CONSUL TATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)
Questionnaire concerning "The relationships between prosecutors and prison administration"
According to the Finnish legislation the prosecutor has no powers at all
- within matters of prison administration or supervision of prisons,
- regarding protecting of human rights of persons taken into custody or of remand prisoners,
- regarding enforcement of imprisonment or supervision of enforcement.
The prosecutor is not involved
- in decision-making concerning an imprisoned person's disciplinary measures,
- or in granting a person's pardon
- or in decision-making of releasing a person on parole.
In Finland this kind of legality control belongs to the Parliamentary Ombudsman.
The only legal provision giving the prosecutor an opportunity to influence the circumstances of a remand prisoner, is in the Coercive Measures Act, Chapter 1, Section 18b. During the pretrial investigation communication of a remand prisoner with another person can be restricted if there is a reasonable cause to suspect that the communication seriously endangers the purpose of the remand imprisonment. Except the prison governor or the officer in charge of the investigation, a proposal of restricting the communication of a remand prisoner can also be made by the prosecutor to the court which will give the final decision.
Quelles sont les compétences du Ministère public en matière pénitentiaire et en matière de privation de liberté ?
En Géorgie, les procureurs n’ont pas de compétence en matière du contrôle d’exécution de peine. Le Ministère public (Parquet Principal de la Géorgie), lequel de sa part dépend du Ministère de la justice est séparé du Ministère pénitentiaire, de probation et d’aide juridique. Ainsi, le Ministère pénitentiaire, de probation et d’aide juridique est l’autorité compétente en matière pénitentiaire et en matière de privation de liberté.
En plus, le 1 octobre 2010 est entré en vigueur le nouveau Code de Procédure Pénale de la Géorgie, conformément auquel le procureur ne donne plus son avis par rapport la sorte et la durée de la peine à déterminer, mais le juge la définit sans entendre la position du procureur.
Dans les Etats dans lesquels les procureurs n’ont pas de compétence générale en matière de prisons, quels sont néanmoins les moyens d’action dont ils disposent concernant les systèmes pénitentiaires ?
Au Ministère pénitentiaire, de probation et d’aide juridique il existe une unité spéciale, dite «Département d’investigation», laquelle d’une manière générale mène des enquêtes sur les crimes et les délits commis sur les territoires des établissements pénitentiaires; commis par les détenus ou contre eux; ayant rapport avec les détenus et ayant rapport avec l’exécution de peine. La surveillance procédurale sur ces enquêtes est assurée par le Ministère public.
Néanmoins, conformément à l’article 33 du Code de Procédure Pénale de la Géorgie, le procureur peut toujours mener l’enquête lui-même indépendamment, sans recourir à l’aide des enquêteurs du Département d’investigation du Ministère pénitentiaire, de probation et d’aide juridique.
En plus, le parquet mène exclusivement lui-même l’enquête sur les délits et les crimes commis par les fonctionnaires d’Etat ou personnes assimilées à eux lors de l’exécution de leurs fonctions. Ainsi, puisque les agents des établissements pénitentiaires ont le statut des fonctionnaires ou personnes assimilées à eux et s’ils commettent des crimes lors de l’exécution de leurs fonctions, ces affaires sont enquêtées directement par le parquet.
Si les procureurs sont compétents en matière de prisons et de détention, quels sont les moyens à disposition du Ministère public pour lui permettre d’agir efficacement et rapidement pour protéger les droits de l’homme en matière d’administration pénitentiaire ?
Le Ministère public géorgienne veille à ce que les droits des personnes mises en détention soient respectés. A cette fin, sur la demande du détenu les procureurs spécialisés en la matière organise l’entrevue en tête-à-tête immédiate et confidentielle avec lui, le rencontrent, dressent les procès-verbaux et les font suivre. S’il s’avère que l’information reçue de leur part contient les signes du corps de délit ou de crime, l’enquête sera ouverte. Dans le cas contraire, l’information est transmise au Service du contrôle du Département pénitentiaire du Ministère pénitentiaire, de probation et d’aide juridique.
En plus, il faut signaler que tous les détenus qui sont transférés dans les établissements pénitentiaires sont les sujets d’examens médicaux. Ainsi, si lors de cet examen médical il s’avère que le détenu a des signes d’agression, l’information est immédiatement transmise au Ministère public et les procureurs spécialisés en la matière vérifient sa provenance. S’il s’avère que le détenu a reçu les blessures lors de son arrestation ou pendant sa mise en garde à vue préalable dans les établissements policières, l’enquête sera ouverte et transmise pour l’investigation aux autorités compétentes.
Quels sont les éléments positifs et déterminants du rôle du procureur en matière de protection des droits de l’homme, par rapport aux autres mécanismes de protection juridique ?
Les procureurs assurent la surveillance procédurale sur toutes les enquêtes menées par les organes d’investigation géorgienne et entre outre par le Département d’investigation du Ministère pénitentiaire, de probation et d’aide juridique; les procureurs peuvent instruire le dossier eux-mêmes; ils peuvent donner des orientations aux enquêteurs; dans le cas de la nécessité les procureurs se rendent personnellement aux établissements pénitentiaires pour l’entretien avec les détenus et l’information ainsi reçue peut être servie pour l’ouverture de l’enquête.
Quels sont les améliorations qui pourraient être apportées à ce système de protection ?
Les autorités géorgiennes sont prêtes à examiner toutes les suggestions lesquelles serviront à l’amélioration de ce système de protection impliquant les procureurs.
Le procureur a-t-il compétence pour examiner si les droits (droits de l’homme et en particulier droits procéduraux) des personnes détenues ou retenues (par exemple en matière d’exécution de peines de prison ou de détention provisoire) sont respectés au centre de détention?
Sur la demande des personnes détenues ou retenues, les procureurs spécialisés en la matière se rendent personnellement aux établissements pénitentiaires pour l’entretien avec eux. Si ces personnes dénoncent certaines violations de leurs droits au sein de l’établissement et si l’objet de cette dénonciation contient des signes du corps de délit ou de crime, l’enquête sera ouverte, sinon cette information sera transmise au Service du contrôle du Département pénitentiaire du Ministère pénitentiaire, de probation et d’aide juridique.
Les détenus peuvent-ils avoir une entrevue en tête-à-tête avec le procureur pour savoir s’ils ont été exposés à un acte de torture ou à tout autre peine ou traitement inhumain ou dégradant ?
Oui, les détenus peuvent avoir une entrevue confidentielle en tête-à-tête avec le procureur et ils ont la possibilité de lui donner l’information directement et personnellement. Sur le fondement de cette information l’enquête préalable sera ouverte.
Le procureur examine-t-il, le cas échéant à quelle fréquence, si l’hébergement des détenus respecte les recommandations du Conseil de l’Europe (et en particulier du Comité européen pour la prévention de la torture/CPT)1 ?
Le procureur peut-il faire des propositions en ce sens ayant une influence sur le budget concerné ?
Non, le procureur n’a pas cette compétence, mais ceci relève de la qualité des autres autorités du droit public, parmi lesquelles il faut signaler le rôle majeur du médiateur public («défenseur public»). L’information fournie par le médiateur peut servir de base pour l’ouverture de l’enquête.
Le procureur ne peut pas non plus faire des propositions sur le budget concerné.
De quels moyens dispose le procureur à l’encontre des autorités ou agents qui n’exécutent pas complètement ou correctement les décisions du tribunal ou du procureur concernant les sanctions et/ou les mesures privatives de liberté ? Si le procureur détecte une négligence, peut-il donner des instructions contraignantes visant à faire cesser immédiatement l’infraction à la loi ? Peut-il initier une procédure pénale ou disciplinaire, une action en réparation ou tout autre type d’action en contestation ? Quels sont les autres instruments d’action publique à sa disposition ?
Conformément à l’article 381 du Code Pénal de la Géorgie l’inexécution des décisions des juges est un délit. Ainsi, lorsqu’il y a une telle information, l’enquête est ouverte et si cette enquête est instruite par l’enquêteur, le procureur assure sa surveillance procédurale.
Si le procureur détecte une négligence de la part des agents de l’établissement pénitentiaire, le procureur initie la procédure pénale ou disciplinaire (si son comportement ne contient pas des signes du corps du délit ou du crime). Si la procédure disciplinaire est initiée, le procureur adresse son rapport aux supérieurs de l’agent mis en cause et demande de lui communiquer dans un délai prévu par la législation (10 jours) les résultats qui ont été entrepris contre l’agent concerné. Le procureur peut même demander qu’il soit appelé pour participer à la réunion au moment de laquelle la décision disciplinaire doit être prise et il peut demander qu’il soit entendu lors de cette réunion.
Quelle est la fréquence des visites de contrôle du procureur dans les lieux de détention et de rétention? Ces visites peuvent-elles faire l’objet d’un suivi concret ?
Ceci dépend de la demande émanant de la part des détenus. Pour avoir l’entrevue en tête-à-tête avec eux, le procureur se rend dans l’établissement pénitentiaire immédiatement. Ainsi, ces visites peuvent avoir lieu même chaque jour si le détenu a de l’information concrète sur la violation probable de ses droits.
L’information reçue lors de ces visites peut être utilisée pour l’ouverture de la procédure pénale ou disciplinaire.
Le procureur a-t-il la possibilité d’intervenir à toute heure (même la nuit) dans le lieu de détention et de rétention dans le cadre de sa tâche d’inspection?
Comme nous avons signalé plus haut, en Géorgie le procureur n’a pas de compétence d’inspection des établissements pénitentiaires, mais il s’y rend sur la demande des détenus. En cas d’urgence il peut s’y rendre à n’importe quelle heure, même la nuit.
Pour leurs tâches de contrôle et d’inspection, les procureurs ont-ils la possibilité de recourir à des experts ?
Pour vérifier l’état physique de détenu et la gravité de l’agression probable subie, les procureurs peuvent recourir à des experts.
Les plaintes et/ou dénonciations concernant la détention et la rétention font-elles l’objet d’investigations par le procureur, indépendamment des autorités ou des agents concernés? Le procureur a-t-il le devoir d’enquêter lui-même ou peut-il transmettre les plaintes pour enquête aux agents qui sont l’objet de la plainte ?
