Strasbourg, 6 March 2018
BUREAU of the CONSULTATIVE COUNCIL
OF EUROPEAN PROSECUTORS
Report of the 28th meeting
Strasbourg, 8 February 2018
Document prepared by the Secretariat
Directorate General I – Human Rights and Rule of Law
1. The Bureau of the Consultative Council of European Prosecutors (CCPE) held its 28th meeting in Strasbourg on 8 February 2018. The meeting was chaired by Mr Peter McCORMICK (Ireland), President of the CCPE.
2. The following Bureau members were also present:
- Mr José Manuel SANTOS PAIS (Portugal), Vice-President of the CCPE
- Mr Han MORAAL (The Netherlands)
- Mr Antonio VERCHER NOGUERA (Spain)
3. The agenda is set out in Appendix I.
II. COMMUNICATION by the President, members OF THE BUREAU AND THE SECRETARIAT
4. The President informed the members of the Bureau about his hearing at the Council of Europe’s Committee of Ministers on 7 February 2018, during which he presented the last adopted Opinion No. 12 on “The role of prosecutors in relation to the rights of victims and witnesses in criminal proceedings”, as well as the Report of the CCPE Bureau on the independence and impartiality of the prosecution services in the Council of Europe member States in 2017. The President also emphasised to the Committee of Ministers that the forthcoming Opinion No. 13 in 2018 - “Independence, accountability and ethics of prosecutors” - would be especially important.
5. The adopted Opinion No. 12, as well as the above-mentioned Report were highly appreciated by the Committee of Ministers. The latter agreed that there were serious challenges for the independence and impartiality of the prosecution services in member States, and took the Report’s findings into close consideration. The Committee of Ministers inquired about the level of visibility of the CCPE activities and recommended to make it as high as possible so that European standards are widely disseminated in member States. The Committee of Ministers also commended the choice of topic for the CCPE Opinion in 2018, having underlined the importance of prosecutorial independence and especially of its practical implications for their impartiality.
6. The President mentioned that after the presentation to the Committee of Ministers, the Report was published on the CCPE website and became available in both official languages for the public at large.
III. PREPARATION OF the Opinion No. 13 on independence, accountability and ethics of prosecutors
7. The members of the Bureau discussed the forthcoming meeting of the Working Group which would develop further the structure of the Opinion, prepared by the Secretariat and revised by the Bureau (document CCPE-GT(2018)1Prov2). This draft would form the good basis for the preparation of the final version of the structure, and then for the text of the Opinion.
8. The members of the Bureau made a number of comments as regards the forthcoming work. First of all, there was a distinction between the systems where the prosecution service was formally independent and the systems where this was not the entirely the case. It would also be important for the Opinion to find good balance between prosecutors being independent in their decisions on the one side (internal independence), and the independence of the prosecution service on the other side (external independence).
9. The issue of the budgetary independence as part of the general independence of the prosecution services was also addressed. At the end, it was decided to open the meeting of the Working Group with outlining the draft structure and emphasising that the headings and the text should be developed and further concretised, and then to proceed first to the overall discussion, followed then by concrete proposals for specific chapters and sections.
IV. OTHER WORKS OF THE CCPE
10. The members of the Bureau also briefly discussed the situation in Poland concerning the merger of the offices of the Minister of Justice and of the Prosecutor General. They have noted and supported in particular the recent Opinion of the Venice Commission which referred, in particular, to the CCPE Opinions 3, 4 (the Bordeaux Declaration) and 9 (the Rome Charter).
11. The Venice Commission concluded that this merger, being a complete reversal of the model adopted in 2009 (split of both positions), fell short of international standards as to the appointment of the Prosecutor General and to his/her qualifications. Furthermore, the main problem concerned the attribution of extensive powers to the Prosecutor General - Minister of Justice by the 2016 Act, notably with regard to direct intervention in individual cases. This, in addition to the very broadly formulated power of the Prosecutor General of “maintaining law and order” which appeared as a sort of general supervisory power commonly found in “prokuratura” type systems, created a risk of misuse and political manipulation of the prosecutorial service, which was unacceptable in a state governed by the rule of law.
12. The problems related to the merger of the positions of the Prosecutor General and of the Minister of Justice were also exacerbated by the entry into force of the Act on the Organisation of Common Courts, which gave strong powers to the Minister of Justice, in particular the right to dismiss and replace the court presidents. The Venice Commission recommended that the prosecutorial system be depoliticised and that the offices of the Prosecutor General and of the Minister of Justice be separated.
V. OTHER ITEMS
13. The next meeting of the Bureau would take place in Paris on 7 June 2018.
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 Bureau and the Secretariat / Communication du Président, des membres du Bureau 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. Report of the CCPE Bureau on the independence and impartiality of the prosecution services in the Council of Europe member States in 2017, prepared following the proposal of the Secretary General of the Council of Europe / Rapport du Bureau du CCPE sur l’indépendance et l’impartialité des Ministères publics dans les États membres du Conseil de l’Europe en 2017, établi sur la proposition du Secrétaire Général du Conseil de l’Europe
6. Other work of the CCPE / Autres travaux du CCPE
· Situation in Poland / Situation en Pologne
· Participation of the CCPE in other meetings in and outside the Council of Europe / Participation du CCPE à d’autres réunions au sein et à l’extérieur du Conseil de l’Europe
7. Any other business / Divers