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

Parliamentary Assembly
Assembl�e parlementaire

Role of the public prosecutor’s office in a democratic society governed by the rule of law
Recommendation 1604 (2003)

Doc. 10068
6 February 2004

Reply from the Committee of Ministers
adopted at the 870^th meeting of the Ministers’ Deputies (4 February 2004)

1.         The Committee of Ministers welcomes Parliamentary Assembly Recommendation 1604 (2003) on the role of the public prosecutor’s office in a democratic society governed by the rule of law which has been brought to the attention of the governments of the member states.

2.         The Committee of Ministers endorses the Parliamentary Assembly’s recognition of the essential role of the public prosecutor in ensuring security and liberty throughout European societies. It further shares the Assembly’s assessment that Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system constitutes a detailed reference text for guidance of the current operations and future reform of the public prosecutors’ offices throughout Council of Europe member states. The Committee of Ministers once again draws the attention of national authorities to this text.

3.         The Committee of Ministers underlines the variety of public prosecution models in different countries, resulting from legal traditions and the different organisation of criminal justice systems. Each system has its own checks and balances and it is difficult to treat one single element – the role of the public prosecutions services, for instance – in isolation from other elements of the system. Besides, the Committee of Ministers is not in a position to endorse, without extensive additional debate at least – some of the Assembly’s ideas in relation to the public prosecution services, such as the universal adoption of the principle of discretionary prosecution or the confinement of the role of public prosecutors to the criminal justice system. The Committee of Ministers finds no reason to request that the principle of legality be abandoned by those European jurisdictions where it is applied or to prevent prosecutors from exercising certain functions outside the criminal justice system, as it is the case in many legal systems. As to the recommendation for complete independence of the public prosecutors in individual cases it considered appropriate to point out the difficulty to apply this in those legal systems where the public prosecution service is constitutionally part of the executive branch or Government. Furthermore, the Committee of Ministers recalls Guiding principle No. 3 against Corruption included in its Resolution (97) 24 of 6 November 1997 and the exhaustive monitoring conducted by GRECO of the application of this principle (see www.greco.coe.int). The guiding principle reads: “to ensure that those in charge of the prevention, investigation, prosecution and adjudication of corruption offences enjoy the independence and autonomy appropriate to their functions, are free from improper influence and have effective means for gathering evidence, protecting the persons who help the authorities in combating corruption and preserving the confidentiality of investigations.”

4.         As regards the recommendation to support the Conference of Prosecutors General of Europe (CPGE), in particular by making it a permanent Council of Europe body with appropriate resources, the Committee of Ministers recalls that at its 52nd Plenary meeting (16-20 June 2003), the Steering Committee on Crime problems (CDPC) limited itself to take note of the Conclusions of the 4th CPGE (Bratislava, 1-3 June 2003), which contained similar proposals. It is the Committee of Minister’s view that some of the proposals made in Bratislava require further debate.

5.         The Committee of Ministers underlines that so far the lack of institutionalisation has not prevented the CPGE from accomplishing its mission effectively. Over the past few years it has had four plenary meetings and the fifth one is scheduled to take place next year in Celle (Germany). It has launched a number of activities and set up a Co-ordinating Bureau. Moreover, in the current budgetary climate, it is clear that additional resources for the CPGE would have to be detracted from other on-going activities in the legal field.

6.         The CDPC has already brought forward its plenary meeting dates (March 2004) in order to be more actively involved in the elaboration of the programme of activities in the criminal law area. The issue of the CPGE deserves an ample discussion at intergovernmental level. The CDPC’s plenary provides an excellent opportunity for such a discussion.

7.         In the meantime the Committee of Ministers proposes to continue, at least for 2004, with the current pragmatic arrangement and flexible approach. It will inform the Assembly about the results of discussions in this area.

8.         Finally, as to the proposal to undertake a detailed study with a view to preparing an additional recommendation to member states on those aspects of the role of public prosecutors not addressed in Recommendation Rec(2000)19, the Committee of Ministers observes that the Parliamentary Assembly proposes the involvement of the CPGE in this work. The CDPC will examine this issue jointly with the Bratislava Conclusions.