Lorsque l’enquête est ouverte par rapport à la violation probable de droit de l’homme du détenu, l’affaire est instruite d’une manière générale par l’enquêteur du Département d’investigation du Ministère pénitentiaire, de probation et d’aide juridique. La surveillance procédurale sur cette enquête est toujours assurée par le procureur. Néanmoins, conformément à l’article 33 du Code de Procédure Pénale de la Géorgie, le procureur peut toujours mener l’enquête lui-même indépendamment, sans recourir à l’aide de l’enquêteur.
Il faut signaler, qu’on distingue les agents de l’établissement pénitentiaire et les enquêteurs, lesquels sont responsables d’enquête (sous réserve du précédent alinéa). Ainsi, l’agent de l’établissement pénitentiaire qui est l’objet de la plainte ne peut pas mener l’enquête et l’enquêteur qui mène la dite investigation ne dépend pas du Département pénitentiaire du ministère comme c’est le cas pour les agents pénitentiaires. L’enquête est instruite par le Département d’investigation du Ministère et pas par le Département pénitentiaire.
En plus, comme nous avons remarqué plus haut, il faut prendre en compte que le parquet mène lui-même l’enquête sur les délits et les crimes commis par les fonctionnaires d’Etat ou personnes assimilées à eux lors de l’exécution de leurs fonctions. Ainsi, puisque les agents des établissements pénitentiaires ont le statut des fonctionnaires ou personnes assimilées à eux et s’ils commettent des délits ou des crimes lors de l’exécution de leurs fonctions, ces affaires sont enquêtées directement et exclusivement par le parquet.
En cas de décès subit, d’accident ou d’infraction pénale à l’encontre du détenu, ou si celui-ci commet un crime à l’encontre d’un autre détenu ou d’un agent de l’administration pénitentiaire, l’affaire est-elle instruite par le procureur en tant qu’instance judiciaire indépendante ou est-elle simplement contrôlée par le procureur ? Les procureurs ont-ils un rôle quelconque dans l’enquête ?
Dans ces cas aussi, l’affaire est instruite d’une manière générale par l’enquêteur du Département d’investigation du Ministère pénitentiaire, de probation et d’aide juridique. La surveillance procédurale sur cette enquête est toujours assurée par le procureur. Néanmoins, conformément à l’article 33 du Code de Procédure Pénale de la Géorgie, le procureur peut toujours mener l’enquête lui-même indépendamment, sans recourir à l’aide de l’enquêteur.
Le procureur peut-il intervenir, et le cas échéant de quelle manière, dans des procédures concernant l’adoption/la révocation de mesures spéciales pour les détenus à haut risque ou soumis à des restrictions spécifiques en raison de leur rôle et leur position dans les organisations criminelles actives ?
Conformément à l’article 46 du Code des prisonniers de la Géorgie, le type de l’établissement pénitentiaire où le détenu doit être placé est décidé par le directeur du Département pénitentiaire du Ministère pénitentiaire, de probation et d’aide juridique de la Géorgie compte ténu de la gravité du crime perpétré.
En plus, conformément à l’article 50 du même code, les détenus à haut risque (des criminels dangereux, dont le caractère, l’autorité criminelle, le motif du crime, le résultat du crime ou le comportement dans l’établissement pénitentiaire met en danger l’établissement pénitentiaire soit les détenus s’y trouvant) sont isolés des autres détenus.
Dans cette procédure les procureurs n’interviennent pas.
Afin de les protéger contre toute forme d’influence, les procureurs exercent-ils de manière autonome le contrôle de la légalité de la détention ou sont-ils subordonnés à d’autres collègues?
En Géorgie le procureur n’a pas de compétence de contrôle de la légalité de la détention.
Les procureurs participent-ils au processus de grâce, d’amnistie ou de libération des personnes notamment en cas d’effets négatifs de la sanction ? Les procureurs contrôlent-ils les casiers judiciaires ?
Non, en Géorgie le procureur ne participe pas dans ces procédures.
Les procureurs bénéficient-ils de qualifications et formations spéciales pour l’accomplissement de leurs tâches en matière de détention et de rétention des personnes? Veuillez préciser.
Oui, au sein du Ministère de la Justice de la Géorgie fonctionne «le centre d’étude» lequel organise d’une manière systématique les formations pour les procureurs compte ténu de leurs tâches spécifiques en matière de détention et de rétention des personnes.
Dans ces formations participent les experts convoqués à cette fin et il y est discuté des différents sujets ayant rapport avec le rôle des procureurs dans le système pénitentiaire.
Quelles sont les types d’action (présentation de conclusions, présence à l’audience, appel contre la décision) que le procureur peut accomplir durant la procédure devant le juge d’application des peines, dans les Etats où un tel juge existe?
Dans les Etats dans lesquels un tel juge n’existe pas, quels sont les actes que peut faire un procureur concernant la décision judiciaire (libération avec mise à l’épreuve, modification postérieure du régine d’exécution de la détention, renforcement des restrictions des droits des détenus, placement en isolement/confinement, sanction disciplinaire, etc.) ?
Dans le système judiciaire géorgien il n’existe pas le juge d’application des peines.
Après le prononcé du jugement définitif le procureur ne participe en aucune pareille procédure.
Le procureur qui contrôle l’exécution des sanctions a-t-il des relations, le cas échéant de quels types, avec le médiateur ou d’autres organisations liées au ou chargées du contrôle de l’exécution des sanctions? Pouvez-vous citer ces organisations, institutionnelles ou non, et expliquer brièvement leur rôle ?
En Géorgie, le procureur ne contrôle pas l’exécution des sanctions. Mais si le médiateur public («défenseur public») ou autre organisation gouvernementale ou non-gouvernementale s’intéressant des droits de l’homme dans les établissements pénitentiaires présente de l’information sur la violation probable des droits des prévenus, l’enquête sera ouverte et le procureur exercera ses fonctions dans cette enquête.
Pouvez-vous fournir d’autres informations que vous jugez utile à la préparation du projet d’Avis (questions pertinentes à évoquer, documents, etc.) ?
Au sein du Ministère pénitentiaire, de probation et d’aide juridique il existe le service de sûreté des établissements pénitentiaires dont les officiers ont la compétence d’exercer les fonctions opérationnelles. La surveillance procédurale sur l’activité de ces officiers est assurée également par les procureurs.
Regarding the draft questionnaire compiled by CCPE for the preparation of the 6Ih CCPE Opinion (2011) on the relationships between prosecutors and prison administration in particular in the light of the Recommendation Rec (2006) 2 on the European prison rules, we have the honour to provide the following replies :
1. Introductory remark
The enforcement of custodial sentences or security measures is supervised by the "Supervising Prosecutor". In the four largest prisons (Piraeus, Thessaloniki, Patras and Larissa), the Supervising Prosecutor holds the rank of Deputy Prosecutor for the Court of Appeal and his legal substitute is a Prosecutor for the First Instance Court, who assists him in the performance of his duties (article 572§3 of the Code of Penal Procedure). In the other prisons, supervision is exercised by the Prosecutor for the Magistrate Court (first instance court) of the place where the sentence is served (article 572§1 of the Code of Penal Procedure). In the Juvenile Prison of Athens in particular, supervision is exercised by the Prosecutor for Minors (first instance court). Reply to question 2
The powers of the Supervising Prosecutor are laid down in article 7 of the General Prison Bylaws as follows;
1. In the context of supervision, the prosecutor cooperates with the warden and the chiefs of the various sections of the prison and makes recommendations on matters relating to the enforcement of the sentences.
2. The supervising prosecutor, or his substitute, has powers of jurisdictional, disciplinary and inspecting nature. Specifically, the supervising prosecutor:
1) Sees to the implementation of the provisions, as applicable from time to time, on the treatment of prisoners and the provisions of the Penal Code and special laws relating to the enforcement of sentences and the implementation of security measures;
2) Presides over the Disciplinary Board and the Prisoner Labour Board;
3) Grants special leaves of absence to prisoners for the fulfilment of family, vocational or other emergency and unpredictable needs. To grant special leaves, applicant prisoners must submit written documentation establishing that: (i) the situation is not common and chronic, and (ii) there are no arrangement to cover such needs, similar to those concerning prisoners' healthcare and visits with persons other than relatives up to the fourth degree;
4) Decides on the beneficial calculation of sentence days, on recommendation of the Prisoner Labour Board;
5) Participates in the meetings of the Prison Board by invitation or ex officio;
6) Presides over the Prison Board when the latter meets to decide warden's recommendations on the transfer of a prisoner;
7) Lodges, on discretion, appeals against the decisions of the Prison Board before the Magistrate Council, in its capacity of Sentence Enforcement Court;
8) Participates in the Magistrate Council, in the region of which the prison is located, when it meets as Sentence Enforcement Court, unless it reviews an appeal lodged by the prosecutor against a decision of the Prison Board;
9) Accepts prisoners, their relatives and attorneys in audience on request;
10) Reviews matters of court protection of prisoners, suggesting to concerned parties to take appropriate action, and forwards to competent authorities legal aid requests by prisoners who are financially unable to have access to justice and exercise their defence rights, pursuant to article 33 hereof;
11) Calls the police force to provide any necessary assistance in case of mass prisoner unruliness, riot or resistance to a legitimate order, especially an order to return to and remain in prison cells or wards;
12) Checks increased prison security measures;
13) Lays down restrictions to the living conditions of prisoners in extraordinary cases, in order to ensure the smooth operation and security of the supervised prison;
14) Decides on the admission or not of the children of female prisoners in child care institutions when they became three years old, provided that they are deprived of appropriate relatives, having listened to their parents;
15) Calls for the cooperation of specialised scientific staff and utilises their proposals and the findings of their inquiries, when they relate to his supervision;
16) Sees to the sanitary inspection of the prison regularly, within the first ten days of each quarter, and extraordinarily, at his discretion, and attends such inspection;
17) Orders appropriate measures when the prisoner is unable or refuses to consent to a medical act deemed necessary for his health by the competent physician;
18) Orders appropriate measures, on recommendation of the competent physician, for hunger strike prisoners who face imminent risk to their life or serious and permanent damage to their health, taking into consideration the prisoners' personality, their pursuits and the solidity of their decision;
19) Determines, following a pertinent medical opinion, the treatment dictated by the legal pr actual situation of prisoners awaiting trial;
20) Invites physicians of appropriate specialty to examine prisoners, when such a physician does not serve in the prison and cannot be found, out of a list of visiting physicians and nurses, on recommendation of the prison warden;
21) Takes any other action provided for by these bylaws and monitors compliance herewith.
