CCPE-GT(2018)3

Strasbourg, 8 March 2018

WORKING GROUP OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

Report of the 22^nd meeting

Strasbourg, 8 – 9 February 2018

Document prepared by the Secretariat  

Directorate General I - Human Rights and Rule of Law

I.          INTRODUCTION

1.            The Working Group of the Consultative Council of European Prosecutors (CCPE-GT) held its 22^nd meeting in Strasbourg on 8-9 February 2018. The meeting was chaired by Mr Peter MCCORMICK (Ireland), President of the CCPE.

2.            The agenda and the list of participants are in Appendices I and II respectively.

II.         COMMUNICATION BY THE PRESIDENT AND MEMBERS OF THE BUREAU AND WORKING GROUP OF THE CCPE

3.            The President informed the members of the Working Group about his hearing at the Council of Europe’s Committee of Ministers on 7 February 2018, during which he presented the activities of the CCPE, namely the last adopted Opinion No. 12, the Report of the CCPE Bureau on the independence and impartiality of the prosecution services in the Council of Europe member States in 2017, and the importance of the topic of the Opinion No. 13 in 2018 focusing on independence, accountability and ethics of prosecutors[1].

III.        PREPARATION OF THE OPINION NO. 13 ON INDEPENDENCE, ACCOUNTABILITY AND ETHICS OF PROSECUTORS

4.            The President presented to the Working Group the draft structure of the Opinion (document CCPE-GT(2018)1Prov2) prepared by the Secretariat and revised by the Bureau, and mentioned that the Working Group would need to discuss it in detail and develop further, including adding specific headings and sub-headings, for a subsequent comprehensive elaboration of the text of the Opinion.

5.            The President also warmly welcomed, as the CCPE’s scientific expert for drafting the Opinion, Mr Harald RANGE, former Prosecutor General of Germany and former President of the CCPE and member of the CCPE Working Group.

6.            It was mentioned that 16 responses from members had been received so far to the questionnaire for the preparation of this Opinion, and that these responses would be sent to the scientific expert.

7.            The following aspects were discussed:

i)       the different definitions of independence: independence of the prosecution service as a whole/independence of individual prosecutors, internal/external independence, independence towards executive power/government/parliament, budgetary independence, independence of prosecutors vs. independence of judges;

ii)      the quality of the work of prosecutors and the efficiency of the office;

iii)     how to deal with the backlog;

iv)    the accountability of prosecutors which is not equal to the sense of responsibility;

v)     the obstacles for the exercise of prosecutorial functions;

vi)    conflicts of interest.

vii)   relations with the police, the media and other professional groups;

viii)   international experience as regards relations between the prosecution services and the ministries of justice;

ix)    international cooperation (for example, in relation to the trafficking of human beings, relations between anti-mafia prosecutors).

8.            Then the Working Group, after detailed discussion on each paragraph of the draft structure, came up with the significantly amended and larger version (document CCPE-GT(2018)1Prov3 as it appears in Appendix of this report).

9.            The Secretariat was requested to send this version, after the meeting, to all members of the Bureau and of the Working Group for final comments, and to send the final consolidated version to the CCPE expert for starting the work on the text of the Opinion. It was agreed that the first draft would be finished by the CCPE expert and sent to the Secretariat by mid-May 2018.

IV.        OTHER ITEMS

10.          The next meeting of the Working Group would take place in Paris on 7-8 June 2018.

APPENDIX I

AGENDA / ORDRE DU JOUR

1.      Opening of the meeting / Ouverture de la réunion

2.      Adoption of the agenda / Adoption de l’ordre du jour

3.      Communication by the President, members of the CCPE and the Secretariat / Communication du Président, des membres du CCPE et du Secrétariat

4.      Preparation of the draft Opinion No. 13 on «independence, accountability and ethics of prosecutors" / Préparation du projet d’Avis No. 13 sur « indépendance, responsabilité et éthique des procureurs »

5.      Any other business / Divers

APPENDIX II

LIST OF PARTICIPANTS

MEMBERS OF CCPE-GT / MEMBRES DU CCPE-GT

Mr Robert GELLI, Procureur général près la Cour d’appel d’Aix-en Provence, Cour d'Appel d'Aix-en-Provence, Aix-en-Provence, FRANCE

Ms Alessandra GIRALDI, Deputy Chief Director, Office of the Director of Public Prosecutions, Copenhagen, DENMARK / DANEMARK

Mr Davit MELKONYAN, Deputy Prosecutor General, Prosecutor General’s Office of Armenia, Yerevan, ARMENIA / ARMENIE

(apologised/excusé)

Mr Antonio MURA, Prosecutor General at the Court of Appeal of Venice, Venice, ITALY / ITALIE

