For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9796

24 April 2003

Role of the public prosecutor in a democratic society governed by the rule of law

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Aleksandar Arabadjiev, Bulgaria, Socialist Group

Summary

The office of public prosecutor plays a central and vital role in ensuring security and liberty throughout Council of Europe member states. National systems vary in many ways, however, including the location and relationship of the office with respect to other branches of government, its responsibilities and powers within the criminal justice system and its role as regards the courts and other spheres of public administration. For the most part, these national peculiarities present no particular problems.

The Council of Europe is founded on certain basic principles, including respect for human rights, along with democracy and the rule of law whose preservation requires effective separation of powers. Because of its importance, these principles should be applied with particular care to the office of public prosecutor. A survey of the way in which particular functions were discharged by national public prosecution offices revealed certain practices which presented potential inconsistencies with these principles.

Applying these principles to the issues of concern, therefore, the Assembly recommends that certain actions be taken by member states, including implementation of existing Committee of Ministers’ recommendations. The Assembly recommends to the Committee of Ministers that it study the Assembly’s recommendations to member states, with a view to elaborating a further recommendation of its own, whilst continuing to work towards full implementation of its existing recommendations. The Assembly also recommends that the position of the Conference of Prosecutors General of Europe be secured and strengthened, and that it should be involved in the Committee of Ministers’ study and elaboration of a further recommendation.

I.       Draft recommendation

1.       The Assembly recognises and appreciates the essential role of the public prosecutor in ensuring security and liberty throughout European societies: by safeguarding the rule of law, by protecting the individual from falling victim to criminal violations of their rights and freedoms, by ensuring respect for the rights and freedoms of those suspected of or charged with the commission of criminal offences, and by overseeing the proper functioning of the bodies responsible for the investigation and prosecution of offences.

2.       The Assembly 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 both to public prosecutors and to those concerned by criminal prosecutions. Furthermore, respect for democracy and the rule of law require effective separation of the various powers of government, in this respect in particular as between the public prosecutor (whether as an administrative agent of the executive or of the legislature) on the one hand and the judiciary on the other.

3.       The Assembly takes note of the Committee of Ministers’ Recommendation Rec(2000)19 on “The role of public prosecution in the criminal justice system”, and considers that this instrument amounts to a detailed reference text for guidance of the current operations and future reforms of public prosecutor’s offices throughout Council of Europe member states. The Assembly notes in particular this Recommendation’s recognition of the need to enhance the fight against both national and international crime and its call for international co-operation on criminal matters to be increased, all in full respect of the principles of the ECHR. The Assembly recommends to member states that they endeavour to give full and immediate effect to this instrument.

4.       The Assembly agrees that – in an ever-more interconnected and mobile Europe whose citizens are increasingly exposed (directly or indirectly) to other countries’ legal systems and cultures – it is important that some degree of harmonisation is achieved between the criminal justice systems of member states, so as to maintain, firstly, their effectiveness in the face of new challenges from transnational organised crime, and secondly, public respect for the rule of law and confidence in the foreseeability of its application. Whilst particular national practices and traditions must be acknowledged, therefore, where certain aspects of the role of various national public prosecutor’s offices give rise to concern, these may appropriately be addressed on a European level, within the framework of the Council of Europe.

5.       In this respect, the Assembly welcomes the creation of the Conference of Prosecutors General of Europe, which is ideally placed to play an important and dynamic central role in bringing together the different cultures and experiences of public prosecution from throughout the Council 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, to the great advantage of the Council of Europe’s activities in the field. The Assembly therefore considers that this body merits establishment on a permanent basis, on a level with the Consultative Council of European Judges (CCJE) and with appropriate resources.

6.       On the basis of their replies to its questionnaire, the Assembly finds that the following particularities to be found amongst the various national practices of member states give rise to concern as to their compatibility with its basic principles:

i.       the police having responsibility for prosecutions;

ii.       the public prosecutor being responsible for or an intermediary in initial challenges to decisions to detain;

iii.       an appeal by the prosecutor against a judicial decision to release a detained person having suspensive effect;

iv.       the decision to prosecute following automatically from the establishment of evidential grounds; and

v.       varied non-penal law responsibilities of public prosecutors.

7.       As to these concerns, the Assembly makes the following recommendations to member states’ governments:

i.       it is necessary that responsibility for prosecutions should lie with a body separate from and independent of the police;

ii.       it is necessary that there be prompt, direct and automatic referral of detentions to the competent court, thereby ensuring full compliance with Article 5(3) of the ECHR;

iii.       the prosecution appeal should not have suspensive effect either generally or automatically, with any exceptions lying only where a court has found that objectively determinable factors strongly indicating continued preventive or precautionary detention are clearly established (for instance where the lower court has ordered release only on condition of some lesser form of compulsion and there is a subsequent distinct judicial decision to suspend the order of release);

iv.       the interests of justice in effective and efficient disposal of cases, along with the interests of both the defendant and any injured party, are best served by a system allowing discretion in the decision to prosecute. In this respect, the Assembly refers with approval to Committee of Ministers’ Recommendation No. R (87) 18 concerning the simplification of criminal justice, whilst considering that the principle of discretionary prosecution should be adopted universally; and

v.       as to non-penal law responsibilities, it is essential that:

furthermore;

8.       The Assembly therefore recommends to the Committee of Ministers:

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

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

iii.       that it 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 its previous Recommendation Rec(2000)19, with particular consideration given to the Assembly’s recommendations mentioned in paragraph 7 sub-paragraphs i. – v. above; this study also to consider proposing universal adoption of the principle of discretionary prosecution.