Reply to question 3
Reply to question 4
Conducting preliminary inquiries and transmitting the case file and the relevant findings to: (a) the prosecutor who initiates criminal proceedings, for evaluation of the initiation or not of criminal proceedings, (b) the Ministry of Justice, for disciplinary treatment of prison staff.
Reply to question 5
Prosecutors may conduct the preliminary inquiries referred to in reply 4 above, accept prisoners, their relatives or attorneys in audience at their request, review matters of court protection of prisoners by suggesting appropriate action thereto, forward to competent authorities legal aid requests by prisoners with little financial means, conduct sanitary inspections in prisons.
Reply to question 6
Better infrastructures and increase in human resources, enriching them with other specialities, such as criminologists and interpreters, due to the large number of non-national prisoners.
Reply to question 7
Reply to question 8
Reply to question 9
They examine and submit proposals to the Ministry of Justice, but have no direct influence on the relevant budget. Moreover, they have no direct powers: (a) to make funds available for improvement of accommodation, (b) to deal with the overcrowding of prisons. These matters are regulated by the Ministry of Justice. As regards prison overcrowding, alternative sentences (e.g. increase of limits for conditional suspension, conversion, payment of the conversion sum in instalments, provision of community work) have been recently (December 2010) introduced for custodial sentences (10 days to 5 years).
Reply to question 10
The prison supervising prosecutor has the powers mentioned in reply 4.
Reply to question 11
In the four largest prisons (Piraeus, Thessaloniki, Patras, Larissa), the supervising deputy prosecutor for the Court of Appeal or his substitute, prosecutor for the Magistrate Court, visit the prisons every day. In other prisons, the local prosecutor for the Magistrate Court or his substitute makes visits twice a week. However, if so warranted by the circumstances (e.g. incidents, need to make an extraordinary inspection), visits can be carried out at any time.
Reply to question 12
Reply to question 13
Yes (e.g. research for narcotics or weapons).
Reply to question 14
Yes, inquiries are conducted by the prison supervising prosecutor and, as regards the criminal part; the case is transmitted to the locally competent prosecutor for the first instance court. Denunciations or complaints cannot be investigated by prison staff against whom such denunciations or complaints are made.
Reply to question 15
The investigation is conducted by the prosecutor acting as an independent judicial authority, either by himself or under his orders and instructions by the competent preliminary investigation officers (such as junior prosecutors or justice court judges), i.e. by persons unrelated to prisons.
Reply to question 16
Yes. Prison supervising prosecutors can issue relevant orders e.g. relating to restrictions to living conditions in prison. High risk detainees may be transferred to other prisons, according to the decision of the Central Transfers Committee of the Ministry of Justice.
Reply to question 17
They are autonomous. In case of objections to the enforcement of a sentence, they are introduced to and heard, by the Three-member Magistrate Council sitting at the place of detention.
Reply to question 18
Not in amnesty (which is only provided for political offences and is decided by Parliament with the special majority of 3/5). In case of requests for pardon or elimination of consequences of criminal sentence, the prosecutor who participated in the court that delivered the sentence (or, if he has resigned from service, his substitute) expresses his opinion in writing to the Pardon Boards of the Ministry of Justice. All Prosecutor Services for the First Instance Court have a Criminal Records Section supervised by the prosecutor for the first instance court.
Reply to question 19
Reply to question 20
The prison supervising prosecutor may set restrictions to the living conditions of detainees in exceptional cases for security reasons. In his capacity of chairman of the Three-member Prison Disciplinary Board, he decides together with the other two members on disciplinary sanctions against detainees, such as solitary confinement, granting regular or educational leaves of absence. He can grant extraordinary leaves of absence for special reasons, as determined by the Penitentiary Code. He decides on the beneficial calculation of sentence days, on recommendation of the Prisoners Labour Board.
He lodges, at discretion, appeals against the decisions of the Prison Board before the Three-member Magistrate Council (sitting at the place of sentence enforcement), in its capacity of sentence enforcement court. The Three-member Magistrate Council consists of three judges and is attended by a prosecutor, who must be heard before the delivery of the judgment.
The supervising prosecutor participates in the Three-member Magistrate Council, when the latter meets as Sentence Enforcement Court, unless it reviews an appeal lodged by the prosecutor against a decision of the Prison Board, in which case another prosecutor participates in the Magistrate Council.
When a prisoner has served the prescribed minimum sentence, the supervising prosecutor shall, at the prisoner's request, submit a proposal to the Magistrate Council for the conditional release of the prisoner.
Only the prosecutor for the court of appeal is entitled to appeal against the said decisions of the Three-member Magistrate Council.
Reply to question 21
Not applicable to us.
Reply to question 22
No. the questionnaire is satisfactory.
RESPONSES OF THE HUNGARIAN DELEGATION TO THE QUESTIONNAIRE
elaborated with a view to the preparation of the Opinion No.6 (2011) of the CCPE on the relationships between prosecutors and prison administration, in particular in the light of the Recommendation Rec (2006)2 on the European prison rules
Ad 1. There is no Question 1 in the Questionnaire.
Ad 2 In the sense of Section 51, Subsection (2) of the Constitution and of Section 11 of Act V of 1972 on Prosecution Service of the Republic of Hungary, the public prosecutor shall assume the supervision of legality of all punishments, supplementary punishment, and penal measures, coercive measures applied in the course of criminal proceedings, measures, restricting liberty and confinement, ordered by authorities of public administration, custody applied under aliens legislation, or designated mandatory staying at the centres for immigration detainees, expulsion of foreign nationals irregularly staying in Hungary, post-release assistance for prisoners, of keeping the criminal and warrants of arrest records. While exercising these supervisory functions, the public prosecution service is entitled to control the legality of execution of the imposed punishments of deprivation of liberty, of community service work, of fine, of restraint of profession, of suspension of driving privileges, of expulsion; the legality of the imposed supplementary punishments of banishment from holding public office, and banishment from entering certain places; of penal measures of reprimand, of probation, of forced medical treatment, of seizure, of confiscation of property, of supervision by probation officer, of education in reformatory institution for juveniles, as well as of penal measures, ordered against entities with legal personality, and also the legality of the execution of apprehension, of warrant of compulsory attendance, of short term criminal or administrative detention, of the detention of foreign nationals, applied under immigration legislation (with a maximal duration of 72 hours, of preventive detention, of temporary forced medical treatment, of house arrest, at the authorities in charge of the execution of these penal measures (namely the institutions of the execution of punishments, police, probation service, immigration authorities, regional officer's service, National Office of Immigration and Nationality, national authority keeping criminal records). The public prosecutor shall have access to the instructions, relating to the conditions and regime of the detention and to the documents relating to the detention; shall hear the detainees (in private as well); shall review the complaints, submitted against the execution of decisions, rendered in criminal matters; shall supervise the legality of treatment of detainees and the enforcement of dispositions on the safeguard of rights. The supervisory visits at places of detention (i.e. prisons, police facilities, facilities of investigating authorities for apprehension of persons, guarded shelters for foreign nationals) once a fortnight (according to the CPT recommendation, since 2000; before, such visits had only monthly occurrence); the hearing of detainees in private on demand, and dialogue with detainees chosen at random; the settlement on the spot of a part of complaints, applications and allegations made by detainees and the solution of the rest of them later on, at the prosecutor's office - if it is necessary, concealing their person before the staff of the concerned institution with a view of their protection - have been proved to be both efficient and popular tools for remedy and protection of rights.
While effectuating inspections at places of detention, the prosecutor shall examine the regularity of documents serving as grounds for the detention, the legality of the execution of measures, laid down in these documents, the observance of deadlines determined for the detention, the treatment of detainees, the enforcement of the rights, and the enforcement of the obligations foreseen by legal norms. Exclusively the public prosecutor shall verify the execution of the latter dispositions that is that neither the parliamentary commissioner for human rights, nor non-governmental organizations shall have this responsibility. The inspection is also required for preventing favouritism, backstairs influence and corruption. An advantage, provided by such way in favour of certain detainees will be a disadvantage for other detainees, which will infringe the principle of equal rights and chances/opportunities.
While accomplishing legality supervision over the execution of punishments of imprisonment, the public prosecutor shall verify the legality and order of the execution process of admission to the prison, detention and release; as well as detainees' rights and obligations, material conditions of detention, medical care, gratification and retribution and work regime of sentenced prisoners. The public prosecutor shall also have information on whether the necessary measures have been taken with a view of continuing the execution of the remaining part of the punishment after the suspension, short time leave or pass; application of tempered prison regime, as well as after the expiration of the permission of leave the penal institution while being in a transitional regime before release. While accomplishing legality supervision over controlling condemned prisoners being in conditional release, the public prosecutor shall have access to the documents, hear the sentenced prisoners released conditionally; he/she shall address a request to the authority in charge of the control of the concerned prisoner having been conditionally released to give information on the conduct, work and personal circumstances of the latter. When additional information is required to prove the infringement of rules of conduct, prescribed for the detainee on conditional release, the public prosecutor asks for designation of subsequent evidence of the probation officer, or the police station, which is competent by the domicile or place of staying of the conditionally released prisoner.
Whenever an incident happens at any place of detention or restriction of personal liberty, the public prosecutor shall be obliged to draw a rapport, on one hand, and to accomplish an inspection, on the other hand. An incident may be any action or omission, or any other event, which grievously disturbs the order of the detention. Such an event is for example cases of fire, suicide or escape tentative of detainees, etc. In case of a serious accident or sudden dead of the detainee, the public prosecutor shall appear on the spot as soon as possible and investigate the reasons leading to the emergence of the special event, evaluate the conclusions, made by the authority, accomplishing the detention, and the preventive measures taken.