Mr Sava PETROV, Prosecutor, Head of the Analytical Department, Office of the Prosecutor General, Sofia, BULGARIA / BULGARIE

 

Mr Ali Rıza ÜLKER, Judge, Council of Judges and Prosecutors of Turkey (CJP), Ankara, TURKEY / TURQUIE

Mr Cédric VISART de BOCARME, Directeur du service d’appui commun auprès du Collège des procureurs généraux et du Collège du ministère public, Bruxelles, BELGIUM / BELGIQUE

Ms Jana ZEZULOVÁ, Public Prosecutor, Supreme Public Prosecutor’s Office, Analytic and Legislative Department, Brno, CZECH REPUBLIC / REPUBLIQUE TCHEQUE

Mr Vladimir P. ZIMIN, Senior Assistant to the Prosecutor General of the Russian Federation on special tasks, Office of the Prosecutor General, Moscow, THE RUSSIAN FEDERATION / FEDERATION DE RUSSIE

OTHER PARTICIPANTS / AUTRES PARTICIPANTS

Ms Emine Burcu SİNOPLU, Judge, Council of Judges and Prosecutors of Turkey (CJP), Ankara, TURKEY / TURQUIE

SCIENTIFIC EXPERT / EXPERT SCIENTIFIQUE

Mr Harald RANGE, former Prosecutor General of Germany, former President of the CCPE and Member of the CCPE Working Group, GERMANY / ALLEMAGNE

MEMBERS OF CCPE-BU / MEMBRES DU CCPE-BU

Mr Peter McCORMICK, Prosecutor, Office of the Director of Public Prosecutions, Dublin, IRELAND / IRLANDE - (President of CCPE / Président du CCPE)

Mr José Manuel SANTOS PAIS, Procureur-Général Adjoint à la Cour Constitutionnelle du Portugal, Tribunal Constitucional, Lisbonne, PORTUGAL - (Vice-President of CCPE / Vice-Président du CCPE)

Mr Han J. MORAAL LL.M.MPA Chief Public Prosecutor, Eurojust, The Hague, THE NETHERLANDS / PAYS BAS

Mr Antonio VERCHER NOGUERA, Deputy Attorney General for environmental matters, Madrid, SPAIN / ESPAGNE

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

Directorate General – Human Rights and Rule of Law

Direction générale – Droits de l’Homme et Etat de Droit

Division for the Independence and Efficiency of Justice /

Division pour l’indépendance et l’efficacité de la justice

E-mail: [email protected]

Ms Muriel DECOT, Secretary of the CCPE / Secrétaire du CCPE

Tel: + 33 (0)3 90 21 44 55; E-mail: [email protected]

Mr Artashes MELIKYAN, Co-Secretary of the CCPE / Co-Secrétaire du CCPE

(Tel: + 33 (0)3 90 21, E-mail: [email protected]

Ms Despina TRAMOUNTANI, Assistant / Assistante

Tel. +33 (0)3 90 21 62 95, E-mail: [email protected]

Ms Annette SATTEL, Administration and Networks / Administration et réseaux

Tel : + 33 (0)3 88 41 39 04, E-mail : [email protected]

TRAINEES / STAGIAIRES

 

Ms Lucie LETOMBE, Auditrice de justice de l’Ecole Nationale de la Magistrature (Bordeaux), actuellement en stage au service de l’exécution des arrêts

Ms Marie JONCA, Auditrice de justice de l’Ecole Nationale de la Magistrature (Bordeaux), actuellement en stage à la CEPEJ

INTERPRETERS / INTERPRETES

Ms Chloé CHENETIER

Ms Lucie DE BURLET

Mr Grégoire DEVICTOR

APPENDIX III

CCPE-GT(2018)1Prov3

                   

Strasbourg, 9 February 2018

                               

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

Introductory remark:

Given the title of the Opinion, there is a risk that this Opinion could become a compilation of the main principles concerning prosecutors, which would lead to a text similar to the Recommendation 2000(19). Be careful not to simply repeat what already exists.

It is therefore necessary to focus on those aspects of independence and ethics which deserve, at the present, to be deepened and which have a real added value in relation to existing standards. Consideration should be given to the new issues concerning independence today, particularly in the context of prosecutors' daily work (example 1: the risk of pressure whenever the prosecutor's investigation concerns an authority - political, economic, trade unions, etc. In this context, consider the role of the media and personal attacks against prosecutors) (example 2: the need for prosecutors to rely entirely on experts’ opinion because of the increasing technical side of cases - legal experience is no longer sufficient. This is an issue of the modern world) (example 3: prosecutors facing the artificial intelligence).

Thus, it is necessary to review all the aspects discussed at the 1^st meeting of the CCPE-WG in 2018 in order to keep only the relevant aspects within this framework.

