view to the possible application of this positive experience by the member states where the public prosecution services have such authority”[53].

10. The Conference of Prosecutors General of Europe (Saint Petersburg, 2008) underlined “the growing need in our societies to protect effectively the rights of vulnerable groups, notably of children and young people, witnesses, victims, handicapped persons, as well as social and economic rights of the population in general. It expressed the opinion that prosecutors may have a crucial role to play in this respect and that the growing involvement of the State in the settling of current problems such as the protection of the environment, consumers’ rights or public health, may lead to widening the scope for the role of prosecution services[54].”

11. Considerations of the Conferences of Prosecutors General of Europe were followed up by the CCPE. The former questionnaire was amended by the Bureau of CCPE during its 3^rd meeting in Popowo (Poland, 4-5 June 2007) in order to have a detailed study. Based on the replies by 43 member States[55] to the questionnaire as amended in Popowo (Poland, 4-5 June 2007) a new detailed report was drafted and presented at the Saint Petersburg Conference[56]. This Conference formulated several special requirements for non-penal competences[57] which are reflected in this Opinion.

12. In addition, during the preparation of this Opinion some documents adopted by other international bodies and organizations, including the United Nations[58] and Commonwealth of Independent States[59] were considered.

13. The aim of this Opinion is, on the basis of the work done before by the CPGE, CPE sessions and CCPE, to define status, powers, practice and fruitful experiences that prosecution services of most of the Council of Europe member States have in their activities outside the criminal law field and to make some conclusions aimed at developing and improving these activities. The drafting of the Opinion also showed the need to consider in future work the relevance of the principles of the Recommendation for the competences of prosecution services in the non criminal field.

II. THE PRESENT SITUATION

14. Taking into account the replies to the questionnaire and conclusions of CPGE, CPE sessions, the CCPE found that the present situation of European prosecution systems regarding non penal tasks can be outlined as follows.

15. Two main groups of member States may be identified: those where the prosecution services have no powers outside the criminal law field and those where prosecution services have some or extensive powers outside the criminal law field.

16. Prosecution services in the majority of the Council of Europe member States have at least some tasks and functions outside the criminal law field[60]. The areas of competence are varied and include, inter alia, civil, family, labour, administrative, electoral, law as well as the protection of the environmental, social rights and the rights of vulnerable groups such as minors, disabled persons and persons with very low income. In some Member States the tasks and workload of prosecutors in this field may even prevail over the role of public prosecution in the criminal justice system. On the other hand, prosecution services of certain States declare that their competences in this field are not very important or exercised very rarely in practice[61].

17. In some member States prosecution services do not have non-penal competencies.[62]

18. Civil law tasks belong to different fields of law such as civil, family, labour, commercial, environmental, social law and consists of competencies in connection, for example, with nullity of marriage, declaration of death, paternity denial or dissolution of adoption, keeping of persons in health care institutions, limitation of legal capacity, protection of children’s rights, disqualification of directors or cancellation of companies, property rights and interests of State, privatisation, compensation for damages caused by the judiciary, supervision of ethical behaviour of some (regulated) professionals, dissolution of civil associations, declaration of violation of labour or social law regulations, management of the natural environment. Furthermore, in certain States prosecutors can act as legal representatives of the State to initiate actions, for example to file a lawsuit against persons who caused damage to public assets.

19. In some member States the prosecution service may not only protect legal interests and rights of one or some individuals, but react to violations affecting rights of many persons at the same time. Such competence as supervision over the application of laws and legality of legal acts, issued by bodies of state and local authority, makes the prosecution service an instrument of real protection of rights and freedoms of large groups of individuals or of the general public.

20. Two common peculiarities can be found in situations regarding public law activities. In all those countries where prosecutors have competencies to control activity of administrative authorities, prosecutors are empowered to start court actions against decisions of such bodies as well. Some prosecution services have the right to formulate opinions regarding draft-legislation on, for example, the structure of the judiciary, on rules of procedure or substantive law. Special competencies were given to some prosecution services, for example, in administrative decisions: provision of legal opinions on draft proposals of legislation, request of compulsory mediation or out-of-court settlement before taking any other court-action against the State, supervision of respect of detention-rules, monitoring and observance of the implementation of legislation, warning, protest or contest, with or without power of suspension of execution, against a decision of a given administrative authority, motion based on exception of unconstitutionality, action contesting validity of election or referendum, attendance of sessions of Cabinet and membership in parliamentary investigation commissions. In some countries public prosecutors have some consultative missions concerning civil, administrative, labour or social law field; the provision of advisory opinions may be the only task they perform.

21. From the procedural law point of view, some competencies are limited to initiating court actions (this is typical for civil law tasks but it is also adequate for some public law competencies) while others, usually those regarding public law, are exercised by direct (extra-court) activities (inter alia protests, cautions, examinations) with the possibility for the parties concerned to go to court. In some countries – in order to avoid the overloading of tribunals – prosecutors were given powers to decide on some applications that are made by individuals, with the opportunity for the party concerned to apply to a court.

22. Court actions – irrespective of the procedural rules governing them (rules of civil proceedings or special administrative law rules) – are bound to court proceedings: prosecutors act as parties therein. Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners, they have the same powers as other parties. Their position is not exclusive, the proceedings may be started by other interested persons as well. In such cases prosecutors have definitely no decision-making powers regarding the merit of cases, their decisions concern only initiation of a case: submitting a petition to the civil law court.

23. Almost in all countries where prosecutors have competences in the non criminal field, prosecutors are empowered to launch new court-actions, to use ordinary and extraordinary remedies (appeals) as parties of proceedings. However some rules could be identified (prohibition of extraordinary appeal or proposal for reopening of proceedings; prohibition of settlement in the name of the party).

24. In some member States, prosecutors also have certain specialised competencies such as their role in the administration and management of the justice system, or advisory functions to the judiciary, executive and legislative powers.

25. The aims of non penal activities of prosecutors, irrespective of their substantive or procedural differences, are much more concordant: ensuring rule of law (integrity of democratic decisions, legality, observance of law, remedy against violation of law), protection of rights and liberties of persons (mostly of those incapable to protect their rights – minors, persons with unknown domicile, mentally incapables), protection of assets and interests of State, protection of public interest (or of public order), harmonisation of jurisdiction of courts (special remedies against final court decisions in the best interest of law, action as parties in such proceedings of the highest court levels).

26. Prosecution services with extended competences outside the criminal law field often have special or mixed units within their organisational structure, dealing with non-penal tasks. Some member States have no special departments, but these tasks are carried out by special prosecutors appointed according to the needs of their units, depending on the number of cases, these prosecutors may be excluded from taking part in criminal law proceedings.

27. On the other hand, the CCPE is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the Court or by certain Constitutional Courts[63] or criticized by other bodies of the Council of Europe. The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions; intervention in court proceedings without reasonable interest (of State, of public interest or based on protection of rights) violating the principle of equality of arms; quashing of final judgment of courts violating the principle of legal certainty (res judicata)[64]; participation of prosecutors in the panels of supreme courts confusing the decision-making role of judges with prosecutors tasks; unlimited right to start litigation.

28. The contribution of prosecutors to the consolidation of the case-law of the courts is a fact in many member States. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision-taking process by judges.

III. CONCLUSIONS AND RECOMMENDATIONS

29. Nowadays activities of prosecution services outside the criminal law field are determined, first of all, by the needs of society to properly ensure human rights and public interest.

30. Besides the role of courts and other institutions like ombudspersons, the role of public prosecution services in the protection of human rights defined by domestic legislation in certain member States is appreciated as very valuable[65].

31. There are no common international legal norms and rules regarding tasks, functions and organisation of prosecution service outside the criminal law field. At the same time in all legal systems prosecution service play an important role in the protection of human rights, in the safeguard of legality and the rule of law, in strengthening civil society. The variety of functions of prosecution services outside the criminal law field results from national legal and historical traditions. It is the sovereign right of the state to define its institutional and legal procedures of realisation of its functions on protection of human rights and public interests, respecting the rule of law principle and its international obligations. The harmonisation of “greater Europe’s” variety of systems rests upon the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, taking into account the case-law of the European Court of Human Rights.

32. There is a task for all the states of Europe to develop and strengthen the human rights potential of all its bodies, including courts and prosecution services. The successful realisation of functions on protection of human rights and fundamental freedoms might be achieved not by weakening some human rights and procedures to strengthen others, but though their simultaneous development. They all have one aim – protection of rights and freedoms of individuals, interests of society and of the state.

33. In many European states the role of the ombudsman is increasing (both of common competence and specializing in the protection of rights of individuals – for example women and children). It is necessary, that enough bodies, organizations and officials tackle the issue of protection of human rights and freedoms. People must have the right to choose the official or non-official procedure for the protection of their interests, including those procedures involving structures of the civil society.

34. In a democratic state prosecutors may have or not have competences outside the criminal law field, The CCPE calls upon those member States where the prosecution service is entrusted with functions outside the criminal law field to ensure that these functions are carried out in accordance with the following principles:

a. the principle of separation of powers should be respected in connection with the prosecutors’ tasks and activities outside the criminal law field and the role of courts to protect human rights;

b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well;

c. these functions are carried out “on behalf of society and in the public interest”[66], to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court;

d. such competencies of prosecutors should be regulated by law as precisely as possible;

e. there should be no undue intervention in the activities of prosecution services;

f. when acting outside the criminal law field, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms);

g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court;

h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law;

i. the right of persons or institutions, involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured;

j. the developments in the case-law of the Court concerning prosecution services’ activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments.

35. Depending on the number of cases, prosecution services with competences outside the criminal law field are recommended to have specialised units or, if not possible, prosecutors, within their organizational structure and sufficient skilled human and financial resources to deal with non-penal .tasks.

36. Prosecution services concerned are invited in their activities outside the criminal law field, to establish and develop, when appropriate, cooperation or contacts with ombudsman and ombudsman-like institutions as well as organisations of the civil society including mass-media.

37. Circulars or guidelines summarising good practices and recommendations aimed at harmonising, if appropriate, within each system, the approach to the activities of prosecution services outside the criminal law field should be issued.

38. Member States or prosecution services concerned should develop training of prosecutors engaged in the activities outside the criminal law field.

39. Member States or prosecution services concerned should exchange their experiences, including best practices, acts of legislation and other normative materials.

40. The CCPE advises the Committee of Ministers to consider elaborating common European principles on, in particular, the status, powers, and practice of public prosecutors outside the criminal law field. The issue should be considered in the light of the importance of the protection of human rights, fundamental freedoms, the democratic principle of the separation of powers and equality of arms.

SUMMARY OF RECOMMENDATIONS

The CCPE is of the opinion that States where prosecution services have non criminal competences should ensure that these functions are carried out in accordance with the principles governing a democratic state under the rule of law and in particular that:

a. the principle of separation of powers is respected in connection with the prosecutors’ tasks and activities outside the criminal law field and the role of courts to protect human rights;

b. the respect of impartiality and fairness characterises the action of prosecutors acting outside the criminal law field as well;

c. these functions are carried out “on behalf of society and in the public interest, to ensure the application of law, respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court;

d. such competencies of prosecutors are regulated by law as precisely as possible;

e. no undue intervention in the activities of prosecution services occurs;

f. when acting outside the criminal law field, prosecutors enjoy the same rights and obligations as any other party and do not enjoy a privileged position in the court proceedings (equality of arms);

g. the action of prosecution services on behalf of society to defend public interest in non criminal matters does not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court;

h. the obligation of prosecutors to motivate their actions and to make these motivations open for persons or institutions involved or interested in the case;

i. the right of persons or institutions, involved or interested in the civil law cases to claim against measure or default of prosecutors is assured;

j. the developments in the case-law of the Court concerning prosecution services’ activities outside the criminal law field is followed closely in order to ensure that the legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments;

k. prosecution services concerned establish and develop, when appropriate, cooperation or contacts with ombudsman and ombudsman-like institutions as well as organisations of the civil society including with mass-media;

l member States or prosecution services concerned exchange their experiences, including best practices, acts of legislation and other normative materials;

m member States or prosecution services develop training of prosecutors engaged in the activities outside the criminal law field;

n. circulars or guidelines summarising good practices and recommendations aimed at harmonizing, if appropriate, within each system, the approach to the activities of prosecutors outside the criminal field are issued

The CCPE advises the Committee of Ministers to consider elaborating common European principles on, in particular, the status, powers, and practice of public prosecutors outside the criminal law field. The issue should be considered in the light of the importance of the protection of human rights, fundamental freedoms, the democratic principle of the separation of powers and equality of arms

Opinion No.4 (2009)

of the Consultaive Councuil of European Prosecutors

to the Committee of Ministers of the Council of Europe

the relations between judges and prosecutors

This Opinion, jointly adopted by the CCJE and the CCPE contains:

§ a Declaration, called « Bordeaux Declaration » ;

§ an Explanatory Note.

BORDEAUX DECLARATION

“JUDGES AND PROSECUTORS IN A DEMOCRATIC SOCIETY”[67]

The Consultative Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE), at the request of the Committee of Ministers of the Council of Europe to provide an opinion on relationships between judges and prosecutors, agreed on the following:

It is in the interest of society that the rule of law be guaranteed by the fair, impartial and effective administration of justice. Public prosecutors and judges shall ensure, at all stages of the proceedings, that individual rights and freedoms are guaranteed, and public order is protected. This involves the total respect of the rights of the defendants and of the victims. A decision of the prosecutor not to prosecute should be open to judicial review. An option may be to allow the victim to bring the case directly to the court.

The fair administration of justice requires that there shall be equality of arms between prosecution and defence, as well as respect for the independence of the court, the principle of separation of powers and the binding force of final court decisions.

The proper performance of the distinct but complementary roles of judges and public prosecutors is a necessary guarantee for the fair, impartial and effective administration of justice. Judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear independent from each other.

Adequate organisational, financial, material and human resources should be put at the disposal of the system of justice.

The role of judges – and, where applicable, of juries – is to properly adjudicate cases brought regularly before them by the prosecution service, without any undue influence by the prosecution or defence or by any other source.

The enforcement of the law and, where applicable, the discretionary powers by the prosecution at the pre-trial stage require that the status of public prosecutors be guaranteed by law, at the highest possible level, in a manner similar to that of judges. They shall be independent and autonomous in their decision-making and carry out their functions fairly, objectively and impartially.

The CCJE and the CCPE refer to the consistent case-law of the European Court of Human Rights in relation to article 5 paragraph 3 and article 6 of the European Convention of Human Rights. In particular, they refer to the decisions whereby the Court recognized the requirement of independence from the executive power and the parties on the part of any officer authorized by law to exercise judicial power but which does not, however, exclude subordination to higher independent judicial authority Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants’ right to a decision on such cases by an independent and impartial authority exercising judicial functions.

For an independent status of public prosecutors, some minimal requirements are necessary, in particular:

- that their position and activities are not subject to influence or interference from any source outside the prosecution service itself;

- that their recruitment, career development, security of tenure including transfer , which shall be effected only according to the law or by their consent, as well as remuneration be safeguarded through guarantees provided by the law.

In a State governed by the rule of law, when the structure of prosecution service is hierarchical, effectiveness of prosecution is, regarding public prosecutors, strongly linked with transparent lines of authority, accountability, and responsibility. Directions to individual prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria. Any review according to the law of a decision by the public prosecutor to prosecute or not to prosecute should be carried out impartially and objectively. In any case, due account shall be given to the interests of the victim.

The sharing of common legal principles and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice. Training, including management training, is a right as well as a duty for judges and public prosecutors. Such training should be organized on an impartial basis and regularly and objectively evaluated for its effectiveness. Where appropriate, joint training for judges, public prosecutors and lawyers on themes of common interest can contribute to the achievement of a justice of the highest quality.

The interest of society also requires that the media are provided with the necessary information to inform the public on the functioning of the justice system. The competent authorities shall provide such information with due regard in particular to the presumption of innocence of the accused, to the right to a fair trial, and to the right to private and family life of all persons involved in proceedings. Both judges and prosecutors should draw up a code of good practices or guidelines for each profession on its relations with the media.

Both public prosecutors and judges are key players in international cooperation in judicial matters. The enhancement of mutual trust between competent authorities of different states is necessary. In this context, it is imperative that information gathered by prosecutors through international co-operation and used in judicial proceedings is transparent in its content and origin, as well as made available to the judges and all parties, with a view to an effective protection of human rights and fundamental freedoms.

In member States where public prosecutors have functions outside the criminal law field, the principles mentioned herein apply to these functions.

Explanatory note

I. INTRODUCTION:

a. Purpose of the Opinion

1. It is an essential task of a democratic State based on the rule of law to guarantee that fundamental rights and freedoms as well as equality before the law are fully respected, in accordance, in particular, with the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as well as the case-law of the European Court of Human Rights (the Court). At the same time it is important to ensure security and justice in society by assuring effective measures in respect of criminal conduct. Security in society must also be guaranteed in a democratic state by an effective enforcement of penalties imposed for criminal conduct (Declaration, paragraph 1).

2. Thus, it is the mission of the State to set up and to ensure the functioning of an efficient justice system respectful of human rights and fundamental freedoms. While numerous actors participate in this mission, be they from the public or (as in the case of lawyers) private sector, a key role in ensuring the functioning of justice in an independent and impartial way is played by judges and public prosecutors.

3. In their previous Opinions, the Consultative Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE) addressed many important aspects of the efficiency of justice with emphasis on human rights and fundamental freedoms. It should be underlined that the common goal of judges and prosecutors, including that of public prosecutors who have tasks outside the criminal law field, is to ensure a fair, impartial and effective justice. The novelty of this Opinion is that it has been drafted by judges and prosecutors representing their national colleagues and it deals with matters which the judges and prosecutors have agreed on the basis of their practical experience.

4. Hence, the text focuses on essential aspects of the two missions and in particular: independence, respect of individual rights and freedoms, objectivity and impartiality, ethics and deontology, training and relations with the media.

5. The present Opinion should be considered in the context of the relations of judges and prosecutors with professional persons dealing with justice involved in the various stages of judicial proceedings, such as lawyers, judicial experts, court clerks, bailiffs, police, as suggested by the Framework Global Action Plan for Judges in Europe, adopted by the Committee of Ministers on 7 February 2001 and the Recommendation (2000)19 on the role of prosecution in the criminal justice system, adopted by the Committee of Ministers on 6 October 2000.

b. Diversity of national systems

6. In the member States of the Council of Europe, many legal systems exist side by side:

i. the Common Law systems in which there is a clear division between judges and prosecutors and where the criminal investigation power is not combined with other functions;

ii. the Continental Law systems where one may observe different types in which either judges and prosecutors are part of the « judicial corps » or, on the contrary, only judges may belong to that corps

In addition, in these various systems, the public prosecution’s autonomy from the executive can be complete or limited.

7. The objective of this Opinion is to identify, in the light of the Court s’ case law, a basis of applicable principles and approaches while taking into account common points as well as differences.

8. The guarantee of separation of functions represents an essential condition of the judge’s impartiality towards the parties in the proceedings. Impartiality, as stated in Opinion No. 1 of the CCJE on standards concerning the independence of the judiciary and the irremovability of judges (2001), is first among the institutional guarantees that define the position of a judge. Furthermore, it presupposes that the public prosecution is allocated the burden of proof and the filing of indictments, which constitutes one of the first procedural guarantees of the ultimate decision.

9. In every system, the judge’s role is therefore different to that of the public prosecution. Their respective missions remain nevertheless complementary. There are no hierarchic ties between the judge and the prosecutor.

10.The independence of the public prosecution service constitutes an indispensable corollary to the independence of the judiciary. The role of the prosecutor in asserting and vindicating human rights, both of suspects, accused persons and victims, can best be carried out where the prosecutor is independent in decision-making from the executive and the legislature and where the distinct role of judges and prosecutors is correctly observed. In a democracy based on the rule of law, it is the law that provides the basis for prosecution policy (Declaration, paragraph 3).

c. Peculiarities of functions

11.Prosecutors and judges must both carry out their functions fairly, impartially, objectively and consistently, must respect and strive to protect human rights and seek to ensure that the justice system operates promptly and efficiently.

12.In carrying out their functions, prosecutors rely on either a system of discretionary prosecution (the opportunity principle) or a system of mandatory prosecution (the legality principle), but in both cases prosecutors not only act on behalf of the society as a whole, but also discharge duties to particular individuals, namely the accused person to whom a duty of fairness is owed, as well as the victims of crime to whom a duty is owed to ensure that their rights are fully taken into account. In that sense and without prejudice to the respect for the principle of equality of arms, the prosecutor can not be considered equal to other parties (Declaration, paragraph 2). Prosecutors should also take proper account of the views and concerns of victims and take or promote actions to ensure that victims are informed of both their rights and the course of the proceedings. They should not initiate or continue prosecution when an impartial investigation on the basis of the available evidence shows the charge to be unfounded.

d. Existing international instruments

13.Several texts of the Council of Europe as well as the case-law of the Court address directly or implicitly topics related to the relationship between judges and prosecutors.

14.First and foremost, the Court assigns tasks to judges only in their capacity as the guardians of rights and freedoms – see in particular Articles 5 (right to liberty and security) and 6 (right to a fair trial) - but it does so also to public prosecutors (as a result of Article 5 paragraphs 1a and 3, and 6).

15.The Court, one of whose tasks is to interpret the ECHR, has given several rulings on matters affecting the relationship between judges and public prosecutors.

16.In particular it has dealt with the problem of a person serving in turn as prosecutor and judge in the same case (judgment of 1 October 1982 in Piersack v. Belgium, §§ 30-32), the need to guarantee that no political pressure is ever put on the courts or the prosecuting authorities (judgment of 12 February 2008, in Guja v. Moldova, §§ 85-91), the need to protect judges and public prosecutors in the context of freedom of expression (judgment of 8 January 2008, in Saygili and Others v. Turkey, §§ 34-40), procedural obligations of courts and public prosecutors’ departments to investigate, prosecute and punish human rights violations (judgment of 15 May 2007, in Ramsahai and Others v. the Netherlands, §§ 321-357) and lastly the prosecuting authorities’ contribution to the standardization of case-law (judgment of 10 June 2008, in Martins de Castro and Alves Correia de Castro v. Portugal, §§ 51-66).

17.In the area of criminal procedure, the Court has examined the status and powers of the public prosecution service and the requirements of Article 5 paragraph 3 of the ECHR (with regard to other officers “authorized by law to exercise judicial power”) in the context of various factual situations (see, inter alia, the judgments of 4 December 1979, in Schiesser v. Switzerland, §§ 27-38, in De Jong, Baljet and Van den Brink v. the Netherlands, §§ 49-50, in Assenov and Others v. Bulgaria, §§ 146-150, in Niedbala v. Poland, §§ 45-47, in Pantea v. Romania, §§ 232-243, and 10 July 2008, in Medvedyev and Others v. France, §§ 61, 67-69). The Court has also examined the status, jurisdiction and supervisory powers of the prosecuting authorities in cases of telephone monitoring (judgment of 26 April 2007, in Dumitru Popescu v. Romania, §§ 68-86) and the presence of the prosecuting authorities at the deliberations of Supreme Courts (judgments of 30 October 1991, in Borgers v. Belgium, §§ 24-29, and 8 July 2003, in Fontaine and Berlin v. France, §§ 57-67).

18.Lastly, outside the criminal sphere, the Court has a well established body of case-law on the “doctrine of appearances”, according to which the presence of prosecutors at the deliberations of courts is contrary to Article 6 paragraph 1 of the ECHR (judgments of 20 February 1996, in Lobo Machado v. Portugal, §§ 28-32, and 12 April 2006, in Martinie c. France [GC], §§ 50-55).

19.Other texts have been drawn up by the Council of Europe :

- Recommendation Rec(94)12 of the Committee of Ministers on the Independence, Efficiency and Role of Judges recognizes the links between judges and public prosecutors, at least in countries where the latter have judicial authority within the meaning attached to this expression by the Court;

- Recommendation Rec(2000)19 of the Committee of Ministers on the Role of Public Prosecution in the Criminal Justice System explicitly highlights the relations between judges and prosecutors, while underlining the general principles that are crucial for ensuring that these relationships contribute unequivocally to the proper performance of judges’ and public prosecutors’ tasks. It particularly emphasizes the obligation of States to “take appropriate measures to ensure that the legal status, the competencies and the procedural role of public prosecutors are established by law in a way that there can be no legitimate doubt about the independence and impartiality of the court judges”.

- Recommendation Rec (87)18 of the Committee of Ministers concerning the Simplification of Criminal Justice provides different examples of tasks previously vested solely in judges and currently entrusted to the public prosecution service (whose primary mission still consists in undertaking and directing prosecutions). These new tasks create additional requirements concerning the organisation of the public prosecution service and the selection of the people called upon to assume those functions.

II. STATUS OF JUDGES AND PUBLIC PROSECUTORS

a. Guarantees for the internal and external independence of judges and public prosecutors; the rule of law as a condition for their independence

20.Judges and public prosecutors should be independent from each other and also enjoy effective independence in the exercise of their respective functions. They discharge different duties in the justice system and in society at large. Therefore different perspectives of institutional and functional independence exist (Declaration, paragraph 3).

21.The judiciary is based on the principle of independence from any external power and from any instructions coming from any source, as well as on the absence of internal hierarchy. Its role and, where applicable, that of juries, is to properly adjudicate cases brought before them by the prosecution services and the parties. This involves the absence of all undue influence by the public prosecutor or the defence. Judges, prosecutors and defence lawyers should each respect the roles of the others. (Declaration, paragraph 5).

22.The fundamental principle of independence of judges is enshrined in Article 6 of the ECHR and stressed in previous opinions of the CCJE.

23. The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge, a judicial authority independent from the other State powers[68]. This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings.

24.The CCJE and the CCPE refer to the consistent case-law of the Court in regard to article 5, paragraph 3 and article 6 of the ECHR. In particular, they refer to the decision in the case Schiesser vs. Switzerland, whereby the Court recognized the requirement of independence from the executive and the parties on the part of any «officer authorized by law to exercise judicial powers”, which does not, however, exclude subordination to higher independent judicial authority (Declaration, paragraph 7).

25.Some member States assign to public prosecutors the power to make binding decisions in some areas instead of pursuing criminal prosecutions or in order to protect certain interests. The CCJE and the CCPE consider that any attribution of judicial functions to prosecutors should be limited to cases involving minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendant's rights to a decision on such case by an independent and impartial authority exercising judicial functions. Under no circumstances, should any such attribution allow public prosecutors to take final decisions restricting individual freedoms and involving deprivation of liberty with no right to appeal to a judge or a court (Declaration, paragraph 7).

26.The public prosecution service is an independent authority whose existence should be based on the law at the highest possible level. In democratic states neither the parliament nor any governmental body should seek to unduly influence a particular decision taken by public prosecutors in relation to individual cases in order to determine how a prosecution in any particular case should be conducted, or constrain public prosecutors to change their decisions (Declaration, paragraphs 8 and 9).

27.The independence of public prosecutors is indispensable for enabling them to carry out their mission. It strengthens their role in a state of law and in society and it is also a guarantee that the justice system will operate fairly and effectively and that the full benefits of judicial independence will be realised (Declaration,, paragraphs 3 and 8). Thus, akin to the independence secured to judges, the independence of public prosecutors is not a prerogative or privilege conferred in the interest of the prosecutors, but a guarantee in the interest of a fair, impartial and effective justice that protects both public and private interests of the persons concerned.

28.The function of the prosecutor, which may be characterized by the principles of mandatory or discretionary prosecution, differs according to the system existing in each country, according to the position which the public prosecutor occupies in the institutional landscape and in the criminal procedure.

29.Whatever their status, public prosecutors must enjoy complete functional independence in the discharge of their legal roles, whether these are penal or not. Whether they are under a hierarchical authority or not, in order to ensure his members accountability and prevent proceedings being instituted in an arbitrary or inconsistent manner, public prosecutors must provide clear and transparent guidelines as regards the exercise of their prosecution powers, (Declaration, paragraph 9).

30.In this respect, the CCJE and CCPE wish to recall in particular Recommendation (2000)19 which recognises that, in order to promote equity, consistency, and efficiency in the activity of the public prosecution service, States should seek to define general principles and criteria to serve as a reference against which decisions are taken by prosecutors in individual cases.

31.Directions to prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria (Declaration, paragraph 9)[69].