The accomplishment of these duties means the guarantee for the protection of detainees. The public prosecutor - while promoting unified jurisprudence and expeditious settlement of criminal proceedings - participate in judicial proceedings connected to the execution of punishments (before the judge of execution of punishment /juge de l'application des peines, at first instance). He/she shall present motions and be present at the trial; is authorized to participate at the hearing, and to lodge appeal against judicial decisions. The public prosecutor has also the power to participate at hearings at second instance; has the duty to be present at the trial, and has the power to lodge motions.
The public prosecutor has to draw annual report on the evolution of the legality of the treatment of detainees, which shall cover all detention places in Hungary, as well as all criminal and disciplinary cases, complaints and information, made on this subject. Namely, while accomplishing visits once a fortnight at the places of detention, he/she shall simultaneously gather information - independently of the concrete subject of the actual inspection or investigation - on the respect of dispositions, enshrined in the European Convention on the Prevention of Torture and other Inhuman or Degrading Punishment or Treatment.
The powers of the Hungarian Prosecution Service are very similar to the scope, covered by the Recommendation Rec (2006)2 on European Prison Rules. The Hungarian public prosecutor has even more duties, while accomplishing not only supervision of legality over the execution of imprisonment, but he/she exercises the supervision of legality of the execution of all sanctions, relating to any restriction of liberty, and by its essence itself implies the interference by the State with the legal position of citizen.
The public prosecutor's power does not extend to the patients hospitalized at the psychiatric wards of civil institutions [the Rule 12 in the Rec (2006)2 extends this power equally to such patients, in accordance with the CPT practice]. Moreover, the CPT visits also - on the grounds of that large interpretation of powers - social welfare institutions for psychiatric patients where persons with restricted rights are accommodated.
Rule 92 stipulated in Part VI - entitled Inspection and monitoring, Governmental inspection disposes, that "Prisons shall be inspected regularly by a governmental agency in order to assess whether they are administered in accordance with the requirements of national and international law, and the provisions of these rules." Rule 93 - Independent monitoring imposes, moreover, that "The conditions of detention and the treatment of prisoners shall be monitored by an independent body or bodies whose findings shall be made public. Such independent monitoring body or bodies shall be encouraged to co-operate with those international agencies that are legally entitled to visit prisons." According to the Commentaries on the Prison Rules: "This Rule uses the neutral term ‘governmental agency’. This agency can be part of one ministry, e.g. the Ministry of Justice or the Ministry of the Interior, or can be an agency under the control of more than one ministries. The essential point is that such an agency or inspectorate is established by, and reports to, the highest authorities.
The ways in which governmental inspection is organised will vary from mere checking of the book keeping of prisons to in depth and on the spot audits, which take into account all aspects of prison administration and of the treatment of prisoners. What is important is that the results of these inspections are reported to the competent authorities and made accessible to other interested parties without undue delay.
These rules do not specify how planning and control systems and audits should be organized, as this is for the governmental authorities to decide. Concerning Independent monitoring: "In the member-states of the Council of Europe different models of independent monitoring of conditions of imprisonment can be found. In some countries, an ombudsman has powers in this respect; in other states, this task is entrusted to judicial authorities, often combined with the power to receive and handle complaints of prisoners. This Rule does not intend to prescribe one single form of monitoring but underlines the need for a high quality of such independent supervision. This presupposes that these monitoring bodies are supported by a qualified staff and have access to independent experts. It is important that the findings of these bodies, together with any observations that may have been submitted by the management of the prison concerned, are open to the public. Reports of the monitoring bodies may contain proposals and observations concerning existing or draft legislation.
Independent monitoring bodies should be encouraged to forward copies of their reports and the responses of the governments concerned to international bodies, authorised to monitor or inspect the prisons such as the European Committee for the Prevention of Torture. This would assist these international bodies to plan their visits and allow them to keep their finger on the pulse of the national penitentiary systems. Because of their limited financial resources and the increase of the number of states to be visited, international bodies must rely increasingly on communication with independent national monitoring bodies. In many penitentiary systems, individual prisons are being monitored in some way or another by boards of visitors, consisting of (professionally) interested volunteers recruited from the community. A common approach of these boards is that its members take turns to visit the prison, talk to prisoners about their worries and complaints and, in most cases, try to mediate between the prison management and the prisoners to find solutions for perceived problems.
Though it is self evident that the existence of local boards of visitors can be a guarantee for a more intensive and involved monitoring, in small countries with only a few prisons and a small prison population independent monitoring by a national authority could be sufficient." Moreover, in accordance with paragraphs 11 and 15 of the Annex to the Resolution 57/1990/1 EAC, adopted in Vienna, at 11th session of the Commission on Crime Prevention and Control of the Economic and Social Council of the United Nations, public prosecutors shall have an active role in the execution and the supervision of execution of judicial decisions; they have to devote a due attention to the cases of abuse of power and the grievous infringement of human rights.
In Hungary, Act XXXIII of 1871 - by which the first unified prosecution service was established - prescribed for the then Royal Public Prosecution Service to verify the effectuation of final judicial decisions.
The CPT emphasised in its rapport on the visit in 1994 in Hungary the importance of activities, which the public prosecution service had concerning the protection of rights in the field of execution of punishments, in assuring the fair treatment of detainees, whereas in 1999, it underlined the role of the Hungarian public prosecution service in the prevention of torture.
In its case 21.967/1993, the European Commission of Human Rights emphasized the public prosecution service role in lodging motions in the framework of its supervision of legality. The European Court of Human Rights recognized as an efficient way of remedy the complaint to be lodged to the public prosecutor in detention matters, which has to be exhausted before application to European mechanisms of protection (Kokavecz versus Hungary, decision 27312/95, 20 April 1999). The remedies, laid down by Section 11 item a), and Section 12 of Act V of 1972 (on Prosecution Service) guarantee also efficient tools for the protection of human rights and liberties in terms of Article 35, paragraph 1st) and Article 13 of the Convention.
The Recommendation (2000)19 of the Council of Europe to Member States, paragraph 4 proposes, that "States should take effective measures to guarantee that public prosecutors are able to fulfil their professional duties and responsibilities under adequate legal and organisational conditions as well as adequate conditions as to the means, in particular budgetary means, at their disposal. Such conditions should be established in close co-operation with the representatives of public prosecutors." Moreover, paragraph 24 of the same Recommendation contains, that:" In the performance of their duties, public prosecutors should in particular: ... respect and seek to protect human rights, as laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms; it is also clarified by the Explanatory Memorandum to this Recommendation, that public prosecution service should have a particularly important role concerning execution of punishments.
It has been worded as a recommendation at the meeting of the Council of Europe, held in 1996 on "Supervision of Legality of European Prisons" that - similarly to the Hungarian legal regulation - the supervisory role of the prosecution service as regard the execution of punishments should be reinforced.
Ad 3. Hungarian prosecution service has full authority in prison matters.
Ad 4. The public prosecutor has the power to give injunction (i.e. a kind of quasi instruction) to authorities belonging to the administration of the execution of punishments, which are absolutely independent of the prosecution service) when he/she observes the infringement of human rights or legislation as well as whenever he/she finds that norms regulating conditions of detentions are not respected. The public prosecutor calls the attention of the head of the competent authority, which shall be obliged to comply with the instructions given by the public prosecutor in relation to respecting the law and conditions of custody of the detainees under remand within 8 days. The heads of such authorities shall have the right to file, through their superior organ, a remonstrance with the superior public prosecutor against any instruction of the public prosecutor. Nevertheless, the remonstrance shall have no delaying force. The public prosecutor shall be obliged to release any person that has been kept detained without a lawful decision or for a time longer than provided in the decision.
The public prosecutor shall address signalization to the official charged with the implementation of the detention whenever he/she disapproves any circumstance of detention or observes shortcomings not constituting a breach of law, but menacing legality and in cases, when he/she detects a minor breach of law. While issuing such a signalization, the public prosecutor shall initiate a disciplinary, administrative, or criminal proceeding - depending on the seriousness of the observed shortcoming - against the official, implementing the deprivation of liberty, the responsibility of which should be established for the illegal act or negligence observed or there is a justified suspicion for the establishment of this responsibility.
The public prosecutor shall lodge an action for damages in cases when the infringement of law resulted also in damages, or have whenever the right to institute, if any important state or social interest is involved or when the person entitled is not able to defend his rights for any reason, a contentious or non-contentious civil procedure or to take measures aimed at protecting legality in any phase of the proceedings.
Should the public prosecutor notice any circumstance that gives rise to taking measure concerning the activity of the court for administrative correctional affairs, he shall initiate the action of the county (metropolitan) court’s president in order to ensure the prevailing the legal provision.
Ad 5. The Hungarian prosecution service has national competence, i.e. it has not only central, but also local organs, namely in the same town or nearly where there is an establishment or an institution of detention. Other organizations for protection of human rights do not have such local branches or units. The public prosecutor is competent not only in investigation of complaints or grief, or disadvantageous situations which have been alleged to him, but also he ascertains ex officio of such injuries while accomplishing inspections (once a fortnight, at least), investigations or hearing of detainees. Therefore, he is able not only to detect irregularities but also to find effective remedies for the eventual breach of norm within the shortest time.