II.       Explanatory memorandum

A.       Introduction

1.       On the basis of Doc 8328 of 10 February 1999, the Committee was charged with preparing a report on this issue. This document requested that the Assembly recommend to the Committee of Ministers to:

2.       On 27 September 2001, the Committee’s Sub-Committee on Penal Law and Criminology was informed of the following points. First, that the Committee of Ministers had adopted Recommendation Rec(2000)19 on “The role of public prosecution in the criminal justice system” which did not aim to provide a single model – the idea of harmonisation would have been premature – but which reflected a European consensus on the issue, providing an authoritative reference point for definition of the term ‘public prosecutor’ and of safeguards necessary for their activities and relations with other bodies. Second, that the Committee of Ministers’ activities went beyond standard setting to include various forms of co-operation, with two pan-European conferences having been held, the second of which recommended the establishment of a "Conference of Prosecutors General of Europe".

B.       Committee of Ministers Recommendation Rec(2000)19 on the Role of the Public Prosecutor in the Criminal Justice System

3.       Whilst this bears a different title to the instant report, it should be noted that its preamble refers to promotion of the rule of law; the rule of law being the basis of genuine democracies; and the criminal justice system playing a key role in safeguarding the rule of law. There is also the consideration, of course, that, this being a document of the Council of Europe, it is bound to adhere to the organisation’s interdependent basic principles of respect for democracy, human rights and the rule of law. Thus in the accompanying Explanatory Memorandum it is stated that

and that, in drafting the document, the Committee of Ministers

4.       During the preparation of this Recommendation the Directorate General of Legal Affairs administered a lengthy pan-European questionnaire on the “Status and Role of Public Prosecution.” States’ answers to this were reduced into a “Synthesis of Replies”. It should also be noted that the Conference of Prosecutors General of Europe meeting in Ljubljana in 2002 (see below) has referred to Recommendation Rec(2002)19 as being “the text of reference”.

5.       Your Rapporteur observes in particular that the preamble to this text notes further that “international co-operation on criminal matters should be enhanced, whilst safeguarding the principles enshrined in the [ECHR]”, and that “public prosecution also plays a key role in the criminal justice system as well as in international co-operation in criminal matters”. The preamble then concludes that “the definition of common principles for public prosecutors in member states should be encouraged”. Your Rapporteur agrees, and considers that the exercise should be extended to encompass all areas in which Europe’s national public prosecutors discharge their various duties.

C.       The Conference of Prosecutors General of Europe

6.       The process of establishment of this institution began with a conference on 22-24 May 2000 in Strasbourg entitled “What public prosecution in Europe in the XXIst Century?” The then draft Recommendation was fully endorsed. Conclusions were adopted making further comments and suggestions, including on matters relating to the role of prosecutors in areas peripheral to criminal justice. Council of Europe training and standard setting activities were encouraged, and much support was given to the need for increased international co-operation between prosecutors.

7.       On 8-10 September 2000 the First Pan-European Conference for Public Prosecutors specialising in cases relating to organised crime was held in Naples, focussing on the question of “Protecting society from organised crime”. The earlier Strasbourg conclusions were endorsed, particularly in relation to the need for international co-operation, with calls for high-level meetings of public prosecutors to be organised by the Council of Europe and the establishment of a Liaison Group to organise informally contacts and exchanges of information.

8.       The Second Pan-European Conference of Prosecutors General of Europe was held in Bucharest from 12-16 May 2001. This called on the Committee of Ministers to set up, within the Council of Europe, a “Conference of Prosecutors General of Europe” with a Co-ordinating Bureau to organise meetings, provide follow-up to the Conference’s work, and to liaise with competent bodies of the Council of Europe.

9.       As a result of the Bucharest conference, on 5 September 2001 the Committee of Ministers, pending further decisions, authorised the Secretariat to convene the Co-ordinating Bureau of the Conference of Prosecutors General of Europe, consisting of named senior prosecutors from various member states. This Co-ordinating Bureau began work on the Third Session of the Conference.

10.       The Third Session of the Conference of Prosecutors General of Europe was held in Ljubljana from 12-14 May 2002. This Conference considered the impact of Recommendation Rec(2000)19, relations between the public prosecution service and the judiciary, prosecutors specialising in anti-mafia cases and economic and financial criminality, the ethics and liability of individual prosecutors, and international co-operation in criminal matters. Its conclusions mentioned determination to promote approximation of prosecutors and prosecutors’ offices in Europe, with harmonisation around common values and guiding principles respectful of human rights and mindful of the requirement of efficiency. They recalled Recommendation Rec(2000)19, which each prosecutor’s office was required to take into account, and charged its Bureau with studying the possibilities of a mechanism for monitoring implementation of the Recommendation. The Conference reiterated its invitation, made to the Committee of Ministers in Bucharest, to recognise formally the Conference as a fully fledged body on a level with the Consultative Council of European Judges (CCJE) and with appropriate resources. Preoccupation with organised crime, all forms of corruption and financial and economic criminality was once again expressed. The Conference will be holding its Fourth Session in Bratislava from 1-3 June 2003.