32. Any decision to prosecute or not to prosecute must be legally sound. Any review according to the law of a decision by the prosecutor to prosecute or not to prosecute should be carried out impartially and objectively, whether or not it is being carried out within the prosecution service itself or by an independent judicial authority. The interest of the victim as well as any other person’s legal interests, should always be duly taken into account. (Declaration, paragraph 9).

33.The complementary nature of judges’ and prosecutors’ functions means that both are conscious that impartial justice requires equality of arms between the public prosecution service and the defence, and that public prosecutors must act at all times honestly, objectively and impartially. Judges and public prosecutors have, at all times, to respect the integrity of the suspects, accused persons and victims, as well as the rights of the defence (Declaration, paragraphs 2 and 6).

34.The independence of the judge and of the prosecutor is inseparable from the rule of law. Judges as well as prosecutors act in the common interest, in the name of the society and its citizens who want their rights and freedoms guaranteed in all their aspects. They intervene in areas where the most sensitive human rights (individual freedom, privacy, protection of possessions, etc.) deserve the greatest protection. Prosecutors must ensure that evidence is gathered and proceedings are initiated and continued in accordance with the law. In doing so, they must uphold the principles laid down by the ECHR and other international legal instruments, notably respect for the presumption of innocence, the rights of the defence and a fair trial. Judges must see to it that those principles are respected in proceedings before them.

35.While a public prosecutor is permitted to refer to the judge actions and petitions defined by law and to put before the judge the matters of fact and law supporting the same, the prosecutor may not interfere in any way in the judge’s decision making process and is bound to abide by the judge’s decisions. The prosecutor cannot oppose the enforcement of such decisions, other than by exercising such right of recourse as may be provided for by law (Declaration, paragraphs 4 and 5).

36.The activity and the demeanour of the public prosecutor and the judge should leave no doubt as to their objectivity and impartiality. Judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear independent from each other. In the eyes of litigants and the society as a whole, there must not be even a hint of connivance between judges and prosecutors or confusion between the two functions.

37.Respect for the above principles implies that the status of prosecutors be guaranteed by law at the highest possible level in a manner analogous to that of judges. The proximity and complementary nature of the missions of judges and prosecutors create similar requirements and guarantees in terms of their status and conditions of service, namely regarding recruitment, training, career development, discipline, transfer (which shall be effected only according to the law or by their consent), remuneration, termination of functions and freedom to create professional associations (Declaration, paragraph 8).

38.Both judges and prosecutors should, according to the national system in force, be directly associated with the administration and the management of their respective services. For this purpose, sufficient financial means as well as infrastructure and adequate human and material resources should be put at the disposal of judges and prosecutors and should be used and managed under their authority (Declaration, paragraph 4).

b. Ethics and deontology of judges and public prosecutors

39.Judges and prosecutors should be individuals of high integrity and with appropriate professional and organisational skills. Due to the nature of their functions, which they have accepted knowingly, judges and prosecutors are constantly exposed to public criticism and must, in consequence, set themselves a duty of restraint without prejudice, in the framework of the law, to their right to communicate on their cases. As principal actors in the administration of justice, they should at all times maintain the honour and dignity of their profession and behave in all situations in a way worthy of their office[70] (Declaration, paragraph 11).

40.Judges and prosecutors should refrain from any action and behaviour that could undermine confidence in their independence and impartiality. They should consider cases submitted to them with due care and within a reasonable time, objectively and impartially.

41.Public prosecutors should refrain from making public comments and statements, using the media, which may create an impression of putting direct or indirect pressure on the court to reach a certain decision or which may impair the fairness of the procedure.

42.Judges and prosecutors should strive to acquaint themselves with ethical standards governing the functions of each other. This will enhance understanding and respect for each other’s missions, thereby increasing the prospects of a harmonious collaboration.

c. Training of judges and public prosecutors

43. The highest level of professional skill is a pre-requisite for the trust which the public has in both judges and public prosecutors and on which they principally base their legitimacy and role. Adequate professional training plays a crucial role since it allows the improvement of their performance, and thereby enhances the quality of justice as a whole (Declaration, paragraph 10).

44.Training for judges and prosecutors involves not only the acquisition of the professional capabilities necessary for access to the profession but equally permanent training throughout their career. It addresses the most diverse aspects of their professional life, including the administrative management of courts and prosecution departments, and must also respond to the necessities of specialisation. In the interests of the proper administration of justice, the permanent training required to maintain a high level of professional qualification and to make it more complete is not only a right but also a duty for judges and public prosecutors (Declaration, paragraph 10).

45. Where appropriate, joint training for judges, public prosecutors and lawyers on themes of common interest can contribute to the achievement of a justice of the highest quality. This common training should make possible the creation of a basis for a common legal culture (Declaration, paragraph 10).

46.Different European legal systems provide training for judges and prosecutors according to various models. Some countries have established an academy, a national school or other specialised institution; some others assign the competence to specific bodies. International training courses for judges and prosecutors should be arranged. It is essential, in all cases, to assure the autonomous character of the institution in charge of organising such training, because this autonomy is a safeguard of cultural pluralism and independence.[71]

47. In this context, much importance attaches to the direct contribution of judges and prosecutors towards training courses, since it enables them to provide opinions drawn from their respective professional experience. Courses should not only cover the law and protection of individual freedoms, but should also include modules on management practices and the study of judges' and the prosecutors' respective missions. At the same time, additional lawyers’ and academic contributions are essential to avoid taking a narrow-minded approach. Finally, the quality and efficiency of training should be assessed on a regular basis and in an objective manner.

III. ROLES AND FUNCTIONS OF JUDGES AND PUBLIC PROSECUTORS IN THE CRIMINAL PROCEDURE

a. Roles between judges and public prosecutors in the pre-criminal procedure

48.At the pre-trial stage the judge independently or sometimes together with the prosecutor, supervises the legality of the investigative actions, especially when they affect fundamental rights (decisions on arrest, custody, seizure, implementation of special investigative techniques, etc).

49. As a general rule, public prosecutors should scrutinise the lawfulness of investigations and monitor the observance of human rights by the investigators when deciding whether a prosecution should commence or continue.

50.Recommendation Rec(2000)19 provides that when the police is placed under the authority of public prosecutors or when police investigations are either conducted or supervised by the prosecutor, the State should take effective measures to guarantee that the public prosecutor may give instructions and may carry out evaluations and controls, and can sanction the violations. Where the police is independent from public prosecutors, the recommendation merely provides that the State should take effective measures to ensure that there is an appropriate and functional cooperation between public prosecutors and the investigative authorities.

51. Even in systems where the investigation is supervised by the prosecutor whose status invests him with a judicial authority, it is essential that any measures taken in this context which involve significant infringements of freedoms, in particular temporary detention, are monitored by a judge or a court.

b. Relations between judges and public prosecutors in the course of prosecution and court hearing

52.In some States, public prosecutors can regulate the flow of cases by exercising a discretionary power to decide which cases will be brought before the court and which cases can be dealt with without court proceedings(conciliation between the accused and the victim, pre-trial settlement of the case with the consent of the parties, plea bargaining-related simplified and shortened procedures, mediation, etc), all of which contributes towards reducing the burden on the judicial system and determining prosecution priorities.

53.Such public prosecution powers, which reflect the modernisation, socialisation, humanisation and rationalisation of the administration of criminal justice, are useful in reducing the case overload of courts. On the other hand, as soon as prosecutors have the right not to present particular cases in court, it is necessary to avoid arbitrary actions, discrimination or possible unlawful pressures from the political power and to protect the rights of victims. It is also necessary to enable any person affected, in particular the victims, to seek a review of the prosecutor’s decision not to prosecute. An option may be to allow the victim to bring the case directly to the court.

54.Therefore, in countries which operate a system of discretionary prosecution, the prosecutor should give careful consideration on whether to prosecute or not, taking into account any general guidelines or criteria which have been adopted with a view to achieving consistency in prosecution decisions.

55.The impartiality of the prosecutors during the procedure should be understood in this sense: they should proceed fairly and objectively to ensure that the court is provided with all relevant facts and legal arguments and, in particular, ensure that evidence favourable to the accused is disclosed; take proper account of the position of the accused person and the victim; verify that all evidences have been obtained through means that are admissible by the judge according to the rules of a fair trial and refuse to use evidence obtained through human rights violations, such as torture (Declaration, paragraph 6).

56.Prosecutors shall not initiate or continue prosecution and shall make every effort to stop proceedings when an impartial investigation or a review of the evidence shows the charge to be unfounded.

57.In essence, during proceedings judges and prosecutors carry out their respective functions for the purpose of a fair criminal trial. The judge supervises the legality of evidence taken by the public prosecutors or investigators and may acquit an accused when there is insufficient or unlawfully obtained evidence. The public prosecutors may also have a right to appeal a court decision.

c. The rights of the defence at all levels of procedure

58.Judges must apply the rules of criminal procedure while fully respecting the rights of the defence (giving the defendants the possibility of exercising their rights, notifying the defendants of their charge, etc.), the rights of the victims in the procedure, the principle of equality of arms and the right to a public hearing, so that a fair trial is guaranteed in all cases[72] (Declaration, paragraphs 1, 2, 6 and 9).

59.An indictment plays a crucial role in a criminal proceedings: it is from the moment of its service that defendants are formally put on written notice of the factual and legal basis of the charges against them (the European Court of Human Rights judgment of 19 December 1989 in Kamasinski v. Austria, § 79). In a criminal process, the "fair hearing" required by Article 6 paragraph 1 of the ECHR entails that defendants must have the right to challenge the evidence against them, as well as the legal basis of the charge.

60.In countries where public prosecutors supervise the investigation, it is also for the prosecutor to ensure that the rights of the defence are respected. In countries where the criminal investigation is directed by the police or other law-enforcement authorities, judges are involved as guarantors of individual freedoms (habeas corpus), particularly as regards pre-trial detention, and it is for them to ensure that the rights of the defendant are respected.

61.In many countries, however, the judge and the prosecutor only become responsible for monitoring the exercise of the rights of the defence once the investigation has been completed and examination of the charges begins. At this point it is for the prosecutor, who receives the investigators’ reports, and the judge, who examines the charges and the evidence gathered, to ensure that everyone charged with a criminal offence has, in particular, been informed promptly, in a language he/she understands and in detail, of the nature and cause of the accusation against him/her.

62.Depending on their role in a particular country, prosecutors and judges must then ensure that the person has had adequate time and facilities for the preparation of his/her defence, that he/she is properly defended, if necessary by an officially appointed lawyer paid by the state, and has access, if necessary, to an interpreter, and is able to request the taking of actions necessary to establish the truth.

63.Once the case has been brought before the trial court, the powers of the judge and the prosecutor vary according to the role they play during the trial. In any event, if any of the components of respect for the rights of the defence is lacking, either the judge or the prosecutor, or both, depending on the particular national system, should be able to draw attention to the situation and objectively remedy it.

IV. RELATIONS OF JUDGES AND PUBLIC PROSECUTORS OUTSIDE THE CRIMINAL LAW FIELD AND IN SUPREME COURTS

64.Depending on the State in which they operate, prosecutors may or may not have tasks and functions outside the criminal law field.[73] Where prosecutors have such tasks and functions these can include, inter alia, civil, administrative, commercial, social, electoral and labour law as well as the protection of the environment, social rights of vulnerable groups such as minors, disabled persons and persons with very low income. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision making process of the judges (Declaration, paragraph 13).

65.The role that public prosecutors have in certain countries before the Supreme Court is also worth mentioning. This role is comparable with that of the advocate general before the Court of Justice of the European Communities. Before these jurisdictions, the attorney general (or equivalent) is not a party and does not represent the State. He is an independent authority who sets down conclusions, in each case or only in cases of particular interest, in order to clarify for the court all aspects of the questions of law that are before it, with a view to ensuring the correct application of the law.

66.According to the rule of law in a democratic society all these competences of public prosecutors as well as the procedures of exercising these competences have to be precisely established by law. When prosecutors act outside the criminal law field, they should respect the exclusive competence of the judge or court and take into account the principles developed in particular in the case-law of the Court as follows:

i. The participation of the prosecution in court proceedings should not affect the independence of the courts;

ii. The principle of separation of powers should be respected in connection with the prosecutors’ tasks and activities outside the criminal law field, on the one hand, and with the role of courts to protect human rights, on the other hand;

iii. Without prejudice of their prerogatives to represent the public interest, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms principle);

iv. The action of prosecutors’ services on behalf of society to defend the public interest and the rights of individuals shall not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court.

The other principles mentioned in the Declaration apply to all the functions of the public prosecutors outside the criminal law field, mutatis mutandis (Declaration, paragraph 13).

V. JUDGES, PUBLIC PROSECUTORS AND THE MEDIA (Declaration, paragraph 11)

67. Media play an essential role in a democratic society in general and more specifically in relation to the judicial system. The perception in society of the quality of justice is heavily influenced by media accounts of how the justice system works. Publicity also contributes to the achievement of a fair trial, as it protects litigants and defendants against a non-transparent administration of justice.

68. The expanding public and media attention to criminal and civil proceedings has led to an increasing need for objective information to be provided to the media both from the courts and public prosecutors.

69. It is of fundamental importance in a democratic society that the courts inspire confidence in the public[74]. The public character of proceedings is one of the essential means whereby confidence in the courts can be maintained.

70. Within the Council of Europe two main documents deal with this issue: a) Recommendation Rec (2003)13 on the Provision of Information through the Media in Relation to Criminal Proceedings, and b) Opinion No. 7 of the CCJE on Justice and Society (2005).

71. Bearing in mind the right of the public to receive information of general interest, journalists should be provided with necessary information in order to be able to report and comment on the functioning of the justice system, subject to the obligations of discretion of the judges and prosecutors on pending cases and to the limitations established by national laws and in accordance with the case-law of the Court.

72. Media, as well as judges and public prosecutors, shall respect fundamental principles such as the presumption of innocence [75]and the right to a fair trial, the right to private life of the persons concerned, the need to avoid an infringement of the principle and of the appearance of impartiality of judges and public prosecutors involved in a case.

73. Media coverage of cases under investigation or on trial can become invasive interference and produce improper influence and pressure on judges, jurors and public prosecutors in charge of particular cases. Good professional skills, high ethical standards and strong self-restraint against premature comments on pending cases are needed for judges and public prosecutors to meet this challenge.

74. Media liaison personnel, for example public information officers or a pool of judges and prosecutors trained to have contact with the media, could help the media to give accurate information on the courts’ work and decisions, and also assist judges and prosecutors.

75. Judges and prosecutors should mutually respect each other’s specific role in the justice system. Both judges and prosecutors should draw up guidelines or a code of good practice for each profession on its relations with the media[76]. Some national codes of ethics require judges to refrain from public comments on pending cases, in order not to make statements that might cause the public to question the judges’ impartiality[77], and to avoid violation of the presumption of innocence. In any case, judges should express themselves above all through their decisions; discretion and the choice of words are important where judges give statements to the media on cases pending or decided in accordance with the law[78]. Public prosecutors should be cautious when commenting on the procedure followed by the judge or upon the judgment issued, stating his/her disagreement concerning a decision by means of an appeal, if appropriate.

VI. JUDGES, PROSECUTORS AND INTERNATIONAL CO-OPERATION

(Declaration, paragraph 12)

76. In order to ensure the effective protection of human rights and fundamental freedoms, it is important to note the need for an efficient international cooperation notably between the Council of Europe member states on the basis of values enshrined in relevant international instruments, in particular the ECHR. International co-operation must be built on mutual trust. Information gathered through international cooperation and used in judicial procedures must be transparent in its content and origin as well as available to judges, public prosecutors and to the parties. It will be necessary to prevent international judicial cooperation from taking place without any judicial monitoring and without taking adequately into account, in particular, the rights of defence and the protection of personal data.

Opinion No. 5 (2010)

of the Consultaive Council of European Prosecutors

to the Committee of Ministers of the Council of Europe

Public prosecution and juvenile justice

YEREVAN DECLARATION

Introduction

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

2. For 2010, the Committee of Ministers instructed the CCPE[79], in the light of Resolution No. 2 on child-friendly justice[80], to adopt an Opinion on "the principles of public policy in juvenile justice" and to examine, inter alia, the place juveniles have prior to, during and after the judicial proceedings, the way in which the interests of juveniles can be taken into account during such proceedings and the improvements concerning the methods used by authorities to provide information to juveniles on their rights and access to justice, including the access to the European Court of Human Rights (ECHR).

3. Public Prosecutors are public authorities who, on behalf of society and in the public interest, ensure the application of the law where a breach of the law carries a criminal sanction. In doing so, prosecutors take into account both the rights of individuals and the necessary effectiveness of the criminal justice system, in accordance with Recommendation Rec(2000).

4. The role of prosecutors varies considerably from one State to another and the aim of this Opinion is to establish guidelines that should guide the action of all prosecutors involved in juvenile justice. This Opinion is to ensure that in all proceedings regarding juveniles, in which public prosecutors are involved, certain fundamental principles are applied with due regard to the level of maturity, vulnerability and mental capacity of the juvenile, whether as a juvenile who infringes the law, a victim or a witness. Compliance with these principles applies at all stages of the procedure, which means before the trial, during the hearing, during the enforcement of the decision and during the execution of decisions concerning juveniles.

5. In cases involving juveniles, prosecutors should pay special attention to striking the appropriate balance between, on the one hand the interest of society and the goals of justice, and on the other hand the interests, special needs and vulnerability of juveniles.

6. In States where prosecutors have competences outside the criminal law field (for example in family, custodian and administrative laws), they should always promote fundamental rights and freedoms, and in particular principles concerning special protection of juveniles as stated in this Opinion.

7. The following principles apply where these are within the competences of the prosecutors and in accordance with their national law.

8. Principles referred to in this Opinion concerning minors may also be applied to young adults.

9. Moreover, the CCPE expresses the wish that member States should take proper measures combating the other socio-economic roots that may lead to juvenile offences (for example, homelessness, unemployment, lack of education).

Reference documents

10. The CCPE has written this Opinion based on replies from 37 member States to a specific questionnaire on this subject[81].

11. This Opinion is based on universal[82] and regional[83] legal instruments, including the case-law of the ECHR in this matter[84].

12. The CCPE also took into account the work and conclusions of the 7th Conference of Prosecutors General of Europe (Moscow, 2006)[85]on “the role of public prosecution in the protection of individuals", as well as the CCPE Opinions No. 2 on alternatives to prosecution, No. 3 on the role of prosecution services outside the criminal law field and No. 4 on the relations between judges and prosecutors in a democratic society[86].

Definitions

13. For the purpose of this Opinion, the CCPE refers to the definitions contained in paragraph 21 of Recommendation Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures and point I of Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice :

(i) “Juvenile/minor” means a person below the age of 18 years;

(ii) "Juvenile offender" means a person below the age of 18, who is alleged to have or who has committed an offence;

(iii) “Offence" means any act or omission that infringes the law and implies a sanction and is dealt with by a criminal court or any other judicial or administrative authority.

Peculiarities of the juvenile justice

14. Juvenile justice should receive special attention from all judicial, law enforcement and social actors because of the fragility of those who are submitted to it. In all justice systems, the prosecutor should take into account the juvenile’s state of minority, the possible mitigating effect on his/her level of responsibility due to that minority and pay particular attention to his/her rights.

15. The following measures should, where appropriate, be considered:

§ video or audio taping of testimonies given by juveniles, interviewing of juveniles carried out with the assistance of child psychologists, pedagogues, social workers or other experts;

§ interviewing of juveniles carried out, where appropriate, in the presence of the holder of parental responsibility or another person close to the juvenile or social services;

§ interrogation rooms especially adapted for children. The number of interviews of young juvenile victims should be as limited as possible;

§ interviews must be carried out in ways in which repeated victimization is avoided.

16. Prosecutors should strive to promote measures aimed at preventing offending by juveniles who, because of their fragility, are likely to commit offences. Parents should be consulted and involved in the implementation of these measures.

17. Sanctions should take into account the education, training, personal environment and personality of the concerned juveniles and not just punish criminal offences or other wrongful behaviours. Measures which restrict the freedom of juveniles should be specified by law and limited to the strict requirements needed to protect society.

18. According to his/her competences, the prosecutor should seek to ensure that any contact by a juvenile, whether as an offender, a victim or a witness, with the justice system should be subject to special attention, in order to allow him/her to receive the necessary information, by means understandable for his/her age, concerning the conduct of the proceedings, the role of judicial actors and the measures taken for him/her.

19. Prosecutors should have the necessary and appropriate means to exercise their competences with juveniles or these means should be attributed to other competent services in charge of juveniles. In particular, a system of recruitment, appropriate training as well as necessary staff, means and specialised services should be provided to them. Moreover, member States should consider setting up specialised units or officers for juvenile delinquency.

20. In criminal investigations or prosecution and other proceedings involving juveniles, prosecutors should pay special attention to the timeframe and should seek to make sure that such cases are treated as a priority and carried out without any unjustified delay. A lengthy procedure may aggravate the negative impact of the committed offence and may hinder the proper re-habilitation of both a juvenile offender and a juvenile victim.

21. Prosecutors should be aware that according to international standards, children deprived of their liberty must, as a main rule, be separated from adults and shall have the right to maintain contact with their family[87].

22. The interest of society requires that the media be provided with the necessary information concerning the functioning of the justice system[88]. However, exposure to the media may be particularly harmful to juveniles involved in criminal investigations and other procedures. Prosecutors should therefore be especially aware of their responsibility not to reveal any information that might violate the rights of the juveniles involved or, information that might lead to increase their prejudice.

23. The exchange of experiences among prosecutors and international co-operation on the topic of juvenile justice is highly recommended[89].

Juveniles before the trial

24. In order to have a better knowledge of the situation of the juvenile involved in a procedure, prosecutors should, within their competences, play a key role in the co-ordination and co-operation of the main actors in the criminal investigation stage, e.g. police, probation and social services.

25. Prosecutors should, where appropriate, seek the advice of social services, specialised child protection services prior to making the decision on whether or not to prosecute the juveniles involved. Prosecutors should also seek their advice prior to taking a decision on which sanction or measure to propose to the Court. They should also be aware of and use, if appropriate, special technical hearing facilities for minors and experts (see paragraph 15 above).

26. Having in mind the possible damaging impact of criminal and other proceedings on the future development of juveniles, prosecutors should, to the widest possible extent and according to the law, seek alternatives to prosecution of juvenile offenders, where such alternatives constitute a proper judicial response to the offence, taking into consideration the interest of the victims and of the general public and being consistent with the goals of juvenile justice[90].

27. According to international standards, pre-trial detention of juveniles should only be used as a measure of last resort and for the shortest possible time. When dealing with juveniles, prosecutors should be especially cautious in considering whether the grounds of pre-trial detention can be achieved through less intrusive measures and ensure that pre-trial detention of juveniles takes place under conditions that can help minimise the possible negative consequences of the detention.

28. Guidelines or recommendations on appropriate measures for different types of juvenile offences could be useful to ensure equality before the law.

Juveniles in the trial

29. The aim to ensure the well-being and the interests of juveniles during trial should be shared by all prosecutors. Prosecutors should seek to minimize any excessive harm to offenders, victims and witnesses by the criminal procedure, where appropriate, when a protective approach can help.

30. The prosecutor should seek to ensure that the juvenile is made aware of the charges against him/her, and able to fully exercise his/her proper defence, in order for the juvenile to present explanations and benefit from a legal assistance in all proceedings where he/she is involved, and to be able to speak freely before the competent court.

Execution of decisions concerning juveniles

31. As regards juvenile justice, prosecutors should, where this is within their competences, seek to ensure that educational and socialisation measures, such as reparation, education, supervision by social services, treatment, placement in special juvenile facilities, mediation, as well as judicial supervision, probation and conditional release, are used to the widest possible extent, while at the same time taking into account the interest of the victim, the public interest, the interest of the juvenile as well as the goals of criminal justice.

32. Where this is within their competences, prosecutors should supervise the legality of the implementation of all sanctions and measures, as well as education in specialised facilities for juveniles and carry out regular inspections in all penitentiary specialised institutions for juveniles. These inspections should also concern facilities for the pre-trial detention of juvenile suspects.

33. Prosecutors should, where this is within their competences, ensure that juveniles, who have committed offences and who are subject to a judicial measure or sanction, are monitored and assisted in order to avoid the risk of reoffending.

34. Member States are invited to regularly verify the implementation in their national system of the Recommendation Rec(2000)19, in particular as regards juvenile justice as described in this Opinion.

Opinion No. 6 (2011)

of the Consultaive Councuil of European Prosecutors

to the Committee of Ministers of the Council of Europe

The relationship between prosecutors and the prison administration

I. Introduction

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

2. The Committee of Ministers instructed the CCPE[91] in 2011 to examine the issues of the relationship between public prosecutors and the prison administration in the light of Recommendation Rec(2006)2 of the Committee of Ministers to the member states on European Prison Rules.

3. The CCPE drafted this Opinion following the 25 replies received from member states to the questionnaire[92]. It clearly shows that the relationships between public prosecutors and the prison administration vary mostly in their objectives, content and structure, from no interaction to a rather detailed and structured one, sometimes controlled by the public prosecution service. Legal history, national culture and developments within the various institutions of justice explain the present variety.

Scope of the Opinion

4. All the provisions of this Opinion concern the states where public prosecutors have a specific role as regards prison matters. In States where prosecutors do not have such powers, another authority should always be able to protect the rights of persons deprived of their liberty.

5. This Opinion concerns the relations between prosecutors and institutions in charge of “persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following a conviction” as defined by Recommendation Rec(2006)2.

Aim of the Opinion

6. The confinement of persons who are detained will always entail the risk, in a closed entity, of their most basic human rights being infringed.

7. The CCPE aims to define guidelines concerning public prosecutors in exercising their duties vis-à-vis persons deprived of their liberty, and in particular:

· to determine the fields of activity which involve supervising detention conditions, ensuring that the law and human rights are respected as well as encouraging prisoners’ improvement and their reintegration into society in the best possible conditions;

· to increase awareness of all the relevant authorities, including the members of prosecution services about the detainees’ conditions, in order for them to effectively fulfil the role entrusted upon them by national legislation on the subject matter;

· to highlight the fundamental principles and some concrete measures defined in the Recommendation Rec(2006)2 in order to improve awareness and facilitate compliance with these principles by all authorities concerned.

General principles

8. It is necessary in any State governed by the Rule of Law that a well coordinated system of checks and balances, execution and control mechanisms is established with regard to deprivation of liberty enforced by the State. This implies that both in the context of custody and in the context of enforcement of sentences, appropriate monitoring and control mechanisms should be in place.

9. In this respect, all member states must set up an impartial, objective and professional authority for monitoring and controlling periodically and in a structured way the enforcement of the deprivation of liberty. In some member states, this can be realised by charging public prosecutors with all powers needed to exercise these tasks in the most effective way. In other states, these tasks may be fulfilled by other judicial instances or independent bodies outside the prison administration.

10. Therefore, special attention is to be paid to the goals and tasks of penal institutions and to the functions and powers of prosecution services, where they have such a role, regarding the legality of the enforcement of punishments and observance of rights and fundamental freedoms of persons who are serving their sentence and who are held in pre-trial detention.

11. Public prosecutors, when they are enforcing or ordering the enforcement of a sentence or a taking into custody decided by any competent authority, are directly concerned with the deprivation of liberty of the individual. In the framework of these activities, public prosecutors must always be governed by the principles of legality, impartiality and independence of undue influence. In fulfilling their functions they must avoid any discrimination on any ground such as sex, race, colour, language, religion, sexual orientation, political or other opinion, national or social origin, association with a national minority, property, birth or other status (principle of non-discrimination).

Reference instruments

12. As regards detention conditions, the CCPE underlines the importance of referring to the Convention on Protection of Human Rights and Fundamental Freedoms (ECHR) and the case-law of the European Court on Human rights (the Court). Namely, the CCPE stresses the importance of respecting Article 3 of the ECHR stating the prohibition of torture[93] and inhuman and degrading treatment[94], Article 8 (right to respect for private and family life)[95] and Article 13 (right to an effective remedy)[96].

13. The CCPE took in particular into consideration the Recommendations Rec(2000)19 on the role of public prosecution in the criminal justice system and Rec(2006)2 on the European Prison Rules, which enumerates the rules to be applied when a member State puts an individual in detention (basic principles, conditions of imprisonment, health, good order, management and staff, inspection and monitoring, untried prisoners, sentenced prisoners), and other Council of Europe instruments[97].