The territorial proximity of places of detention and powers entrusted by the law, his competences in positive and procedural criminal law as well as in prison law and professional skills in law application enable the public prosecutor not only detect the breaches of law but also their eradication more quickly, professionally and efficiently than other organs effectuating protection of human rights. In case of eventual mistakes or non-observation of legal dispositions or deontological norms, the public prosecutor shall assume a very serious criminal, disciplinary responsibility and a liability for damages. That is not the same for other organisms assuming the protection of human rights. The public prosecutor shall be accountable for all inadvertence of cases of breach of law, and violation of human rights. As regards other organisms - especially non-governmental organisations - a similar accountability does not exist. The public prosecutor shall be able to identify all cases of eventual breach of law, the violation of the right of other detainees and the infringement of public interest, and take promptly the necessary measures for their elimination. The public prosecution service has an overview over all the phases of the criminal proceedings, i. e. from the opening of the criminal proceeding to the accomplishment of the post-release assistance for prisoners, moreover all along to the radiation of the entries to the criminal records. Due to this position, and taking advantage of his power to have prompt access to all necessary information via his colleges, proceeding in the criminal case, founding the detention on the person of detainee and reasons of his/her detention, the public prosecutor in charge of the supervision of legality of execution of punishments and protection of right, shall acquire all the necessary information, which provides an unique opportunity for the promotion of the rapid investigation and arrangement of the case. Whenever another organism asks for any information from the prosecution service, the latter have to examine whether it is competent to ask for that particular piece of information. Such restrictions encumber the other organs of protection of rights to take real and efficient measures concerning the criminal case, the legal ground for the detention, etc.
The powers of supervision, legal remedy and taking necessary measures, as well as legal competences, practical methods of the public prosecution service are much more positive and important than that which other mechanisms of legal protection dispose.
Ad 6. The legal protection system could be improved if there was a reinforced coordination between each organ assuming such tasks and if they considered each other as someone willing give a helping hand to their peers. The exchange of experience would be promoted by the organisation of common meetings, as it has yet been a practice in Hungary.
This part of activity of the prosecution service (namely, making frequent visits at and inspection of the places of detention, hearing in private of the detainees, consequent exercising of power to respond appropriately) is relatively independent from other parts of prosecutorial activities; therefore, no interference shall be made from public prosecutors, proceeding in other fields.
Ad 7. In Hungary, the public prosecutor is competent /has jurisdiction to pursue investigation concerning the rights of all persons, the liberty of which has been restricted. He is expressly obliged by special legal dispositions to investigate whether human rights, procedural rights and other institutional rights of persons being apprehended or put in pre-trial detention are respected; and also to verify whether the human rights, other institutional rights and all those constitutional rights of the sentenced detainees are guaranteed, which have not been expressly restricted or suspended by laws for the period of the execution of the imprisonment. Moreover, the public prosecutor shall supervise the observance of the human rights and other legal rights of those, to whom a restriction of liberty has been imposed while held in a facility for apprehended persons by the investigating authority, administrative confinement, inflicted in an administrative procedure, custody applied under aliens legislation, or designated mandatory staying at the centres for immigration detainees of foreign nationals.
Ad 8. The legal regulation assures for the public prosecutor to have hearings in private with detainees to establish whether torture or other inhuman or degrading treatment or punishment was applied to the prejudice of the detainee. The public prosecutor shall provide such a hearing at least once a fortnight. On these occasions, he is hearing not only detainees who asked for, but while visiting the establishments, he chooses himself the detainees, whom he wishes hear. He may also mingle with a group of 20-30 detainees, offering the opportunity for lodging application for those who really wishes to lodge a complaint without disclosing their persons before the management of the prison and thereby avoiding eventual staff's retorsion because of the complaint. Before the opening of the relevant procedure, the prosecutor even takes orders to transfer the applicant and witnesses to another prison. That is a much-approved practice in Hungary. The legal regulation of the latter measure - id est that on the transfer - has to be enacted to legally assure their protection.
Ad 9. Every year, the public prosecutor shall conduct special inspection concerning the conditions of detention, and whether standards and recommendations of the Council of Europe, and especially those formulated by European Committee for the Prevention of Torture (CPT) are observed. The observance of the rules concerning overcrowding and separation of different categories of detainees shall be controlled once a fortnight. He had to exercise his power of issuing instructions due to breaching of the latter, which shall be executed immediately. He must regularly issue a signalization as regard the overcrowding of the places of detention.
In response to these signalizations, the heads of the concerned institutions have declared in the recent years that the necessary renovations and reparations could not be effectuated without external resources, only from their own financial found. Naturally, these responses must not be satisfying for the public prosecutor, therefore the public prosecution service addressed general /summarizing reports to the central authorities on the issue of general picture on prisons overcrowding. The competent central authorities replied that the renovation and the enlargement of prisons would be effectuated depending on financing resources, but there was no financial provision even for repairing shortcomings, but the problem would be placed on the agenda. As concerns the public prosecutor, he has the same attitude: conducts regular inspections, takes the necessary measures even towards the authorities at national level in order to attain the remedy of shortcomings. The Prosecutor General emphasises the problem in his annual report to be lodged to the Parliament, and therefore he is able to exercise some influence to the Members of the Parliament when they vote about the national budget.
Ad10. The public prosecutor shall be entitled to give binding instructions to the authority of the Execution of punishments or officials if they do not enforce properly the decisions of the court or the prosecutor; in Hungary, such instructions are denominated as "order"/utasítás. The only exceptions are the courts to be bound by such orders. While issuing an order, the public prosecutor disposes on the immediate cessation of the breach of law. The heads of such authorities shall have the right to file, through their superior organ, a remonstrance with the superior public prosecutor against any instruction of the public prosecutor. The remonstrance shall have no delaying force. The suppression of an illegal situation represents a more important value at the level of the rule of law and human rights than the suspensory/delaying effect attached to the right of legal remedy of the person, who is responsible for the existence of the violation of law. The public prosecutor shall be entitled to initiate criminal or disciplinary, or administrative-misdemeanour proceedings - depending on the seriousness of the observed shortcoming - against the responsible official and the official, having committed the breach of law, and to lodge an action for damages in a civil judicial procedure.
The public prosecutor shall address signalization to the official charged with the implementation of the detention whenever he/she observes a situation, menacing legality.
Ad 11. The public prosecutor shall conduct monitoring visits twice a month at the places of detention (i.e. in prisons, police facilities, and facilities for apprehended persons) as well as at places, enforcing custody of foreigner nationals under immigration legislation and guarded shelters. Each of such monitoring visits has its special prefixed purpose and programme, but the public prosecutor shall investigate all breaches of law, if observes any irregularity while conducting his regular monitoring visit. An illustration may be the example, when the subject of the inspection is to verify whether possibilities for contacts of the detainees with the outside world are provided, but the public prosecutor observes accidentally the breaching of the right to exercising legal remedies, he shall investigate also the latter problem - along with the planned in advance matter. The public prosecutor shall draw an official rapport on his findings made during inspection, which shall be entered to the roll of each prosecutor's organ and sent to the head of the inspected institution.
Whenever the public prosecutor observes any shortcomings or breach of law at his monitoring visit, he shall give a detailed description of it in a memorandum and attaches to the letter to be addressed to the competent authority or official a copy of the prosecutorial measure to be taken in order to put an end to them (order, signalization, motion for initiating criminal or disciplinary or administrative-misdemeanour proceedings or lodging civil action for damages).
He must not indicate the detainee's name, having made the application/complaint neither in his memorandum nor in the letter and instruction to be sent to the head of the concerned institution for preventing eventual reprisal against the detainee for his complaint. The name of the latter shall be entered to the domestic/confidential documents of the prosecutor with a view to reaching him eventually during subsequent phases of the procedure. While conducting the next visit, the public prosecutor shall especially gather information whether he has suffered any reprisal of the prison staff for his complaint. Therefore, the method of hearing in private a few numbers of detainees at the same prosecutor's monitoring visit seems to be approved and useful.
Ad 12. Yes, the public prosecutor has the power to enter any time (even at night) all places of detention or guarded shelters for foreign nationals while conducting his supervisory duties. That power is enshrined in legal disposition.
Ad 13. Yes, whenever special competences are required, he shall have recourse to experts. In Hungary, in case of a detainee's death, when the expertise laid down in the official necropsy record or other facts of which the prosecutor get knowledge does not justify reassuringly the death by natural reason, or the adequacy of the medical care, the prosecutor shall be entitled to designate ex officio en expert in forensic medicine. In case of industrial accident, he is entitled to designate an expert in protection of labour safety, and in all matters, concerning alimentation or other material conditions or hygiene, he designates an expert in hygiene.
Ad 14. Public prosecutors treat complaints and/or denunciations regarding criminal and administrative detention independently of any relevant authority, when he is not able to remedy the complaint or the denunciation immediately, on the spot. In case of minor breach of law, which may be remedied simply and easily, he also has the faculty to send the complaint to the head of the concerned institution, and in such cases, he ask for a report on the way of remedy of the complaint. The public prosecutor in charge of the supervision of legality of the execution of punishments shall pursue an inspection, but not an (criminal) inquiry/investigation. While conducting an inspection, when he perceives suspicion of the perpetration of a criminal offense; he shall inform the investigative prosecution office – which belongs to the unified prosecution service too - on his observations and suspicion, meanwhile he shall inform the competent military prosecution office – which is also part of the unified prosecution service - on his suspicion as regards the prison officer, concerned by the complaint/denunciation. The public prosecutor in charge of the supervision of the legality of the execution of punishments may promote the investigation in such cases by drawing a record on the denunciation and the hearing of witnesses. Naturally, the public prosecutor shall proceed in a manner that the prison staff could not have any information on the content of these documents. The former practice has been ceased, according to which the public prosecutor followed the complaints to the prison officers/employees against whom the complaint directed. However, it may still sporadically emerge with a view of diminishing the workload, but that method seems to be inacceptable both in the approach of the efficient legal remedy and the requirement of the fair proceeding.
Ab 15. If the public prosecutor acquires information on the death of the detainee, he shall appear on the scene of the death as soon as possible and inspect the conditions under which the death has set in. When there is suspicion of a criminal offence, he shall order a necropsy by an expert in forensic medicine. The costs of the latter shall be to the charge of the prosecution service. When there is a justified suspicion that the death of the detainee was caused by a criminal offense, only the public prosecutor is authorized to issue a permit for the burying of the body when the necropsy by an expert in forensic medicine has been accomplished. The public prosecutor shall also verify the findings made by the authority in charge of the detention concerning the death of the detainee. If the responsibility of a prison staff member/employee for the death or the examination of its causes and circumstances emerges, the public prosecutor shall initiate the establishment of his/her responsibility (in criminal, or disciplinary or administrative-misdemeanour proceedings, or in civil judicial procedure).