11.       Your Rapporteur welcomes the establishment of the Conference, which is ideally placed to play an important and dynamic central role in bringing together the different cultures and experiences of public prosecution from throughout the Council of Europe. Being a pool of expertise and a diverse forum for discussion of specialist issues, this body has enormous potential for making and considering proposals, offering advice, comparing national situations and identifying best practices, to the great advantage of the Council of Europe’s activities in the field; as, indeed, has been recognised in principle by the Committee of Ministers in the preamble to Recommendation Rec(2000)19. In particular, Your Rapporteur envisages an invaluable central role for the Conference in developing responses to the concerns raised in this report. It is understood that, despite its having held several important and productive meetings, the Conference continues to operate on a precarious basis, without specific budget, staff or programme – unlike the parallel bodies established for judges and the police. As a result, the Bureau of the Conference has lamented its inability to fulfil its mandate and feared for the continuation of the dynamism created since its creation. Your Rapporteur considers, therefore, that the Conference merits establishment on a permanent basis, on a level with the Consultative Council of European Judges (CCJE) and with appropriate resources.

D.       The implications for this report

12.       It can be seen, therefore, that much of what the original motion sought to achieve has now been brought about. Whilst Recommendation Rec(2000)19 bears a different title, it is founded on the same principles. Your Rapporteur welcomes Recommendation Rec(2000)19 and supports its application throughout the member States. As already noted – and as was suggested at the Ljubljana Conference -, this instrument can justifiably be seen as the detailed reference text for current operation and future reforms of public prosecution offices throughout the Council of Europe member States.

13.       Nevertheless, there are certain points which were not addressed in the research underlying Recommendation Rec(2000)19 and which your Rapporteur believes merit further attention. In brief, these are:

14.       Accordingly, a questionnaire was prepared for submission to member States. Apart form the issues mentioned above, the questionnaire also asked whether any of these areas were subject to impending reforms. Replies were received from the following member states: Armenia, Austria, Azerbaijan, Bosnia and Herzegovina (with a separate reply for Republika Srpska), Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Germany, Hungary, Iceland, Italy, the “Former Yugoslav Republic of Macedonia”, the Netherlands, Norway, Poland, Portugal, Russia, Slovak Republic, Slovenia, Sweden and the United Kingdom.

E.       Results of the questionnaire and conclusions

15.       As one might expect, the information obtained revealed considerable national discrepancies in the organisation, role and powers of public prosecutors. In certain instances, furthermore, the position described gives rise to some concern. This does not mean, however, that there were unique “right” answers to the questions, and Your Rapporteur fully accepts that various forms of arrangement may be equally valid.

16.       As a preliminary point, therefore, certain basic distinctions must be recognised. First, inquisitorial systems generally involve an investigating judge at a more or less early stage in the proceedings, with the advantage of subjecting the preliminary decisions of prosecutors and investigators to judicial oversight. That said, however, Your Rapporteur does not feel that it would be realistic – or even necessarily advisable – to propose the replacement with this system of the adversarial processes which exist elsewhere. Second, the position of procurators or prosecutors-general in ex-socialist countries presents certain peculiarities, not least in that they are often appointed by the legislature rather than being a part of the administration under the direction of the executive. Whilst this may obviate some of the concerns raised below about separation of powers, in practice it only serves to raise others, as the office of the prosecutor-general often discharges other functions which impinge on the exercise of judicial authority.

a.       Role of the police in prosecutions

17.       In Denmark and Iceland, both the police and the public prosecutors are involved in the prosecution of offences before the courts. In Denmark, chief constables are considered part of the Prosecution Service, and are responsible for prosecuting cases before district courts. In Iceland, commissioners of police are in charge of investigation and of the prosecution of less serious offences within their area of office. Similarly, in both countries, the police appear before courts when decisions are taken on detention. In Norway, the lowest level of public prosecution is integrated into the police: decisions on initiating and directing investigations, on charging, on detention and on prosecuting are thus made within the police.

18.       Elsewhere, the general situation appears to be that prosecutors have varying degrees of control over or involvement in investigations, which may be conducted by or with the co-operation of the police, but that the police are essentially separate from the public prosecution service and play no role in bringing cases to court. In the United Kingdom, for example, there has over the past 20 years been a move from police responsibility for prosecutions, to prosecution by an independent agency, and now to proposals for prosecution service involvement in decisions to charge; in other words, the responsibility for charging and prosecuting has increasingly moved away from the police.

19.       Your Rapporteur believes that there are strong arguments in favour of excluding the police from any role in deciding upon or pursuing prosecutions: most obviously, that police officers, having the most immediate role in investigating offences and identifying and questioning suspects, may be less objective in determining whether to charge an individual than a more distant public prosecutor.

b.       Judicial oversight of decisions to detain

20.       Again, national practices vary, although comparative analysis is complicated by distinctions between initial arrest, subsequent detention by the police (including on the instructions of the prosecutor) and remand in custody by the courts. In certain jurisdictions it appears that the initial decision to detain is made by a judge, on the application of the prosecutor (e.g. Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Hungary, Poland and Slovenia); presumably this refers to detention following arrest, although this itself may generally require a judicial warrant. Elsewhere was described an automatic procedure for prompt referral to the court of decisions to detain or to extend detention: for example, in Cyprus, Denmark and the United Kingdom, this occurs within 24 hours of arrest, in Norway within the next working day (an impending amendment to the Code of Criminal Procedure will extend this period to three days), and in Azerbaijan within 48 hours; in Finland the delay may be three days, and in the Netherlands, up to three days and 15 hours. The practice in other countries seems less protective against arbitrary detention, however, notably in Russia, where the suspect has an elective right to contest the decision to detain, and applications are made either to the procurator or a judge, via the authorities of the place of detention.