14. The CCPE also took into account the relevant documents of the United Nations[98], as well as some other international legal instruments[99].

II. The role of public prosecutors

A. Remand in custody

15. Remand in custody in criminal cases shall always comply with reasonable grounds provided for by the law and in accordance with the requirements of the ECHR and the relevant case law of the Court.

16. In States where prosecutors have a role in prison matters, they should be able to:

- supervise that the investigative bodies observe the rights of the detainee, envisaged by the ECHR and by the domestic law (for instance, the right to know about the reasons of detention, the right to notify the relatives about his/her detention, the right to defence, including the right to have a lawyer etc.), take steps to terminate the violations of such rights and also to hold persons, who are guilty of such violations, liable;

- take appropriate steps for an immediate release of a detainee, when the conditions for deprivation of liberty are not met (e.g. when detention is without warrant or where less intrusive measures are considered sufficient);

- control the legality of how pre-trial custody decided by a judge is executed.

B. Enforcement of sentences

17. Enforcing a prison sentence leads to depriving the individual of a fundamental right: that of liberty.

18. This consequence gives justification for taking measures, including by public prosecutors where they have such a role, so that:

· the sentence is enforced for a period of time that is not yet statute-barred, following a final conviction by an impartial and independent judicial authority;

· the nature and/or the length of the sentence be precisely set in accordance with the decision taken;

· the grounds for the sentence and its terms are brought to the attention of the sentenced person.

19. Before enforcing the sentence, it is essential that an authority independent of the prison administration concerned should ensure the legality of such enforcement.

20. The authorities competent to enforce a sentence must:

· especially verify that both the legal conditions are fulfilled in order to enforce a sentence and the sentence is enforced in a way that respects human dignity. Unless special circumstances arise on the basis of emergency (risks of absconding or security reasons), they should ensure to give a swift response to all questions by the prisoner, his/her lawyers or the prison administration regarding the enforcement of the sentence and provide any document to justify his/her position;

· process and transfer to the competent authority, without delay, any claim that may affect the enforcement of the sentence (for example, application for pardon, request for release).

21. Depending on the national legal systems, public prosecutors may play an important role in the process of conditional release of offenders as well as of their reintegration into society.

C. Detention regime

22. Although the European Prison Rules do not specify the role and position neither of public prosecutors, nor of any other control organ in the context of detention, public prosecutors, where they have such a role, should strictly supervise the execution of the national laws implementing these Rules. It is in particular essential that they, within their competencies, ensure the full and effective protection of the rights of the persons detained in order to allow a consistent application of human rights and freedoms within prisons.

23. Detention must respect the dignity of the persons deprived of their liberty and limit the negative effect of detention, while protecting society.

24. If public prosecutors have responsibilities to supervise compliance with legal regulations in detention facilities, they should be entitled to:

· regularly inspect the detention facilities at any time,

· have access to and retain documents, files, written orders and decisions of the prison administration,

· meet freely the persons deprived of their liberty without the presence of other persons,

· request relevant explanations from employees of the respective detention facility,

· verify the legality of procedures and resolutions issued by the educational bodies with respect to institutional care or protective education, or orders and resolutions of the Prison Service with respect to the pre-trial custody or the sentence,

· order that compliance with the applicable legal regulations be ensured with respect to the respective detention,

· take the necessary steps for a person to be immediately released, provided the person's detention is without warrant.

25. In case of any breach of legal regulations within the process of detention, public prosecutors, where they have such a role, should respond by requesting strict compliance with the applicable legal provisions, irrespective of the fact that additional costs may be incurred. Where appropriate, public prosecutors initiate disciplinary or criminal proceedings against those responsible among prison staff.

D. Reactions to offences committed in prisons (criminal and disciplinary matters)

26. The CCPE recalls that public prosecutors are “public authorities who, on behalf of society or in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system”[100]. States should take appropriate measures to ensure that public prosecutors can perform their duties with regard to all places of deprivation of liberty.

27. Individuals who are deprived of their liberty are living in a specific relationship of subordination and vulnerability. Owing to this situation, it is of particular importance that places of deprivation of liberty be protected from violations of criminal law and basic rules regarding human rights and freedoms.

28. As an instrument of crime prevention within prisons, all criminal offences committed in these places should be considered with specific attention.

29. It is in the public interest that public prosecutors, where they have such powers, initiate proper investigation when an offence has been committed, especially in cases of corruption or unjustified pressure on the person detained, or in cases of violations of human rights perpetrated by the staff of the detention facility.

30. In all cases of breach of law in prisons, member States should take appropriate measures to ensure that investigating authorities get all necessary information to conduct, direct or supervise the investigation, in order a decision can be made whether to initiate or continue prosecution before the court.

E. Prison administration

31. In the States where public prosecutors have a role to play in prison matters, they should:

- take into account the instruments of the Council of Europe including recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and in particular with respect to the conditions of detention[101]. Whenever public prosecutors notice the non-compliance with these recommendations, they may address this issue to the competent authorities. Where appropriate, the Prosecutor General, for instance on the occasion of his/her annual report to the Parliament or a similar event, may propose appropriate measures to ensure compliance with such recommendations;

- ensure the Rule of Law from two different aspects. On the one hand they have to ensure the rights of the detainees, so that in their special position they should not face more detriment than prescribed by the law; on the other hand they have to provide for the protection of the society through ensuring that the sentence is enforced in full compliance with the law;

- ensure an effective protection since they have access to the places of detention, can visit them on a regular basis, and act immediately while enjoying appropriate means and a specific experience.

III. Conclusions

32. Whatever the system in place within each member States of the Council of Europe, the observance of human rights inside the detention places should be an essential concern for the public prosecutors who have to ensure compliance with the law and the fundamental principles stated in the ECHR.

33. The CCPE noted that, in a number of member states, public prosecutors play an important role in the enforcement of sentences and in the supervision over the legality of detentions and of the living conditions of the detainees within prisons. However, in other States prosecutors have no powers as regards prison matters, this role is entrusted to other authorities, who should always be able to protect the rights of persons deprived of their liberty.

34. The CCPE deems it necessary that penitentiary institutions have at their disposal sufficient resources, material and human, in order to ensure adequate detention conditions as well as favourable conditions for resocialisation of offenders.

35. The following conclusions are made in respect of member States where prosecutors have a role concerning prison matters:

a) Public prosecutors engaged in this sphere of activities should have at their disposal the necessary financial and human resources to adequately fulfil their responsibilities;

b) Depending on the workload, prosecution services are recommended to have specialised units within their organisational structure to deal with prison administration;

c) Where necessary, guidelines summarising best practices and recommendations aimed at harmonising, within each system, the general or specific approaches to the activities of prosecutors in relation of prison administration should be issued;

d) Member States or prosecution services should develop special training of prosecutors engaged in the activities in relation to prison administration;

e) In executing their responsibilities, public prosecutors should establish and develop, where appropriate, cooperation or contacts with an ombudsman or ombudsman-like institutions, authorities concerned with rehabilitation and reintegration as well as with representatives of civil society, including non-governmental organisations concerned.

36. The CCPE considers that all competent authorities, including public prosecutors, should take all necessary steps to improve the situation of detainees and facilitate their reintegration in the society.

37. Member States should ensure that the appropriate authorities competent to enforce sentences must ensure that all legal requirements are met in regard to their execution while fully respecting human dignity and ensuring that the rights and conditions of detained persons are monitored.

38. Member States shall ensure that an appropriate investigation takes place in respect of allegations made of the commission of offenses relating to the violation of legal provisions during the detention.

APPENDIX

Description of the different legal systems and various competences of public prosecution in prison matters (analysis of replies to the questionnaire)

1. In almost half of the 25 members States that replied to the relevant questionnaire, the supervision over the penal institutions is part of the functions of the prosecution services. At the same time, in many states the prosecutors have only limited powers in protecting the rights of the persons who are being kept in the places of deprivation of liberty.

2. The sphere of competence of public prosecutors in the relevant sphere differs significantly from one state to another: starting from overwhelming supervision over penal institutions to no controlling powers in respect of deprivation of liberty or detention. Taking this into account, the members-states may be divided into three main groups: 1) those in which the prosecution services supervise over penal institutions; 2) the ones where the public prosecutors have limited powers to control the places of deprivation of liberty and detention; 3) the ones where the prosecution services do not have any rights in the above mentioned sphere.

3. In the states where the public prosecutors have full powers in respect of supervision over the execution of laws by the administrations of the penal institutions and places of detention and custody, pre-trial detention, in places of deprivation of liberty and other bodies which enforce punishment and coercive measures, they also observe the rights and duties of the detainees, those taken into custody, the convicted and the persons subjected to coercive measures.

4. To detect and terminate violations of the law in respect of the persons who are serving their sentence in the form of deprivation of liberty or who have been taken into custody in the timely manner, public prosecutors in some States have rather wide powers: to conduct independent checks of penal institutions; to request the administration to create conditions which ensure the observance of the rights of the detainees, the persons taken into custody, the convicts, and the persons who are subjected to coercive measures; to check the compliance of the orders, regulations, decisions of the penal institutions’ administration with the domestic law.

5. The legislation of some member States requires that the public prosecutors should conduct regular checks of penal institutions. The frequency of such checks varies in different countries from daily visits to one visit in three months. Some states do not regulate the number of checks and these countries limit themselves only by the recommendation to public prosecutors to eventually conduct an inspection. Such a check may result in a report, a brief official report (statement) or filing petition (submission) on the detected violations which are to be sent to the director of the institution under scrutiny and if necessary, to the relevant competent body.

6. In many countries, the main solution to ensure legality is to grant a right to a prosecutor to visit the places of deprivation of liberty and custody at any time. In the course of these visits, public prosecutors have an opportunity to familiarize with the documents, to check the conditions of detention of the persons and to communicate with the convicts freely and confidentially.

7. In most States the frequency of the checks of the conditions of imprisonment is defined by law and this frequency varies from weekly control to scheduled visits four times a year in different States. In other States, the public prosecutors have a duty to conduct individual meetings with the convicts on a regular basis. At the same time, the complaint of the convicts or the detainees about the conditions of imprisonment in most states is viewed as a reason to initiate an ad hoc check of the penal institution concerned. And in some third group of States the reason for meeting is a claim or a statement of the convicts. The subject-matter of the applications from the convicts to public prosecutors may be claims on violation of their rights as detainees, but the requests can also be of another nature, for instance, the transfer of the convicts to another prison in order to ensure their safety.

8. In the States which entrust public prosecutors with limited powers in the sphere of control over penal institutions, the opportunity of cooperation of the convicted person with the public prosecutor is not excluded. In such States, the initiator of such an application is often the convict or the person in custody; they submit their claims on cruel treatment or any other violation of human rights to the public prosecutor. As a rule, the absence of the legislative regulation of such meetings does not exclude the right for the public prosecutor to communicate with the convict in confidentiality, if necessary.

9. Upon detection of the facts of violations of human rights, mostly in all responding States, where the prosecution service is supervising over the places of deprivation of liberty and custody, public prosecutors may demand explanations from officials, suspend execution of illegal orders and decisions of the administration, cancel sanctions, which were applied to the detainees in violation of the law. In many States, where the prosecution services are given wide powers, public prosecutors have a right to immediately release any person who was kept without legal reasons in the institutions which enforce punishment or who was subjected to arrest or pre-trial detention in violation of the law.

10. Violation of human rights during the serving of a sentence or a pre-trial detention justifies the public prosecutor’s intervention to put a stop to it. The efficiency and the nature of the intervention of public prosecutors following the acts of prison administration may very from one member State to the other. In many States, violation of human rights in the places of deprivation of liberty or custody gives public prosecutors power to initiate an independent investigation, according to the results of which the decision is taken, to arraign the guilty officials to disciplinary, administrative or criminal liability. It is noteworthy that the opportunity to react to the cases of violations of human rights in penal institutions is granted to the prosecutors also in States where there is no prosecutor’s overwhelming supervision over the places of deprivation of liberty or custody.

11. In most member States, the prosecutors do not have any powers to independently arraign the guilty officials to disciplinary liability. When the signs of a disciplinary violation are detected in the course of the investigation, public prosecutors may apply to the state body which is authorized to impose the relevant sanction on the employees of the places of deprivation of liberty and custody. Only in some States public prosecutors have the right to arraign those guilty to the disciplinary liability.

12. Public prosecutors have considerably wider powers when the signs of the criminally punishable action in the penal institution are detected. In such a situation, in most States, public prosecutors have a right to initiate a criminal case and conduct an independent investigation. Should there be any cases of sudden death, crimes committed against the convicts or by the convicts against some other convicts or against the personnel of the prison, public prosecutors must interfere. The legislation in most States grants public prosecutors a right to conduct an independent investigation or transfer of the criminal case to the investigative bodies with a right to supervise this investigation.

13. When the facts of violation of human rights of the convicted or persons in custody by the administration of the institution are defined, then in some countries it is regarded as grounds for public prosecutors to file a lawsuit seeking compensation of damage in the civil process.

14. In the States which grant the prosecution service the right to supervise over the penal institutions, the public prosecutors play a significant role in controlling the compliance of the conditions of imprisonment with the international law standards and the recommendations of the Council of Europe.

15. In some states, public prosecutors have additional powers, for instance, he/she takes a decision about the calculation of the term of imprisonment in the sentence; he/she participates in discussions about the transfer of the convicted; he/she sets restrictions on the conditions of living of the convicted in order to ensure security; he/she decides whether the convict should have an opportunity to leave the penal institutions in cases of emergency; he/she invites doctors of the relevant specializations if it is necessary to examine the person who is deprived of liberty or taken into custody. In a number of states, which grant public prosecutors limited powers in the sphere of control over penal institutions, public prosecutors have a right to examine the issues in order to define the conditions of treatment of persons who have been taken into custody, including the level of the isolation, limit the contacts and use of means of communication.

16. In several States, the powers of public prosecutors in the sphere of control over penal institutions cover only the places where the detainees and those in custody are kept. In such a case public prosecutors have power to check the documents which confirm the legality of pre-trial detention, to visit the above mentioned institutions at any time, to freely communicate with persons who are kept in custody. Moreover, in some States public prosecutors have a right to adopt decisions about arrest and taking into custody and also to participate in decision-making about the expediency of application of special measures to the persons who are under risk due to their role in the criminal communities in the course of the pre-trial detention.

17. In most States, while controlling the legality of imprisonment of the persons, public prosecutors are independent in their activities from other state bodies. However, in almost all of the member States the prosecution service is a unified centralized system and public prosecutors who are fulfilling their powers are subordinated to the prosecutor general.

18. Some prosecution services participate in decision-making about pardon. Very often when this procedure is conducted, the prosecutors express their opinion on the expediency of pardon for the convicted. In a number of States, the powers of prosecutors also include the supervision over the legality of execution of the decisions on amnesty and pardon.

19. The great significance is attributed to the activities of the prosecution service in the sphere of decision-taking about conditional release of the convicted from the places of imprisonment. In such cases the function of the prosecutor, as a rule, is not limited only to the request (motion) on conditional release and preparation of the statement for the court on the possibility of conditional release of the person concerned. In some states public prosecutors may participate in the sessions of a special commission and court hearings on conditional release and also may control the legality of such a release.

20. The prosecution services of many member States have a right to appeal against the decisions which are adopted on the issues of enforcement of the sentence (conviction). In the course of examination of such cases the public prosecutors have a right to participate in court hearings with a possibility to submit materials, to file motions etc.

21. In some states Prosecution Services are in contact with public bodies, which supervise and control the observance of human rights in the places of deprivation of liberty. The laws in a number of countries regulate the issues of cooperation of the representatives of the prosecution services with the ombudsman (on human rights). In most States this cooperation has two dimensions: first, the information presented in the reports of the ombudsman, which may serve as grounds for conducting prosecutors’ checks, and secondly, the results of the work of public prosecutors in their effort to eliminate the infringements of human rights in the places of deprivation of liberty are submitted to the ombudsman.

Opinion No. 7 (2012)

of the Consultaive Council of European Prosecutors

to the Committee of Ministers of the Council of Europe

The management of the means of prosecution services

I. INTRODUCTION

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

2. The Committee of Ministers instructed the CCPE in 2012 to adopt an Opinion for its attention on the management of the means of prosecution services[102].

3. The CCPE has drafted the present Opinion on the basis of replies received from 30 member States to a questionnaire[103]. According to these replies the level of financial autonomy seems to have an impact on the tools at the disposal of prosecution services for managing their resources. The competence for establishing a budget is in most cases shared between the prosecution service and the ministry of justice; often the ministry of finance is also directly involved. Approximately half of the states indicate that the budgets of their prosecution services are governed by the system of management by results including such objectives as efficiency and productivity.

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

A. Reference texts

5. The CCPE underlines the importance of referring to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the case-law of the European Court of Human Rights (the Court)^{^[104]}.

6. The CCPE took into consideration the Recommendation Rec(2000)19, and in particular the part concerning the guarantees to the prosecution service for exercising its role. It also took into account the relevant conclusions and recommendations contained in the previous Opinions of the CCPE, especially in Opinions No. 3 (2008) on the "Role of prosecution services outside the criminal law field" and No. 4 (2009) on the relations between judges and prosecutors in a democratic society.

7. The CCPE also took into consideration the European Guidelines on ethics and conduct for public prosecutors – the Budapest Guidelines^{^[105]}, Opinion No. 2 (2001) of the Consultative Council of European Judges (CCJE) on the funding and management of courts with reference to the efficiency of the judiciary and to Article 6 of the ECHR, as well as the Report of the European Commission for the Efficiency of Justice (CEPEJ) entitled “European Judicial Systems: Edition 2010”[106] and the Report of the Venice Commission on European Standards as regards the Independence of the Judicial System – Part II: the Prosecution Service^{^[107]}.

8. Lastly, the CCPE also took note of the instruments adopted by certain other international organisations such as the United Nations and the International Association of Prosecutors, as well as the Final Document of the 5th Plenary Meeting of the Network of Public Prosecutors or equivalent institutions at the Supreme Judicial Courts of the member States of the European Union, adopted in Budapest on 26 May 2012^{^[108]}.

B. Scope and purpose of this Opinion

9. The present Opinion applies to prosecution services as regards the execution of all functions entrusted to them in accordance with the law. Where they have functions outside the criminal justice system[109], the principles and provisions of this Opinion also apply to these functions mutatis mutandis. The prosecution services assume a key role in the national justice system and ensure the respect of human rights, including in some jurisdictions in places of detention. In particular, as the authority charged with monitoring the application of the law and prosecuting any criminal behaviour, the prosecution service must respond to the common need to combat domestic and international crime.

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

11. Even if the powers of prosecution services to manage autonomously their own budgets and resources vary from one member State to another, autonomy of management represents one of the guarantees of their independence and efficiency. Therefore, relying on professionals in management and developing common principles as regards the management of means, particularly financial, is indispensable.

12. This Opinion aims at setting out recommendations permitting to identify the needs and allocate and use the resources of prosecution services in a more efficient manner.

II. NEEDS OF PROSECUTION SERVICES

A. Preparation of the budget

13. The budget of any prosecution service should be integrated into the state budget as a separate line. It is important to ensure that the procedures for establishing budgets for prosecution services and allocating additional financial resources to them are provided for in the law on the budget or other financial regulations. Despite the fact that allocation of funds to the prosecution service is deemed to be a political decision, the legislative and executive authorities concerned should not be in a position to unduly influence the prosecution service when making a decision on its budget. The decision on the allocation of means to the prosecution service should be made in strict accordance with the principle of its independence, and should ensure the necessary preconditions for accomplishing its mission.

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

15. To allow for sufficient allocation of means by parliament (or by another competent state authority), the estimated costs need to be calculated in advance. This calls for reliable schemes of budget planning, be it regarding operational or investment budgets. Criminal and other relevant statistics of previous years, as well as sustainable trends and activities of the prosecution service, in particular planned and on-going projects, may serve as a basis for preparing an overall minimum budget for the year or time period to come. Management by results offers a number of helpful tools for establishing budgets for future periods.

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

17. The management of budgetary resources should be conducted by the prosecution service itself in an efficient and responsible manner, according to the principles of good governance. Therefore an appropriate training of prosecutors on this subject should be organised, among other measures. Prosecution services should also have at their disposal, where appropriate, specialised personnel with backgrounds in finance, auditing and management to carry out such functions and ensure an appropriate use of resources. Prosecution services should be awareof the possibility to rely on such specialised personnel, and should have at their disposal the resources required to do so. They should have the final word on, and responsibility for, the essential choices.

18. The budget of the prosecution service must in all circumstances allow for its quick reaction to unforeseen events and developments.

B. Needs of the prosecution service

19. The new criminal challenges as well as the growing complexity of certain types of crime are due to the speedy development of new technologies, the increasing international integration and globalisation, the expanding international trade and data flow. This reality has enabled new ways to commit crimes, which implies the need to cooperate, including internationally, in their detection and the prosecution of criminals. Special training to enable to face the threats posed by the above-mentioned phenomena is also required.

20. At a time of economic crises, when poverty and inequality of the people can provoke an increase of social disorder and crime and make all kinds of fraud and injustice committed by those who violate the law all the more unbearable for the population, the means allocated to prosecution services should be maintained at the same level, or possibly increased, so as to allow them to be the watchdog of the public interest, human rights and fundamental freedoms.

21. There is an increasing demand for human resources in prosecution services, as well as for the necessary material and budgetary means to carry out prosecutorial tasks. Taking into account the fact that in a number of countries prosecutors also perform tasks outside the criminal law field, including those of alleviating social and environmental problems[110], this demand certainly becomes much more evident.

22. While carrying out their functions in the criminal law field or outside of it, prosecutors should be subject to proper measures related to their safety. For this purpose member States should ensure that prosecutors and, if necessary, members of their families are physically protected when their personal safety can be threatened as a result of the proper discharge of the professional duties of prosecutors[111].

23. The participation of prosecutors in international cooperation in criminal matters is increasingly expensive. To ensure that this function is carried out expeditiously and efficiently, modern technologies are needed (such as videoconferencing and encryption); additional funds and human resources are required, for example, for drafting international conventions, seconding liaison officers (prosecutors in particular) to national embassies in foreign states, funding joint investigation teams and participation in the relevant coordination bodies[112].

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

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

25. Adequate allocation of resources for ensuring prosecutorial activities is a necessary precondition for implementing the principle of independence of prosecutors and/or prosecution services, in particular in the criminal law area.

26. Financial independence of prosecution services is aimed at guaranteeing fairness of criminal prosecution, effective protection of human rights and fundamental freedoms in criminal proceedings in general and, finally, a proper administration of criminal justice.

27. The management of financial resources of on-going investigations varies significantly in the different member States. The same diversity applies to the role of prosecution services in the course of an investigation: in some member States the prosecution service itself has certain or full investigative powers; in other member States it has no investigative power, but may or may not have the right to order the investigative authorities to carry out investigative and other procedural acts even though it has no investigative power of its own.

28. The costs of such investigative and other procedural acts are usually advanced by the investigating authority actually executing them. In many members States prosecutors therefore often face the problem that investigating authorities – with reference to their low budgetary means – are unable or reluctant to execute the prosecutorial order to carry out investigative and other procedural acts. This problem is especially pertinent in cases where the investigation generates additional costs, such as costs of some types of expertise (e.g. homogenetics expertise, expertise of economic matters, DNA analysis or the cost of special investigative techniques).

29. Member States should allocate sufficient means for all investigations ordered by the prosecutors to be carried out. This kind of approach would significantly contribute to ensuring that investigations are completed and there are no loopholes in criminal proceedings that may hinder the administration of justice.

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

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

- enable them to use modern technologies in an appropriate manner for investigation and for ensuring the rule of law during investigations (computer search tools, forensic equipment, electronic data bases, videoconferencing and encryption equipment, interception of telecommunications, audio and video surveillance etc.).

The same principles should be applied to the resources required by prosecutors for an adequate action in trials.

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

32. Member States may explore developing confiscation policies aimed at depriving criminals of the proceeds of crime, which may assist in the prosecution of offences, while always respecting the role and independence of prosecutors.

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

2. Outside the criminal law field

34. The prosecutorial activities outside the criminal law field which, to a different extent, are performed in most member States of the Council of Europe, sometimes require among other procedural steps special forensic examinations and involvement of specialists from different areas of expertise (e.g. psychologists in cases related to family law, accountants and financial experts on bankruptcy, chemists and biologists in matters related to environment protections etc.).

35. Depending on the variety and scope of the work the need may arise to create within a prosecution service specialised units or prosecutor positions to perform activities outside the criminal law field in general or in particular fields. The specific nature of such activity may require special training of the personnel.

III. POSSIBLE SOLUTIONS

A. Human resources

36. The current situation calls for adapting the need for human resources in accordance with the needs of the public action, whether this implies sufficient remuneration or appropriate training[113], both initial and continuous.

37. Generally speaking, there are three different professional levels in a modern public prosecution service:

- prosecutorial functions are carried out by prosecutors themselves. In case of need (and if compatible with the legal system), legal specialists may be hired for specific legal functions;

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

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

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

B. Financial resources

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

40. Provided that their independence is ensured, in order to make savings prosecution services are encouraged to conclude agreements with other state authorities with a view to sharing facilities and administrative services or participating in joint actions. Coordination is an essential instrument for avoiding the waste of resources and duplication of activities – also within a prosecution service, when, for instance, more than one public prosecutor (locally competent) is investigating connected facts.

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

C. Equipment and material resources

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

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

44. Member States are also required to support the need of the prosecution services to maintain their own websites and to have adequate premises where the public can be received, in order to maintain an appropriate level of transparency and public awareness, as well as to support and facilitate access to justice.

D. The means of prosecution services and governmental austerity plans

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

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

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

48. In times of economic crisis it is especially important for prosecution services to streamline their organisations and improve management in order to ensure the optimal use of both financial and human resources. The distribution of public prosecution offices throughout the country, with a rational attribution of competence, can also be helpful.

E. Improving the management of prosecution services

a. Auditing and controlling

49. Monitoring and auditing are core elements for assuring the diligent management of public funds. They have to be adapted to the specific tasks of the prosecution service. Due to its special mission the use of funds spent, for instance, on investigating crimes cannot be assessed by ordinary cost performance calculation; investigations should not only be evaluated in terms of cost effectiveness. Monitoring may be a useful instrument for establishing best practices within the prosecution service to compare the handling of cases in different units and in different matters, but should not be used as a means to govern the prosecution service as such.

50. Only in exceptional circumstances should prosecution services revert to prioritising certain types of cases or crimes as a means of counteracting the limitation on resources. However, such prioritisation should not be to the detriment of prosecutorial activities on the whole, and especially to the effective prosecution of other types of crime, nor should it limit the general principle of equality before the law.

b. Management by results

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

52. Member States may also consider – as far as it is compatible with their respective legal systems – introducing or reinforcing a model whereby the activities of the prosecution service are managed according to the principle of management by results. This concept is an interactive, agreement-based steering model, where resources are allocated based on agreed and expected activity. The principal idea of management by results is to help the parties strike an appropriate balance between the resources available and the results to be achieved (for example, for reducing delays of procedure or improving the access to justice of users), while fully respecting the role and the independence of the prosecution services and the principle of legality.

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

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

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

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

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

IV. RECOMMENDATIONS

(i) Prosecutors must have at their disposal sufficient means in order to fulfil their various tasks in the situation of new national and international dangers and challenges, including those brought by the development of technologies and globalisation processes.

(ii) Prosecution services must be enabled to estimate their needs, negotiate their budgets and decide how to use the allocated funds.

(iii) In order to be able to prepare their budgets, the prosecution services should rely on accurate and solid indicators derived from criminal and other relevant statistics.

(iv) The difficult economic and financial environment represents professional challenges which emphasise the need for a more rational management. The independence, impartiality, financial autonomy and efficiency of prosecution services are values that must be guaranteed under all economic circumstances.

(v) Prosecution services should use modern management methods in an efficient and transparent manner. The use of performance indicators and a system of management by results can be helpful in this respect. They must also have sufficient freedom to choose which actions to pursue to achieve the desired results. Prosecution services should not be confronted with excessive budgetary rigidity.

(vi) Both internal and external control and auditing of the use of prosecutorial budgets should be ensured. The external control and auditing should be in line with those applied to the courts.

(vii) Management training for prosecutors entrusted with management functions must be ensured. Procedures for cooperation between prosecution services and external finance and management professionals should be clearly regulated.

