Strasbourg, 20 November 2015
CONSULTATIVE COUNCIL OF EUROPEANPROSECUTORS
11. 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.
· 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.
II. The role of prosecutors in criminal investigations
· 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;
· 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.
· 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.
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
30. According to the case-law of the Court, 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.
· 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;
· 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.
B. Special techniques of investigations
· 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
57. 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.
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.
 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)”.
 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.
 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 judgeto ensure compliance.
 Human Rights Committee, Committee Against Torture, Committee on the Rights of the Child.
 The Visegrad Group is composed of the Czech Republic, Hungary, Poland and Slovakia.
 See Messier v. France (ECHR, 30 June 2011).
 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.
 European Guidelines on ethics and conduct for public prosecutors adopted by the Conference of Prosecutors General of Europe in 2005 in Budapest, Hungary.
 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.