If the public prosecutor acquires information on the accident of the detainee, he shall appear on the scene of the accident within 8 days of the accident and inspect the conditions under which the accident has happened as well as its causes. Ha shall also evaluate the findings made by the authority in charge of the detention in the framework of the verification, as well as the measure taken by the latter. If the accident or poisoning has caused the death or fatal injury of the detainee, the public prosecutor shall appear at the scene of the accident as soon as possible with a view to accomplish the above duties. If the responsibility of a prison staff member/employee for the accident or concerning the clearance of its causes and circumstances emerges, the public prosecutor shall initiate the establishment of his/her responsibility (in criminal, or disciplinary or administrative-misdemeanour proceedings, or in civil judicial procedure).
If the detainee commits criminal offence to the prejudice of another detainee or a member of the prison staff, the incident shall be qualified as unordinary event, and the case shall be investigated – as independent authority – by the public prosecutor in charge of the supervision of the execution of punishments, while the criminal inquiry shall be conducted by an investigating authority – in the person of another prosecutor – and the legality of the criminal inquiry shall be supervised by the prosecutor in charge of the supervision over the legality of criminal inquiries and investigations.
Public prosecutors have also an important role in conducting of criminal inquiries. They conduct both criminal inquiries in cases belonging to the exclusive investigating competence of the prosecution service, on the one hand, and supervise inquiries in other criminal cases – which are conducted by other investigating authorities – on the other hand. Criminal cases, belonging to the exclusive investigating competence of the prosecution service, are exhaustively enumerated by Act on Criminal Proceedings, Section 29. Among the large number of criminal offences, listed by the Act have special relevance those, which are non-military crimes committed by persons being members of the professional staff of the Police or members of the professional staff of the penitentiary service in relation to the service. Military criminal proceedings shall apply in the case of a criminal offence committed by permanent staff member of a penal institution at his post or in connection whit his duty [Act on Criminal Proceedings, Section 470, Subsection 1st and item c)].
Ad 16. The public prosecutor shall be entitled to take action – and there were concrete examples too – in procedures concerning the lack of remedy against a decision on placement of the detainee in a high risk degree unit. He also has the power to initiate the revision of the relevant decision. However, the decision will be rendered by a Committee constituted by the administration of the penitentiary, and the head (director) of the concerned prison shall be responsible for the execution of the rendered decision. Consequently, the public prosecutor does not participate in such decision-making; the only exception being the execution of pre-trial detention. During the execution of the pre-trial detention, the public prosecutor shall have power of disposition concerning the execution until the lodging of the bill of indictment, as well as in the preparatory phase of the trial – until the rendering of decision; after that, this power shall be transferred to the court, where the bill of indictment has been lodged. During these phases, the power of disposition covers the order or the revocation of the so called “reinforced custody” for pre-trial detainees, who already had suicide-tentative, or are presumed to have it, or manifested a comportment, dangerous both for themselves and the public, or are presumed to manifest such a comportment, or there is a justified suspicion that they committed a criminal offence for which life imprisonment may be inflicted under the Criminal Code. As regard pre-trial detainees, the “reinforced custody” regime means at the same time a category of “high risk”. Its application may be challenged – in the prosecutorial phase of the proceeding - by lodging a complaint to the hierarchically superior prosecutor, and in the judicial phase of the proceeding – considering that it was ordered by the court – by lodging an appeal to the superior judicial instance.
Ad 17. The public prosecutors in charge of the supervision of legality working at the Office of Prosecutor General accomplish their work autonomously – as from 1998 - in order to protect them of any undue interference. Such independence has been reinforced in 2000, and their status reappears also in the denomination of the Division where they work: Independent Division for Supervision of Legality of Prison Administration and Protection of Rights. They are subordinated only to the Deputy Prosecutor General, and when international affairs are concerned, they are directly subordinated to the Prosecutor General. At local level, County Prosecution Offices (20) accomplish these duties – with the same territorial competence that judges of enforcement of sentences /juges de l’application des peines have. County level public prosecutors in charge of the surveillance of legality assume their duties under the guidance of the deputy chief prosecutor of the County. There are some county prosecution offices, where they work directly under the guidance of the chief prosecutor of the county. So, they are not subordinated to any of their colleagues, working in other fields.
Ad 18. Hungarian public prosecutors shall supervise the legality of the execution of decisions on pardon and amnesty. During the (individual) pardon procedure, public prosecutors having proceeded in the concrete criminal case shall give written opinion. The legality of the release is constant subject of systematic legality supervision. Only the execution of imprisonment punishment inflicted to grievously and incurably ill detainees has been interrupted on the ground of negative/harmful effects of the punishment.
Public prosecutors accomplish legality supervision: they conduct inspections twice a week in the National Office of Criminal Records.
Ad 19. If "special qualifications and training" mean whether public prosecutors, assuming supervision of legality of the execution of punishment have special mandate for accomplishing this task, the answer is yes. Namely, the opinion of the head of the competent field of law at the Office of the Prosecutor General has to be acquired before his/her appointment to this post. There are many prosecutors in this field, who regularly follow post-gradual special education, especially in prison psychology, criminal- pedagogy and sociology. There are others, who acquire a second university diploma as professors, philosophers, economists, etc. and pass proficiency examination in foreign languages.
Every year, the Prosecutor General Office at its Centre for Postgraduate Education of Public Prosecutors organizes a three-day special residential course/training on the thematic of duties, related to the detention and custody. Both eminent Hungarian specialists and also a few lecturers of the Council of Europe deliver lectures on these occasions.
Ad 20. In Hungary, the institution of the judge of execution of punishments /juge de l'application des peines exists, and the public prosecutor participates in proceedings before him/her. The public prosecutor shall obligatorily attend the trials, and his/her participation is facultative in the hearings. The public prosecutor has the power to present motions concerning revoking parole, carrying provisionally into effect the remaining part of imprisonment, issuing of an arrest warrant, revoking the provisory release from reformatory (juvenile delinquents), ordering probation, conversion of general interest work into imprisonment, designation of a new place of work or of a new kind of work in case of punishment of general interest work, declaration of the enforceability of the punishment of general interest work, and declaration of the impossibility of enforceability of the execution of the measure of expulsion. Between the 19 different kinds of decisions, constituting the competence of the judge of execution of punishment, there are only two (administrative) types of decisions, which may not be appealed by either the public prosecutor, or the defence counsel, while there are 17 others, which may be challenged. The public prosecutor has the power to participate and lodge motions in proceedings of second instance.
Ad 21. The relationship with the ombudsman consists in sending the ombudsman's rapports to the Office of the Prosecutor General on the examination of complaints from institutions of execution of punishments. The Office of the Prosecutor General, on its part, sends the summarizing rapports on each inspection to the Ombudsman's Office. It happens too, that the ombudsman asks for opinion on certain legal issues or interpretation of law, and for the examination of complaints, he received. He also invited the competent leading prosecutors to the conference he organized on the standing of the execution of punishments, and he participates in major events of the prosecution service.
One of the duties of the Ombudsman is that he examines the anomalies concerning constitutional rights of citizens he was acquainted with, and initiate general or individual measures with a view of their remedy. He conducts examinations only in cases, when it is necessary and not regularly, therefore his individual examinations may not be considered as supervision, therefore they produce a weaker preventive influence. The Ombudsman does not appear on the inspected places, he does not have a global overview on their functioning as a whole, and he does not participate in the process of the administration of criminal justice. However, the major part of grieves may be derived from the criminal proceedings. The Ombudsman's role is therefore not accomplishing supervision of legality, but assuring an instance for the protection of human rights. The role of the public prosecutor and that of the Ombudsman are different, but they mutually reinforce each other.
Non-governmental organizations address applications to the prosecution service concerning detainees' complaints and interpretation of laws. They systematically invite members of the prosecution service to their professional events. One of the most important NGO is the Hungarian Helsinki Committee, which has been implementing its program for visiting police facilities and prisons for nearly twenty years, in the framework of a convention, executed by the National Police Department and the Commandant of National Prison Administration. A great number of lawyers/defense counsels are working for them. Their attention concentrates principally on the conditions of detention, treatment and contacts of the detainees with the outside world. They inform mass media every year on their observations and experience. There are nearly thirty other organizations, with which the National Prison Administration signed an individual convention, but their missions aim principally at the support and reintegration of the detainees to the society. They forward also detainees' complaints and applications to the prosecution service. The control by the society shall not be equal to the supervision of the legality, because NGO are not repressive or other authorities. Therefore, they are not able to resolve serious problems neither in the field of positive or procedural criminal law, nor those of legality of prison law; and especially not without delay, but they may forward these problems to the authority, possessing adequate professional competence and means.
Ad 22. There are a few numbers of prisons in Hungary, which operate with utilizing private founds of capital. In such penitentiary institutions, it is also necessary to subject the protection of detainees' human rights to the supervision of legality, implemented by the prosecution service. It is crucial to prevent that such institutions become merely so called "stocks of human beings" and guarantee that prisoners' work remain between legal limits, the healthy alimentation, and human rights of the detainees are maintained.
It may be a helping guideline not only for prosecutors, assuming supervision of legality of the execution of punishments, but also for those, conducting criminal inquiries and assuming supervision over the criminal inquiries, if Opinion No. 6 (2011) of the CCPE covers also the scope of the power of disposition during pre-trial detention, attributed to the public prosecutor, conducting criminal inquiry. It would be very useful if the said Opinion contained a point of view concerning contacts of pre-trial detainees with outside world (by enumerating persons, contact with whom should be prohibited or restricted; manners and forms of ordering of such prohibitions and restrictions; in case when the public prosecutor, conducting criminal inquiry has reserved to himself the power of control over such prohibitions and restrictions and not delegated this power to the penal institution, whether only he is authorized to accomplish such control or another public prosecutor, or eventually a trainee-public prosecutor has also the competence to accomplish such control; should he have the power to designate the place of execution of the pre-trial detention, and the transfer of the concerned pre-trial detainee should be effectuated only with his approval – except for cases of grievous illnesses, necessitating urgent hospital care - ; should he authorize the transfer of such pre-trial detainee to the investigating authority, conducting criminal investigation in another criminal case; the ordering of the reinforced custody; authorization of the participation in the funeral ceremony of a close relative, etc.
