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CCPE-GT(2010)3 REV 3

Strasbourg, 26 February 2010

WORKING GROUP OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

Structure of the Opinion No. 5 of the CCPE

    Drafting Group

    Co-ordinator : H. Range

    Composition: A. Giraldi, V. Zimin, C. Visart de Bocarme, A.Tasyurt and S. Kaymaz, J. Zezulova, A. Boskovic, P. Polt

    Languages:

      · Contributions in English or French
      · Discussions by e-mail in English

    Timetable:

      · 6 April 2010: Sending of contributions
      · Mid-May: First draft by H. Range
      · End of May: Translation and consultation of the WG
      · 15 June: Sending of comments by WG
      · 23-24 June 2010: Next GT meeting – Finalisation of the second draft
      · Summer: Consultation of CCPE members on the second draft
      · September: Examination of CCPE comments by the WG
      · October: Preparation of the third draft
      · 17-19 November 2010: CCPE plenary meeting

    Guidelines for working:

      · Focus on the “role of prosecutor”
      · Brief contributions
      · Send contributions to the Secretariat

Structure of the Opinion No. 5 of the CCPE

    I. Introduction

    A. Main relevant guidelines/definitions concerning criminal justice involving juveniles (in particular stated in the international corpus juris) (C. VISART DE BOCARME)

    · Aims of the criminal policy for juveniles: education should be preferred to sanction (by mediation, “rappel à la loi”, etc.), reducing the delinquincy

    · Should justice (prosecutor or others?) be more present for juveniles?

    · Different and new approach of the Rights of the juvenile: evolution towards the Rights of the juvenile within his family

    · Lacuna of the daily functioning of the justice system in the justice of juveniles

    · Definition of juveniles offenders/young adults offenders, etc. (Cf Rec (2008)11 and Rec(2003)20).

    B. Compilation of relevant texts and case-law, namely: (SECRETARIAT)

    · Declaration of Lanzarote
    · Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse  (CETS 201)
    · ECHR (articles 3 and 6) and case law of the Court (the large situation facing the juvenile justice system, seeing as defined by the subject, eg Mubilanzila Mayeka Kaniki Mitunga v. Belgium case No. 13178/03)
    · Recommendation(2000)19
    · Other relevant texts (Recommendations, European Prison Rules, etc.) of the Council of Europe concerning justice involving juveniles
    · UN Convention on the Rights of the Child and other relevant UN documents
    · Rules of the International Criminal Court (in particular for juveniles witnesses)
    · 7th Conference of European General prosecutors (Moscow, 2006)

    C. Scope (H. RANGE)

    · Focus on the role of the prosecutor in the field of juvenile justice. Opinion should not deal with juvenile justice in general.

    · All offences will be dealt with.

    · Opinion will concern:
    - Juveniles offenders
    - Juveniles victims
    - Other juveniles: Juveniles involved in any procedure (witnesses, etc.) who should be protected/defended, juveniles migrants

    II. The prosecutor and the crime prevention for juveniles (offences committed by and against juveniles) (C. VISART DE BOCARME AND V. ZIMIN)

    · Role of the prosecutor concerning prevention and protection

    · Prevention can also have the form of co-operation with other institutions (social services, protection services, ombudsman on juveniles, etc.)

    · Importance of prevention in order to avoid delinquincy

    · Prevention items contained in the general criminal policy

    · The prosecutor as legal adviser for juveniles (and parents) concerning new forms of juvenile delinquincy (Happy slapping, massive unlawful download, etc.)

    III. The prosecutor and the juvenile before, during the trial and for the enforcement

    · Balance in the work of the prosecutor to protect various interests (society in one hand, juveniles in the other hand)

    A. Before the trial (A. GIRALDI)

    · Is there a specific modalities for the prosecutor to exercise his discretional power /the legality principle when juveniles involved?
    · Alternatives to prosecution

    · Intervention of professionals for specific questions: which professionals, level of need for juveniles, external or internal assistance

    · Supervision of investigation services activities

    · Cases adults/juveniles: coordination with prosecutors in charge of adults and prosecutors in charge of juveniles

    · Technical means (material for anonymity, etc.) and experts (psychologist, etc.) for prosecutors

    · Role of the prosecutor and timeframes of procedure where a juvenile is involved

    · Detention of juveniles

    · Relationship with press

    B. During the trial (A. GIRALDI)

    · Specific measures during the trial: defense rights, fair trial, participation of the juvenile to hearing, in camera hearing, special court rooms, assistance of psychologist (important as it is often the first contact between the prosecutor and the juvenile)

    · Role of the prosecutor in the choice of the penalty (promotion of educational measures to the detriment of repressive measures) (First offenders juveniles/ Recidivist juveniles)

    · Effectiveness of measures - educational or safety - that can be requested by the prosecutor (lack of space in juvenile detention buildings, no care facilities available etc.)

    · Right of appeal of the prosecutor

    · Relationship with press

    C. Enforcement of the decision (P. POLT)

    · Reference to the different national systems (in some systems the prosecutor has no role concerning enforcement, judges or probation are competent)

    · Supervision of services implementing the measures imposed

    · Detention / Imprisonment after trial

    · Role of the prosecutor in case of a request of released on parol

    · Juvenile prisons must be known to the prosecutor (visit etc.), the establishments hosting juveniles, staff of these institutions

    D. Role of the prosecutor after the juvenile left the prison (P. POLT)

    · Role of the prosecutor after the juvenile left the prison (housing, employment, etc.) to prevent recurrence

    IV. The prosecutor and the juvenile in the non criminal justice (P. POLT AND V. ZIMIN)

    · Involvement of the prosecutor each time the juvenile interests are concerned

    · Protection measures (initiative)

    · The role of the prosecutor in family law

    · The prosecutor and the juvenile migrant

    V. Which organisation of prosecution services and which prosecutors for these missions ?

    A. Organisation of the work of Prosecution Services (A.TASYURT AND S. KAYMAZ)

    · Adoption of guidelines or best practices concerning the work of prosecutors with juveniles

    · Persons (attached to the prosecutor or to an administrative institution) in charge of juveniles should have a specific training and specialisation.

    · Coordination of the work of these services with the work of the prosecutor

    · Existence of a specialised staff?

    · Sufficient means (financial, technical and human resources)

    B. Specialisation and training of prosecutors (A. BOSKOVIC)

    · Shall the prosecutor receive a specific training?

    · Content of specialisations

    C. Selection and appointment of prosecutors (J. ZEZULOVA)

    VI. Synthesis of recommendations (H. RANGE)