In line with this, prepare a short text.

1.         In accordance with the mandate given to it by the Committee of Ministers, the Consultative Council of European Prosecutors (CCPE) has prepared an opinion on the independence, accountability and ethics of prosecutors.

Justification for such a topic: make the correlation Rule of law / Good administration of management / Independence.

Recall fundamental principles such as the equality of citizens before the law, the right of citizens to an impartial trial and a neutral prosecutor during the investigation.

2.         Area of application

On the basis of the tasks of the prosecution service, it is possible to identify implications for its independence and responsibilities:

-       the public action, which it undertakes, must be protected from any consideration other than the search for truth and the application of law;

-       it is the "initial judge", that is to say that it verifies the legality of the acts, the proportionality of the acts of investigation to the offence, the fact that the investigation either leads to accusation or not, the fact that the investigation is solely for the purpose of correct application of law and of the public action measures.

The person entrusted with these tasks, therefore, has obligations and must be responsible for these acts: he must be accountable to the society (e. g. the prosecutors’ annual report).

This Opinion concerns the behaviour of prosecutors and therefore also their image in the society (also to be "perceived as independent"). 

3.         In those member States where the prosecution service performs other functions outside criminal justice system, the principles and recommendations of this Opinion also apply mutatis mutandis to these functions.

(In some areas, where the State needs to be represented by a prosecutor, and the prosecutor does not simply defend the general interest, there is not necessarily the same requirement of independence. Regardless of the system, the independence required for a criminal investigation is different than for other activities).

4.         Reference to the diversity of legal systems in Europe as well as to their common characteristics.

Discretionary power as regards prosecution / principle of legality. Regardless of the system, the prosecutor must act in accordance with law.

Briefly discuss current trends towards which States are moving. There are serious violations of independence, attempts to take over the prosecution office by the executive power in some States and it should be said briefly that this does not correspond to the direction of the Recommendation and that there is a need to move towards yet greater independence. This cannot be ignored in an Opinion on independence.

5.         Reference to the relevant case law of the ECtHR.

 

6.         List of relevant CoE and CCPE instruments and other international instruments. In particular, the Council of Europe Plan of Action on strengthening judicial independence and impartiality (Line of Action 3), Recommendation Rec(2000)19 of the Committee of Ministers to member States on the role of public prosecution in the criminal justice system, Opinions No. 8 (2013) and No. 9(2014) of the CCPE on European norms and principles concerning prosecutors, including the “Rome Charter”, and the Budapest guidelines. Check also the opinions of the CCJE, in particular Opinions No. 1 and No. 2.

7.         See also the instruments of other international organisations.

In all CCPE opinions, independence and accountability are mentioned. But a definition of these two terms has never been given.

            

A. Independence

Attempt to give a definition but the term "independence" is not understood in the same way in the States.

We should be able to come up with a definition this time, in which the following should be mentioned:

-       institutional independence from other powers or bodies: executive, courts, media

-       structural independence

-       individual independence within the prosecution office for prosecutors (especially during the criminal process).

Independence is at the disposal of prosecutors in order to properly carry out their tasks: it can only be protected in terms of the results to be achieved. This implies a strong link between independence and responsibility.

Independence of prosecutors must never be understood without consideration of the work of other parties or even of other prosecutors. This requires knowledge of how prosecutors work in each system.

Independence of prosecutors does not mean that they must work alone: cooperation and coordination of actions with other bodies are necessary in the context of terrorism, migration, etc.

Independence is therefore different from autonomy.

Prosecutors' actions, like those of judges, are monitored by certain international bodies, such as the ECtHR. This is the image of its justice that a State will give in particular.

B. Accountability

-       specify on what to account for: to account on the effectiveness of its action, on the obstacles to the performance of its tasks, on the management of public funds of the prosecution service, etc.

-       specify on what not to account for: on specific cases, including those before the Parliament (but to be distinguished from an inquiry commission in a case for detecting malfunctioning and amending the law accordingly if necessary). Differentiate also from the consultations that a State could have with its prosecutors on certain developments in the society and justice with a view to amending the law.

-       specify to whom to account: link with the hierarchy within the prosecution services but not only; also to the public on the effectiveness of its action.

-       specify the purposes for which to account for: the aim is not to punish the prosecutor who accounts  but to understand the results of public action in the light of the priorities of criminal policy (at least in the case of mandatory criminal action). When a prosecutor accounts for an action, he must. When he/she explains his/her action, it increases the accountability. The explanation must relate to the prosecutor's action "in the interest of society", within the framework of national priorities that go beyond the prosecutor's personal perception of public action.

Accountability does not contradict the concept of independence. On the contrary, the more independence there is, the more accountability is required.

Account should be taken of developments in the functioning of the prosecution service in recent years.