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What are the Prosecution Service’s powers regarding prison matters and in terms of deprivation of liberty?
In the Italian system a Public Prosecutor does not perform general functions in prison matters and deprivation of liberty (custody and detention).
As far as these matters are concerned, the main bodies are the Judge and the Court supervising the execution of the penalty (Magistrato di Sorveglianza and Tribunale di Sorveglianza). This Judge has control and jurisdiction on prisons’ organization (he ensures that custody measures are applied in accordance with acts and regulations, checks requests and claims of the convicted persons, approves the program for the treatment of convicts and provides for releasing them on parole). The Court is composed of two professional judges and two experts in various fields. As well as the Judge, the Court performs judicial functions such as entrusting the convicted person to the social service, admitting him/her to house arrest or deciding on the above mentioned Judge’s decisions as a Court of appeal.
Public Prosecutors take part -as a public party- in cases before the Judge and the Court supervising the execution of the penalty. Depending on the procedure, they express their advice either in a verbal or in a written form and can also appeal any decision.
In States where prosecutors do not have full authority in prison matters, what are nevertheless their means of action used as regards prisons?
Normally, Public Prosecutors have no autonomous coercive powers. In prison matters they act in two different ways:
The Public Prosecution Office is the driving body for the enforcement of criminal punishments. When the sentence becomes final, Public Prosecutors issue an order of imprisonment and establish the exact duration of the penalty.
However, if any action is undertaken, a Judge has jurisdiction upon judicial guarantees in order to check on the legal assumptions which the conviction is based on.
Italian Public Prosecutors lead the investigations and coordinate the action of the police criminal investigative department. Yet, except in case of urgency related to the actual risk of escape, they are not entitled to arrest the person under investigation for any reasons concerning the investigations. They can only request the Judge for the Preliminary Investigation (the so-called G.I.P.) to adopt preventive measures of detention.
After the enforcement of these measures, in special occasions Public Prosecutors may ask the Judge to increase or decrease them.
They have to express their opinion on the applications that the person under preventive measures may submit.
If prosecutors have general competences as regard prisons and detention, what kind of means have been provided to the Prosecution Service to allow its effective and fast action towards protecting human rights in matters of prison administration?
As already said in the answer to question no. 2, Public Prosecutors have no general functions in prison matters.
What are the positive and decisive elements of the prosecutor’s role in terms of protecting Human rights compared to other mechanisms of legal protection?
Public Prosecutors do not play a special role to safeguard human rights. Their intervention is restricted to verify whether crimes are eventually committed and to carry on investigations. These offenses can also be human rights violations, for example when the convict has been subject to any form of violence.
What could be the improvements to this system of protection?
In the Italian system measures improving the protection of human rights might be referred to the above mentioned Judges supervising the execution of the penalty rather than to Public Prosecutors, since those Judges represent the main relevant justice body in prison matters.
Do prosecutors have jurisdiction to examine whether the rights (Human rights and especially procedural rights) of persons in criminal (for example as regards enforcement of prison sentences or pre-trial detention) or administrative detention are respected at the detention centre?
Public Prosecutors have no competence in such cases. Nevertheless, they are entitled to check whether any crime is committed against the convicts during their pre-trial detention as well as when they are serving the sentence. In this respect Public Prosecutors lead the investigations and then they decide whether to start a prosecution.
Can a prisoner meet in private with a prosecutor to determine whether they had been subjected to torture or to any other inhuman or degrading treatment or punishment?
The Judge supervising the execution of the penalty is the main reference point for a convict, especially if he is serving a final sentence. The convict may also address himself to the Public Prosecutor to reveal a violence he has suffered. In such a case, when a crime is reportedly to be committed, the Public Prosecutor has the duty to make appropriate investigations.
Do prosecutors examine, and if so, how frequently, whether convicts have been subject to torture or to any other inhuman or degrading treatment or punishment?
Public Prosecutors haven’t got such a specific task. It lies within the responsibility of the Judge supervising the execution of the penalty. The latter has jurisdiction and performs control functions, as we have already explained in the answer to question no. 2.
What kind of means exist for prosecutors to deal with authorities or officers/employees which have not completely or properly enforced the decisions of the Court or the Prosecution Service related to punishments and/or measures involving deprivation of liberty? If a prosecutor detects such negligence, is he entitled to give binding instructions for the immediate termination of the breach of the law? Is it in their power to initiate criminal or disciplinary proceedings, actions for damages or any other kind of impeachment? What other prosecutorial instruments are at his disposal?
In these cases Public Prosecutors may only act if there is a breach of criminal law. If this is the case, they have to conduct appropriate investigations. If they find out administrative offences committed by civil servants, Public Prosecutors can point them out to the Public Authorities which might take disciplinary actions.
How often do prosecutors carry out monitoring visits of institutions of criminal and administrative detention? Are there concrete follow-ups related to these visits?
Public Prosecutors do not perform such a duty. It lies within the responsibility of the Judge supervising the execution of the penalty. The latter has jurisdiction and performs control functions, as we have already explained in the answer to question no. 2
Within the framework of their monitoring duties, do prosecutors have the power to take action at any time of the day (even at night) in the institutions of criminal and administrative detention?
As pointed out in the answer to the previous question, Public Prosecutors do not have general supervising powers. Nevertheless, if special investigations are needed for crimes committed inside prison walls, Public Prosecutors may carry out inspections and searches (at any time of the day and without notice) as provided for by the Code of Criminal Procedure.
May commission experts to assist them in their tasks related to supervision and inspection?
Yes, they may, but only when Public Prosecutors are conducting investigations about crimes committed inside prison walls.
Are complaints and/or denunciations regarding criminal and administrative detention subject to prosecutorial inquiry independently of any relevant authority or employees/officers? Is it a prosecutor’s duty to complete investigations himself/herself or is he/she allowed to forward these complaints for investigations to the officers/employees that are the subject of those complaints?
Complaints against any breach of law with respect to detention are under Public Prosecutors’ investigations, whatever person committed the crime, even if he/she works in the same prison as the convict who suffered from it.
If such is the case, Public Prosecutors can charge of the investigations a police of their choice. They are not compelled to entrust them to the same unit which the officers under investigation belong to.
In case of sudden death, accident or criminal offence committed against a prisoner, or if a prisoner commits a crime against another prisoner or a prison staff member, is the investigation conducted by a prosecutor acting as an independent judicial authority or is it simply supervised by a prosecutors? Do prosecutors have any role in investigation?
The investigation is conducted by a Public Prosecutor who directs the police criminal investigative department. The Prosecutor acts as an independent judicial authority who has a plenty role in this activity.
Are prosecutors entitled to take action in procedures concerning the adoption/revocation of special measures for high risk detainees or subject to special restrictions in connection with their role and position in active criminal organisations? If so, how?
Offenders of very serious crimes (such as crimes of terrorism, even international terrorism, subversion of the democratic system through violence, criminal organizations and mafia related crimes, reducing people to slavery, kidnapping for ransom, juvenile prostitution and sexual abuse) are subject to a stricter kind of detention.
Such a detention is organized in various ways, depending on the crime committed. For example, reward permits and alternative measures to detention can be applied to convicts who are sentenced for terrorism or mafia crimes only on condition that they cooperate with police officers as state witnesses.
A Public Prosecutor plays the role of giving his opinions to the Judge supervising the execution of the penalty.
In the case of offenders charged with mafia and terrorism, if order and safety reasons come about, the Minister of Justice is entitled to suspend all or some detention measures which are usually in favour of convicts. He can also do so upon request of the Minister of the Interior.
In this case Public Prosecution Offices also get involved in the Minister of Justice’s action by giving their advice on the matter. Besides, the National Anti-mafia Prosecuting Department (D.N.A.) provides any needed information. Then Public Prosecutors take part in eventual rehearing proceedings before the Court supervising the execution of the penalty and, in case of appeal against a decision, in front of the Supreme Court.
With a view to preserving them from any type of influence, are prosecutors autonomous or subordinated to other colleagues when monitoring the detention’s legality?
As we have already indicated, Public Prosecutors limit their intervention to cases where crimes are committed during detention. In the following investigations they are absolutely independent.
In this perspective every Italian Public Prosecutor enjoys a statute of independence which is safeguarded by the High Council for the Judiciary (CSM), i.e. a body of self-government for Public Prosecution and the Judiciary.
Is a prosecutor involved in granting a person’s pardon, amnesty or release, specially in the case of negative effects resulting from the punishment? Do prosecutors supervise criminal records?
Amnesty is a general, not discretional measure. Its requirements are provided for by law. For the application of amnesty Public Prosecutors act according to the Code of Criminal Proceeding and the concerned cases are decided by Judges.
The Criminal record Office is established at the Public Prosecution Offices.
Are special qualifications and training required of prosecutors who carry out duties in matters of criminal and administrative detention? Please specify.
No special qualifications or training periods are required for Public Prosecutors who are charged with prison matters. Nevertheless, in the inner organization of each Prosecution Office there is a division among work groups or sections, each of them being charged with special subjects. Such groups or sections can also deal with the execution of the penalty.
Some sessions of professional training for Public Prosecutors and judges are dedicated to prison matters.
What acts (presentation of conclusions, attend hearings, appeal against court decisions) are prosecutors entitled to carry out during proceedings before judges with jurisdiction over the enforcement of sentences/surveillance judges, in States where such judge exists?
The Court supervising the execution of the penalty is the main reference point in prison matters. Public Prosecutors may make requests (with respect to the application of some benefits such as entrusting the convicted person to the social service, day release from prison, leaves, early release). They can also state their conclusions about the requests which are made by convicts or their lawyers in the same matters.
Public Prosecutors are entitled to appeal judges’ decisions to a higher Court in all the cases they intervene in.
Signing an arrest warrant for the execution of a penalty is one of the Public Prosecutors’ main duties when they act as enforcement bodies. For sentences up to 3 years of detention, Public Prosecutors issue an order of execution together with an order to stay the proceeding. By doing so, they prevent the deprivation of liberty from being enforced to sentenced people who are in abstract entitled to benefit from alternative measures to detention. The convict is served a warrant stating that he/she may make a request to obtain an alternative measure, instead of detention, within 30 days from notice. The following step of the procedure takes place before the Judge.