(viii) Prosecution services must be consulted on the savings to be made as well as on the initiatives to attract new resources or to increase the existing ones.

(ix) In order to explain the use of means required for their actions, prosecution services should maintain a proper level of transparency and public awareness of their work, including through their own websites and publication of their annual reports. In any case their image of impartiality shall be maintained.

(x) Exchange of experience and good practices in the field of management of means by prosecution services, at domestic and international levels, is recommended.

Opinion (2013) No. 8

of the Consultative Council of European Prosecutors

to the Committee of Ministers of the Council of Europe

Relations between prosecutors and the media

I. INTRODUCTION

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

2. The Committee of Ministers instructed the CCPE to adopt an Opinion in 2013 for its attention on relations between prosecutors and the media.

3. The CCPE has drafted the present Opinion on the basis of replies received from 36 member States to a questionnaire^{^[114]}.

4. According to these replies, it appears that the various aspects of relations between prosecutors and the media are determined either by the Constitution and/or national laws, or by internal regulatory instruments (e.g., orders and instructions by the Prosecutors General, rules of conduct, ethical codes, etc.).

5. The diversity of the legal systems of member States explains the diversity in communication of prosecutors with the media, assigning them different tasks and roles, while always under the obligation of respecting human rights and fundamental freedoms.

A. Reference texts

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

7. The CCPE examined, in particular, the proper balance between the fundamental rights to freedom of expression and to information as guaranteed by Article 10 of the ECHR and the right and duty of the media to inform the public regarding legal proceedings, and the rights to presumption of innocence, to a fair trial and to respect for private and family life as guaranteed by Articles 6 and 8 of the ECHR.

8. The CCPE took into consideration the following Council of Europe Committee of Ministers’ Recommendations concerning prosecutors:

the Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, and in particular paragraph 6 on the effective right of prosecutors to freedom of expression, paragraph 7 on their training, paragraph 20 on the obligation of objectivity and fairness of the prosecutors, as well as all their duties and responsibilities regarding individuals (paragraphs 24 to 36).
the Recommendation Rec(2012)11 on the role of public prosecutors outside the criminal justice system, and in particular paragraphs 4 to 9.

9. The CCPE also took into consideration other instruments adopted by the Council of Europe, particularly:

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

· the Recommendation Rec(2002)2 on access to public documents and the Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings;

· the Recommendation Rec(2011)7 on a new notion of media.

10. In addition, the CCPE relied on the principles contained in its joint Opinion with the Consultative Council of European Judges (CCJE) on relations between judges and prosecutors in a democratic society – “Bordeaux Declaration” (2009), as well as in the CCJE Opinions No. 7 (2005) entitled “Justice and society”, and No. 14 (2011) entitled “Justice and information technologies (IT)”.

11. The CCPE also took into account the relevant documents of the United Nations such as the Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)^{^[115]} and the Guidelines on the Role of Prosecutors (1990). The CCPE also considered the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, adopted by the International Association of Prosecutors in 1999.

B. Scope

12. This Opinion aims at putting in place recommendations to facilitate the media having access to appropriate information and to promote proper communication between prosecutors and the media in a manner consistent with their respective national laws and the international obligations of member States.

13. This Opinion, in line with the mandate of the CCPE, is addressed to prosecutors, and it is not to be understood as recommendations for journalists. The CCPE is committed to assisting in developing a continuing understanding by the media and public in general on the role of the prosecutor and the justice system. The CCPE invites journalists, as well as all other professionals concerned, to get acquainted with this Opinion and to contribute to its dissemination.

14. Subject to the limitations mentioned in paragraphs 21, 23, 25 and 26 below, the fundamental right to freedom of expression and information is a requirement which is applicable to the various tasks and functions of prosecutors in general. This Opinion concerns all kinds of prosecutorial activities, and any provision in this Opinion that relates to the activities in the criminal justice sphere relates, mutatis mutandis, to prosecutors acting outside this sphere.

15. Whenever the prosecutor uses a new policy or methods of communications to disseminate information, the principles expressed in this Opinion will be applicable, since it is expected that information disseminated by prosecutors is of public interest.

16. As regards the term “media”, the conclusions, principles and recommendations formulated primarily with regard to the print media, apply also to the audiovisual and electronic media, as well as to the internet when used as media.

II. BASIC PRINCIPLES

17. Relations between prosecutors, the media and any parties to the cases can be understood as relating to three basic groups of principles:

· principles aiming to guarantee a proper balance between the need to ensure an independent, impartial and transparent justice and the need to guarantee other fundamental rights, such as the freedom of expression^{^[116]} and press, which can themselves be subject to limitations which shall have a legal base, shall conform to one or several legitimate aims such as the protection of rights of others, the smooth running of investigations or the protection of private life, and shall be necessary in a democratic society and proportional to legitimate aim(s) for responding to pressing social needs;

· principles protecting individuals’ rights – especially those of defendants and victims (including the right to dignity, private life^{^[117]} and security of person, as well as the presumption of innocence^{^[118]});

· principles relating to procedural rights, especially when prosecutors act as an equal party in litigation (for example, the requirement of the equality of arms and fair trial).

In case of conflict between these principles, a proper balance should be maintained between each one of them.

Freedom of expression and of the press

18. Everyone, including participants in legal proceedings, is entitled to the right of freedom of expression.

19. Prosecutors also have the right to freedom of expression^{^[119]}, while having to respect the professional secrecy, the duty of confidentiality, the duty of discretion^{^[120]} and objectivity. When prosecutors appear in the media in any capacity, they should pay attention to the risks that may arise for impartiality and integrity of the prosecution service.

20. Freedom of the press should be guaranteed during legal proceedings^{^[121]}. According to the case-law of the Court under Article 10 of the ECHR, the press has a duty to impart information or ideas on matters of public interest^{^[122]} which includes the right of the public to receive them, enabling the press to play its role as a “public watchdog” (according to the terminology of the Court). In doing so, the press will be protected all the more if it contributes to the discussion of issues that have a legitimate public interest^{^[123]}.

21. During their communications with the media, prosecutors should seek to ensure that the freedom of expression and the freedom of the press do not violate the lawful rights and interests of individuals (including vulnerable persons such as juveniles, victims, defendants’ family members), the requirement of data protection and the obligation of confidentiality.

Freedom to receive and impart information

22. The right of the public to receive information should also be secured^{^[124]}. However, the way this is done may depend on and may be influenced by the specific circumstances of the particular legal proceedings and may be subject to restrictions as appropriate to ensure that basic principles are respected.

23. Prosecutors should seek to ensure that information provided to the media does not undermine the integrity of investigations and prosecution or the purpose of the investigations. Neither should it breach the rights of third parties, nor influence those involved in the investigation or prosecution. It should not influence the outcome of legal proceedings.

Presumption of innocence and rights of the defense

24. Prosecutors should especially be sensitive to the rights of the defense, freedom of expression, the presumption of innocence and the right to be informed.

25. In their communications, prosecutors should make sure not to compromise the rights of the defense by distributing information in a premature manner and by not allowing the defense to respond to it^{^[125]}. They should also be careful not to transmit information which does not respect the rights of victims to be informed in an appropriate manner. Providing information should not undermine individuals’ right to a fair trial.

26. In their communications, prosecutors should ensure that they do not compromise the security of those involved, including witnesses, victims, prosecutors and judges dealing with sensitive cases.

27. A balance has to be established, through respecting the presumption of innocence, between the public interest in information and the protection of persons’ honour and integrity. The prosecutor, where this is within his or her jurisdiction, should take care that a detainee is not through his/her actions publicly exposed to media curiosity and that the persons involved in a case are protected appropriately from pressure from the media^{^[126]}, more specifically that victims are protected in such a way as to avoid any risk of being harassed by the media.

Private life and dignity

28. At any stage of legal proceedings, the participants, whatever their role, have the right to dignity, respect for private and family life and to personal security.

29. As far as possible, during the investigation phase, the identity of suspects should not be disclosed. Attention to victims' rights should be given prior to the disclosure.

III. Communications with the media

30. Transparency in the exercise of prosecutors’ functions is a key component of the rule of law and one of the important guarantees of a fair trial. Justice must be done and must be seen to be done. In order to ensure that, the media should be enabled to report on criminal and other legal proceedings.

31. Application of the principle of transparency in the work of prosecutors is a way of ensuring public confidence and trust, as is the dissemination of information on their functions and powers. Thus, the image of the prosecution service forms an important element of public trust in the proper functioning of the justice system. The media’s widest possible right of access to information on the activities of prosecutors also serves to strengthen democracy and to develop an open interaction with the public.

32. Prosecution services may also play a kind of training role and should in this capacity contribute to explaining how the justice system functions. They could make available, as appropriate, information to the media and the public in general in order to foster a better understanding and knowledge of the judicial system.

33. In addition, the openness of the work of prosecutors should contribute to improving the standard of the activities carried out by prosecution authorities. Law enforcement authorities and prosecution services may, by informing the media on the on-going proceedings and in particular on the investigations, obtain information from the general public, increasing thereby the efficiency of justice.

34. Prosecutors can also provide information, in accordance with law, to the general public through the media in order to prevent further crimes and other offences from taking place.

35. The prosecution service of each member State must consider, based on specific criteria related to its situation, legislation or traditions, the most appropriate way to communicate, whether as to who may communicate or what may be communicated.

36. In some member States, prosecutors, while providing general information to the media on policy matters or on the general role and functioning of the prosecution service, do not comment publicly on any individual case, other than as part of appropriate legal argument during court proceedings. In other member States, each individual prosecutor might communicate actively with the media about the cases he/she is dealing with, or might only provide limited factual information about a case already in the public domain. In any case, relations with the media should be built on the basis of mutual respect, trust, equal treatment and responsibility and be respectful of judicial decisions. Furthermore, in the exercise of their functions, prosecutors should act in a spirit of impartiality and equality towards all members of the media.

37. Information provided by prosecutors to the media should be clear, reliable and unambiguous.

38. Prosecutors can provide information to the media at all stages of prosecutorial activities with due respect for legal provisions concerning the protection of personal data, privacy, dignity, the presumption of innocence, ethical rules of relations with other participants in the proceedings, as well as the legal provisions precluding or restricting disclosure of certain information.

39. In any case, legal provisions on secrecy protected by law, including the confidentiality of the investigation, should be respected.

40. In some member States, any communication needs to be channeled through a spokesperson, who will not necessarily be a prosecutor, or through a specialised press office. In other member States, information needs to be authorised or communicated by the head of the prosecution office or of the prosecution service. Communications emanating from the prosecution service as a whole can avoid the risk of having the activities being presented in a personalised manner and can minimise the risks of personal criticisms.

41. Prosecutors may have a proactive approach to demands of the media; if needed, they may take the initiative to inform the public via the media, either regarding general questions related to justice, or exceptionally, where false information has become part of public opinion, regarding the rectification of such false information^{^[127]}.

42. In order to carry out its functions fairly, impartially, objectively and effectively, the prosecution service may consider it appropriate to issue a press release, briefing or other communication to the media, such as holding press conferences, giving interviews or/and participating in seminars and round tables. New information technologies can be widely used to inform the public, as appropriate and in a timely manner, about prosecutorial activities and other activities to maintain law and order in the State^{^[128]}. In this regard, it seems advisable for the prosecution services and offices to properly maintain their own internet sites.

43. The prosecution service may, if appropriate, cooperate especially with the police or other relevant authorities in the preparation of any press release, briefing or other such communication. This can contribute to demonstrating the coordination of different services’ efforts, and to avoiding and preventing the dissemination of false information and negative consequences for society following particularly serious crimes. Such cooperation should reflect the general principles set out in paragraphs 22 and 23 of the Recommendation Rec(2000)19.

44. Prosecutors should resist expressing an opinion or disclosing information that runs contrary to the fundamental principles of good communication. They should always communicate independently and objectively, avoiding expressing personal opinions or value judgments regarding persons or events.

45. When an individual prosecutor is subject to an unfair attack through the media, he/she is entrusted with the right of having the contested information rectified or other legal remedies according to the national law. Nevertheless, in such cases, as well as when false information is spread about persons or events involved in the proceedings which he/she deals with, any reaction should preferably come from the head or a spokesperson of the prosecution office and, in major cases, by the Prosecutor General or the highest authority in charge of the service or the highest state authority. Such an institutional reaction minimises the need for the prosecutor concerned to make use of his/her right of response guaranteed to every person, and the risk of excessive “personalisation” of the conflict.

46. It is recognised that in some member States, there may be legal or practical issues to be considered in relation to informing persons affected by prosecutors’ decisions of those decisions in criminal matters. However, it is recommended that prosecutors should seek to ensure, where possible and/or practical, that persons affected by their decisions be made aware of those decisions before any communication of that decision to the media.

IV. RECOMMENDATIONS

Member States or prosecution services should establish a policy of communications aiming to ensure that the media have access to the appropriate information necessary to inform the public of the work of prosecution services. Guidelines on their relations with the media could also be included in the ethical codes of prosecutors. It is a matter for the prosecution service in each member State to consider to what extent and how best to communicate with the media, based on its situation, legislation and traditions.

Communications between prosecutors and the media should respect the following principles: freedom of expression and of the press, duty of confidentiality, right to information, principle of transparency, right to private life and dignity as well as the confidentiality of investigations, presumption of innocence, equality of arms, the rights of the defense and to a fair trial.

Relations of prosecutors with all media should be built on the basis of mutual respect, trust, responsibility, equal treatment and respect for judicial decisions.

In their relations with the media, prosecution services should consider adopting both a reactive approach, responding to the media requests, and a proactive approach, taking an initiative to inform the media of a judicial event.

Consideration may be given to entrusting media relations of public prosecutors to spokespersons or prosecutors who are specialised in public relations.

It is recommended that prosecutors should seek to ensure, where possible and/or practical, that persons affected by their decisions in criminal matters be made aware of those decisions before any communication of that decision to the media.

Where prosecutors have direct relations with the media, in order to ensure proper information, training in the field of communication should be provided as appropriate. This training may be in common with/or be facilitated by experts and journalists.

Communications emanating from the prosecution service as a whole can avoid the risk of having the activities being presented in a personalised manner and can minimise the risks of personal criticisms.

In addition to legal means at the disposal of prosecutors, any reaction to incorrect information or unfair press campaigns against prosecutors should preferably come from the head or a spokesperson of the prosecution office and, in major cases, by the Prosecutor General or the highest authority in charge of the service or the highest state authority.

It is recommended that new information technologies be used, including websites of prosecution services and offices, to inform the public in a timely manner about prosecutorial activities.

Prosecutors may, if appropriate, cooperate with the police and other relevant authorities, to consider information to be communicated to the media and to disseminate it.

Opinion No.9 (2014)

of the Consultative Council of European Prosecutors

to the Committee of Ministers of the Council of Europe

European norms and principles concerning prosecutors

This Opinion contains:

- a Charter, called “the Rome Charter”,

- a detailed Explanatory Note of the principles which appear in this Charter.

ROME CHARTER

The Consultative Council of European Prosecutors (CCPE), having been requested by the Committee of Ministers of the Council of Europe to provide a reference document on European norms and principles concerning public prosecutors, agreed on the following:

I. In all legal systems, public prosecutors (hereafter prosecutors) contribute to ensuring that the rule of law is guaranteed, especially by the fair, impartial and efficient administration of justice in all cases and at all stages of the proceedings within their competence.

II. Prosecutors act on behalf of society and in the public interest to respect and protect human rights and freedoms as laid down, in particular, in the Convention for the Protection of Human Rights and Fundamental Freedoms and in the case-law of the European Court of Human Rights.

III. The role and tasks of prosecutors, both within and outside the field of criminal justice, should be defined by law at the highest possible level and carried out in the strictest respect for the democratic principles and values of the Council of Europe.

IV. The independence and autonomy of the prosecution services constitute an indispensable corollary to the independence of the judiciary. Therefore, the general tendency to enhance the independence and effective autonomy of the prosecution services should be encouraged.

V. Prosecutors should be autonomous in their decision-making and should perform their duties free from external pressure or interference, having regard to the principles of separation of powers and accountability.

VI. Prosecutors should adhere to the highest ethical and professional standards, always behaving impartially and with objectivity. They should thus strive to be, and be seen as, independent and impartial, should abstain from political activities incompatible with the principle of impartiality, and should not act in cases where their personal interests or their relations with the persons interested in the case could hamper their full impartiality.

VII. Transparency in the work of prosecutors is essential in a modern democracy. Codes of professional ethics and of conduct, based on international standards, should be adopted and made public.

VIII. In performing their tasks, prosecutors should respect the presumption of innocence, the right to a fair trial, the equality of arms, the separation of powers, the independence of courts and the binding force of final court decisions. They should focus on serving society and should pay particular attention to the situation of vulnerable persons, notably children and victims.

IX. Prosecutors enjoy the right to freedom of expression and of association. In the communications between prosecutors and the media, the following principles should be respected: the presumption of innocence, the right to private life and dignity, the right to information and freedom of the press, the right to fair trial, the right to defence, the integrity, efficiency and confidentiality of investigations, as well as the principle of transparency.

X. Prosecutors should not benefit from a general immunity, but from functional immunity for actions carried out in good faith in pursuance of their duties.

XI. Prosecutors and, where necessary, their families have the right to be protected by the State when their personal safety is threatened as a result of the discharge of their functions.

XII. The recruitment and career of prosecutors, including promotion, mobility, disciplinary action and dismissal, should be regulated by law and governed by transparent and objective criteria, in accordance with impartial procedures, excluding any discrimination and allowing for the possibility of impartial review.

XIII. The highest level of professional skills and integrity is a pre-requisite for an effective prosecution service and for public trust in that service. Prosecutors should therefore undergo appropriate education and training with a view to their specialisation.

XIV. The organisation of most prosecution services is based on a hierarchical structure. Relationships between the different layers of the hierarchy should be governed by clear, unambiguous and well-balanced regulations. The assignment and the re-assignment of cases should meet requirements of impartiality.

XV. Prosecutors should decide to prosecute only upon well-founded evidence, reasonably believed to be reliable and admissible. Prosecutors should refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods, in particular when they constitute a grave violation of human rights. They should seek to ensure that appropriate sanctions are taken against those responsible for using such methods or for other violations of the law.

XVI. Prosecutions should be firmly but fairly conducted. Prosecutors contribute to reaching just verdicts by the courts and should contribute to the effective, expeditious and efficient operation of the justice system.

XVII. In order to achieve consistency and fairness when taking discretionary decisions within the prosecution process and in court, clear published guidelines should be issued, particularly regarding decisions whether or not to prosecute. Where appropriate, and in accordance with law, prosecutors should give consideration to alternatives to prosecution.

XVIII. Prosecutors should have the necessary and appropriate means, including the use of modern technologies, to exercise effectively their mission, which is fundamental to the rule of law.

XIX. Prosecution services should be enabled to estimate their needs, negotiate their budgets and decide how to use the allocated funds in a transparent manner, in order to achieve their objectives in a speedy and qualified way. Where the prosecution service is entrusted with the management of resources, it should use modern management methods efficiently and transparently, being also provided with adequate training.

XX. Mutual and fair cooperation is essential for the effectiveness of the prosecution service at national and at international level, between different prosecution offices, as well as between prosecutors belonging to the same office. Prosecutors should treat international requests for assistance within their jurisdiction with the same diligence as in the case of their work at national level and should have at their disposal the necessary tools, including training, to promote and sustain genuine and effective international judicial cooperation.

Approved by the CCPE in Rome on 17 December 2014

Explanatory Note

Introduction

1. Recommendation Rec(2000)19 of the Council of Europe’s Committee of Ministers on the role of public prosecution in the criminal justice system remains, after 14 years, a milestone. At the same time, since 2000, further aspects of the public prosecution’s activities have been highlighted at European level and the need for an update and a synthesis of relevant principles has become obvious.

2. In this context, the Consultative Council of European Prosecutors (CCPE), established by the Committee of Ministers in 2005, wished to identify the most notable trends as regards the status, tasks and operations of the public prosecution. In this framework, the Committee of Ministers, in January 2014^{^[i]}, instructed the CCPE to adopt a reference document on European norms and principles concerning prosecutors. To undertake this task, the CCPE took into account the documents listed in the Annex to this Note.

3. The legal systems of member States are characterised by great diversity, particularly as regards the tasks and roles of prosecutors. Nevertheless, they always remain under an obligation to respect human rights and fundamental freedoms as laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights.

4. This document is intended for state institutions and for judicial, executive and legislative powers, as well as practitioners and researchers.

1. Definition of a prosecutor

5. Public prosecutors (hereafter prosecutors) are public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system^{^[ii]}. The prosecutors’ mission can also include powers outside the criminal justice system, where the national legal system so provides^{^[iii]}.

2. Role of prosecutors

6. In all cases and at all stages of the legal proceedings, prosecutors contribute to ensuring that the rule of law and public order are guaranteed by the fair, impartial and effective administration of justice^{^[iv]}.

7. It is essential to ensure the independence and effective autonomy of prosecutors and to establish proper safeguards. They have a duty to act fairly, impartially and objectively. In criminal matters, prosecutors must also take into account the serious consequences of a trial for the individual, even one which results in an acquittal. They should also seek to contribute that the justice system operates as expeditiously and efficiently as possible and assist the courts in reaching just verdicts^{^[v]}.

8. A system where both prosecutor and judge act to the highest standards of integrity and impartiality presents a greater protection for human rights than a system which relies on the judge alone^{^[vi]}.

2.1 Functions in criminal proceedings

9. Prosecutors play an essential role for the rule of law and the proper functioning of criminal justice systems.

10. Prosecutors decide whether or not to initiate or continue a prosecution, conduct the prosecution before an independent and impartial court established by law and decide whether or not to appeal decisions by that court.

11. In certain criminal justice systems, prosecutors also have other functions such as to elaborate and implement national crime policy (while adapting it, where appropriate, to regional and local circumstances), to conduct, direct or supervise investigations, to ensure that victims are effectively assisted, to decide on alternatives to prosecution, or to supervise the execution of court decisions^{^[vii]}.

2.1.1 Principles governing prosecutions

12. The legal systems of some member states provide for the principle of “legality” as the basis for prosecutions. The legal systems of other member states provide for the principle of “discretion” or “opportunity principle”.

13. In order to achieve consistency and fairness when taking discretionary decisions within the prosecution process and in court, clear published guidelines should be issued, particularly regarding decisions whether or not to prosecute^{^[viii]}. Even when the system does not foresee that prosecutors can take discretionary decisions, general guidelines should lead the decisions taken by them.

14. Prosecutors should seek to ensure that all necessary and reasonable enquiries and investigations are made before taking a decision in relation to a prosecution and proceed only when a case is founded upon evidence assessed to be reliable and admissible. Prosecutions should be firmly but fairly conducted and not beyond what is indicated by the evidence^{^[ix]}.

15. Where participation in the investigation of crime or supervision of the police or other investigation bodies is within their competence, prosecutors should do so objectively, impartially and professionally and seek to ensure that the investigating services respect legal principles and fundamental human rights^{^[x]}.

16. Prosecutors should take account of the interests of witnesses, and where this is within their competence, take or promote measures to protect their life, safety and privacy, or ensure that such measures have been taken.

17. Prosecutors should take account of the views and concerns of victims when their personal interests are affected and take or promote actions to ensure that victims are informed of both their rights and developments in the procedure^{^[xi]}.

18. Prosecutors should give careful consideration on whether or not to prosecute, respect the rights of victims, witnesses and suspects and afford a right to seek a review to persons affected by their decisions^{^[xii]}.

19. Prosecutors should respect the principle of equality of arms between prosecution and defence, the presumption of innocence, the right to a fair trial, the independence of the court, the principle of separation of powers and the binding force of final court decisions.

20. The prosecutor should put all the credible evidence available before a court and disclose all relevant evidence to the accused. There can be situations where prosecutions should be discontinued^{^[xiii]}.

21. Prosecutors should refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods, in particular when they constitute a grave violation of human rights. They should seek to ensure that appropriate sanctions are taken against those responsible for using such methods or other violations of the law^{^[xiv]}. In some systems, the violation of human rights is sufficient to deny the evidence, without having to be grave.

2.2 Functions outside criminal proceedings

22. In many States, prosecutors have competences outside the criminal law field (inter alia, civil, family, labour, administrative, electoral law, protection of the environment, social rights and rights of vulnerable persons such as minors, disabled persons and persons with very low income^{^[xv]}).

23. Where such competencies exist, prosecutors’ mission should be to represent the general or public interest, protect human rights and fundamental freedoms, and uphold the rule of law^{^[xvi]}. They should also firmly respect the democratic principles and values of the Council of Europe.

24. These competencies should be exercised in such a way as to:

· respect the effective separation of state powers;

· respect the independence of the courts and their role in protecting human rights, equality of parties, equality of arms and non-discrimination;

· be regulated by law as precisely as possible, be strictly limited, clearly defined and follow clear published guidelines in order to avoid any ambiguity^{^[xvii]};

· ensure that there is no undue external intervention in the activities of prosecution services;

· respect 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^{^[xviii]};

· not violate the principle of binding force of final court decisions (res iudicata) with some exceptions established in accordance with international obligations including the case-law of the Court;

· ensure that the ability of persons or institutions involved in the case to seek a review of actions by prosecutors is clearly prescribed;

· ensure that the right of persons or institutions, involved or interested in civil law cases to claim against measures or default of prosecutors is assured.

25. Any prosecutor’s actions which affect human rights and freedoms should remain under the control of competent courts^{^[xix]}.

26. Where prosecutors have power to question the decision of a court or state administration, they must do so by exercising a power of appeal or a power to seek a review of a decision. In private litigation between parties, where a public interest must be defended or asserted before the court, the ultimate say rests with the court^{^[xx]}.

27. The prosecutor who intervenes in court outside the field of criminal justice, should, in particular, in accordance with domestic laws:

· have equal rights and obligations to the other parties to the proceedings;

· not withhold evidence relevant to the issues in dispute;

· neither participate in the deliberations of the court, nor give the impression of doing so;

· when entitled to the right of appeal to a court decision, the prosecutors should have equal rights as other parties and never substitute their rights of appeal;

· exercise its powers independently, transparently and in full accordance with the rule of law;

· intervene against legal entities 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.

Relevant decisions taken by prosecutors outside the field of criminal justice should always be followed by reasons open for persons or institutions involved or interested in the case.

2.3 Alternatives to prosecution and penalties

28. Prosecutors should give consideration, where appropriate and in accordance with law, to alternatives to prosecution^{^[xxi]}. When applying these alternatives, they should afford full respect for the rights and legitimate interests of suspects and victims and offer the possibility of mediation and reconciliation between offender and victim^{^[xxii]}. Special consideration should be given to the nature and gravity of the offence, protection of society and the character and background of the offender.

29. With a view to promoting a fair, consistent and efficient activity of prosecutors, the relevant state authorities are encouraged to publish clear rules, general guidelines and criteria for the effective and fair implementation of the criminal policy related to alternatives to prosecution.

30. Alternative measures should never be used to circumvent the rules of fair trial by imposing measures on a person who is innocent or who could not be convicted owing to procedural obstacles such as time-limits on prosecution, or where there is doubt as to the responsibility of the offender identified or the extent of the damage caused by the offence.

31. Having in mind the possible damaging impact of criminal and other proceedings on the future development of juveniles, prosecutors should, to the widest possible extent and according to the law, seek alternatives to prosecution of juvenile offenders, where such alternatives constitute a proper judicial response to the offence, taking into consideration the interest of the victims and of the general public and being consistent with the goals of juvenile justice^{^[xxiii]}.

32. Prosecutors should use their best efforts to prosecute juveniles only to the extent strictly necessary^{^[xxiv]}.

3. Status of prosecutors and safeguards provided to them for carrying out their functions

3.1 The independence of prosecutors

33. Independence of prosecutors – which is essential for the rule of law - must be guaranteed by law, at the highest possible level, in a manner similar to that of judges. In countries where the public prosecution is independent of the government, the state must take effective measures to guarantee that the nature and the scope of this independence are established by law^{^[xxv]}. In countries where the public prosecution is part of or subordinate to the government, or enjoys a different status that the one described above, the state must ensure that the nature and the scope of the latter’s powers with respect to the public prosecution is also established by law, and that the government exercises its powers in a transparent way and in accordance with international treaties, national legislation and general principles of law^{^[xxvi]}.