21.       Your Rapporteur considers that the most important issues with respect to detention relate to the right of all detainees under Article 5(3) of the European Convention on Human Rights to be “brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.” In view of the uncertainty attending non-automatic referral to the court of decisions to detain, particularly where the individual right to apply is subject to potential administrative or procedural obstacles, Your Rapporteur concludes, therefore, that the preferred procedure is one of prompt, direct, automatic referral to the competent court, without preliminary applications to or an intervening role for prosecutors.

c.       Suspensive effect of prosecution appeal against judicial order to release

22.       A further issue relevant to detention is whether the prosecutor’s appeal against a judicial decision refusing an application for initiation or continuation of detention has suspensive effect. Of the replies received, it seems that only in Azerbaijan, Hungary, Russia, Slovakia and the United Kingdom will the prosecutor’s appeal suspend the judicial order of release; in Bulgaria, it has suspensive effect if some lesser measure had been ordered to secure appearance; in Norway, the court against whose decision the appeal is brought or the court to which it is made may suspend the order to release; and in Denmark, the court may suspend release.

23.       Your Rapporteur is attracted by the position of those countries wherein the prosecutor’s appeal has no suspensive effect, but can understand the concern that ill-judged release may lead to absconding, interference with witnesses, destruction of evidence or the commission of further offences. A question arises, therefore, as to whether some intermediate position – respecting the judicial order of release and the individual right to liberty, whilst acknowledging the public interest in ensuring the avoidance of adverse consequences – can be elaborated, suitable for general adoption.

d.       Discretion in the decision to prosecute

24.       As to the decision to prosecute, the main distinction here is between systems which specifically allow for discretion (e.g. Cyprus, where consideration is given to the public interest, taking into account the personal circumstances of the offender, the nature and seriousness of the offence and the rights and needs of the victim; Finland, where a discretion lies if prosecution would be unreasonable or pointless; Norway, where there are stronger reasons for not prosecuting the act; and the United Kingdom, where prosecution must be in the public interest) and those which do not (including Bulgaria, Croatia, Hungary, Iceland, Portugal and Russia). There are, however, some systems which present a form of hybrid: for example, in the Czech Republic, offences may be classified as petty, administrative or disciplinary; in Estonia and Slovenia, the injured party must consent to proceedings being stayed; and in Denmark, Germany and Sweden, exceptions to the general rule of non-discretion exist for minor offences.

25.       Your Rapporteur considers that there is great benefit to systems which allow the flexibility of some form of discretion. Throughout Europe, criminality (especially petty offending) has tended to increase, creating a heavy workload for prosecution services which can impede the efficiency and effectiveness of the criminal justice system as a whole. This may have serious consequences for the protection of human rights and for public respect for the rule of law. Giving prosecutors a discretion in deciding whether or not to proceed in all cases could greatly alleviate this burden. In this respect, Your Rapporteur welcomes Committee of Ministers Recommendation No. R (87) 18 concerning the simplification of criminal justice (which proposes introduction of the principle of discretionary prosecution), but considers that this approach should be adopted universally. Questions remain, however, about the circumstances in which such discretion should be exercised: whether, at one end of the scale, a broad ‘public interest’ test should be applicable to all offences, or whether the discretion should be limited, for instance to minor offences in which the expected penalty would amount to no more than a fine and the injured party consents to proceedings being stayed.

e.       Non-penal law responsibilities of public prosecutors

26.       Finally, the situation of prosecution services with respect to other, especially non-penal law responsibilities is particularly disparate. In some countries there is a potential for those involved in criminal proceedings (whether suspects, defendants, witnesses or injured parties) to be obliged to approach the office of the public prosecution to ensure protection of their individual rights against non-criminal interference. For example: in Azerbaijan, the prosecutor deals with citizen’s applications; in Bosnia and Herzegovina, the prosecutor acts to ensure respect for human rights; in the Czech Republic, the prosecutor is involved in procedures for disclaiming paternity; in Denmark, the prosecutor plays a role in cases involving guardianship and matrimonial issues and aliens legislation; in Italy the prosecutor protects the rights of incapacitated persons; in Portugal, the prosecutor represents incapacitated persons and those of no fixed abode and protects the social rights of workers and their families; and in the Slovak Republic, the prosecutor acts in family cases involving decisions of foreign jurisdictions. The situation in Turkey – where responsibility for protecting human rights in the penitential system and in police headquarters lies with the prosecutor’s office, so that suspects and detained persons are obliged to turn for protection of their rights to a body with a direct interest in their prosecution and detention – presents particular grounds for concern.

