Генеральная прокуратура Российской Федерации

CONFERENCE OF PROSECUTORS GENERAL OF EUROPE

The role of public prosecution in the protection of human rights and public interests outside the criminal law field

organised by the Council of Europe and the Prosecutor General’s Office

of the Russian Federation

Saint Petersburg, 2-3 July 2008

Konstantinovsky Palace

Speech by Terry Davis

Secretary General of the Council of Europe

Without an efficient and independent judiciary, there is no rule of law, and without the rule of law there is no real democracy and no real respect for human rights.

The key role played by judicial systems in respect for human rights is reflected in article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial and sets clear standards for how fairness should be ensured in practice.

In 2005 the desire to assess the impact of measures taken at national level to improve the functioning of judicial systems led to the creation of the European Commission for the Efficiency of Justice or CEPEJ as it is called in Council of Europe language.  Its aim is to improve the efficiency and the functioning of the systems of justice in our member states, to ensure that the legal rights of everyone within their jurisdiction can be enforced effectively, and to increase the confidence of the people in the system of justice.

In 2005, the Committee of Ministers also established the Consultative Committee of European Prosecutors – known as CCPE.  The creation of this body acknowledged the important role of prosecutors and their essential contribution to the functioning of justice. In addition, it has enabled prosecutors to discuss matters of common interest. 

Since its creation, the CCPE has devoted increasing attention to the role of prosecutors in the defense of human rights and to the role they can and should play in ensuring respect for the provisions of the European Convention on Human Rights.

I do not need to explain to the audience that pprosecutors also play an important role in proceedings based on Council of Europe Conventions about co-operation in criminal matters - the “European Convention on Extradition”, the “European Convention on Mutual Assistance in Criminal Matters”, its protocols and the “Convention on the Transfer of Sentenced Persons”.

These conventions defined for the first time in Europe a number of common principles for international criminal co-operation.  They replace a very large number of bilateral agreements, and they ensure a coherent application of the principles of international law.  The problem is that most of these conventions were adopted 30, 40 or even 50 years ago.  There is a clear need to review them and to decide whether they should be amended in order to adapt them to current needs and challenges.

We must ensure that member states have legal instruments adapted to their current needs and to the challenges they face today.

The current priority of the Council of Europe is the modernisation of the 1957 European Convention on Extradition. It is generally accepted that this old Convention is no longer good enough in the context of modern international co-operation, which is notably characterised by a higher degree of mutual trust between states.  A draft Protocol to the Convention on Extradition should be finalised in November, simplifying extradition procedures when the person agrees to be extradited.

Another way in which the Council of Europe ensures the proper implementation of its conventions in the criminal field is by encouraging the governments of States Parties to conventions to inform the European Committee on Crime Problems about any difficulty which arises out of the application of these conventions.  Discussions provide an opportunity to share practical experience and identify solutions.  These discussions have often prevented disputes between member states by defusing problems at an early stage. For cases where this is not sufficient, most criminal law conventions also include a "friendly settlement" clause allowing for the active involvement of the European Committee on Crime Problems at the request of one Party to the Convention. This procedure has been applied in particular for the transfer of prisoners, and it has helped to identify solutions acceptable to everyone involved.

Clearly prosecutors are the people who are most involved in international co-operation in criminal matters, and it is usually their responsibility to implement the conventions.  That is why the Council of Europe is developing practical tools to assist you in using our criminal law conventions. In 2008, we launched a database on national procedures relating to extradition, mutual legal assistance and transfer of sentenced persons.  It contains practical information such as language requirements, time limits, documents needed for assistance, statutes of limitation and double criminality requirements. This database should increase the success rate of requests for international co-operation.

Prosecutors also have a major role in the functioning of the judicial system, criminal matters being their natural area of competence. However, legal traditions and historical events here in the Russian Federation and in some other member states have also given prosecutors a role outside the criminal field. 

This role is fully compatible with the requirements of a democratic system provided that it also aims to protect human rights.  If this condition is satisfied, the role of prosecutors outside the criminal field contributes to the efficiency and independence of the judiciary, and the European Court of Human Rights in its case law has therefore established several conditions to ensure that the prerogatives of prosecutors outside the criminal field do not infringe the rights of the individual seeking justice.  

The most important conditions are the obligations to respect the right of everyone to appear before an independent and impartial tribunal, the right to adversarial proceedings, the right to equality of arms, and the right of access to a court.

The supervisory review proceedings existing in some countries of Eastern Europe such as Russia, Moldova or Ukraine have raised some issues under Article 6 of the Convention and the principle of legal certainty. The Court of Human Rights has generally found that if a final judgment in these systems is quashed, the principles of res judicata and legal certainty and consequently Article 6 of the European Convention on Human Rights are violated.  However, the violation stems from the judicial decisions which quash the final judgments - not from the particular position of the Prosecutor General in these proceedings.

It should be noted that against the background of the decision by the Strasbourg Court, the Russian State Duma has recently adopted a number of important legislative changes concerning supervisory review proceedings and has thus improved the compliance of the Russian judicial system with the European Convention on Human Rights.

Finally, I should like to thank our Russian colleagues for hosting this important conference on a very important subject.

It has confirmed that some legal traditions which have developed in the Russian Federation and some of its neighbouring countries – and here I speak specifically about the role of prosecutors outside criminal matters – are worth examining and perhaps even followed.  In a broader sense, it challenges the perception that when it comes to democracy, human rights and the rule of law, Europe is divided into those who have all the problems, and those who know all the solutions.