A. General

Does the CCPE want, in its Opinion, to demand independence for all European prosecutors? There are prosecution offices which are not independent. Independence appears to be a quality that a prosecutor must have, but should we go further? Why is it necessary to defend the independence of the prosecution office?

Most member States seem to be in favour of prosecutors' independence. The Opinion should explain that.

We must then explain why independence is justified because it is not self-evident.

Independence must be a part of the status

What other qualities should a prosecutor have?

-       guarantor of rights?

-       must ensure the proper administration of justice?

B. Independence of prosecution services

1. Legal, constitutional guarantees, tradition

Structural independence and functional independence

Relations with the executive and other powers (Parliament - see above under "Definitions")

2. Autonomy of the prosecution office, particularly budgetary autonomy

Independence does not only pertain to the status

Importance of the means of the prosecution service to ensure independence

Financing for the experts who are necessary

Management of evidence: need for adequate means

3. Relations with other actors and institutions

Court

Police

Press

C. Independence of prosecutors

1. Legal, constitutional guarantees, tradition

2. Internal independence

The independence of a prosecutor is not the same as the independence of a judge: the latter judges according to his/her soul and conscience while the prosecutor carries out his/her tasks within a hierarchy that may oblige him/her to respect a certain line of action. The prosecutor must, as an individual, retain his/her freedom of conscience.

Relationship with hierarchy

Instructions to prosecutors: General Instructions or individual instructions / Pressure / Interferences

Organisation of work/ Assignment of cases

Career management: remuneration, appointment, mobility, promotion, irremovability, etc.

Transfer of prosecutors without his/her consent.

Importance of training, especially of continued one (adaptation to new social phenomena).

Security of prosecutors and of their families

Damage to reputation

Possible role of associations or trade unions

3. External independence

Instructions to prosecutors: General instructions or individual instructions / Pressure / Interferences

Independence within the judicial power

Managing conflicts of interest

Existence of an independent body to guarantee prosecutors' independence

·         Specific prosecutorial bodies (Albania, Croatia, Poland, Serbia, etc.) or bodies for judges and prosecutors (Belgium, France, Italy, Romania, Turkey, etc.).

·         Tasks of this body

Existence of a body to receive complaints from prosecutors about violations of independence

Fighting corruption of prosecutors

A. Accountability as an actor in the public service of justice

"Public trust is earned", which implies:

-       transparency of the actions carried out (published and clear guidelines, good communication with the press, modern means of communication, social networks, annual reports)

-       efficiency in dealing with cases within a reasonable period of time (evaluation of the work of prosecutors)

-       good care for victims

-       the need for coherence and fairness

B. Accountability to whom?

·         Hierarchy

·         Superior Councils of Justice

They analyse the functioning of justice

They can have a disciplinary role: shared disciplinary power is better than when it belongs only to the hierarchy.

C. Accountability / Discipline

·         Civil/criminal liability - functional and non-general immunity

·         Disciplinary proceedings regulated by law

A. Justification

To promote public confidence, independence must be accompanied by high ethical standards. The prosecutor must be and also "perceived" as impartial and independent.

A code of ethics must strike the right balance between respect for prosecutors' independence, the duties of impartiality and objectivity (respect for the presumption of innocence, fair trial, separation of powers, independence of the court, binding force of decisions) and the duty to serve the society.

The prosecutor's conduct must be exemplary at all stages of the proceedings and investigation, and also in the recruitment and career development.

B. Ethical principles of prosecutors

The purpose of the Opinion is not to review all the elements that should be included in a code of ethics but to emphasise certain important aspects.

Must concern the professional area and also the private area. Also importance of prosecutors' behaviour in relation to social networks.

The need to strike a balance with the exercise of individual rights of prosecutors as citizens.

Relations between conduct and discipline. When there is a disciplinary code, there is a repressive aspect not necessarily to be recommended. Ethics has a broader spectrum that must be considered on a daily basis, without only referring to criminalised behaviour.

Incompatibilities / Participation in a political party / Support for a political party. Political opinions (as well as religious and other opinions) should not be expressed publicly, but there is also an individual right to be engaged (see GRECO evaluation reports).

Right to have a bank account abroad: possible if permitted by national law, of course by declaring it.

C. Ethics in training

The preventive effect of deontology for young prosecutors should be promoted

D. Code of ethics for prosecutors

Code to be established by law or not?

Who must do it? Need for participation of prosecutors

Written or oral code? It's better to favour a written code.

At the same time, however, ethics must not be frozen. A code must be adaptable according to the evolutions of society.

It might be interesting to encourage the trend towards direct meetings between prosecutors and judges at international level, without going through the Ministries of Justice or Foreign Affairs.

Improving international cooperation ensures being always up to date with the latest international standards.