CM/Notes/869/10.2 ...Role of the public prosecutor's office in a democratic society governed by the rule of law - Parliamentary Assembly Recommendation 1604 (2003)

Ministers’ Deputies

Notes on the Agenda

CM/Notes/869/10.2 (restricted) 19 January 2004

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869 Meeting, 21 January 2004
10 Legal questions

10.2 Role of the public prosecutor's office in a democratic society governed by the rule of law -

Parliamentary Assembly Recommendation 1604 (2003)

Item prepared by the GR-J

Reference documents
Rec_1604(2003) and CM/AS(2004)Rec1604-prov.

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Action

To consider, with a view to its adoption, the draft reply to Parliamentary Assembly Recommendation 1604 (2003) on the Role of the public prosecutor's office in a democratic society governed by the rule of law, contained in document CM/AS(2004)1604-prov.

Background

1. The Parliamentary Assembly adopted Recommendation 1604 (2003) on the role of the public prosecutor’s office in a democratic society governed by the rule of law on 27 may 2003.

2. At their 843rd meeting (11 June 2003, item 3.1), the Ministers' Deputies agreed to bring the Recommendation to their governments' attention. They also decided to communicate it to the European Committee on Crime Problems (CDPC) for information and possible comments by 30 November 2003. Finally, they invited their Rapporteur Group on Legal Co-operation (GR-J) to prepare a draft reply for adoption at one of their forthcoming meetings.

3. The Rapporteur Group on Legal Co-operation examined a draft reply prepared by the Secretariat at its meeting on 15 January 2004. It agreed to transmit it to the Deputies for adoption as contained in document CM/AS(2004)1604-prov.

Concerning the recommendation

4. The Parliamentary Assembly recognises and appreciates the essential role of the public prosecutor in ensuring security and liberty throughout European societies. It considers that the obligation on states to secure the rights and freedoms of the European Convention on Human Rights (ECHR) to all within their jurisdiction has consequences which apply equally to public prosecutors and to those concerned by criminal prosecutions. The Assembly stresses that respect for democracy and the rule of law require an effective separation of state powers, in particular between the public prosecutor and the judiciary.

5. The Assembly refers to Committee of Ministers Recommendation Rec (2000)19 on the role of public prosecution in the criminal justice system. It considers that it is important to achieve some degree of harmonisation between the criminal justice systems of member states, so as to maintain their effectiveness in the face of new challenges from transnational organised crime, as well as public respect for the rule of law and confidence in the foreseeability of its application. It therefore welcomes the creation of the Conference of Prosecutors General of Europe. As a pool of expertise and as a broad, specialised forum for discussion, this body has enormous potential for making and considering proposals, offering advice, comparing national circumstances and identifying best practices.

6. The Assembly finds that a number of particularities apparent in the national practices of member states give rise to concern as to their compatibility with the Council of Europe’s basic principles, such as the police having responsibility for prosecutions; the public prosecutor being responsible for, or an intermediary in, initial challenges to decisions to detain; an appeal by the prosecutor against a judicial decision to release a detained person having suspensive effect; the decision to prosecute following automatically from the establishment of evidential grounds; and varied non-penal law responsibilities of public prosecutors.

7. In relation to these concerns, the Assembly makes a number of recommendations to the governments of member states.

8. Moreover, it recommends that the Committee of Ministers:

i. continue its efforts to ensure the full and effective implementation of its Recommendations
No. R (87) 18 and Rec(2000)19 throughout the member states;

ii. support the important activities of the Conference of Prosecutors General of Europe, in particular by establishing this body on a permanent basis, on a level with the CCJE and with appropriate resources;

iii. instruct its relevant organs – with the involvement of the Conference of Prosecutors General of Europe – to undertake a detailed study, with a view to preparing a recommendation to member states on those aspects of the role of the public prosecutor not addressed in Recommendation Rec(2000)19, with particular consideration given to the Assembly’s recommendations mentioned in paragraph 7, sub-paragraphs i to v; this study should also consider proposing the universal adoption of the principle of discretionary prosecution.

Financing assured: YES

DRAFT DECISION

869th meeting – 21 January 2004

Item 10.2

Role of the public prosecutor's office in a democratic society governed by the rule of law -

Parliamentary Assembly Recommendation 1604 (2003)

(Rec_1604(2003) and CM/AS(2004)Rec1604-prov.)

Decision

The Deputies adopted the reply to Parliamentary Assembly Recommendation 1602 (2003) “Role of the public prosecutor's office in a democratic society governed by the rule of law”, as it appears in Appendix … to the present volume of Decisions[1].

[1] See also CM/AS(2004)Rec1604-final.