27.       Furthermore, in certain jurisdictions the prosecutor has a supervisory role over constitutionality, legality and the judicial system which appears to go further than pursuing individual criminal prosecutions or a more general role in defending the public interest through the criminal justice system. For example: in Azerbaijan the prosecutor is under a duty to strengthen lawfulness and the implementation of laws; in the Republika Srpska of Bosnia and Herzegovina, the prosecutor initiates procedures for assessing constitutionality and legality before the Constitutional Court; in Croatia, the prosecutor acts to protect the Constitution and laws; in Hungary, the prosecutor ensure that state organs and institutions comply with the law, including the rules, regulations and decisions of administrative organs; in Portugal, the prosecutor protects the independence of the courts and supervises the constitutionality of judicial functions; in Slovakia, the prosecutor participates in the plenary Supreme Court; and in Slovenia, the prosecutor oversees the constitutionality and legality of regulations and acts concerning the exercise of public authority.

28.       Two vital basic principles are involved: the avoidance of a conflict of interest on the part of the prosecution service, and the constitutional separation of powers between distinct branches of government. Your Rapporteur considers that it is wrong in principle for the protection of an individual’s rights to be entrusted to a body which may at the same time be involved in proceedings whose essential purpose is to interfere with that person’s rights. Such a system raises questions about the objectivity and impartiality of the body in question when requested to act in protection of individual rights. Furthermore, the individual concerned may consequently be reluctant to approach that body for the protection to which they are entitled. Both of these considerations have potentially serious consequences for the State’s discharge of its obligation to secure to everyone within its jurisdiction, without discrimination, the rights set out under the ECHR.

29.       Your Rapporteur therefore concludes that such non-penal law responsibilities for the protection of rights and freedoms should be entrusted to a body entirely independent of the office of the public prosecutor. One possibility would be a parliamentary ombudsman, independent both of the executive/ administration and of the judiciary, obliged to act in the public interest – appearing in courts only as against the administration and executive, if at all – and responsible to the people’s elected representatives.

30.       As to a supervisory role for public prosecutors over legality, constitutionality, execution of judgments and the operation of the judicial system, a clear distinction must be preserved between the prosecutor – usually an organ of the administration under the ultimate direction of the executive – and the enforcement of the acts of the legislature and regulation of the judiciary. For instance, the public prosecutor may be confronted with a conflict of interest when assessing the legality or constitutionality of laws or regulations which facilitate prosecutions or impede the rights of the defence. Similarly, where the prosecutor is ultimately under the control of the executive – and given that the executive generally proposes legislation, directs administrative bodies and may control the legislature – doubts may arise as to the objectivity and impartiality of the prosecutor when called upon to oversee the propriety of the application of regulations and laws, or adherence to regulations and laws which limit the activities of administrative bodies. Finally, it is questionable that an organ of the administration whose principle role is within the judicial system has a responsibility for ensuring the independence of the judiciary from the executive.

31.       Alternatively, in jurisdictions where the prosecutor-general (or procurator) is appointed by the legislature, it is improper for prosecutors under the direction of the prosecutor-general to engage in the judicial or quasi-judicial functions elsewhere discharged by administrative tribunals. All elements of judicial power must be independent also of the legislature, so as to ensure that laws and regulations are consistent both in substance and application with the legal and constitutional principles of the jurisdiction. In this respect, Your Rapporteur notes with approval the position taken in Recommendation Rec(2000)19, whilst considering that public prosecutors should be excluded from any judicial role.

32.       Accordingly, Your Rapporteur believes that the non-penal law responsibilities of the office of the public prosecutor should be reduced to a minimum, assuming that any are required at all. There may be arguments that the prosecutor can distinguish between situations in which there may or may not be a conflict of interest, and be disqualified as appropriate; but since this necessitates an alternative body to discharge those functions in the absence of the prosecutor, the sensible solution would seem to be that the alternative body (or bodies) be given responsibility for all of these other functions. Such a body could nevertheless emanate from either the legislative or the administrative branch of government, even from within the Ministry of Justice: again, this question merits closer attention.

F.       Final comment

33.       Europe is an ever-more interconnected and mobile area, whose citizens are increasingly exposed – whether indirectly, through travel, international distribution of the press or telecommunications, or directly, through personal experience – to the legal systems and cultures of other countries. It is important, therefore - above and beyond the fundamental requirement of compliance with the basic principles of the Council of Europe -, that some degree of harmonisation is achieved between the criminal justice systems of member States: so as to maintain, firstly, their effectiveness in the face of new challenges from organised transnational criminality, and secondly, public respect for the rule of law and confidence in the foreseeability of its application. Thus whilst particular national practices and traditions must be acknowledged, where certain aspects of the role of various national public prosecutor’s offices give rise to concern, these may appropriately be addressed on a European level, within the framework of the Council of Europe. The Committee of Ministers has already recognised the importance of this process with respect to public prosecutors, notably in its Recommendations (87) 18 and Rec(2000)19. Your Rapporteur feels that this work should now be extended to its logical and necessary conclusion.