34. The European Court of Human Rights (hereafter “the Court”) considered it necessary to emphasise that “in a democratic society both the courts and the investigation authorities must remain free from political pressure”^{^[xxvii]}. It follows that prosecutors should be autonomous in their decision making and, while cooperating with other institutions, should perform their respective duties free from external pressures or interferences from the executive power or the parliament, having regard to the principles of separation of powers and accountability^{^[xxviii]}. The Court also referred to the issue of independence of prosecutors in the context of “general safeguards such as guarantees ensuring functional independence of prosecutors from their hierarchy and judicial control of the acts of the prosecution service”^{^[xxix]}.

35. The independence of prosecutors is not a prerogative or privilege conferred in the interest of the prosecutors, but a guarantee in the interest of a fair, impartial and effective justice that protects both public and private interests of the persons concerned.

36. States must ensure that prosecutors are able to perform their functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability^{^[xxx]}.

37. Prosecutors should, in any case, be in a position to prosecute, without obstruction, public officials for offences committed by them, particularly corruption, unlawful use of power and grave violations of human rights^{^[xxxi]}.

38. Prosecutors must be independent not only from the executive and legislative authorities but also from other actors and institutions, including those in the areas of economy, finance and media.

39. Prosecutors are also independent with regard to their cooperation with law enforcement authorities, courts and other bodies.

3.2 The hierarchy

40. A hierarchical structure is a common aspect of most public prosecution services, given the nature of the tasks they perform. Relationships between the different layers of the hierarchy must be governed by clear, unambiguous and well-balanced regulations, and an adequate system of checks and balances must be provided for.

41. In a State governed by the rule of law, when the structure of the prosecution service is hierarchical, effectiveness of prosecution is, regarding public prosecutors, strongly linked with transparent lines of authority, accountability and responsibility.

42. It is essential to develop appropriate guarantees of non-interference in the prosecutor’s activities. Non-interference means ensuring that the prosecutor’s activities, in particular in trial procedures, are free of external pressure as well as from undue or illegal internal pressures from within the prosecution system^{^[xxxii]}. In a hierarchical system, the superior prosecutor must be able to exercise appropriate control over the decisions of the office, subject to proper safeguards for the rights of individual prosecutors.

3.2.1 The assignment and the re-assignment of cases

43. With respect to the organisation and the internal operation of the public prosecution, in particular the assignment and re-assignment of cases, this should meet requirements of impartiality with respect to the structure, responsibilities and decision-making competences of the prosecution services.

44. Assignment and re-assignment of cases should be determined by transparent regulation that is aligned with the hierarchical or non-hierarchical structure of the prosecution service.

3.2.2 Instructions

45. General decisions on implementation of crime policies should be transparent in order to ensure fair, consistent and efficient activities of public prosecutors.

46. Instructions of a general nature must be in writing and, where possible, be published or otherwise transparent. Such instructions must respect strictly equity and equality^{^[xxxiii]}.

47. Instructions by the executive or by superior level of the hierarchy concerning specific cases are unacceptable in some legal systems. While there is a general tendency for more independence of the prosecution system, which is encouraged by the CCPE, there are no common standards in this respect. Where the legislation still allows for such instructions, they should be made in writing, limited and regulated by law.

48. A public official who believes he/she is being required to act in a way which is unlawful, improper or unethical, should respond in accordance with the law^{^[xxxiv]}.

49. A prosecutor enjoys the right to request that instructions addressed to him/her be put in writing. Where he/she believes that an instruction is either illegal or runs counter to his/her conscience, an adequate internal procedure should be available which may lead to his/her eventual replacement^{^[xxxv]}.

50. It should be understood that these guarantees are established in the interest of both individual prosecutors and the public^{^[xxxvi]}.

3.3 Appointment and career

3.3.1 General principles

51. Member States should take measures to ensure that:

a) the recruitment, the promotion and the transfer of prosecutors are carried out according to fair and impartial procedures and excluding discrimination on any ground such as gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status;

b) the careers of prosecutors, their professional evaluation, their promotions and their mobility are governed by transparent and objective criteria, such as competence and experience; recruitment bodies should be selected on the basis of competence and skills and should discharge their functions impartially and based on objective criteria;

c) the mobility of prosecutors is governed also by the needs of the service^{^[xxxvii]}.

52. The appointment and termination of service of prosecutors should be regulated by the law at the highest possible level and by clear and understood processes and procedures.

53. The proximity and complementary nature of the missions of judges and prosecutors create similar requirements and guarantees in terms of their status and conditions of service, namely regarding recruitment, training, career development, salaries, discipline and transfer (which must be affected only according to the law or by their consent)^{^[xxxviii]}. For these reasons, it is necessary to secure proper tenure and appropriate arrangements for promotion, discipline and dismissal^{^[xxxix]}.

54. Striving for impartiality, which in one form or another must govern the recruitment and career prospects of public prosecutors, may result in arrangements for a competitive system of entry to the profession and the establishment of High Councils either for the whole judiciary, or just for prosecutors^{^[xl]}.

55. The manner in which the Prosecutor General is appointed and dismissed plays a significant role in the system guaranteeing the correct functioning of the prosecutor’s office^{^[xli]}.

56. If governments have some control over the appointment of the Prosecutor General, it is important that the method of selection is such as to gain the confidence and respect of the public as well as of the members of the judicial and prosecutorial system and legal profession. The Prosecutor General should be appointed either for an adequately long period or permanently to ensure stability of his/her mandate and make him/her independent of political changes^{^[xlii]}.

3.3.2 Training

57. The highest level of professional skills and integrity is a pre-requisite for an effective prosecution service and for public trust in that service. Prosecutors should therefore undergo appropriate education and training with a view to their specialisation^{^[xliii]}.

58. Different European legal systems provide training for judges and prosecutors according to various models, the training being entrusted to specific bodies. In all cases, it is important to assure the autonomous character of the institution in charge of organising such training, because this autonomy is a safeguard of cultural pluralism and independence^{^[xliv]}.

59. Such training should be organised on an impartial basis and regularly and objectively evaluated for its effectiveness. If it is appropriate, joint training for judges, prosecutors and lawyers on themes of common interest can contribute to improving the quality of justice^{^[xlv]}.

60. The training should also include administrative staff and officials, as well as law enforcement agents.

61. Training, including management training^{^[xlvi]}, is a right as well as a duty for prosecutors, both before taking their duties and on a permanent basis.

62. Prosecutors should benefit from appropriate specialised training in order to adequately fulfil their responsibilities within and outside the criminal justice system^{^[xlvii]}, including in relation to the management of budgetary resources^{^[xlviii]} and in the field of communication^{^[xlix]}.

63. States should therefore take effective measures to ensure that prosecutors have appropriate education and training, both before and after their appointment. In particular, prosecutors should be made aware of:

a) the principles and ethical duties of their office;

b) the constitutional and other legal protection of persons involved in legal proceedings;

c) human rights and freedoms as laid down by the Convention for the Protection of Human Rights and Fundamental Freedoms (Articles 5 and 6 in particular) and by the case-law of the European Court of Human Rights;

d) principles and practices of organisation of work, management and human resources;

e) mechanisms and materials which contribute to efficiency and consistency in their activities^{^[l]}.

64. New criminal challenges as well as the growing complexity of certain types of criminality are due to the speedy development of new technologies, the globalisation and expanding international trade and data flow. Special training to enable prosecutors face the threats posed by the above mentioned phenomena is also required^{^[li]}.

3.3.3 Evaluation of professional skills

65. Evaluation of the performance of prosecutors should be carried out at regular intervals, be reasonable, on the basis of adequate, objective and established criteria and in an appropriate and fair procedure.

66. Prosecutors should have access to results concerning their evaluation and have the right to submit observations and to legal redress, where appropriate.

67. The promotion of prosecutors must be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures^{^[lii]}.

3.3.4 Transfer and mobility

68. A means of improperly influencing a prosecutor might be his/her transfer to another prosecutor’s office without consent.

69. In introducing transfer or secondment against the will of a prosecutor, either internal or external, the potential risks should be balanced by safeguards provided by law (for example, a transfer which is disguising a disciplinary procedure).

70. The ability to transfer a prosecutor without his/her consent should be governed by law and limited to exceptional circumstances such as the strong need of the service (equalising workloads, etc.) or disciplinary actions in cases of particular gravity, but should also take into account the views, aspirations and specialisations of the prosecutor and his/her family situation^{^[liii]}.

71. It should be possible to appeal to an independent body.

3.3.5 Dismissal

72. Given their important role and function, the dismissal of prosecutors should be subject to strict requirements, which should not undermine the independent and impartial performance of their activities^{^[liv]}. All guarantees attached to the disciplinary procedures should apply.

73. The independence of prosecutors is their protection from arbitrary or politically motivated dismissal. This is particularly relevant with reference to the Prosecutors General and the law should clearly define the conditions of their pre-term dismissal^{^[lv]}.

3.4 Conditions of service

3.4.1 General principles

74. Prosecutors should have the necessary and appropriate means to exercise their missions which is fundamental for the rule of law^{^[lvi]}.

75. States should take measures to ensure that prosecutors have reasonable conditions of service such as remuneration, tenure and pension commensurate with their crucial role as well as an appropriate age of retirement^{^[lvii]}.

76. The conditions of service should reflect the importance and dignity of the office, and respect attached to it^{^[lviii]}. The appropriate remuneration of prosecutors also implies recognition of their important function and role and can also reduce the risk of corruption^{^[lix]}. Bonuses, where they exist, should be based on criteria which are completely objective and transparent.

3.4.2 Incompatibilities and conflicts of interest

77. Prosecutors should at all times adhere to the highest ethical and professional standards. In particular, they should not act in cases where their personal interests or their relations with the persons interested in the case could hamper their full impartiality^{^[lx]}. Prosecutors should not engage in any activity or transaction or acquire any position or function, whether paid or unpaid, that is incompatible with or detracts from the proper performance of his/her duties^{^[lxi]}.

78. States should guarantee that a person cannot at the same time perform duties as a prosecutor and as a court judge. However, States may take measures in order to make it possible for the same person to perform successively the functions of prosecutor and those of judge or vice versa. Such changes in functions are only possible at the explicit request of the person concerned and respecting the safeguards^{^[lxii]}.

79. Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants’ right to a decision on such cases by an independent and impartial authority exercising judicial functions^{^[lxiii]}.

80. Prosecutors should, at all times, conduct themselves in a professional manner and strive to be and be seen as independent and impartial^{^[lxiv]}.

81. Prosecutors should abstain from political activities incompatible with the principle of impartiality.

82. Prosecutors should exercise their freedom of expression and association in a manner that is compatible with their office and that does not affect or appear to affect judicial and prosecutorial independence or impartiality. While they are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they must not comment on pending cases and must avoid expressing views which may undermine the standing and integrity of the court^{^[lxv]}.

83. In accordance with the law, for an appropriate period of time, the prosecutor should not act for any person or body in respect of any matter on which he/she acted for, or advised, the public service and which would result in a particular benefit to that person or body^{^[lxvi]}.

84. A prosecutor, like a judge, may not act in a matter where he/she has a personal interest, and may be subject to certain restrictions aiming to safeguard his/her impartiality and integrity^{^[lxvii]}.

3.5. Guarantees in proceedings

85. Standards and principles of human rights establish that prosecutors are responsible in the performance of their duties and may be subject to disciplinary procedures^{^[lxviii]}.

86. In a democratic system under the rule of law, an acquittal of an individual should not result in disciplinary proceedings against the prosecutor responsible for the case.

87. States should take measures to ensure that disciplinary proceedings against prosecutors are governed by law and should guarantee a fair and objective evaluation and decision which should be subject to independent and impartial review^{^[lxix]}.

88. Prosecutors should not benefit from a general immunity that would protect them from prosecution for crimes they have committed, and for which they have to answer before the courts, as this may lead to lack of public trust or even to corruption^{^[lxx]}. States may establish special procedures to bring prosecutors to justice as a guarantee for their independence and impartiality.

89. According to general standards, prosecutors may need protection from civil suits for actions done in good faith in pursuance of their duties.

3.6 Protection of prosecutors, their families, etc.

90. States should take measures to ensure that prosecutors, and where necessary, their families are protected by the State when their personal safety is threatened as a result of the discharge of their functions^{^[lxxi]}.

91. When prosecutors or their families are subject to violence or threats of violence, or to any form of intimidation, coercion or inappropriate undue surveillance, a thorough investigation of such incidents should be carried out and steps to prevent their future recurrence should be taken; when needed, prosecutors and their families should be provided with the necessary counselling or psychological support^{^[lxxii]}.

4. Duties and rights of prosecutors

4.1 Duties concerning the conduct of prosecutors

4.1.1 The fundamental duty of impartiality, objectivity and fairness

92. Prosecutors should carry out their functions impartially and act with objectivity. They should also treat people as equal before the law and should neither favour anyone nor discriminate against anyone.

93. Prosecutors are aware of the dangers of corruption and do not ask for, accept or receive benefits or any advantage in the exercise of their functions. Through their impartiality, prosecutors must ensure the confidence of the public in the prosecution services. Prosecutors avoid secondary occupations and other tasks in which their impartiality might be endangered. They identify situations that pose a conflict of interest and, if necessary, recuse themselves from handling the task.

4.1.2 The accountability of prosecutors

94. Prosecutors operate on the basis of public liability. Their decisions are based on the law and other regulations, and they remain within the scope of their discretion. In particular, prosecutors should respect and ensure the protection of human rights.

95. Prosecutors act in a transparent manner, unless legislation restricts their actions or the publicity of the documents they have drafted. They should particularly be careful to express their decisions in an understandable manner to the parties concerned and when communicating with the public and media.

96. The professional knowledge and skills of prosecutors, particularly as regards management, communication and cooperation, including at international level, must be at a high level and must be maintained through training. Prosecutors must manage cases, for which they are responsible, with speed and optimum quality and they should use resources available to them in a responsible manner.

4.1.3 The duty to maintain the dignity of the profession

97. Prosecutors must earn the trust of the public by demonstrating in all circumstances an exemplary behaviour. They must treat people fairly, equally, respectfully and politely, and they must at all times adhere to the highest professional standards and maintain the honour and dignity of their profession, always conducting themselves with integrity and care^{^[lxxiii]}.

4.1.4 Code of ethics and conduct

98. The sharing of common legal principles and ethical values by all prosecutors involved in the legal process is essential for the proper administration of justice^{^[lxxiv]} and for the respect of the highest professional standards. Prosecutors must be able to identify ethical problems in their work and to refer to clear principles to solve them.

99. Codes of professional ethics and of conduct should be adopted and made public, based on international standards developed by the United Nations, as well as those set out in the European Guidelines on Ethics and Conduct for Public Prosecutors (The Budapest Guidelines) adopted by the Conference of Prosecutors General of Europe on 31 May 2005.

4.2 Fundamental freedoms of prosecutors

100. Prosecutors enjoy the freedom of opinion and speech and freedom of association in the same manner as other members of the society. When making use of these rights, they must take into account the duty of discretion and be careful not to jeopardise the public image of independence, impartiality and fairness which a prosecutor must always uphold.

101. All necessary steps should be taken to ensure that prosecutors’ privacy is respected^{^[lxxv]}. However, they should behave with discretion and caution to avoid putting into question the dignity of their profession or their ability to exercise their functions.

5. Relations with other actors and institutions

5.1 Relations with victims, witnesses, suspects, defendants, accused persons and the public

102. Prosecutors should uphold the right to a fair trial and take into account the legitimate interests of witnesses, victims, suspects, defendants or accused persons by ensuring that they are informed of their rights and the progress of the procedure^{^[lxxvi]}.

5.2 Relations with courts (judges and court staff) and lawyers

103. Where the prosecution service is a part of the judicial institution, it is necessary to establish a clear distinction between prosecutors and court judges. Member States should clarify the legal status, the competencies and the procedural role of prosecutors by law in a way that there can be no doubt about the reciprocal independence and impartiality of prosecutors and court judges^{^[lxxvii]}.

104. A fair, impartial and effective justice can only be guaranteed by complementary actions of judges and prosecutors^{^[lxxviii]}.

105. For the effectiveness of judicial action, the prosecutors must also always maintain courteous relations with all court staff and lawyers.

5.3 Relations with investigators

106. The prosecutors and investigators cooperate in an appropriate and effective manner in the course of investigations.

107. It is up to the prosecutors, where this is within their competence, to ensure that investigators act legally, respect the rights of the defence and inform all suspects, in the shortest possible time and in a language that is accessible, in detail, about the facts that could be used against them^{^[lxxix]}.

5.4 Relations with the prison administration

108. The prosecutor, within the limits of his/her competence, is responsible for verifying the lawfulness of how the detention is carried out. He/she must ensure the full and effective protection of the rights of detainees and inmates, improve their situation and facilitate their reintegration into society^{^[lxxx]}.

5.5 Relations with the media

109. Prosecutors are encouraged to regularly inform the public, through the media, about their activities and the results thereof^{^[lxxxi]}. The actions of prosecutors should strive to promote and preserve transparency and public trust in the prosecution service.

110. Communications from prosecutors must demonstrate impartiality, without improperly influencing judges in any way and exposing them to personal criticisms.

111. When an individual prosecutor is subject to an unfair attack through the media, he/she is entrusted with the right of having the contested information rectified or other legal remedies according to the national law. Nevertheless, in such cases, as well as when false information is spread about persons or events involved in the proceedings which he/she deals with, any reaction should preferably come from the head or a spokesperson of the prosecution office and, in major cases, by the Prosecutor General or the highest authority in charge of the service or the highest state authority. Such an institutional reaction minimises the need for the prosecutor concerned to make use of his/her right of response guaranteed to every person, and the risk of excessive “personalisation” of the conflict.

5.6 Relations with public services and other institutions

112. Prosecutors should not interfere with the competence of the legislature or the executive. However, they should cooperate with state institutions and various services.

113. Prosecutors should be empowered, without suffering any hindrance, to order investigations and prosecute civil servants and elected officials when they are suspected of having committed crimes^{^[lxxxii]}.

6. Organisation of the prosecutor’s office

6.1 Structure

114. A fundamental responsibility of the prosecution service is to ensure the effectiveness of its action. There should be an organisation and a structure to meet all of its statutory tasks with speed and skill while maintaining a high level of quality.

6.2 Staff

115. The prosecutor’s office should be managed effectively, avoiding any bureaucratic drift. To do this, prosecutors should have sufficient and qualified administrative personnel, adequately trained. Experts in specific fields should also be provided for, e.g. for the reception of victims of crimes, data processing, statistics.

6.3 Management of resources

116. The provision of adequate organisational, financial, material and human resources contributes to ensuring independence. Particularly in times of economic difficulty, sufficient resources should be assigned to provide a quality service^{^[lxxxiii]}.

117. Where the management of resources is entrusted to the prosecution service, it has the duty to do it with the utmost rigor and transparent manner^{^[lxxxiv]}. For this purpose, as well as to maximise the results with the given means, there should be relevant measures in place; prosecutors should also receive adequate training and be supported by qualified specialists.

118. In any case, either where the prosecution services have or do not have management autonomy, they should be enabled to estimate their needs, negotiate their budgets and decide how to use the allocated funds in a transparent manner, in order to achieve the objectives of speedy and quality justice^{^[lxxxv]}.

6.4 Specialisation

119. The need of specialisation of prosecutors, as well as within the public prosecutors organisational structure, should be seen as a priority^{^[lxxxvi]}, to better respond to new forms of criminality, as well as in cases where the prosecutor has competences outside the criminal law field. It would also improve and facilitate international co-operation. Specialisation is essential to improve effectiveness, but also to answer the challenges for the prosecutors’ mission coming from the complexity of contemporary society.

6.5 Internal cooperation

120. Mutual and fair cooperation is essential for the effectiveness of the prosecution service, between different prosecution offices as well as between prosecutors belonging to the same office.

7. International cooperation

121. Prosecutors should treat international requests for support within their jurisdiction with the same diligence as in the case of their work at national level. In their jurisdiction, they should contribute, where appropriate, to the implementation of foreign decisions.

122. Prosecutors should benefit from training in the application of international instruments and basic principles governing the major legal systems. They may participate as much as possible in exchanges and international fora useful for the exercise of their functions, including in particular the collection of best practices^{^[lxxxvii]}.

123. When it results in more efficiency, prosecutors should use cooperation arrangements such as Eurojust, the European Judicial Network and other various relevant networks including liaison prosecutors^{^[lxxxviii]}.

Opinion No.10 (2015)

of the Consultative Council of European Prosecutors

to the Committee of Ministers of the Council of Europe

The role of prosecutors in criminal investigations

I. Introduction

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

The Committee of Ministers instructed the CCPE to prepare and adopt an Opinion in 2015 for its attention concerning the role of prosecutors in criminal investigations. The CCPE has prepared this Opinion on the basis of replies to the questionnaire received from 29 member States^{^[129]}.

According to these replies, it appears that the various aspects of relations between prosecutors and investigation bodies are determined by the Constitution and/or national laws and internal regulatory instruments (e.g. orders and instructions by the Prosecutor General, rules of conduct, ethical codes, etc.).

The role of prosecutors in criminal investigations varies from one system to another. In some countries, prosecutors can conduct investigation. In other countries, either the police can conduct investigations under the authority and/or supervision of prosecutors, or the police or other investigative bodies can act independently.

The system of prosecution may be different in each member State. It may be based on the principle of mandatory prosecution or discretionary prosecution. In addition, the various prosecution systems have traditionally reflected either the inquisitorial or adversarial models.

There has been an evolution in recent years in Europe, particularly under the influence of the European Court of Human Rights (hereafter the Court), in bringing these models closer together in an effort to ensure both effective investigation and respect for the rights of the persons concerned, with the main goal of compliance of all these systems with shared fundamental values.

Reference texts

The CCPE underlines the importance of referring to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the ECHR), in particular its Articles 2, 3, 5, 6 and 8 and the relevant case-law of the Court. It also refers to the importance of the findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The CCPE took into consideration the above-mentioned Recommendation Rec(2000)19, which notes that in some criminal justice systems, public prosecutors conduct, direct or supervise the investigation[130]. The CCPE also took into consideration Recommendation Rec(2001)10 of the Committee of Ministers to member States on the European Code of Police Ethics[131], Recommendation Rec(2005)10 of the Committee of Ministers to member States on “special investigation techniques” in relation to serious crimes including acts of terrorism, as well as the Conclusions adopted by the 6^th Conference of Prosecutors General of Europe in Budapest, Hungary, on 31 May 2005, concerning the relationship between prosecutors and the police. The CCPE relied on the principles contained in its Opinion No. 9(2014) on European norms and principles concerning prosecutors - “Rome Charter”, and its other relevant Opinions, in particular the CCPE Opinion No. 3(2008) on the role of prosecution services outside the criminal law field, and Opinion No. 8(2013) on relations between prosecutors and the media.

The CCPE also took into account the relevant documents of the United Nations such as the International Covenant on Civil and Political Rights of 1966, the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly on 17 December 1979 (Resolution 34/169), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, the Guidelines on the Role of Prosecutors of 1990 and the recommendations of the committees charged with monitoring the implementation of relevant United Nations instruments[132].

The CCPE also considered the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, adopted by the International Association of Prosecutors (IAP) in 1999, other relevant documents adopted by the IAP, as well as the Sopot Declaration of the Prosecutors General of the Visegrad Group[133] of 25 May 2015 concerning the relations between the prosecution services and the police.

Purpose and scope of the Opinion

57. This Opinion aims at putting in place recommendations as regards the role of prosecutors in criminal investigations, taking into account the rights of all parties involved in these investigations (victims, defendants, defence counsel, witnesses, etc.), and at identifying and promoting good working practices between prosecutors and investigators.

Recommendation Rec(2000)19 briefly highlights the relations between prosecutors and investigation bodies, in noting the distinctions among different existing systems in the member States of the Council of Europe.

This issue is essential in the context of the proper administration of criminal justice. One of the basic principles of the rule of law is respect for human rights and fundamental freedoms by prosecutors and investigators at all stages of the investigation.

This implies that:

· prosecutors, when it is within their authority, should ensure that persons affected by an investigation are treated humanely and are able to assert their legitimate rights;

· prosecutors should use all their authority, as far as it is possible within the framework of their competence and powers, in ensuring that the investigative bodies respect the law and follow specific standards of conduct, in order to be accountable before an appropriate authority for any abuse of power or behaviour;

· prosecutors should ensure that the results of the investigation presented to the trial judge reflect the reality of the findings in order not to mislead the court.

This Opinion is limited to investigations in the criminal field and in the context of public prosecution.

II. The role of prosecutors in criminal investigations

Oversight of investigations by prosecutors

In general, prosecutors should scrutinise the lawfulness of investigations at the latest when deciding whether a prosecution should commence or continue. In this respect, prosecutors should also monitor how the investigations are carried out and if human rights are respected.

Where they have the power to do so, prosecutors may give binding instructions, advices, directions or guidelines as appropriate to investigative bodies regarding either the entire course of investigations or specific investigative acts with a view to ensuring compliance with both substantive and procedural rules of criminal law, as well as with rights guaranteed by the ECHR.

With a view to ensuring effective prosecutions, these instructions or guidelines may deal with, inter alia, the evidence that must be obtained, the proper strategy in the development of investigations, the means or tools to be used for the collection of evidence, the facts that must be clarified and proven and measures to be taken during investigations.

Where prosecutors have a supervisory role over investigations, they should ensure that the investigative bodies keep the prosecutors informed of the progress of the investigation of criminal cases, of the implementation of criminal policy priorities that have been assigned to them and of the application of prosecutors’ instructions.

In member States where it is within their competence, prosecutors should:

· strive to ensure that investigations have the sole aim of establishing the truth and clarifying the cases, are conducted in a lawful manner with respect for human rights and fundamental principles proclaimed, in particular, in Articles 2, 3, 5, 6 and 8 of the ECHR and are carried out in due time with objectivity, impartiality and professionalism. When in charge of directing, controlling or supervising the work of the investigators, they should ensure, as far as it is possible within the framework of their competence and powers, that the investigators respect the same principles as well as fundamental rights;

· strive to ensure that the presumption of innocence and the rights of the defence are respected during investigations. Wherever possible, it is necessary, during this phase of investigation, not to disclose publicly the identity of suspects, and to ensure their personal safety and their rights to dignity and protection of their private life;

· in the course of investigations, strive to guarantee the confidentiality of information in order not to jeopardise the progress and effectiveness of investigations;

· during the investigations, in which they are involved, ensure that the personal security and the rights of the parties, witnesses and other participants in the case are guaranteed;

· ensure that victims, and in particular vulnerable persons, are informed about the initiating and the outcome of the investigations by appropriate means, respectful of their rights;

In fulfilling these tasks, prosecutors should perform their duties fairly, consistently and expeditiously, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

Where it is within their competence, prosecutors should also take into account the questions relating to the effective management of resources, including human and financial resources. They should also avoid disproportionate expenses, while always respecting the rule of law and procedural rights.

Situations in which the prosecutors conduct investigations

In member States where prosecutorial investigation is allowed, prosecutors must conduct investigations lawfully, professionally, fairly, expeditiously, to the best of their ability and without prejudice or discrimination against anyone. They should also develop lines of investigation which may be favourable to the defence and gather and disclose evidence in this respect.

Within the framework of their investigative functions, prosecutors should at least have the same rights and obligations as other investigative bodies as well as have at their disposal the means necessary for the accomplishment of their functions.

Situations in which the police or other investigation bodies conduct investigations under the authority of prosecutors

In member States where the police is placed under the authority of the prosecution or where police investigations are supervised by the prosecution services, prosecutors should be vested with effective measures to guarantee that they can fully carry out their tasks in criminal investigations, always in compliance with national and international law. They should ensure that investigations are conducted in the most appropriate and effective way and with a continuous respect for the rule of law and procedural rights.

Such tasks may include;

· ensuring effective implementation of criminal policy priorities;

· giving instructions to police as to when to initiate and how to carry out criminal investigations;

· allocating individual cases to the relevant investigation agency;

· promoting a fruitful and effective co-operation between police and prosecution, and coordinating investigation when it concerns several bodies;

· giving guidance and instructions on matters of the law;

· supervising the legality and quality of investigations;

· carrying out evaluations and control, in so far as this is necessary, of compliance with the law;

· and, where appropriate and in accordance with national law, sanction or promote sanctioning of violations.