When monitoring the enforcement of punishments, do public prosecutors interact with the ombudsman or any organisation linked to or charged of controlling the enforcement of punishments? If so, what type of interactions are they? Could you give the names of these organisations, whether they by institutional or not, and explain briefly their roles?
In the Italian system the Judges supervising the enforcement of the penalty are in charge also of this matter, rather than Public Prosecutors.
Could you give other useful information to the preparation of the draft Opinion (relevant questions to add, documents, etc.)?
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Replies to questionnaire
The powers of the Prosecution Office regarding imprisonment institutions and liberty deprivation sentence are provided for by the Section 15 of the Prosecution Office Law.
Section 15. Supervision of the Execution of a Sentence of Deprivation of Liberty
(1) A prosecutor in accordance with the procedures prescribed by law shall supervise the execution of sentences of deprivation of liberty adjudged by a court and the places where persons arrested, detained or under guard are kept and shall take part in the sittings of a court relating to a change in the specified term of a sentence or of circumstances.
(2) A prosecutor has the right and the duty to, without delay, take a decision and release from places of deprivation or restriction of liberty persons held there illegally.
(3) A protest by a prosecutor with respect to a sentence illegally imposed on a person held in a place of deprivation of liberty shall suspend its further execution until the review of the protest is completed.
Presently is elaborated a draft law by which is planned to reduce Prosecutor’s powers regarding supervision of imprisonment and liberty deprivation sentence execution. It is required because imprisoned persons according to effective legal acts have wide possibilities to apply with national and international institutions, the Court and other bodies provided for by Sentence Execution Code and Law on Procedures for Keeping of Persons in Custody of Latvia with aim to defend their own rights. For example, from Law on Department of Imprisonment Institutions stems out that Department of Imprisonment Institutions examines complaints of imprisoned persons regarding living conditions, education, health care, employment, food and other issues related with conditions of imprisonment. If violations are found, the Department of Imprisonment Institutions is obliged to react and rectify them. Nevertheless as core task of the Prosecution Office is supervision of compliance with legality and to counter against violations of law, in the draft law is foreseen to preserve supervision of Prosecutor related with detection and prevention of the criminal offences in places where arrested, detained persons, persons remanded to custody and persons sentenced with liberty deprivation sentences are kept. Additionally the Prosecutors competence to attend hearings of administrative commissions of the imprisonment institutions which examines issues related with execution of the criminal sentences will remain intact. It is foreseen to exclude from Prosecutor’s powers a Prosecutor’s protest, because it can not be considered as effective remedy. It is admitted also by the Constitutional Court of the Republic of Latvia, who in its case-law has referred to ruling of the European Court of Human Rights in the case “Tumilovich against Russia” (1999), wherein is specified that Prosecutor’s protest in the context of the Convention might be regarded as a discretionary power, but not as effective remedy. So that to ensure fair adjudication of case and respecting of person’s rights, an interested party must be provided with possibility to request revision of rendered ruling in the court by his/her own initiative.
Section 17. Powers of a Prosecutor when Carrying out Examination of a Submission
(2) A prosecutor, determining a violation of law, in conformity with its nature has the duty to:
1) warn of the non-admissibility of the violation of law;
2) submit a protest or a submission regarding the necessity of prevention of the violation of law;
3) bring an action in court;
4) initiate a criminal matter; and
5) to initiate the adjudication of the question of subjecting to administrative or disciplinary liability.
Moreover the Prosecutor according to the Section 15(2) of the Prosecution Office Law has the right and the duty to, without delay, take a decision and release from places of deprivation or restriction of liberty persons held there illegally.
The Prosecutor has rights to check how detention institution complies with rights of person. It stems out from Prosecution Office Law, Criminal Procedure Law and Law of Procedures for Keeping of Persons in Custody.
Imprisoned person can meet with Prosecutor individually. Upon application of imprisoned person the Prosecutor arrives to such person in imprisonment institution or such meeting may take place in imprisonment institution in working hours of Prosecutor. Prosecutors regularly arrange meetings in all imprisonment institutions and imprisoned person, who wants individual meeting with Prosecutor, may apply for such one.
Section 17. Powers of a Prosecutor when Carrying out Examination of a Submission
(1) When carrying out an examination of a submission in accordance with the procedures prescribed by law, a prosecutor has the right to:
1) request and receive regulatory enactments, documents and other information from State administrative institutions, banks, the State Audit Office, local governments, undertakings, authorities and organizations, as well as to, without hindrance, enter the premises of such institutions;
2) assign heads and other officials of undertakings, institutions and organizations to carry out examinations, audits and expert-examinations and to submit opinions, as well as to provide the assistance of specialists in the examinations carried out by the prosecutor;
3) invite a person and receive from him or her an explanation of the violation of law. If the person, in bad faith, evades attending pursuant to the invitation of the prosecutor, the prosecutor may take a decision on the forcible conveyance of such person, which shall be carried out by the police.
(2) A prosecutor, determining a violation of law, in conformity with its nature has the duty to:
1) warn of the non-admissibility of the violation of law;
2) submit a protest or a submission regarding the necessity of prevention of the violation of law;
3) bring an action in court;
4) initiate a criminal matter; and
5) to initiate the adjudication of the question of subjecting to administrative or disciplinary liability.
If violation of law is found, Prosecutor may take measures provided for by the Section 17(2) of the Prosecution Office Law (extract of law attached in reply to 4th question), including instituting of the criminal procedure, possibility to charge with the disciplinary liability, lodging claim with the court.
Prosecutor during examination has rights to involve experts, assign examinations, audits and investigations and submit opinions, as well as provide support of specialist in taken examinations (Section 17(1), para 2 of the Prosecution Office Law, extract of law attached in reply to 9th question).
If complaint regarding possible illegal actions of imprisonment institution official or employee is received, Prosecutor may take inspection himself or herself or request to do it Department of Imprisonment Institutions, which supervises imprisonment institutions. After receiving of opinion from Department of Imprisonment Institutions, Prosecutor may institute a criminal procedure, disciplinary case or take any other measures provided for by the Section 17(2) of the Prosecution Office Law (extract of law attached in reply to 4th question). After institution of the criminal procedure Prosecutor surrenders it to the Department of Imprisonment Institutions, which investigates the criminal offences committed by the officials or employees of the imprisonment institution. The instituted disciplinary case also is forwarded to the Department of Imprisonment Institutions, which has rights to decide issue regarding imposing of disciplinary sanctions.
Section 37. Public Prosecutor Supervising Investigation
(1) The public prosecutor who must perform supervision of an investigation in accordance with a distribution of duties specified in a prosecutorial institution, or an order in concrete criminal proceedings, shall be the supervising public prosecutor.
(2) During an investigation, a supervising public prosecutor has a duty:
1) to give instructions regarding the selection of the type of proceedings, the direction of an investigation and the performance of investigative actions, if a person directing the proceedings does not ensure a targeted investigation and allows for unjustified intervention in the life of a person or a delay.
2) to request that the direct supervisor of an investigator replace a person directing the proceedings, or make changes in the investigative group, if assigned instructions are not fulfilled or if procedural violations are allowed that threaten the progress of criminal proceedings;
3) [28 September 2005];
4) [12 March 2009];
5) to examine complaints within the competence thereof;
6) to decide rejections within the competence thereof;
7) to take over the direction of criminal proceedings without delay when sufficient evidence for the fair regulation of criminal legal relations has been obtained in an investigation.
(3) The public prosecutor supervising an investigation has the right to:
1) take a decision regarding the initiation of criminal proceedings and the transfer thereof to an investigative institution;
2) request the execution of provided instructions;
3) carry out investigative actions, informing a person directing the proceedings beforehand regarding such carrying out of investigative actions;
4) familiarize him or herself at any time regarding the materials of the criminal proceedings;
5) revoke the decisions of the person directing the proceedings and a member of the investigative group;
6) submit a proposal to a more senior prosecutor regarding the determination of the direct supervisor of another investigator in concrete criminal proceedings, or the transfer of criminal proceedings to another investigative institution;
7) participate in a meeting wherein the investigating judge decides regarding the granting of permission to apply compulsory measures and to perform special investigative actions;
8) to participate in the performance of the procedural actions that are directed at co-operation with the person who has the right to defence, as well as to participate in the selection of simpler proceedings.
Prosecutor does not adopt and does not revoke any special measures regarding imprisoned persons of high risk. In its turn if such measures cause violation of imprisoned person rights, Prosecutor has obligation to respond according to the procedure provided for by the Section 17(2) of the Prosecution Office Law (extract of law attached in reply to 4th question).
That issue is regulated by the Section 6(1) of the Prosecution Office Law:
Section 6. Independence of a Prosecutor
(1) In his or her activities a prosecutor shall be independent of the influence of other institutions or officials exercising State authority and administration and shall observe only the rule of law.
Prosecutor is not involved in examination of pardon applications, because according to the Amnesty Law pardon is granted by the State President upon application of convicted, his/her counsel of defense, legal representative, parents, children or spouse.
Amnesty is applied by special Amnesty Law, which provides for mandatory participation of Prosecutor in amnesty commission hearings. Last amnesty in Latvia took place according to the Amnesty Law adopted on November 20, 1997 and was applied to persons, who has committed criminal offences till December 6, 1997, when mentioned law took effect.
Prosecutors participate in administrative commission hearings pursuant to the procedure provided for by the Law on Execution of Sentences of Latvia, which examines issues related with sentence execution, including issues regarding early release from sentence serving and release from sentence serving in cases provided for by the law.
Prosecutor during sentence execution supervision cooperates with ombudsman, who within his/her competence provided for by the Law has rights to request information, files and opinions from Prosecutor, as well as in case if violation is found, to request Prosecutor to apply responding measures provided for by the Prosecution Office Law, including instituting of the criminal procedure. Moreover some cooperation takes place also with Department of Imprisonment Institutions and Ministry of Justice, which supervises Department of Imprisonment Institutions.