34.       Accordingly, Your Rapporteur proposes the following to be adopted as a recommendation to the Committee of Ministers:

i.       that it continue in its efforts to ensure full and effective implementation of Recommendations (87) 18 and Rec(2000)19, in recognition of their content and status, and in particular the extent to which Recommendation Rec(2000)19 has been welcomed by those most directly affected;

ii.       that it 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.       that it 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 on those aspects of the role of the public prosecutor not addressed in its Recommendation Rec(2000)19, this recommendation also to consider proposing universal adoption of the principle of discretionary prosecution; and

iv.       that it ensure that, in undertaking this study, those organs give particular account to the conclusions reached herein, namely:

APPENDIX

Summary of responses to the questionnaire (AS/Jur (2002) 56)

Note: responses were received from Armenia, Austria, Azerbaijan, Bosnia Herzegovina (including a separate response for the Republika Srpska), Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Germany, Hungary, Iceland, Italy, Malta, “the former Yugoslav Republic of Macedonia”, the Netherlands, Norway, Poland, Portugal, Russia, Slovakia, Slovenia, Sweden, Turkey and the United Kingdom.

Certain national peculiarities should be clarified at the outset: notably, that in Denmark, Chief Constables of police are considered part of the Prosecution Service; in Iceland, police commissioners are responsible for prosecuting lesser offences in local courts; and also in Norway, the lowest level of public prosecution is integrated into the police.

1.       Investigation of crime and charging of suspects

a)       What, if any, role do the personnel of public prosecution services play in the investigation of crime?

In Armenia, Azerbaijan, Bosnia Herzegovina (at the state level and in the Republika Srpska), Croatia, Czech Republic, Denmark, Estonia, Germany, Hungary, Iceland, Italy, “the former Yugoslav Republic of Macedonia”, the Netherlands, Norway, Poland, Russia, Slovakia, Slovenia and Sweden, the prosecutor plays a profound role in investigations. This role generally includes initiation of, intervention in and/ or conduct of, and/ or supervision of the lawfulness of investigations. In Bulgaria, Croatia and Slovenia similar functions are exercised with respect to examining magistrates. In Cyprus and the United Kingdom the prosecutor is not involved in investigations, but may be contacted for advice by the police. In Finland, there is a principle of cooperation between mutually independent authorities, although the prosecutor may order the police to carry out further work. In Turkey, the prosecutor plays an auxiliary or secondary role in a “helping manner”.

b)       In what way, if any, is the prosecutor involved in the decision to charge a suspect?

This generally reflects the role of the prosecutor in the investigation. In all countries apart from the United Kingdom, the prosecutor (depending on the exact nature of the criminal legal system) plays a central role in the decision to charge and/ or to prosecute, and in the selection of charges to be brought. In the United Kingdom, the police may contact the prosecutor for advice on charging: reforms are intended which will give the prosecutor a role in charging all non-minor offences.

c)       What power of review over decisions to charge suspects, if any, does the prosecutor have?

In all countries, broadly consistent with their role in decisions to charge, prosecutors also have powers to review the charges that have been brought, notably during the procedure between charging and bringing the case to court.

d)       In what circumstances can this power be applied?

In Armenia, Azerbaijan, the Republika Srpska of Bosnia Herzegovina, Croatia, Cyprus, Czech Republic, Denmark, Finland, Germany, Hungary (when the suspect complains), “the former Yugoslav Republic of Macedonia”, and the United Kingdom, prosecutors have ongoing powers to review charges throughout criminal proceedings. In Estonia, Italy and Russia, however, these powers lapse when the case is brought to court.

2.       Decision to detain

a)       Does the prosecutor play any part in the initial decision to detain a suspect?

In most countries the prosecutor – again, reflecting the role in investigations – is closely involved in decisions to detain. In the Republika Srpska of Bosnia Herzegovina, Estonia and the United Kingdom, the prosecutor is only consulted on the decision to detain.

b)       In the first instance, to whom does the detainee turn for review of the decision to detain?

In all countries, continuation of detention beyond a more or less brief initial period are referred to the competent court. In Azerbaijan, Cyprus, Denmark, Finland, the Netherlands and the United Kingdom, referral to a court occurs automatically within a certain period of time. In all countries where referral is not automatic, apart from Russia, the detained person applies to the court directly; in Russia, there is a procedure involving initial application to the prosecutor.

c)       What is the procedure involved in a suspect challenging a decision to detain?

In all countries, the detained person has a right to apply to and appear before the court. Generally – for example, in Armenia, the Republika Srpska of Bosnia Herzegovina, Bulgaria, Hungary, Italy, Poland, Portugal, Sweden, and the United Kingdom – this is matched by the prosecutor’s right to oppose the application before the court. In certain countries there appears to be a complicated application procedure: in Iceland, initial requests are made to the police; in Poland, there is initial application to the prosecutor; in Russia, the detained person’s challenge is made via the place of detention; in Slovakia, application is made to the body whose decision is being challenged, and may then proceed through the police and/ or prosecutors hierarchy for subsequent consideration; and in the United Kingdom, representations are first made to a police reviewing officer.

(It must be noted that these latter two questions did not generate clearly consistent information in national responses, presumably due to terminological ambiguities.)

d)       Does the prosecutor have any power to challenge a court’s decision to order release?

In all countries apart from Finland, the prosecutor can appeal to a higher court against a lower court’s decision to order the release of detained persons.

e)       If the prosecutor challenges it, is the court’s order of release suspended pending determination of the challenge?

Only in Azerbaijan, Hungary, Russia, Slovakia and the United Kingdom does the prosecutor’s challenge to a judicial order to release a detained person automatically have suspensive effect. In Bulgaria, the lower court’s order is suspended for the duration of the time within which the prosecutor may appeal, if some lesser measure has been ordered to secure release. In Denmark, the court may suspend release, and in Norway, either the lower or the upper court may suspend release.