In member States where prosecutors supervise investigations, they should be vested with sufficiently broad procedural powers, in order to ensure that criminal investigations are carried out efficiently and in full conformity with the law. In particular, in such member States where prosecutors have the power, within the framework of the national law, to supervise investigations:

· prosecutors should ensure that the investigators respect legal provisions, including those concerning the legality of initiating, suspending and terminating a criminal case, and also take due account of the rights of participants in criminal proceedings, including victims and defence parties. To be able to do so, prosecutors should be duly informed about all important decisions concerning investigations to be made in future and already made, particularly when they involve the possibility of serious limitation of the rights and freedoms of the participants in criminal proceedings (for instance, about the consequences of a reported crime and the main events of the investigations);

· prosecutors should have the power to either approve the adoption of such important decisions by the investigator or to overrule them;

· in order for the rights and lawful interests of participants in criminal proceedings to be duly respected, prosecutors should also inform, where appropriate, these participants about their right to appeal before a superior prosecutor or a court;

· prosecutors should observe confidentiality of the investigation. They should not allow disclosure of confidential information received from investigators or third parties, unless disclosure of such information may be necessary in the interests of justice or in accordance with the law;

· prosecutors should have the possibility to get access freely and at any time to all materials relating to criminal investigation available to investigators in order to enable efficient timely supervision of the investigation, if necessary, to avoid the loss of important evidence, to ensure security and access (if the national law so permits) to the case-file for the victims, or to prevent the possibility of escaping from justice of those who should be prosecuted;

· prosecutors should exercise supervision over investigations on a regular basis, namely with a view to preventing illegal or ungrounded detention or imprisonment of persons;

· prosecutors should strive to protect, according to international and national law, all persons deprived of liberty, from improper treatment on the part of officials and other persons, and they should consider carefully the claims filed in connection therewith;

· prosecutors should have legally established competences enabling them not only to assess the lawfulness of investigators’ actions and the fulfilment of their instructions, but also to prevent as far as possible violations of the law by these investigators;

· whenever investigators use unlawful investigative methods resulting in serious violations of human rights, prosecutors should have the right to initiate criminal prosecution against such investigators, or to apply before the competent authorities for them to initiate criminal prosecution or disciplinary proceedings towards these investigators.

· prosecutors should have the right to freely visit a suspect/defendant held in custody.

Situations in which the police is independent as regards conducting investigations

In member States where the police or other investigation authorities investigate independently, the legal systems should have in place appropriate supervisory procedures to ensure the lawfulness of investigations and to ensure that the police and other investigative authorities act professionally, fairly and expeditiously.

In any case, prosecutors should be able to take effective measures to promote suitable and functional co-operation with investigative bodies.

III. The role of prosecutors concerning respect for the rights of the defence during investigations and investigation techniques

A. Respect for the principle of the presumption of innocence and the rights of the defence

76. According to the case-law of the Court[134], every criminal process, including the procedural aspects, must be of an adversarial nature and ensure equality of arms between the prosecution and the defence. This is a fundamental aspect of the right to a fair trial. Moreover, Article 6(1) of the ECHR requires that the prosecution authorities disclose,during the trial phase, to the defence all relevant evidence in their possession, for or against the accused person. The right to a fair trial includes the principle of equality of arms and also presumes the principle of adversarial procedure. It includes the right to full disclosure, in a timely manner, of all relevant material in the prosecutor’s possession. This presumes the availability of all elements of proof and an obligation by the prosecutor or other investigative authority to look for evidence of both guilt and innocence.

Prosecutors, regardless of their role in the investigations, should ensure that their actions are in accordance with the law and in particular, respect the following principles:

· equality before the law;

· impartiality and independence of prosecutors;

· the right of access to a lawyer;

· the right of the defence to full disclosure of all relevant material;

· the presumption of innocence;

· equality of arms;

· the independence of courts;

· the right of an accused to a fair trial;

Respect for the presumption of innocence is binding not only for the courts but also for all other state bodies. Prosecutors and investigation bodies should refrain from any statement or attitude that would contribute to violating this principle.

The principle of equality of arms requires, as a part of fair criminal procedure, that the person who is the subject of an investigation should be able to present his/her case before a court without being placed at a substantial disadvantage vis-à-vis the opposing party. A fair balance should therefore be maintained between the parties allowing them to discuss any element of the investigation.

Respect for the adversarial principle in criminal matters requires distinguishing between the investigation phase and the phase of trial. Concerning the first phase of investigation, the adversarial principle is not absolute. Rather, it is an anticipation of it: it consists of a search for evidence to establish whether there are sufficient grounds to proceed with an indictment and, during this phase, the procedure can be confidential[135].

However, Article 6(3)(a) of the ECHR sets out the right of every accused to be informed promptly, in a language they understand and in detail, of the nature and cause of the accusation against them. The accused must be precisely informed of the accusation against him/her, at least from the moment when he/she is arrested. In addition, it is also from that moment onwards that the reasonable time period within the meaning of Article 6(1) starts running. A person who is arrested, detained or deprived of his/her liberty should be informed promptly in writing of his/her rights. Such a notification should be written clearly in a language the person can understand. This notification should, inter alia, include information specifying his/her right:

· to be fully informed of the accusation against him/her;

· to be fully informed of the basis for his/her detention;

· to have access to, and consult effectively a lawyer;

· to translation and/or interpretation.

The obligation to seek out and preserve evidence of guilt or innocence should be interpreted realistically on the facts of each case and the relevance of the evidence should be evaluated.

Evidence relevant to guilt or innocence should, so far as necessary and practicable, be kept, in conformity with national law, at least until the conclusion of the procedure. The fact that evidence is not to be used by the prosecution does not justify its destruction or unavailability or the destruction of notes or records about it. Where the evidence gives rise to a reasonable possibility of rebutting the prosecution case, it should be retained.

Where the prosecutor is aware of material relevant to the issue of innocence of an accused and/or which might materially assist the defence, the prosecutor should disclose that material. If the prosecutor refuses or is not able to do this, this may result in an acquittal or discontinuation of the prosecution.

At all times, prosecutors should conduct themselves professionally, in accordance with the law, the rules and ethics of their profession and the Code of Ethics for Prosecutors (the “Budapest Guidelines”[136]). They should strive to attain the highest standards of integrity and ensure that their conduct is above reproach.

B. Special techniques of investigations

Prosecutors should adjust their activity to the fast evolution of criminality. Within this framework, they should make use of the new techniques available as far as they are in conformity with the law, and pay due attention to the need for specialisation and multidisciplinarity.

Prosecutors should take into account that the use of some of such techniques can also result in restrictions or constraints on the rights of persons: e.g. the use of informants, under-cover-agents, the recording of meetings, the surveillance and interception of telephone calls, emails, internet communication, the use of intrusive computer programmes, G.P.S. or scanners, etc.

In member States where prosecutors are involved in investigations which use special techniques that are particularly intrusive to private life, they should not resort to such investigative measures except in serious cases, where a serious offense has been committed or prepared, and only if other measures are not usable or appropriate, and “to the extent that this is necessary in a democratic society and is considered appropriate for efficient criminal investigation and prosecution” (Rec(2005)10, paragraph 2). Prosecutors should respect, in this context, the principles of proportionality and impartiality, the fundamental rights of individuals as well as the presumption of innocence.

In order to achieve an appropriate balance in using these techniques, member States should:

· take appropriate legislative measures to permit and define the limits concerning the use of evidence obtained through the use of these new techniques;

· take appropriate measures to meet the requirements imposed by the ECHR and principles emanating from the case-law of the Court (judicial control, respect for legality, etc.);

· provide proper training for prosecutors and for the staff of the prosecution services, in order to enable prosecutors to make efficient use of new techniques and to facilitate criminal investigations.

IV. Measures for strengthening the role of prosecutors in the investigation

International co-operation

Prosecutors should promote international co-operation and mutual trust in the field of criminal proceedings, taking into account the necessity to respect the sovereignty of States and to strictly comply with relevant provisions of international and national law.

States should promote direct contacts between prosecutors from different states or international organisations within the framework of international conventions and agreements in force with a view, in particular, to sharing experiences through specialised networks, seminars and workshops.

Prosecutors should consider international requests for extradition and legal assistance in criminal matters, including freezing, seizure and confiscation, within the scope of their jurisdiction, paying the same attention to them as they would do to their own or to similar cases at national level.

Co-operation of prosecutors should be improved by using, whenever possible, new information technologies, particularly for the transfer and execution of requests for legal assistance, as well as by regularly upgrading the quality of their requests and their translation into other languages.

A more extensive specialisation of prosecutorial activities in the field of international co-operation should be promoted, namely by appointing specialised prosecutors to fulfil this task or by establishing relevant structures concerned with issues of international co-operation, which would render assistance to prosecutors.

It is necessary to ensure special training for prosecutors as well as for other participants in the procedure in international legal co-operation issues, to ensure they have the necessary skills to draft extradition and mutual legal assistance requests, as well as to consider and respond to similar requests from other countries. Such training should encompass the learning of foreign languages as well as an updating of international and comparative law, thus promoting and facilitating effective networking among participants from different countries.

Where prosecutorial bodies are assigned as central national authorities for international co-operation in criminal matters, they should be authorised, within the framework of their national legislation, to execute foreign requests directly and/or forward them for execution to other competent authorities with the right to supervise their execution.

In this respect, due consideration should be given to the establishment of contact points in each country, allowing for direct communication between competent authorities of these countries, with regular meetings among them in order to discuss issues of common interest. These contact points should have strong skills in international cooperation matters and should understand and speak foreign languages. The provision of “liaison magistrates” can be useful for the same purposes and should be encouraged.

Interaction with mass media

Prosecutors should be aware of the need to seek efficient interaction with mass media in line with the principles of publicity and transparency in their work, increasing public confidence, spreading information about their functions and powers, and thereby contributing to fostering a better knowledge of their work[137].

Information provided by prosecutors to mass media should be clear, reliable and precise and should not undermine the integrity and effectiveness of the investigation or the personal security of prosecutors. It should not refer to particular prosecutors, but impersonally to the action of the prosecution office. Prosecutors should treat the media without any discrimination.

This information should also be in compliance with freedom of expression, protection of personal data, confidentiality of investigations, dignity, the principle of presumption of innocence, ethical norms with respect to other participants in the proceedings, as well as legal norms regulating and restricting disclosure of specific information.

Prosecutors may also provide the general public with information, through mass media, with a view to promoting the prevention and/or prosecution of crimes, as well as to promote a better understanding of the functioning of criminal proceedings, either at national or international level.

To be able to better inform the general public in proper time about their activity, prosecutors should make use of information technologies, including the setting-up, due management and regular updating of web-sites.

103. Specific training for interaction with mass media should be provided in situations where prosecutors have direct and regular contact with mass media professionals with a view to providing information of quality and rigour. Such training could be carried out, whenever necessary, with the assistance of experts and journalists.

Training

A high level of professional qualification of prosecutors, in particular within the framework of investigations, is a necessary condition for the efficient work of the prosecution service and for improving confidence of the public in it. That is why prosecutors should be educated accordingly and take initial and on-going training courses regarding their specialisation.

LIST OF RECOMMENDATIONS

a. Member States should clearly define the rights and obligations of prosecutors and investigation bodies in the framework of criminal investigations.

b. In general, prosecutors should scrutinise the lawfulness of investigations at the latest when deciding whether a prosecution should commence or continue. In this respect, prosecutors should also monitor how the investigations are carried out and if human rights are respected.

c. In carrying out this task, prosecutors should have the legal, financial and technical means to verify the lawfulness of investigations and to react to any violation of the law.

d. Investigations should always be carried out impartially and include an obligation on investigators to seek out and preserve evidence relevant to both guilt and innocence.

e. Prosecutors should present all available credible evidence to the court and disclose all relevant evidence to the accused.

f. Prosecutors should always respect the rights of the accused, victims, witnesses or persons otherwise involved in the proceedings.

g. Prosecutors and investigative bodies should cooperate and exchange all information necessary for the exercise of their functions.

h. Prosecutors and investigative bodies should fulfil their tasks in the most effective and expeditious manner, especially when the case concerns detainees, and should respect the principle of proportionality in using the means of investigations.

i. Prosecutors and investigative bodies should have proper training, as appropriate, both as regards the law and the most modern techniques of the investigation.

j. Prosecutors and investigative bodies should develop the most efficient international relations and cooperation.

k. Prosecutors should seek to develop public confidence by providing information about their functions and powers, and thereby contributing to fostering a better knowledge of their work while at the same time respecting fundamental rights and principles such as the presumption of innocence and the right to a fair trial.

Opinion No.11 (2016)

of the Consultative Council of European Prosecutors

to the Committee of Ministers of the Council of Europe

The quality and efficiency of the work of prosecutors, including when fighting terrorism and serious and organised crime adopted by the CCPE at its 11^th plenary meeting

I. INTRODUCTION

1. In accordance with the terms of reference entrusted to it by the Committee of Ministers, the Consultative Council of European Prosecutors (CCPE) prepared an Opinion on the quality and efficiency of the work of prosecutors, including when fighting terrorism and serious and organised crime. In member states, where prosecution services perform other functions outside criminal justice, the principles and recommendations of this Opinion apply also to these functions.

2. In a growing number of member states of the Council of Europe, the public service in general, and institutions in the field of criminal justice including prosecution services in particular, receive, to an increasing extent, attention from the public, politicians and the media. Therefore, prosecution services need to demonstrate that they fulfil their duties with an utmost and up-to-date professionalism.

3. The objective of this Opinion is to determine how prosecution services can fulfil their mission with the highest quality and efficiency. It also looks into how they should organise their work in a modern manner using all the latest technical methods and means, and how the efficiency and quality of their work can be measured and evaluated. The second part of the Opinion will address how prosecution services can meet the growing demands for quality and efficiency also when facing specific challenges in the fight against terrorism and serious and organised crime.

4. The CCPE considers that prosecution services are complex public organisations. Therefore, in order to respond adequately to increasing needs, social challenges and pressure for rendering better public services, the overall legal, organisational and technical framework as well as the necessary financial and human resources are of paramount importance.

5. Member states of the Council of Europe have different legal systems including prosecution services. The CCPE respects each of them in their diversity. Therefore, not all the elements discussed in this Opinion may concern all member states. However, they mostly do address the concerns of prosecutors to work as efficiently as possible and with a high quality and strict respect for the law and human rights.

6. This Opinion has been prepared on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR) as well as other Council of Europe instruments including: European Convention on Mutual Assistance in Criminal Matters of 1959, European Convention on the Suppression of Terrorism of 1977, European Convention on Cybercrime of 2001, Convention on the Prevention of Terrorism of 2005 and its Additional Protocol of 2015, Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 2005, Convention on Action against Trafficking in Human Beings of 2005, Recommendation Rec(2000)19 of the Committee of Ministers on the role of public prosecution in the criminal justice system and Recommendation Rec(2012)11 of the Committee of Ministers on the role of public prosecutors outside the criminal justice.

7. This Opinion is also based on the Committee of Ministers Guidelines on human rights and the fight against terrorism of 2002, Recommendation Rec(2005)10 of the Committee of Ministers on “special investigation techniques” in relation to serious crimes including acts of terrorism, and previous CCPE Opinions, in particular No. 1(2007) on ways to improve international co-operation in the criminal justice field, No. 7(2012) on the management of the means of prosecution services, No. 9(2014) on European norms and principles concerning prosecutors, including the “Rome Charter”, No. 10(2015) on the role of prosecutors in criminal investigations.

8. The following United Nations instruments have also been taken into account: Convention for the Suppression of Terrorist Bombings of 1997, Convention for the Suppression of the Financing of Terrorism of 1999, Convention against Transnational Organized Crime of 2000, Convention against Corruption of 2003.

9. The CCPE has also considered the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, adopted by the International Association of Prosecutors (IAP) in 1999.

10. To prepare this Opinion, the CCPE analysed in particular the replies by 30 of its members to the questionnaire drafted for this purpose by the Secretariat (the compilation of replies is available on the CCPE website: www.coe.int/ccpe).

II. QUALITY AND EFFICIENCY FACTORS OF THE WORK OF PROSECUTORS

A. External environment

11. The quality and efficiency of the work of prosecutors depend not only on their talent and skills, but are also significantly affected by external factors which are mostly out of control of prosecutors: legislative and court decisions, resources made available and expectations from the society. Consequently, these factors merit a careful consideration particularly from the point of view of their impact on the quality and efficiency of prosecutorial work.

1. Legal framework, national traditions

12. Respect for the rule of law is an obligation for all Council of Europe member states. Also, a number of quality requirements have been laid down in the ECHR. Thus, Article 6 sets important requirements for any national legal framework to ensure the quality of criminal justice, such as independence of the judiciary, reasonable time, accessibility and publicity[138]. Since every prosecution service carries out its functions within a legal framework, legislation is a paramount precondition for the quality and effectiveness of its work. Laws and, mostly in common law systems, judgments influence the type and volume of cases brought by prosecutors before the courts, as well as the ways in which they are processed. This framework should be clear and simple to operate, ensuring that national systems are not flooded with cases, for instance by establishing alternative ways of dispute resolution. On the other hand, poor drafting or too frequent changes in the legislation or jurisprudence may prove to be serious barriers for well-reasoned and convincing prosecutorial decisions.

13. A clear and simple legal framework facilitates access to justice and contributes to making it efficient, for instance by helping to reduce the heavy caseload, particularly within the criminal justice system, using public resources more efficiently and productively, as well as allowing for allocation of more time and financial resources for offences that severely disturb public order, in particular for offences of terrorism and serious and organised crime. Likewise, national legislation and justice systems should take into consideration technological development, promote easy access of prosecution services to databases and other relevant information and provide the basis for improving the quality of their work.

14. Political systems and legal traditions also have direct impact on the work of prosecutors. This includes the status of the prosecution services and, in particular, their independence from the executive power. Furthermore, the current security situation in Europe where countries face increasing threats of terrorism and serious and organised crime, should lead to national criminal policies aiming to improve the quality and efficiency of prosecutors’ work.

15. Although international cooperation has been steadily improving in the past decades, sometimes there are delays in answering requests from other states that may seem to be unjustified. This hinders efficient extradition and other requests for assistance and therefore undermines the efficiency of prosecutors’ work and the court proceedings in the requesting states. States should thus continue to strive for immediate transnational cooperation in criminal cases, on a basis of mutual trust.

2. Resources

16. The availability of financial and other resources in member states has a direct impact on the quality and efficiency of prosecutors’ work. In this context, the CCPE underlines in particular the need to ensure adequate human and technical resources, proper and consistent training, as well as the scope of the social security packages provided to prosecutors that should be commensurate with the importance of their mission. The situation in member states shows furthermore that efficiency can be increased by a certain level of autonomy (in particular regarding the budget) of prosecution services in most areas concerning management.

17. Prosecutors should thus have adequate human, financial and material resources in order to be able to consider and examine all relevant matters. The assistance of qualified staff, adequate modern technical equipment and other resources can relieve prosecutors from undue strain and therefore improve the quality and efficiency of their work.

3. Impacts from the public

18. Prosecutors need receiving quickly reliable and comprehensive information from all relevant players in a society. Therefore, relations with other actors within and outside the justice system (e.g. police and other state authorities, lawyers, NGOs) play a vital role in the capacity of prosecutors to quickly take well-founded decisions based on an effective exchange of relevant information at national and international level. For this purpose, prosecutors need coherent and sufficient legal norms and procedures allowing to gather information needed for taking qualified decisions in ways proportionate to the interests at stake.

19. Member states should take measures in line with the rights set out in the ECHR which can help to strengthen the public trust in prosecution services by responding to growing demands from the media and thus working more transparently. For prosecution services, the use of modern information structures and techniques is indispensable for delivering quick and accurate information to the public.

20. The leaking, in criminal cases, of sensitive information to the media may not only reduce the efficiency of the investigation and infringe the victims’ rights, but also create risks for the presumption of innocence and the right “not to be labelled”. To prevent this, the access of unauthorised persons to sensitive information should be inhibited. False or biased news on investigations might betray the public trust and generate doubts as to the independence, impartiality and integrity of the prosecution system or the courts. Therefore, proper communication between the prosecution services and the media should be established, to help avoiding the publication of false or biased news or minimising the negative effects thereof.

21. Everyone should have a right to complain or appeal against a measure taken by a prosecutor. To increase the quality and accountability of prosecutors’ decisions, an effective and impartial complaint mechanism should be established and the grounds and the results of the complaints should be analysed, not only from the point of view of the right to a fair trial, but also to promote the quality of prosecutors’ work through eliminating their shortcomings and preventing failures.

4. Undue external influence

22. Prosecutors should exercise their functions free from external undue influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

B. Internal environment

1. Strategic vision

23. The quality and efficiency of the work of prosecutors are also significantly affected by internal factors. The management of the prosecution services should provide strategic leadership. A strategic plan including professional objectives and management of human and material resources should guide the prosecutors’ work. It can provide for internal measures to improve quality and efficiency through adequate management of human resources and cases, as well as targeted activities to that effect.

2. Management of human resources: selection, recruitment, promotion and training of prosecutors

24. To promote quality, it is indispensable that the selection, recruitment, promotion and relocation of prosecutors be based on clear and predictable criteria laid down in law or internal guidelines in written form.

25. The quality of prosecutorial decisions or other actions depends, among other factors, on permanent training of the prosecutors involved. The CCPE is of the opinion that the heads of prosecution offices and/or other competent institutions (e.g. judicial training institutions) should be responsible for an active training policy, including self-education, within their institutions that provides for increasing quality and efficiency in the work of prosecutors.

26. Prosecutors should have, at every phase of their career, a continuous training programme in order to maintain and improve their professional skills[139]. Such training should also include information technology, ethics and communication skills[140], as well as management issues in general and case management in particular, and be available for every level of the prosecution service. Specific themes should be addressed in depth (providing also common training with other institutions, when useful) to improve professional skills needed to face constantly evolving challenges (such as terrorism, as specified below)[141].

27. In several previous Opinions, the CCPE emphasised the importance of promoting specialisation of prosecutors, especially through participation in regular training sessions[142], professional events and conferences. Gaining more advanced knowledge through such participation and acquiring other qualifications may lead to promotions, advancement or better remuneration for prosecutors.

28. Principles and guidelines on issues such as time management, adequate methodology or increased co-operation with other actors of the justice administration system should aim at facilitating everyday work and thus enhancing the quality and efficiency of prosecutorial work.

29. Integrity, standards of good behaviour, both professional and personal, and, in member states where they exist, legal provisions on ethics or codes of ethics for prosecutors should be part of their regular training.

3. Management of prosecution services

a. Organisation of the work of prosecution services: responsibilities, administrative divisions, distribution of competence, etc.

30. The efficiency and quality of prosecutors’ work call, in general, for clear and adequate organisational structure, responsibilities and competencies to administer human and material resources in line with the actual criminal or social situation in the area of their jurisdiction[143]. On the other hand, when facing new criminal, sociological, economic and international challenges, the structure and working mechanisms of the prosecution services should be flexible enough to respond in an adequate, sufficient, quick and legal way.

31. In particular, establishment, where appropriate, of specialised units in the framework of prosecution services (e.g. prosecutors dealing with cases of terrorism, narcotics, economic crimes, environment protection, and working in the area of international co-operation) should be considered.

32. Furthermore, prosecution services should organise proper analytical and methodological work with a view to enhancing the quality and efficiency of prosecutors’ work.

33. In member states, dissemination of best practices for dealing with certain types of crimes as well as proper distribution of cases and effective use of information technology, including for the management of single cases, may increase efficiency and ensure better quality. Heads of prosecution services/offices and/or other competent institutions, in particular, should be responsible for promoting the use of such management tools and for sharing the knowledge of best practices within their offices.

b. Ethical rules

34. In most member states, to enhance quality and efficiency, prosecution services evaluate the integrity of prosecutors and other employees over a mid-term or long-term period. This is done in different ways. Some systems have laid down legal or general standards, others have adopted a code of ethics. Others, still, take oaths from newly appointed prosecutors. They commit to personal and professional qualities, impartiality and fairness, integrity and ethical impeccability. The CCPE has previously recommended that “codes of professional ethics and of conduct, based on international standards, should be adopted and made public”[144], having emphasised that “prosecutors should adhere to the highest ethical and professional standards, always behaving impartially and with objectivity”[145].

35. The main aim of a code of ethics would be to promote those standards recognised as necessary for proper and independent work of prosecutors. If prosecution services are to adopt codes of ethics, these should, as mentioned above, be in line with adopted common international standards such as laid down in Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system (hereafter Rec(2000)19)[146], the European Guidelines on ethics and conduct for public prosecutors of the CPGE, 31 May 2005 (Budapest Guidelines), CCPE Opinion No. 9(2014) on European norms and principles concerning prosecutors (Rome Charter) quoted above, and other relevant international instruments.

c. Measuring the performance of the prosecution services (quantitative and qualitative)

36. In a large number of member states, there are statistics available to measure the quantitative workload, the performance of the prosecutor’s office and the criminal situation in the area of its jurisdiction. In many member states, the evaluation of prosecutors is used to enhance the quality and efficiency of the prosecution service.

37. Prosecution services should determine indicators and follow-up mechanisms in a transparent way, primarily to motivate prosecutors to strive for higher levels of professional work. Internal follow-up within prosecution services should be regular, proportionate and be based on the rule of law.

38. The CCPE considers that quantitative indicators as such (number of cases, duration of proceedings, etc.) should not be the only relevant criteria to evaluate efficiency, either in the functioning of the office or in the work of an individual prosecutor. Similarly, it has been stated by the Consultative Council of European Judges (CCJE) “that "quality" of justice should not be understood as a synonym for mere "productivity" of the judicial system”[147].

39. This is why qualitative indicators, such as proper and thorough investigation (when this is under the prosecutor’s competence), appropriate use of evidence, accurate construction of the accusation, professional conduct in court, etc., should also be taken into consideration as a way to complement indicators of a quantitative character. The desirability for speedy prosecutions should also take into account the safeguards provided by Article 6 of the ECHR[148].

40. Therefore, as the real and final objective, legal systems should be able to provide for a system of evaluation capable of assessing both quantitative and qualitative indicators of prosecutors’ work which respects the essential principles of justice, in line with the ECHR and other international instruments.

41. The special nature of terrorism and serious and organised crime makes it even more necessary to follow and respect the above-mentioned approach. In those cases, it will also be necessary to take into account the safeguards provided in CCPE Opinion No. 10(2015) on the role of prosecutors in criminal investigations, in particular when special investigation techniques are being used[149], due to the risk of significant human rights restrictions that they entail.

d. Evaluating the work of individual prosecutors (quantitative and qualitative)

42. Evaluation of prosecutors and their work may be a useful strategic tool in order to improve skills necessary for confronting the evolving demands for quality, efficiency and professionalism. Individual evaluations may also provide important input for developing the most relevant training for prosecutors at all levels.

43. Responses to the questionnaire by members of the CCPE show that there are two types of evaluation used: formal and informal. The formal evaluation is made within a fixed timeframe (e.g. every 3 or 5 years). It is governed by a special procedure and focuses on specific skills to be evaluated. Sometimes, it is combined with a rating system which allows for comparison with other colleagues and for a quicker promotion. Its results are open for judicial review when they are not accepted by the evaluated prosecutor. The informal evaluation is more or less a discussion to collect and give information about how to improve the quality and efficiency of the prosecutor’s work (e.g. drafting an understandable accusation, ability for team working, avoiding violation of standards, etc.) or in a more strategic manner, whether for instance prosecutors have skills to fulfil their duties. The aim of both types of evaluation of the prosecutors’ work should be to examine the development of skills and working capacity, as well as to envisage promotion and – in some countries – incentives and awards, or generally to prevent disorder and misconduct, avoiding potential disciplinary measures.

44. The CCPE recommends that the evaluation of prosecutors’ work be transparent and foreseeable, having been based on clear and previously published criteria, both as regards substantive and procedural rules.

45. Transparent and foreseeable evaluation means for the evaluated prosecutor to be able to discuss the results of the evaluation, or, where appropriate, compare the results of a self-evaluation with the evaluation conducted by the superior or by the person responsible, if different, and to submit them for review. The results of the evaluation should not be published in a way that may infringe the personal integrity and honour of the evaluated prosecutor.

46. Evaluation should be conducted on the basis of equal criteria at the same level within the prosecution service. Like in the case of measuring the overall performance of the prosecution service, the CCPE considers that defining quality of prosecutors’ work should contain both quantitative and qualitative elements, such as the number of opened and closed prosecution cases, types of decisions and results, duration of prosecutorial proceedings, case management skills, ability to argue clearly orally and in writing, openness to modern technologies, knowledge of different languages, organisational skills, ability to cooperate with other persons within and outside the prosecutor’s office.

4. Management of cases

47. A high quality decision or other relevant action by a prosecutor is one which reflects both the available material and the law, and which is made fairly, speedily, proportionally, clearly and objectively. In this respect, it is obvious that prosecutorial actions should, in line with the ECHR and other relevant international instruments, respect therights of victims, their families and witnesses and be balanced with the rights of the defendants, as well as with the public interest in prosecuting crimes. Therefore, prosecutors should seek to carry out their work in accordance with these principles. It is the opinion of the CCPE that prosecution services should support prosecutors’ work by setting out good practices of case management in various fields of prosecutorial competences and duties. Prosecutors’ decisions should further reflect the following elements:

a. Objectivity and impartiality

48. Prosecutors should remain independent in the performance of their functions and exercise them always upholding the rule of law, integrity of criminal justice system and the right to a fair trial. Prosecutors should adhere to the highest ethical and professional standards, should carry out their duties fairly, and always behave impartially and objectively.

49. Prosecutors should provide for equality of individuals before the law without any kind of discrimination, including on the grounds of gender, race, colour, national and social origin, political and religious belief, property, social status and sexual orientation.

b. Comprehensiveness

50. All decisions and actions by prosecutors should be carefully considered by them. They should seek out evidence relating both to guilt and innocence and should ensure that all appropriate lines of enquiry be carried out, including those leading to evidence in favour of the accused or suspected persons. Thus, they should consider if the evidence delivered by the investigation is clear and comprehensive. This does not, however, require an investigator to engage in a disproportionate commitment of resources and should be reasonably and realistically interpreted on the facts of each case. It does not take away from the responsibility of defence lawyers to seek out evidence they consider relevant.

51. Prosecutors should decide to prosecute only upon well-founded evidence, reasonably believed to be reliable and admissible, and refuse to use evidence involving a grave violation of human rights.

c. Reasoning

52. Clear reasoning and analysis are basic requirements of prosecutors’ work. They should fully consider all relevant evidence and examine factual and other issues revealed by the investigation and by the parties. All decisions or actions by prosecutors should reflect such relevant evidence, be in accordance with the law and general guidelines which may exist on the subject. Decisions and actions by prosecutors should be justified in consistent, clear, unambiguous and non-contradictory manner.

d. Clarity

53. All instructions or directives, as well as any official acts given by prosecutors should be clearly understandable by those to whom they are addressed. Where in writing, such instructions and directives should be drafted in a very clear language. In addition, prosecutors should pay particular attention to the format of written instructions and directives so that they can be readily identified.

e. Exchange of information and co-operation

54. Co-operation is essential for the effectiveness of the prosecution service both at national and international levels, between different prosecution offices, as well as between prosecutors belonging to the same office, as well as between prosecutors and law enforcement agencies/investigators. Increasing specialisation of prosecutors is likely to improve the effectiveness of such cooperation.

55. Where prosecutors have an investigative function, they should seek to ensure an effective exchange of information in a due manner among themselves, as well as between themselves and law enforcement agencies/investigators. This should help in avoiding duplication of work, as well as in complementing efforts of different prosecutors and law enforcement agencies in cases which are connected to each other.

56. Where prosecutors do not have such an investigative function, they should, as appropriate, co-operate during investigations with the relevant investigating agency, particularly in furnishing relevant advice and/or guidance.

57. Such co-operation should continue until the end of investigation, with a view to ensuring that all relevant evidence is made available to the prosecutor and disclosed, as appropriate, to the defence.

III. MAJOR CURRENT CHALLENGES FOR QUALITY AND EFFICIENCY IN FIGHTING TERRORISM AND SERIOUS AND ORGANISED CRIME

A. Introduction

58. Most member states of the Council of Europe have observed that serious and serious and organised crimes have become more complex and international. Terrorism has severely hit many countries and is currently a major priority in the work of prosecution services. Illegal migration poses new challenges in this context such as in the areas of terrorism, organised crime and human trafficking.

59. Prosecutors are in the first line to pursue the prosecution of these grave crimes in courts and therefore they exercise an essential role in safeguarding public safety and protecting the rule of law.

B. Fighting terrorism and serious and organised crime at national level

1. Strategy of the fight against terrorism and serious and organised crime

60. In line with UN Security Council Resolution 1566 (2004) concerning threats to international peace and security caused by terrorism, the CCPE considers it as a key duty of prosecutors “to bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts” or serious and organised crime. To fulfil this duty in a qualified and efficient way, prosecutors need to act within a sufficient legal framework, to cooperate with all relevant stakeholders in this field at national and international levels, and to have sufficient human and material resources. New threats of terrorism (financing by serious and organised crime, propaganda, recruitment and training of fighters through the internet) require new responses, new forms of investigation and prosecution techniques and measures, so that prosecutors are able to act with the efficiency and quality increasingly required by the society.

61. The CCPE considers that in the investigation and prosecution of cases of terrorism and serious and organised crime, the independence and impartiality of prosecutors in performing their duties should be particularly safeguarded.

2. Legislative framework to set up for these types of crime, and organisational and financial resources to be made available to prosecutors

62. An inadequate legislative and institutional framework for combating terrorism, serious and organised crime and cybercrime and their financing, including money laundering, allows terrorists, perpetrators in the field of serious and organised crime and their supporters to act without territorial limits and to use their funds to carry out and expand their criminal activities. To be effective, prosecutors depend on the legislation that clearly criminalises any activities which constitute a direct or indirect support to terrorist activities and serious and organised crime, including propaganda for, and recruitment of terrorists, etc. This would allow prosecutors to widen their field of action in the fight against terrorism and serious and organised crime by application of legal instruments set up for severe forms of criminality.

63. The fight against terrorism and, in particular, recruitment of potential terrorists, admission into the organisation, making terrorist propaganda and sharing information with terrorist purposes, training and preparation for terrorist activities and transporting with terrorist purposes would require the need to have at an early stage insider information about terrorist and serious and organised crime. However, disproportionate restriction of fundamental rights and freedoms should be avoided. For the same reason, clear limits and criteria for a proportionate application of the laws should be established, especially when preventive measures are to be brought before the prosecution, and so being subject to regular law of criminal procedure.

3. Investigation techniques and using special tools and means including modern information technologies

64. In most member states, special investigative techniques such as electronic surveillance and undercover operations have been shown to be effective tools to combat terrorism and serious and organised crime. These tools are being made available to prosecution offices, at least in jurisdictions where prosecutors have investigative powers. As they infringe the right of privacy not only of suspects but of other persons not necessarily involved in the relevant criminal situation under investigation, the use of these measures needs thorough and permanent consideration by prosecutors at any stage of the proceedings, so that the outcome of the investigation is accepted by courts and society at large.

65. The retention and preservation, to an appropriate and proportional extent, of traffic and location data by private enterprises and communication companies should be ensured, while respecting the national and international jurisdiction as well as the ECHR and the Council of Europe’s Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 1981.

66. The answers to the questionnaire show that all member states have taken organisational steps to enhance the quality and efficiency of prosecutorial decisions in terrorist and serious and organised crimes cases. Some have specialised units within the prosecution offices, others have transferred this duty to one office for the whole country. The CCPE considers it desirable to concentrate the investigation and prosecution of these criminal cases in special units. This can ensure the necessary professionalism not only in the use of special investigative techniques but in developing the communication to, and with, other stakeholders in this field. This can also ensure special training of the prosecutors involved and allowing them to receive the most modern technical, legal and organisational means available. Specialised police units or experts, which are directly subordinated to and are at the disposal of the prosecution entities, where appropriate, may enhance the quality and efficiency of the investigations combating terrorism and serious and organised crime. Such organisational framework will further help prosecutors to perform their duties with full independence and impartiality, with the necessary respect for the human rights of suspects, and the necessary protection of victims, witnesses and other persons involved in the criminal process.

4. Case management

67. A proper case management methodology can ensure that special investigation techniques that are intrusive are only to be used, subject to the necessary judicial oversight, where there is sufficient reason to believe that a serious crime has been committed or prepared, or is being prepared, by one or more individuals or by an as-yet-unidentified individual or group of individuals.

68. The CCPE underlines that, according to the case-law of the European Court of Human Rights (hereafter the ECtHR), special investigations techniques are only to be used while respecting the principle of proportionality and they should meet minimum requirements of confidentiality, integrity and availability[150].

69. In cases, where the law on terrorism and serious and organised crime provides for the limitation of the rights of individuals in criminal proceedings, prosecutors who decide to apply such a limitation should always consider whether it is justified vis-à-vis the obligation of proportionality, and ensure that evidence is not obtained by means of torture or other cruel, inhuman or degrading treatment, taking as a basis the interpretation of these concepts in the case-law of the ECtHR. Notwithstanding the gravity of the offences of terrorism and serious and organised crime, a qualified and effective case management ensures that prosecutorial decisions are taken with respect for the time limits and are carried out in an objective, impartial and professional manner, respecting the presumption of innocence and the right to defence, as well as the rights of victims of crime. It is part of their competences, that prosecutors should monitor the respect of these fundamental principles and freedoms throughout the proceedings of law enforcement agencies.

70. If victims and witnesses are allowed to preserve their anonymity, the right balance should be preserved with the rights of accused persons.

71. Appropriate protection should be applied towards victims, witnesses and other persons involved in the proceedings including prosecutors themselves and their families.

5. Training

72. Rec(2000)19 indicates that special attention should be paid to continuous training of prosecutors, given the emergence of new forms of crime and the necessity of continuing international cooperation in criminal matters. To carry out the most efficient prosecution, prosecutors have constantly to be updated and specialised in investigating and prosecuting terrorism and serious and organised crime in all their forms. As regards special needs in these fields of criminality, training of prosecutors should in particular focus on the collection and use of evidence at regional, national and international levels, forms and techniques of co-operation of stakeholders, exchange of experience and best practices, understanding of possible violations of human rights, the role of social media in recruitment of potential terrorists, and proper communication with the media.

73. The CCPE is of the opinion that training in this field should also cover relevant national and international legal instruments and the case-law of the ECtHR.

6. Information management (exchange, cooperation)

74. Sharing of evidence or information with relevant units is among the most important elements of fighting terrorism and serious and organised crime. Such information should especially be shared with intelligence and security units, judicial units and, where appropriate, institutions that have been targeted numerous times by terrorist activities. Moreover, if deemed necessary and beneficial, evidence and information regarding terrorists may be directly disclosed to the public as well.

75. One of the possible weaknesses in investigations occurs when the police and other law enforcement and intelligence authorities do not share relevant received information with prosecutors at the right time. To avoid this problem, it could be advisable to promote joint investigations between relevant prosecutorial and police authorities. In member states, where prosecutors have investigative powers, they should coordinate and manage these actions.

76. For the purposes of greater efficiency, besides cooperation and joint resolution of specific problems in the operations, it has been proved to be effective to hold consultative meetings with members of multidisciplinary groups with the participation of prosecutors.

77. The CCPE stresses the necessity to enhance the efficiency of investigating and prosecuting the financing systems of terrorism and serious and organised crime through an intensive, systematic and consistent approach. First of all, there is a need to exchange information through a national data based information system. Furthermore, it is necessary to establish close cooperation between law enforcement agencies and banks, as well as other private legal entities and individuals (insurance companies, brokerages, notaries, lawyers, bailiffs, etc.). Another increasingly important investigative approach is the cooperation with internet service providers to follow virtual or digital money.

C. Fighting terrorism and serious and organised crime at international level

78. International cooperation between prosecutors has become a vital tool due to the increasing number of transborder crimes, in particular severe and serious and organised crime, including terrorism. The international scale of the relations between criminal groups and individuals, facilitated by globalisation and modern means of communications, means that a solely national focus on investigating and prosecuting those crimes, as well as preventing them, is not sufficient.

79. As affirmed by the CCPE, prosecutors should always show willingness to cooperate and “should treat international requests for assistance within their jurisdiction with the same diligence as in the case of their work at national level and should have at their disposal the necessary tools, including training, to promote and sustain genuine and effective international judicial cooperation”[151].

80. Fulfilling these requirements has become particularly urgent today, taking into account the level of attacks and challenges raised by terrorism and international serious and organised crime. Effective international cooperation is unavoidable not only to prevent, but also to investigate, prosecute, prove and legally punish perpetrators of those crimes and to confiscate and recover criminal proceeds. These objectives presume a shared maximum effort to detect and destroy the financing of criminal groups and individuals, their logistical and operational bases, the supply of false documents, weapons and explosives. A great challenge by modern criminals comes from their use of modern means of communication (including social media and networks in the internet), whose monitoring and legal interception require a global action.

81. Direct contacts between national prosecution services are an efficient and adequate way to raise efficiency and quality in cross-border criminal cases, not only by responding to requests for legal assistance, but also by promoting exchanges of information originating from parallel investigations and sometimes by setting up joint investigation teams. The CCPE encourages member states to improve legal basis for direct co-operation and to promote quick and flexible cooperation through the appointment of national focal points on certain types of crime like terrorism or serious and organised crime and/or by appointing liaison magistrates in other countries.

82. Harmonising national legislation with international legal standards, regarding both legal classification of criminal acts and the legality of the proceedings, would significantly ease cross-border cooperation. The same applies to the possible systematisation and harmonisation of national laws. A strong effort should thus be made to overcome obstacles arising from national cultures, which consider autonomy in criminal law as a valuable part of the identity of each national criminal system.

83. In order to improve and facilitate international cooperation, three main aspects should be considered: the legal basis for a smooth and effective cooperation; an adequate implementation of international legal instruments in every participating state; creation of practical and operational instruments.

84. Obstacles to international cooperation should be removed. Not knowing the colleagues on the other side of the border, not speaking the same language, not understanding other cultures in fighting crime cause natural hesitation to work together. For that purpose, international cooperation bodies and networks have been set up, both institutional and informal. Formal network organisations at law enforcement level, such as Europol and Interpol, and at judicial level, such as Eurojust and the European Judicial Network, are swift and efficient ways to develop legal cooperation across borders, bridging gaps between legal systems, cultures and languages. States should provide those organisations with capacities needed for smooth and successful international assistance. Less formal organisations can also be useful in fighting crime across borders, like the International Association of Prosecutors, which contributes to systematising international standards related to the exercise of prosecutorial functions, and to connecting prosecutors all over the world through thousands of contact points (e.g. network of prosecutors dealing with terrorist cases established in 2015, and the network of prosecutors dealing with cybercrime created in 2010).

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RECOMMENDATIONS

1. In order to respond to public demands for transparency and accountability, prosecution services should act strategically with a view to ensuring the highest possible level of quality and efficiency in the work of prosecutors.

2. Since every prosecution service carries out its functions within a legal framework, proper legislation is a paramount precondition for the quality and effectiveness of its work.

3. In order to improve and facilitate international cooperation, including in extradition, legal assistance and recovery of criminal proceeds, three main aspects should be considered: legal basis for smooth and effective cooperation; adequate implementation of international legal instruments in every participating state and creation of practical and operational tools.

4. The impartiality of prosecutors is an important requirement for improving the quality of human rights protection. Therefore, member states should ensure that prosecutors can perform their functions with maximum independence, free from undue influences, inducements, pressures, threats or interference, direct or indirect, coming from any quarter or for any reason.

5. The quality of prosecutors’ work depends also on guarantees provided for the personal safety of prosecutors and their families. In particular, when prosecutors are involved in cases of terrorism and serious and organised crime, prosecution services should take proactive measures for the protection of their lives, health, freedom, physical integrity and property.

6. False or biased news on investigations might betray the trust of the public in the quality of justice and generate doubts as to the independence, impartiality and integrity of the prosecution system and the courts. Therefore, one should achieve an active information policy towards the media and the public.

7. In order to act with the efficiency and quality expected by the public, prosecutors should have adequate human, financial and material resources in order to give appropriate attention to all relevant matters in considering their cases, including specialised units in the framework of prosecution services. Providing them with the assistance of qualified staff, initial and continuous training, adequate modern technical equipment including centralised database systems, and other resources can relieve prosecutors from undue strain and therefore increase the quality of their decisions and the efficiency of prosecution services. All these measures should be encompassed within a mid-term or long-term strategic view.

8. The CCPE considers that standards for defining quality of the work of prosecution services and of prosecutors should contain both quantitative and qualitative elements, such as number of opened and closed prosecution cases, types of decisions and results, duration of prosecutorial proceedings, case management skills, ability to argue clearly in speaking and in writing, openness to modern technologies, knowledge of other languages, organisational skills, ability to cooperate with other persons within and outside the prosecutor’s office.

9. Clear reasoning and analysis are basic requirements for the quality of prosecutors’ work. Therefore, they should fully consider all relevant evidence and examine all relevant factual and other issues revealed by the investigation and by the parties. All decisions or actions by prosecutors should reflect such relevant evidence, be in accordance with the law and general guidelines which may exist on the subject. Decisions and actions by prosecutors should be justified in consistent, clear, unambiguous and non-contradictory manner.

10. Where appropriate and in line with national legislation, prosecution services should publish guidelines for prosecutors setting out in general terms the principles which should guide the initiation and conduct of prosecutions. Such guidelines should set out the factors to be taken into account at different stages of a prosecution, so that a fair, reasoned and consistent policy underpins the prosecution intervention. Prosecution services should determine indicators and follow-up mechanisms in a transparent way, primarily to motivate prosecutors for higher levels of professional work. Internal follow-up within prosecution services should be regular and based on the rule of law.

11. To increase the quality of prosecutors’ work, an effective and impartial complaint system and periodical questionnaires carried out with relevant stakeholders have been shown to be beneficial in terms of identification of possible deficiencies in the system. A control mechanism monitoring the prosecutors’ decisions, especially as regards offences without a complainant or victim, may make it possible to redress possible mistakes made during the investigation and prosecution phases.

12. Qualified and effective case management ensures that prosecutorial decisions are taken with respect for any time limits and are carried out in an objective, impartial and professional manner, respecting the presumption of innocence and the right to defence, as well as the rights of victims of crime. It is part of their competences that prosecutors should also monitor respect for these fundamental rights and freedoms throughout the proceedings of law enforcement agencies.

13. In cases of terrorism and serious and organised crime, member states should take appropriate and proportional measures to allow prosecutors the use of special investigation techniques.

Appendix

List of documents

1. Recommendation Rec(2000)10 of the Committee of Ministers to member states on codes of conduct for public officials, 11 May 2000.

2. Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system, 6 October 2000.

3. Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, 10 July 2003.

4. Recommendation Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, 17 November 2010.

5. Recommendation Rec(2012)11 of the Committee of Ministers to member states on the role of public prosecutors outside the criminal justice system, 19 September 2012.

6. Consultative Council of European Prosecutors (CCPE), Opinion No. 1(2007) on ways of improving international co-operation in the criminal justice field, 30 November 2007.

7. Consultative Council of European Prosecutors (CCPE), Opinion No. 2(2008) on alternatives to prosecution, 16 October 2008.

8. Consultative Council of European Prosecutors (CCPE), Opinion No. 3(2008), on the role of prosecution services outside the criminal law field, 21 October 2008.

9. Consultative Council of European Prosecutors (CCPE), Opinion No. 4(2009) on the relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration.

10. Consultative Council of European Prosecutors (CCPE), Opinion No. 5(2010) on public prosecution and juvenile justice, Yerevan Declaration, 20 October 2010.

11. Consultative Council of European Prosecutors (CCPE), Opinion No. 6(2011), on the relationship between prosecutors and the prison administration, 24 November 2011.

12. Consultative Council of European Prosecutors (CCPE), Opinion No. 7(2012) on the management of the means of prosecution services, 11 December 2012.

13. Consultative Council of European Prosecutors (CCPE), Opinion No. 8(2013) on relations between prosecutors and the media, 9 October 2013.

14. Conference of Prosecutors General of Europe, 6^th session, European Guidelines on Ethics and Conduct for Public prosecutors – “The Budapest Guidelines”, 31 May 2005.

15. Conference of Prosecutors General of Europe, The role of public prosecution in the protection of human rights and public interest outside the criminal law field, Saint Petersburg, 3 July 2008.

16. Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011.

17. UN Commission on Crime Prevention and Criminal Justice, Resolution on strengthening the rule of law through improved integrity and capacity of prosecution services, E/CN.15/2008/L.10/Rev.2, 17 April 2008.

18. General Assembly of the United Nations, Interim Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, A/65/274, 10 August 2010.

19. Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

20. UN Human Rights Council, Interim Report of the Special Rapporteur on the independence of judges and lawyers, A/65/274, 10 August 2010.

21. UN Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012.

22. UN Human Rights Council, Report of the Special Rapporteur on the Independence of judges and lawyers on Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/11/41, 24 March 2009.

23. UN Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/23/43, 15 March 2013

24. UN Human Rights Council, Report of the Special Rapporteur on the Independence of judges and lawyers on Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/8/4/, 13 May 2008.

25. International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors, 23 April 1999.

26. International Association of Prosecutors, Combating use of the internet to exploit children, Best Practice Series No. 1.

27. International Association of Prosecutors, An international survey of the legal framework for and implementation of victim services by prosecutors’ offices, conducted for the International Association of Prosecutors by Heike Gramckow, Ph.D. Susanne Seifert National Center for State Courts Arlington, VA, USA, 2006.

28. International Association of Prosecutors, Declaration on Minimum Standards Concerning the Security and Protection of Public Prosecutors and their Families, 1 March 2008.

29. International Association of Prosecutors, Model guidelines for the effective prosecution of crimes against children, IAP Best Practice Series No. 2, general principles.

30. Submission by the International Association of Prosecutors to the Search Committee for the position of ICC Prosecutor, March 2011.

31. UNODC/IAP Guide on the status and role of prosecutors (2014).

[1] Paragraph 1 of Recommendation Rec(2000)19.

[2] Warsaw, 16 – 17 May 2005 – see documents CM(2005)79 final and CM(2005)80 final.

[3] The CCPE will address the issue of the human rights training for public prosecutors at a later stage.

[4] CCPE(2006)05 Rev final.

[5] See in particular the decisions by the CDPC on international cooperation in the criminal field taken at its 56th plenary meeting (Strasbourg, 18 – 22 June 2007).R

[6] Organised by the Council of Europe, in conjunction with the national anti-Mafia office and Naples University II, and held in Caserta (Italy) on 8-10 September 2000.

[7] 7th session of the Conference of Prosecutors General of Europe (Moscow, 5 - 6 July 2006) organised by the Council of Europe in cooperation with the Office of the Prosecutor General of the Russian Federation on: "The role of public prosecutors in the protection of individuals".

[8] High level Conference of the Ministries of Justice and of the Interior (Moscow, 9-10 November 2006): "Improving European cooperation in the criminal justice field".

[9] Ms Joana GOMES-FERREIRA, Public Prosecutor, General Public Prosecutor’s Office (Portugal). See report in CCPE-BU(2007)12.

[10] Document CCPE-Bu (2006) 06

[11] The conclusions appear in document CPE(2007)Concl1.

[12] Signed in Strasbourg on 23 May 2007.

[13] Resolution (97) 24 on the twenty guiding principles for the fight against corruption, adopted by the Committee of Ministers on 6 November 1997.

[14] United Nations Convention against Transnational Organised Crime, signed at the Palermo Conference of 12-15 December 2000.

[15] Signed at the High level political Conference in Merida (Mexico) on 9 – 11 December 2003.

[16] Adopted on 13 April 2005 during the 91st plenary meeting of the UN General Assembly by Resolution A/RES/59/290.

[17] Established by Council Act of 29 May 2000, on the basis of Article 34 of the Treaty on European Union.

[18] Signed in Chisinau (Moldova) on 7 October 2002.

[19] The expression "judicial bodies" is to be taken here in the broad sense to include judges, public prosecutors and senior law enforcement authorities who are responsible for international judicial cooperation in criminal matters.

[20] Idem as in the footnote above.

[21] Commentary on recommendation 39.

[22] Report CCPE-BU(2007)12, mentioned above.

[23] See above.

[24] See above.

[25] See above.

[26] On 18 June 2007 in his speech opening the 56th session of the European Committee on Crime Problems (CDPC) the Secretary General of the Council of Europe T. Davis suggested reviving this initiative from some ten years ago: “The aim would be to update, make more efficient and bring under a single “roof” all our existing conventions on international co-operation in criminal matters. I know that this is a long-term, ambitious and possibly also controversial project, but I do not think that we can be too ambitious when it comes to the fight against crime”. Such a draft Convention was elaborated several years ago but was put aside at that time.

[27] See in particular paragraphs 43 and 44 of Opinion N° (2003) 4 of the Consultative Council of European Judges (CCJE).

[28] See in particular paragraphs 7, 8 and 11 of Opinion N° (2006) 9 of the Consultative Council of European Judges.

[29] "Given that the human factor is crucial in improving and making full use of international co-operation, the Conference, drawing attention to the importance which Recommendation Rec(2000)19 affords the training of prosecutors, strongly emphasises that appropriate training must be provided, in particular in order to keep pace with developments in international crime".

[30] The so-called "Fiches belges" give to the practitioners of mutual judicial assistance all the useful information on the legislation and organisation in the states of the European Union with which an action of judicial cooperation is envisaged.

[31] See above.

[32] See paragraph 29 of this Memorandum.

[33] See paragraph 3.

[34] Terms of reference adopted at the 1019th meeting of the Ministers' Deputies (27 February 2008).

[35] Approved by the Committees of Ministers at the 981^st meeting of the Ministers Deputies on 26 November 2006.

[36] See in particular the Resolution N°1 adopted during the 27th Conference of the European Ministers of Justice (Yerevan 12 – 13 October 2006).

[37] 2001/220 JHA.

[38] See para 36 of the Explanatory Memorandum.

[39] See the Recommendation N° R(85)11 of the Committee of Ministers on the position of victim in the framework of criminal law and procedure.

[40] The rule of law and respect for human rights constitute basic underlying principles for public prosecutors as “…public authorities who, on behalf of society and public interest, ensure the application of the law where the breach of law carries a criminal sanction taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system. The Recommendation does not deal expressly with prosecutors’ non penal tasks, but article 1, as stated in the explanatory memorandum, implicitly recognise that „prosecutors can have such missions and the explanatory memorandum clearly states that „prosecutors may also in some countries be assigned other important tasks in the fields of commercial or civil law, for example”.

[41] The Framework Overall Action Plan for the Work of the CCPE did not ignore this situation and it took into account that “The functions of the public prosecutors in Europe vary considerably due to differences in their status and role in the justice systems of Council of Europe member states... possible functions of public prosecutors could be addressed, either by undertaking a study on or an enquiry into their exercise (powers and limits in law and practice) in Council of Europe member States, or by the drafting of an opinion ( e.g. on the need to elaborate guidelines or standards on their exercise)[41]”.

[42] See CCPE (2006)05 rev final. Terms of Reference of the CCPE for 2007-2008, see CCPE (2006)04 rev final.

[43] Ibid. See also CPE (2008)3.

[44] Budapest Conference: „The Conference again underlined the variety of public prosecution systems in this field, resulting from different traditions in Europe”, see CPGE (2005)Concl.

[45] See e.g. the cases Brumarescu v Romania (28342/95), Nikitin v Russia (50187/99), Grozdanoski v FYR Macedonia (21510/03), Rosca v Moldova (6267/02), LM v Portugal (15764/89), P. v Slovak Republic (10699/05).

[46] Text adopted by the Standing Committee acting on behalf of the Assembly on 27 May 2003.

[47] See doc. CM/AS(2004)Rec1604 final, 4 February 2004.

[48] The CCPE also considered the working documents and conclusions of several sessions of the Conference of Prosecutors General of Europe (CPGE), such as the 4^th (Bratislava, Slovak Republic, 1-3 June 2003) where the issue was first proposed for discussion at the following conference; the 5^th (Celle, Lower Saxony, Germany, 23-24 May 2004) conducting a first examination of the topic; the 6^th (Budapest, Hungary, 29-31 May 2005) where a first report on the topic was discussed, and the issue was forward to further considerations; the 7^th Conference (Moscow, Russian Federation, 5-6 July 2006) and the Conference of Prosecutors General of Europe (CPE), held in Saint Petersburg (Russian Federation, 2-3 July 2008) entirely devoted to this issue

[49] Celle Conference, see CPGE (2008) Concl.

[50] See doc. CPGE (2004) Concl.

[51] See doc. CPGE (2005)02.

[52] See CPGE (2005) Concl.

[53] See doc. CPGE (2006), 6 July 2006, para 7.

[54] Saint Petersburg Conference, see CPE (2008) 3.

[55] The questionnaire considered types of non penal competencies, their background, role of prosecutors, effective use and most important ones of these competencies, reforms envisaged, special organizations of prosecution offices, special powers and possible decision-making role of prosecutors, relevant case-law of the European Court and of the Constitutional Courts of Member States.

[56] See the report by Assoc. Prof Andras Zs.Varga in CCPE-Bu (2008) 4 rev.

[57] See doc. CPE (2008)3, para 8.

[58] See Resolution 17/2 „Strengthening the rule of law through improved integrity and capacity of prosecution service” adopted by the UN Commission on Crime Prevention and Criminal Justice (UN doc. E/2008/30) and the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors approved by the International Association of Prosecutors in 1999 and annexed to that Resolution.

[59] See the Model Law on Prosecution Service adopted by the Inter-Parliamentary Assembly of the CIS Member States on 16 November 2006.

[60] Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, France, FYR Macedonia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Moldova, Monaco, Montenegro, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Slovak Republic, Slovenia, Spain, Turkey, Ukraine.

[61] Albania, Austria, Azerbaijan, Denmark, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, Moldova, San Marino, Slovenia.

[62] Estonia, Finland, Georgia, Iceland, Malta, Norway, Sweden, Switzerland and in the judicial systems of the United Kingdom.

[63] See CCPE-Bu (2008)4rev.

[64] The principle of res iudicata is not an absolute one, as it is stated in some judgements of the ECHR, there may be some exemptions from this principle provided for by law (see case Ryabykh v. Russia (Application No. 52854/99), Pravednaya v. Russia (Application No 69529/01), Sergey Pettrov v. Russia (Application No 1861/05).

[65] Saint Petersburg Conference, see: CPE (2008) 3, see also the contributions of the Secretary General Terry Davis and the Commissioner for Human Rights Thomas Hammarberg at this Conference (www.coe.int.ccpe).

[66] Saint Petersburg Conference, see CPE(2008)3.

[67] This Declaration is accompanied by an Explanatory Note. This Declaration has been jointly drafted by the Working Groups of the CCJE and the CCPE in Bordeaux (France) and has been officially adopted by the CCJE and the CCPE in Brdo (Slovenia) on 18 November 2009.

[68] See in particular Opinion No.1 (2001) of the CCJE on standards concerning the independence of the judiciary and the irremovability of judges and Recommendation Rec(94)12 on the independence, efficiency and role of judges.

[69] See also the CCPE Opinion N°3 (2008) on the role of public prosecutor outside the criminal law field.

[70] For judges see for example the Opinion No. 3 (2002) of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behavior and impartiality (2002) and The Bangalore Principles of Judicial Conduct (adopted by the UN ECOSOC in 2006) and the Universal Charter of the Judge, adopted by the Central Council of the International Association of Judges on 17 November 1999 in Taipei (Taiwan). For prosecutors besides the UN guidelines on the role of the prosecutors (1990), see the European Guidelines on Ethics and Conduct for Public Prosecutors (The Budapest Guidelines) adopted by the Prosecutors General of Europe on 31 May 2005 at their Conference in Budapest.

[71] See Opinion No. 4 (2003) of the CCJE on appropriate initial and in-service training for judges at national and European levels and Opinion No. 10 (2007) of the CCJE on the Council for the Judiciary at the service of society, paragraphs 65-72.

[72] See Opinion No. 8 (2006) of the CCJE on the role of judges in the protection of the rule of law and human rights in the context of terrorism.

[73] See e.g. the CCPE Opinion N°3 on “the role of public prosecution outside the criminal law field”.

[74] On this issue, see European Court of Human Rights, Olujic v. Croatia, (Application no. 22330/05)

[75] See among others: principle I of the appendix to Recommendation Rec (2003)13 and the corresponding Explanatory Memorandum.

[76] Proposed for judges and for journalists by Opinion No. 7 of the CCJE on justice and society, paragraph 39 (2005).

[77] See e.g. Opinion No. 3 of the CCJE on ethics and liability of judges, paragraph 40 (2003).

[78] See e.g. European Court of Human Rights, Daktaras v. Lithuania (Application no. 42095/98) and Olujić v. Croatia, (Application no. 22330/05).

[79] See terms of reference of the CCPE for 2009-2010 (1044th meeting of the Ministers’ Deputies, 10 December 2008).

[80] Resolution adopted by the 28^th Conference of the European Ministers of Justice (Lanzarote, Spain, October 2007).

^{^[81]} See document CCPE-GT(2010)1REV6.

^{^[82]} See in particular the United Nations legal instruments, including: the United Nations Convention on the Rights of the Child (20 November 1989); United Nations Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 29 November 1985); United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”, 14 December 1990); United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“The Havana Rules”, 14 December 1990). See also United Nations General Comment No. 10 of the Committee on the Rights of the Child on Children’s rights in Juvenile Justice (CRC/C/GC/10, 2007) and the Rules of Procedure and Evidence of the International Criminal Court (9 September 2002), and in particular rules 67 ("Live testimony by means of audio or video-link technology”), 68 (" Prior recorded testimony”), 87 ("Protective measures”) and 88 (" special measures ").

[83] See in particular the normative acquis of the Council of Europe, such as: European Convention on Human Rights, including Articles 6, 8 and 13; Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201) (entered into force on 1 July 2010 regarding the 5 member states); Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice; Recommendation Rec(2006)2 on the European Prison Rules; Recommendation Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures; Recommendation Rec(2009)10 on the integrated national strategies for the protection of children from violence; Programme "Building a Europe for and with children". See also "CommDH/IssuePaper (2009)1”, document of the Commissioner for Human Rights on the theme "Children and Juvenile Justice: proposals for improvements ".

[84] See case-law of the ECHR, in particular: X and Y. v. Netherlands (26 March 1985, no. 8978/80); Bouamar v. Belgium (29 February 1988, no. 9106/80); V. v. United Kingdom (16 December 1999, no. 24888/94) and T. v. United Kingdom (16 December 1999, no. 24724/94); Couillard Maugery v. France (1 July 2004, no. 64796/01); Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (12 October 2006, no. 13178/03); Okkali v. Turkey (17 October 2006, no. 52067/99); Maumousseau and Washington v. France (6 December 2007, no. 39388/05); Yunus Aktaş and others v. Turkey (20 October 2009, no. 24744/03); M.B. v. France (17 December 2009, no. 22115/06) (Request for referral to the Grand Chamber in progress); Salduz v. Turkey (27 November 2008, no. 36391/02,).

[85] See 7th session of the Conference of Prosecutors General of Europe (Moscow, 5 to 6 July 2006) organized by the Council of Europe in cooperation with the Office of the Attorney General of the Russian Federation.

[86] See also the summary analysis of the questionnaire related to the treatment of juvenile offenders (Document PC-CP(2009)04final) and the draft Guidelines of the Committee of Ministers of the Council of Europe, prepared by a group of specialists of the European Committee on Legal Co-operation (Document CJ-S-CH(2011)9).

[87] See United Nations Convention on the Rights of the Child, Article 37.

[88] See The Bordeaux Declaration in Opinion no. 12 (2009) of the CCJE and Opinion no. 4 (2009) of the CCPE on the relations between judges and prosecutors in a democratic society.

^{^[89]}See Opinion No.1 of the CCPE on ways to improve international co-operation in the criminal justice field.

[90] See Opinion No. 2 of the CCPE on alternatives to prosecution.

[91] 1099^th meeting of the Deputies Ministers (23 November 2010).

[92] See the Appendix to this Opinion as well as replies of member States to the questionnaire on the same topic on the CCPE's website: www.coe.int/ccpe.

[93] See in particular Selmouni v. France (n°25803/94), Aksoy v. Turkey (18 December 1996) and Aydın v. Turkey (25 September 1997).

4See in particular Jalloh v. Germany (n°54810/00), Olszewski v. Poland (13 November 2003), Labita v. Italy (n°26772/95), Kantyrev v. Russia (21 June 2007), Orchowski v. Poland (n°17885/04) and Nazarenko v. Ukraine (29 April 2003).

^{^[95]} See in particular Vlasov v. Russia (12 June 2008), Ostrovar v. Moldova (13 September 2005) Enea v. Italy (17 September 2009).

^{^[96]} See in particular Kaya v. Turkey (19 February 1998) and Melnik v. Ukraine (28 March 2006).

[97] See also the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Recommendations No. R(89)12 on education in prison, No. R(93)6 concerning prison and criminological aspects of the control of transmissible diseases including AIDS and related health problems in prison, No. R(97)12 on staff concerned with the implementation of sanctions and measures, No. R(98)7 concerning the ethical and organisational aspects of health care in prison, No. R(99)22 concerning prison overcrowding and prison population inflation, Rec(2003)22 on conditional release (parole) and Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners.

[98] See in particular the International Covenant on Civil and Political Rights (1966), the Standard Minimum Rules for the Treatment of Prisoners (1955), the Guidelines on the Role of Prosecutors (1990), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).

[99] See in particular the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, adopted by the International Association of Prosecutors in 2005.

[100] See paragraph 1 of Recommendation Rec(2000)19 of the Committee of Ministers to the member states on the role of public prosecution in the criminal justice system.

[101] According to the Recommendation Rec(2006)2 (paragraph 4), “Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.” In compliance with the policy and the practices derived from the recommendation, the act to seriously deviate from the law is unacceptable. If such violations of the law are noticed, according to paragraphs 92 and 93 of this Recommendation, action should be taken to put a stop to it (through the prosecutor’s inspections).

[102] 1127^th meeting of the Ministers’ Deputies (23 November 2011).

[103] See the replies of member States to the questionnaire on the CCPE website (www.coe.int/ccpe) under “Preliminary work – preparation of the 7th CCPE opinion”.

[104] See in particular Broniowski v. Poland (22 June 2004), §183.

[105] Adopted at the 6th Conference of Prosecutors General of Europe in Budapest in May 2005.

[106] See CEPEJ website at http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp.

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

[108] http://www.coe.int/t/dghl/cooperation/ccpe/opinions/travaux/OP_7_Ref_doc_Network_pros_gen_en.asp

[109] See Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system.

[110] See Resolution (77)28 of the Committee of Ministers of the Council of Europe on the contribution of criminal law to the protection of the environment.

[111] See in particular the Declaration of Minimum Standards Concerning the Security and protection of Public Prosecutors and their Families, adopted by the International Association of Prosecutors in March 2008.

[112] For example, Eurojust, the European Judicial Network, the Network of Public Prosecutors or equivalent institutions at the Supreme Judicial Courts of the Member States of the European Union, the Consultative Forum of Prosecutors General and Directors of Public Prosecution, the Consultative Council of European Prosecutors and the Coordination Council of Prosecutors General of the Commonwealth of Independent States or other prosecutors’ networks which keep appearing day after day.

[113] See “Report on European Standards as Regards the Independence of the Judicial System: Part II – The Prosecution Service” adopted by the Venice Commission at its 85^th plenary session (Venice, 17-18 December 2010).

[114] See the replies of member States to the questionnaire on the CCPE website (www.coe.int/ccpe) under “Preliminary works – relations between prosecutors and the media”.

[115] The Beijing Rules were adopted by the UN General Assembly in its Resolution 40/33 of 29 November 1985.

[116] Concerning Article 10 of the ECHR, the Court has repeatedly stated that the “freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment” (See Lingens v. Austria, no. 9815/82, 8 July 1986; Sener v. Turkey, no. 26680/95, 18 July 2000; Thoma v. Luxembourg, no. 38432/97, 29 June 2001; Maronek v. Slovakia, no. 32686/96, 19 July 2001; Dichand and Others v. Austria, no. 29271/95, 26 February 2002).

[117] The Court has repeatedly underlined the State’s positive obligations under Article 8 of the ECHR to protect the privacy of persons targeted in ongoing criminal proceedings (A. v. Norway, no. 28070/06, 9 April 2009) (see also in this judgment principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information through the media in relation to criminal proceedings).

[118] According to the Court, the presumption of innocence “will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty”, Daktaras v. Lithuania, no. 42095/98, § 41, 10 October 2000.

[119] The Court reiterates that the protection of Article 10 extends to the workplace in general and to public servants in particular (Guja v. Moldova (Grand Chamber), no 14277/04, § 52, 12 February 2008). In the case of Harabin v. Slovakia (no 58688/11, § 149, 20 November 2012), the Court establishes that belonging to the judiciary (in that case, the applicant was the President of the Supreme Court), does not deprive the applicant of the protection of Article 10.

[120] The Court is “mindful that employees have a duty of loyalty, reserve and discretion to their employer. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion (Guja v. Moldova (Grand Chamber), no. 14277/04, § 70, 12 February 2008). Disclosure by civil servants of information obtained in the course of work, even on matters of public interest, should therefore be examined in the light of their duty of loyalty and discretion (Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009; see also Guja v. Moldova (Grand Chamber), no. 14277/04, §§ 72-78, 12 February 2008). More specifically, in the case of Ozpinar v. Turkey, 20999/04, 19 October 2010, the Court reiterates that it is legitimate for a State to impose on public servants, on account of their status, a duty of reserve in respect of Article 10 or a duty of discretion in the expression of their religious beliefs in public (Kurtulmuş v. Turkey (dec.), no 65500/01, 24 January 2006). These principles apply, mutatis mutandis, to Article 8 of the ECHR. In this regard, the Court observes that the ethical obligations of judges might encroach upon their private life when their conduct – even though private in nature - tarnished the image or the reputation of the judiciary.

[121] See The Sunday Times v. United Kingdom (No. 1) (no. 6538/74, § 65, 26 April 1979), in which the Court has established that “the general principles stemming from Article 10 case-law “are equally applicable to the field of the administration of justice, which serves the interests of the community at large and requires the co-operation of an enlightened public”.

[122] See, inter alia, Observer et Guardian v. UK, no. 13585/88, 26 November 1991.

[123] See Bladet Tromsø and Stensaas v. Norway (Grand Chamber), no. 21980/93, 20 May 1999.

[124] See, inter alia, Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005; Yordanova and Toshev v. Bulgaria, no. 5126/05, § 53, 2 October 2012.

[125] With regard to the leak to the press of confidential information, see, inter alia, Stoll v. Switzerland (Grand Chamber), no. 69698/01, §§ 61 and 143, 10 December 2007; Craxi v. Italy (No. 2), no. 25337/94, 17 July 2003.

[126] See, among others, Nikolaishvili v. Georgia, no 37048/04, 13 January 2009; Sciacca v. Italy, no. 5077/99, 11 January 2005; Karakas and Yesilımak v. Turkey, 43925/98, 28 June 2005.

[127] See, for example, Société Bouygues Telecom v. France (dec.) no. 2324/08, 13 May 2012.

[128] The Court accepted that press releases, even when published on the Internet site of the Public Prosecutor’s Office, could serve the purpose of informing the public of the submission of the bill of indictment to the court (Shuvalov v. Estonia, no. 39820/08 and 14942/09, § 79, 29 May 2012).

[129] See the replies of member States to the questionnaire on the CCPE website (www.coe.int/ccpe) under “Preliminary works - Action of prosecutors within the framework of criminal investigation (2015)”.

[130] For these States, the Recommendation establishes that prosecutors should scrutinise the lawfulness of police investigations, give instructions to the police, monitor their implementation and sanction eventual violations. States, in which the police is independent of the prosecution, are expected to take all measures to guarantee that there is appropriate and functional co-operation between prosecution and the police.

[131] It provides guidance on the principles to be respected in the context of criminal investigations by the police and it stipulates that it is up to public prosecution or the investigating judge to ensure compliance.

[132] Human Rights Committee, Committee Against Torture, Committee on the Rights of the Child.

[133] The Visegrad Group is composed of the Czech Republic, Hungary, Poland and Slovakia.

[134] See Messier v. France (ECHR, 30 June 2011).

[135] See Salduz v. Turkey (ECHR, 27 November 2008). Salduz was convicted for terrorism based on statements of facts without legal assistance during the first interrogation by the police. According to the Court, the right of all suspects to have access to legal assistance is one of the fundamental elements of a fair trial.

[136] European Guidelines on ethics and conduct for public prosecutors adopted by the Conference of Prosecutors General of Europe in 2005 in Budapest, Hungary.

[137] See the CCPE Opinion No. 3(2008) on the role of prosecution services outside the criminal law field, and Opinion No. 8(2013) on relations between prosecutors and the media.

[138] See Final Report 2008 of the European Network of Councils for the Judiciary (ENCJ) Group on Quality Management.

[139] See CCPE Opinion No. 9(2014) on European norms and principles concerning prosecutors, Rome Charter, Article XIII, Explanatory Note, paragraphs 57, 61 and 63.

[140] Ibid., Explanatory Note, paragraph 62.

[141] Ibid., Rome Charter, Article XX, Explanatory Note, paragraph 64.

[142] Ibid., Rome Charter, Article XIII, Explanatory Note, paragraphs 57 and 62.

[143] See CCPE Opinion No. 7(2012) on the management of the means of prosecution services, paragraph 47.

[144] See CCPE Opinion No. 9(2014) on European norms and principles concerning prosecutors, Rome Charter, Article VII.

[145] Ibid., Article VI.

[146] See Rec(2000)19, Explanatory Memorandum, commentaries on individual recommendations, paragraph 35.

[147] See CCJE Opinion No. 6(2004) on a fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement, paragraph 42.

[148] See CCJE Opinion No. 11(2008) on the quality of judicial decisions, paragraph 26.

[149] See paragraphs 40-43.

[150] For a list of the ECtHR cases related to terrorism, see at https://www.unodc.org/tldb/en/case-law-of-the-european-court-of-human-rights-related-to-terrorism.html. See also a book entitled “Counter-terrorism and human rights in the case law of the European Court of Human Rights” by Ana Salinas de Frias (2012), see at https://book.coe.int/eur/en/european-court-of-human-rights/4966-counter-terrorism-and-human-rights-in-the-case-law-of-the-european-court-of-human-rights.html.

[151] See CCPE Opinion No. 9(2014) on European norms and principles concerning prosecutors, Rome Charter, Article XX.

[i] 1189th meeting of the Ministers' Deputies, 22 January 2014.

[ii] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Article 1.

[iii] See Recommendation Rec(2012)11 of the Committee of Ministers of the Council of Europe on the role of public prosecutors outside the criminal justice system, 19 September 2012, Article 2.

[iv] Kayasu v. Turkey, no. 64119/00 and 76292/01, 13/02/2009, § 91.

[v] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Article 24, and Conference of Prosecutors General of Europe, 6^th session, European Guidelines on Ethics and Conduct of Public Prosecutors – “The Budapest Guidelines”, CCPE (2005)05, 31 May 2005 item III. See also Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, explanatory note, Article 11. See also Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, Article 16.

[vi] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, Article 19.

[vii] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Article 3. See also Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, Article 11.

[viii] See Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, Article 17.

[ix] Conference of Prosecutors General of Europe, 6^th session, European Guidelines on Ethics and Conduct for Public prosecutors – “The Budapest Guidelines”, CPGE(2005)05, 31 May 2005, item III. International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors, 23 April 1999, item 4.2. Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Article 27.

[x] International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors, 23 April 1999, item 4.2.

[xi] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Articles 32 and 33. See also: International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors, 23 April 1999, item 4.3; Conference of Prosecutors General of Europe, 6th session, European Guidelines on Ethics and Conduct for Public Prosecutors – “The Budapest Guidelines”, CPGE(2005)05, 31 May 2005, item III; Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, § 13; Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, explanatory note, Article 12.

[xii] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, explanatory note, Articles 53 and 54. See also: International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors, 23 April 1999, item 2.1. Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Article 34.

[xiii] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, explanatory note, Article 55. See also Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, Article 15.

[xiv] International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors, 23 April 1999, item 4.3.

[xv] Consultative Council of European prosecutors, Opinion No. 3(2008), on the role of prosecution services outside the criminal law field”, 21 October 2008, §§ 16 and 19. See also: Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, explanatory note, § 64. See also Korolev v. Russia (no. 2), no. 5447/03, 4/10/2010, §§ 33-34; Batsanina v. Russia, no. 3932/02, 14/09/2009, § 27; Menchinskaya v. Russia, no. 42454/02, 15/04/2009, § 35.

[xvi] Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2012)11 on the role of public prosecutors outside the criminal justice system, 19 September 2012, § 2.

[xvii] Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2012)11 on the role of public prosecutors outside the criminal justice system, 19 September 2012, §§ 3 and 11, and Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2012)11 on the role of public prosecutors outside the criminal justice system, 19 September 2012, § 9.

[xviii] Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2012)11 on the role of public prosecutors outside the criminal justice system, 19 September 2012, § 10.

[xix] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 73.

[xx] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 77.

[xxi] See Opinion No. 2(2008) of the CCPE. See also Natsvlishvili and Togonidze v. Georgia, no. 9043/05, 29/04/2014, §§ 90-91.

[xxii] See Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, Article 18.

[xxiii] Consultative Council of European Prosecutors, Opinion No. 5 on public prosecution and juvenile justice, Yerevan Declaration, CCPE (2010)1, 20 October 2010, § 26.

[xxiv] See Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, § 19.

[xxv] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, § 14.

[xxvi] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, § 13, items a & b. For further safeguards, see also items from c to f.

[xxvii] Guja v. Moldova (Grand Chamber), no. 14277/04, § 86.

[xxviii] Kolevi v. Bulgaria, no. 1108/02, 05/02/2010, §§ 148-149; Vasilescu v. Romania, no. 53/1997/837/1043, 22/05/1998, §§ 40-41; Pantea v. Romania, no. 33343/96, 03/09/2003, § 238; Moulin v. France, no. 37104/06, 23/02/2011, § 57.

[xxix] Kolevi v. Bulgaria, no. 1108/02, 05/02/2010, § 142.

[xxx] See Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, § 4.

[xxxi] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, § 16.

[xxxii] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, §§ 31 and 32.

[xxxiii] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, Explanatory Memorandum (§ 13).

[xxxiv] Committee of Ministers of the Council of Europe, Recommendation n° R(2000)10 on codes of conduct for public officials, 11 May 2000, § 12, item 1.

[xxxv] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, § 10.

[xxxvi] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, Explanatory Memorandum (§ 10).

[xxxvii] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, § 5, items a, b and c.

[xxxviii] See: Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, Explanatory Note, § 37.

[xxxix] See: Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 18.

[xl] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, § 5, items a, b and c.

[xli] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 34-35.

[xlii] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 37. Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012, § 65.

[xliii] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, Explanatory Note, § 43.

[xliv] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, Explanatory Note, § 46.

[xlv] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, § 10.

[xlvi] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, § 10.

[xlvii] Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2012)11 on the role of public prosecutors outside the criminal justice system, 19 September 2012, § 8.

[xlviii] Consultative Council of European Prosecutors, Opinion n° 4(2009) on judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, § 10, and the Consultative Council of European Prosecutors, Opinion No. 7(2012) on the management of the means of prosecution services, 11 December 2012, § 17.

[xlix] Consultative Council of European Prosecutors, Opinion No. 8(2013) on relations between prosecutors and the media, 9 October 2013, Recommendation VII.

[l] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, § 7.

[li] Consultative Council of European Prosecutors, Opinion No. 7(2012) on the management of the means of prosecution services, 11 December 2012, § 19.

[lii] See Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, § 7.

[liii] Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012, §§ 68 and 69.

[liv] Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012, § 70.

[lv] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 40.

[lvi] Consultative Council of European Prosecutors, Opinion No. 7(2012) on the management of the means of prosecution services; see also Opinion No. 5(2010) on the public prosecutor and the juvenile justice, Declaration of Yerevan, 20 October 2010, § 19.

[lvii] Committee of Ministers of the Council of Europe, Recommendation Rec (2000)19 on the role of public prosecution in criminal justice system, 6 October 2000, § 5d.

[lviii] Committee of Ministers of the Council of Europe, Recommendation Rec (2000)19 on the role of public prosecution in criminal justice system, 6 October 2000, § 5 item d.

[lix] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System:

Part II – the Prosecution Service, CDL-AD (2010)040, 3 January 2011, §69. Also see: Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012, § 71.

[lx] Conference of Prosecutors General of Europe, 6th session, European Guidelines on Ethics and Conduct for Public Prosecutors – “The Budapest Guidelines”, CPGE(2005)05, 31 May 2005, item II.

[lxi] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)10 on codes of conduct for public officials, 11 May 2000, § 15, items 1, 2, 3.

[lxii] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, §§ 17 and 18.

[lxiii] Consultative Council of European Prosecutors, Opinion No. 4(2009) on the relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, § 7.

[lxiv] Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012, § 81.

[lxv] Adapted from the Code of Judicial Ethics of the International Criminal Court.

[lxvi] Committee of Ministers of the Council of Europe, Recommendation n° R (2000)10 on codes of conduct for public officials, 11 May 2000, Article 26 item 3.

[lxvii] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD (2010)040, 3 January 2011, §§ 17 and 62.

[lxviii] Human Rights Council, Interim report of the Special Rapporteur on the independence of judges and lawyers, A/65/274, 10 August 2010, § 60.

[lxix] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in criminal justice system, 6 October 2000, § 5 item e. See also Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, § 22.

[lxx] Venice Commission, Report on European Standards as Regards the Independence of the Judicial System: Part II – the Prosecution Service, CDL-AD(2010)040, 3 January 2011, § 61.

[lxxi] Committee of Ministers of the Council of Europe, Recommendation Rec (2000)19 on the role of public prosecution in criminal justice system, 6 October 2000, § 5, items g.

[lxxii] Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, A/HRC/20/19, 7 June 2012, §§ 76 à 78 and 118.

[lxxiii] Conference of Prosecutors General of Europe, 6th session, European Guidelines on Ethics and Conduct for Public Prosecutors – “The Budapest Guidelines”, CPGE(2005)05, 31 May 2005, item II.

[lxxiv] Consultative Council of European Prosecutors, Opinion No. 4(2009) on relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, § 10.

[lxxv] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)10 on codes of conduct for public officials, 11 May 2000, § 17.

[lxxvi] Conference of Prosecutors General of Europe, 6th session, European Guidelines on Ethics and Conduct for Public prosecutors – “The Budapest Guidelines”, CPGE(2005)05, 31 May 2005, item II.

[lxxvii] See Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system, 6 October 2000, § 17, and see also the CCPE Opinion No. 4(2009), 8 December 2009, Explanatory Note, § 66.

[lxxviii] Consultative Council of European Prosecutors, Opinion No. 4(2009) on the relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, § 3.

[lxxix] Consultative Council of European Prosecutors, Opinion No. 4(2009) on the relations between judges and prosecutors in a democratic society, 8 December 2009, Bordeaux Declaration, Explanatory Note, §§ 60 and 61.

[lxxx] Consultative Council of European Prosecutors, Opinion No. 6(2011) on the relationship between prosecutors and the prison administration, 24 November 2011, §§ 16 and 36.

[lxxxi] Consultative Council of European Prosecutors, Opinion No. 8(2013) on relations between prosecutors and the media, 9 October 2013, §§ 20 and 22. See also the case-law of the European Court of Human Rights: Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005; Yordanova and Toshev v. Bulgaria, no. 5126/05, § 53, 2 October 2012; Observer et Guardian v. UK, no. 13585/88, 26 November 1991.

[lxxxii] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in criminal justice system, 6 October 2000, § 16.

[lxxxiii] See Opinion No. 4(2009) of the CCPE, Bordeaux Declaration, para 4. See also Consultative Council of European Prosecutors, Opinion No. 7(2012) on the management of the means of prosecution services, 11 December 2012, recommendation (i).

[lxxxiv] Consultative Council of European Prosecutors, Opinion No. 7(2012) on the management of the means of prosecution services, 11 December 2012, § 51.

[lxxxv] Consultative Council of European Prosecutors, Opinion n°7(2012) on the management of the means of prosecution services, 11 December 2012, recommendation (ii).

[lxxxvi] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, § 8.

[lxxxvii] Committee of Ministers of the Council of Europe, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, 6 October 2000, §§ 38 and 39.

[lxxxviii] Consultative Council of European Prosecutors, Opinion No. 1(2007) on ways of improving international co-operation in the criminal justice field, 30 November 2007, §§ 38 and 39.