3.       Decision to prosecute or to withdraw prosecutions

a)       What considerations are taken into account by the prosecutor in deciding whether or not to launch or to proceed with a prosecution?

In all countries it is necessary that the prosecutor ascertain the fulfilment of certain legal and evidential conditions before initiating or continuing prosecutions. In many countries – including Bulgaria, Croatia, Hungary, Iceland, Portugal and Russia – fulfilment of these conditions obliges the prosecutor to proceed. In other countries (e.g. Cyprus, Finland, Norway and the United Kingdom) there is a broad discretion in deciding whether to prosecute. In Estonia and Slovenia, there is a discretion not to prosecute if the victim consents (which also applies in Poland where the defendant has been convicted of another offence). In Denmark, Germany and Sweden, there is a discretion not to prosecute minor offences where certain further conditions are satisfied. In the Czech Republic, minor offences may be reclassified as petty, disciplinary or administrative. In Armenia, there is a discretion only under the circumstances set out in Article 37 of the Criminal Procedure Code.

b)       Under what circumstances, if any, can a decision on whether or not to prosecute be challenged?

In many countries, including Armenia, the Republika Srpska of Bosnia Herzegovina, Denmark, Iceland, “the former Yugoslav Republic of Macedonia”, the Netherlands and Slovakia, the accused person may challenge the decision to prosecute, either to a higher prosecution authority or directly to the courts. In Bosnia Herzegovina, the investigating judge can challenge the prosecutor’s decision to the trial chamber. In Estonia, Finland, Iceland, Russia and Sweden, higher prosecuting authorities may intervene in the decision to prosecute. In Croatia and Finland, the injured party may pursue a prosecution in the absence of action by the public prosecutor. In Austria, Denmark, Germany, Iceland and the United Kingdom, the injured party may object to a decision not to prosecute; in Italy the injured party may request that further investigation is undertaken if there has been a decision not to prosecute. In Cyprus, Poland, Portugal, Turkey and Norway, various interested parties may complain against decisions on whether or not to prosecute.

4.       Appeals against conviction and sentence and against other judicial rulings

a)       Does the prosecutor have power to appeal to higher judicial authorities against court decisions relating to conviction, to sentence and/ or to other judicial rulings (e.g. relating to admission/ exclusion of evidence, examination of witnesses or documents, trial procedure etc.)?

Only in the United Kingdom may the prosecutor not appeal against trial rulings or verdicts of the lower court, although the Attorney-General may appeal for a higher sentence: reforms are currently before Parliament which will give prosecutors a right of appeal against interlocutory rulings that effectively terminate proceedings. In all other countries which replied, prosecutors have wide powers of appeal, generally against both conviction and sentence, but often also against interlocutory rulings, including as grounds of appeal. In several countries – including Finland, Germany, Hungary, “the former Yugoslav Republic of Macedonia”, Poland and Portugal – the prosecutor may bring appeals both for and against the defendant’s interests. In Bulgaria, the prosecutor also has the power to reopen cases of acquittal in newly discovered circumstances. [It is understood that Part 10 of the Criminal Justice Bill currently before the United Kingdom parliament is intended to introduce a similar provision for serious offences.]

b)       What are the consequences of such appeals for the continuing detention of convicted persons?

For those countries which replied, a convicted person sentenced to imprisonment remains in detention, although the conviction or the sentence of imprisonment may be suspended. In Finland, the Court of Appeal gives priority to the appeals of detained convicts. In Hungary, the court must decide on maintaining detention; and in Poland, the court must decide on whether to maintain preventive detention if the case is remitted. In Italy, detention is maintained during appeals brought by imprisoned convicts.

5.       Non-penal law responsibilities of the public prosecutor

a)       What, if any, other role may the public prosecutor play in public affairs; for example, a general role in human rights protection, or in the supervision of the judicial system or of the constitutionality of laws?

Only for Estonia, Finland, Germany, Sweden and the United Kingdom is it clear that prosecutors’ responsibilities are confined to the criminal justice system. Elsewhere, additional roles vary. In Armenia, Azerbaijan, the Republika Srpska of Bosnia Herzegovina, Croatia, Italy, Portugal, Slovakia and Slovenia, the public prosecutor’s office plays a role in ensuring the constitutionality, legality and/ or application of laws and the legal system; the Portuguese response stated that this included a role in supervising judicial functions. In the Republika Srpska of Bosnia Herzegovina and Slovakia, the prosecutor plays an interventionary role in supervising the legality of civil proceedings. Elsewhere in Bosnia Herzegovina, the prosecutor plays a remedial role in ensuring respect for human rights. In Denmark, the police and Chief Constables (who also act as prosecutors) discharge a number of administrative functions. In other countries, prosecutors are involved in representing individual interests: in Azerbaijan, prosecutors deal with “the applications of the citizens”; in the Czech Republic, the prosecutor is involved in procedures for disclaiming paternity; in Denmark, the prosecutor plays a role in cases involving guardianship and matrimonial issues and aliens legislation; in Italy the prosecutor protects the rights of incapacitated persons; in Portugal, the prosecutor represents incapacitated persons and those of no fixed abode and protects the social rights of workers and their families; and in Slovakia, the prosecutor acts in family cases involving decisions of foreign jurisdictions.

b)       Is it possible that an individual, whilst subject to criminal prosecution, could be obliged to have recourse to the office of the public prosecutor in connection with the latter’s non-penal law responsibilities?

The responses of Armenia, Bosnia Herzegovina (at the state level and in the Republika Srpska), Bulgaria, Denmark, Italy and Portugal suggested that such an eventuality could indeed transpire. Cyprus, the Czech Republic, Estonia, Finland, Germany, Hungary, Iceland, Slovenia and Sweden, with varying degrees of certitude, replied that such a situation could not arise.

c)       What, if any, safeguards are there against a conflict of interest on the part of the public prosecutor in such a situation?

The responses received suggest that most countries understood this question to refer to personal conflicts of interest of individual prosecutors, rather than to an institutional conflict of interest within the justice system. This was most clear from the answers of Bulgaria, Denmark, Poland and, to a lesser extent, the Republika Srpska of Bosnia Herzegovina.

In the case of an individual, personal conflict of interest, most countries – for example, the Republika Srpska of Bosnia Herzegovina, Bulgaria, Denmark, Italy, Norway, Poland and Russia – appear to have procedures for disqualification of the individual prosecutor in question. The Croatian response stated that “this conflict of interests does not exist”. The United Kingdom answer mentioned the “total independence” of the prosecution service as preventing conflicts of interest. The responses of Cyprus, Estonia, Finland, Germany, Iceland, Slovenia and Sweden referred to their answers to the preceding question to indicate that such safeguards were unnecessary.

6.       Current or impending reforms

a)       Are the factual situations described in answering any of the above questions currently subject to reform? Please describe these reforms.

Reforms are intended in Armenia, although no information was provided on their nature. In Austria, it is intended that the prosecutor take over criminal investigations. In Bosnia Herzegovina, wide-ranging reforms will aim in particular at combating organised crime and corruption, improving the efficiency of the criminal justice system and harmonizing criminal legislation throughout the country; in the Republika Srpska, the post of investigating judge will be removed and the prosecutor entrusted with supervision of the entire investigation. Reforms in the Czech Republic are intended to simplify and expedite proceedings. In Denmark, reforms to the jury system are being considered. A new Code of Criminal Procedure in Estonia will give a stronger role to the prosecutor, including discretionary powers. There will be general procedural refinements to the German criminal justice system. A more accusatorial system will be introduced in Hungary giving a stronger role to the prosecutor during investigation and trial. The Icelandic Act on Criminal Procedure is under revision. Reforms in Italy will place a duty on prosecutors to withdraw in cases of conflict of interest and reform preliminary detention procedures. The Norwegian Code of Criminal Procedure is to be amended to prolong the period between detention and appearance before a court to three days. Re-codification of criminal law is “on the agenda” in Slovakia. Turkey awaits necessary judicial reforms which will affect the position, rights and responsibilities of public prosecutors, including introduction of “judicial police”. The Criminal Justice Bill in the United Kingdom includes provisions on the role of prosecutors in investigations, prosecution appeals and retrials.

b)       At what stage are they (e.g. under discussion, before Parliament, enacted but awaiting implementation, partially implemented etc.)?

Legislation implementing reforms in the Republika Srpska of Bosnia Herzegovina is at various stages between preparation and passage. The Czech Ministry of Justice is in the process of preparing a draft re-codification of criminal law. Estonian reforms are currently before parliament. The German Federal Ministry of Justice is preparing reform of the Code of Criminal Procedure. The new Hungarian Code on Criminal Procedure is enacted but awaiting implementation. Italian reforms are before parliamentary committees. The Norwegian amendment has been enacted but is awaiting implementation. Drafts of the various Turkish reforms are at different stages in the legislative process. The United Kingdom’s Criminal Justice Bill is currently before Parliament.

c)       When are they expected to come into force, and what potential obstacles might delay that process?

Reforms in the Republika Srpska of Bosnia Herzegovina are expected to come into force in the first half of 2003. Czech reforms are expected to be implemented at the beginning of 2005. The Estonian parliament is expected to bring a the new Code into force during 2003. The new Hungarian Code will enter into force on 1 July 2003. Norway’s amendment should come into force in 2003. Slovakia does not expect anticipated reforms to be completed in the coming year. The United Kingdom’s Bill is expected to become law in autumn 2003.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8328, Reference No 2367 of 30 March 1999

Draft recommendation adopted unanimously by the Committee on 1 April 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr G. Aliyev, Mrs Arifi, Mr Arzilli, Mr Attard Montalto, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mĝller, Mr Cilevics, Mr Clerfayt, Mr Contestabile (alternate: Mr Iannuzzi), Mr Daly (alternate: Mr Mooney), Mr Davis, Mr Dees (alternate: Mr Janssen van Raaj), Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans (alternate: Mrs Alvarez-Arenas), Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Jansson, Mr Kelber, Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev (alternate: Mr N. Kovalev), Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Raguz, Mr Ransdorf (alternate: Mr Mezihorak), Mr Rochebloine (alternate: Mr Dreyfus-Schmidt), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko (alternate: Mr Baburin), Mr Tabajdi, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mr Wilkinson (alternate: Mr Malins), Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner