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Description: NB_CE

CCPE-GT(2012)5
English only

Strasbourg, 1 June 2012

WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

SUMMARY OF REPLIES TO THE QUESTIONNAIRE
CIRCULATED WITH THE VIEW TO PREPARATION OF THE OPINION No. 7
OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

    MANAGEMENT OF THE MEANS OF PROSECUTION SERVICES

Document prepared by the Secretariat

1. In 2012, the Consultative Council of European Prosecutors (CCPE) has been instructed to adopt an opinion (No. 7) on “The management of the means of the prosecution services” for the attention of the Committee of Ministers of the Council of Europe. Following the 6th plenary meeting of the CCPE (24-25 November 2011 in Strasbourg), a questionnaire to be completed by delegations was drawn up by Ms Gabriela SCUTEA, member of the CCPE in respect of Romania, and approved by the Bureau of the CCPE.

2. The present document provides a summary of the replies to the questionnaire given by various Council of Europe member states.

A. THE QUESTIONNAIRE1

3. The questionnaire distributed among the CCPE members for completion contains 37 questions pertaining to the status of prosecution services and the different types of resources at their disposal. It also covers various rules and procedures governing the process of allocation, use and control over the use of these resources. The questions are thus arranged in five sections, namely:

4. This Report follows the same structure in the analysis of the replies received. Its purpose is to describe the most common models and situations with regard to the prosecution services of the different countries and to summarise and analyse the information collected. Thus certain specific cases or solutions may have deliberately been left outside the scope of this document.

1. STATUS OF THE PROSECUTION SERVICES IN THE STATE ADMINISTRATION

5. On the basis of the replies received it is possible to identify two main models as to the status of the prosecution services and their relationship with the other branches of the state, namely:

6. It seems also important to note that seven countries from the first group and two countries from the second regard their prosecution services as part of the judiciary4.

7. However, whatever model is chosen, it appears that in each country prosecutors enjoy a wide autonomy in respect of matters within their competence (the main areas being action before courts and fight against crime). No authority may instruct the prosecutor general or the person vesting a similar position to take up or discontinue proceedings in a case, or indicate the direction that prosecution in a specific case should take. This is safeguarded either by the law or by tradition5.

8. Likewise, the majority of countries (22 out of 30) indicated that the activity of the prosecution service is not governed by the ministry of justice or another government body. It seems, however, that in many of these countries the prosecutor general is required to present a report to the national parliament at least once a year, and that the parliament (or, in some cases, the government) may give the prosecution service instructions regarding current priorities of the public policy of the fight against crime.

9. The situation is less clear-cut with respect to the authority competent for creating prosecutor positions. The three main actors which have the powers to create new positions in the prosecution are the ministry of justice (either alone or with the participation of the prosecution service), the national parliament or the prosecution service itself. Some countries also indicated other authorities6.

10. Most respondents indicated that there are links with other government bodies with relation to funding, personnel (including training), or to shared IT systems. In most cases the institution involved in ensuring that the prosecution service has adequate resources at its disposal is either the ministry of justice or a special body in charge of the judicial administration.

11. However, the scope of such involvement varies considerably from one country to another, from relatively loose ties (e.g. in the form of ad hoc, specific activities targeting the overall development of the judiciary) to the establishment of a “performance contract” setting out the objectives of the prosecution service for each year7. Six countries indicated that there are no links between the prosecution services and other bodies in terms of resource management8.

12. With respect to a more specific question of the ability to manage and implement its budget independently, it can be concluded that in the majority of countries that responded to the questionnaire the prosecution service has a broad autonomy within the limits of the financial appropriations defined for the year in question. It is normally subject to control of expenditure in accordance with the usual procedures foreseen for public budgets.

13. However, a group of countries9 indicated that only the budget allocated to the office of the prosecutor general (or equivalent) is managed independently by the latter. In Germany the management of funds allocated to regional branches of the prosecution services is within the hands of the regional ministries of justice. In the countries where lower prosecution services are attached to specific courts, their budgets are managed by the administrative divisions of the latter together with the funds of the judiciary. In some countries the budgets of the prosecution services are managed entirely by the ministries of justice and/or finance10.

2. FINANCIAL RULES AND REGULATIONS OF THE PROSECUTION SERVICES

14. For the majority of countries it can be said that the preparation of the budget is a shared responsibility of the prosecution service and the ministry of justice (or another body in charge of the judicial administration). The ministries of finance may also be involved in the process of preparing the budget before it is submitted to the parliament for adoption. In seven countries11 the preparation of the budget is the sole responsibility of the prosecutor general, with the ministry of finance only responsible for preparing a consolidated draft of the state budget before it is considered by the parliament.

15. Denmark is the only country among those that submitted replies to the questionnaire where funds requested by the prosecution service have to be linked to the efficiency goals foreseen by the performance contract with the Ministry of Justice (see para. 11 above).

16. Once again, the absolute majority of countries indicated that their prosecution services have a special unit responsible for managing the allocated funds. Although the countries did not indicate the total number of prosecutors, it is clear that where, due to the small size of the country these numbers are low, instead of establishing a specialised unit one of the senior members of the service is entrusted with the financial management.

17. Many countries have centralised IT systems in place that permit to follow the utilisation of funding. Where such systems are created at the national level, they are used by the governments for planning, monitoring and comparing the public expenditure. However, only a few countries12 indicated that the system currently in place is either used for evaluating and increasing the efficiency of resource management by public institutions and the prosecution service in particular, or that it has such potential.

3. RESOURCES OF THE PROSECUTION SERVICE

18. A table summarising data on the total budgets allocated to the prosecution services and their distribution between staff expenditure and other types of expenditure can be found in Appendix I to this Report. In general the total nominal volume of appropriations for the prosecution services in most countries increased between 2008 and 201113.

19. The vast majority pointed out that the recent economic crisis affected the financial situation of the prosecution to some extent. However, the magnitude of this effect seems to vary, from the introduction of a general policy towards making savings and redistributing resources to core activities at the expense of e.g. capital investment, on the one hand, to radical cuts in the salaries of prosecutors, on the other.

20. Most respondents assess the resources currently at the disposal of the prosecution services of their countries as insufficient. Obtaining additional human and/or financial resources is seen as a priority in a number of states. Others indicated that their services require better technical equipment and a better access to training for the staff, or a better access to technical expertise that is required in support of evidence used in courts.

21. Various avenues for improving the current situation were proposed by the respondents, for example:

20. Currently the countries that responded to the questionnaire use the following Instruments for allocating or adjusting resources of the prosecution:

22. As to the links between the budgets of the prosecution and those of the judiciary or law enforcement, most countries indicated that there are no such links. In a small number of countries where such links do exist these are mostly indirect: for example, in certain countries the budgets of both the judiciary and the prosecution are administered by the same institution (usually the ministry of justice or the supreme judicial council); in other countries the salaries of prosecutors are established as a percentage of the salaries of judges (or sometimes equal to these). In several countries the judiciary and the prosecution share a single budget14.

23. Approximately one in every three responding countries indicated that the human resources of the prosecution depend on other institutions of the judiciary:

24. However, the Supreme Judicial Council of Bulgaria seems to have the broadest competencies with regard to human resources of the prosecution: it determines the numbers of prosecutor positions, announces vacancies and, organises the selection of suitable candidates; all prosecutors (except Prosecutor General) are appointed, promoted, transferred and dismissed by the Council.

25. There are also various examples of indirect links with other institutions as regards staff matters: in Sweden candidates for prosecutor positions must have working experience as court clerks; in Estonia, working experience as a judge or police officer gives a possibility to apply for a prosecutor position.

26. The remaining countries indicated that the prosecution does not depend on any other judicial body for human resources.

27. In most cases the prosecutor general may temporarily reallocate human resources (by seconding prosecutors as well as administrative staff between different offices) in order to deal with an urgent need. However, how quickly these measures can be taken seems to vary from country to country.

28. As a rule, prosecution services have no financial reserve or specific budget that would allow taking rapid measures in case of an acute shortage of resources within a specific prosecution office.

29. However, the situation is different in Armenia, where in accordance with the law 2% of the total budget of the prosecution is set aside as a contingency reserve allowing the Prosecutor General to meet unforeseen and urgent needs. Norway also indicated that a similar fund exists; however, it is considered insufficient. In Spain the prosecution service has access to special budgets of the Ministry of Justice and regional governments earmarked for such purposes. In Sweden, the Prosecutor General may establish such a fund if the future development of the

4. BUDGET FOR INVESTIGATIONS15

30. In most countries, in order to obtain specific resources required for investigation an application for must be submitted to the relevant authority (usually the head of a prosecution office); the resources are allocated as soon as possible16, within the limits of the budget available. As a rule, no resources in addition to the budget established for the relevant period can be obtained.

31. The situation is different in Estonia where such additional resources can be obtained within a matter of one week. No limit seems to be set for resources required in the interest of investigation in Germany.

32. Some countries indicated difficulties either of financial nature (e.g. insufficient access to cost-intensive types of expertise – forensic, genetic etc.) or due to a lack of experts that can provide such expertise; as a result the length of proceedings increases. In some countries delayed payments for expertise are commonplace. Resources needed for the translation of documents for judicial cooperation, lack of technical capacity in terms of surveillance were among other problems highlighted by the respondents.

33. As a rule, there are no special control procedures with respect to the management of resources allocated to investigations: general procedures for internal and external controls with respect to the use of resources allocated to public institutions apply.

34. In cases where investigations are performed by the prosecutors jointly with other agencies (such as the police), each investigating agency normally covers its own expenses. However, in some countries these expenses are subsequently reimbursed by ministries of justice or other bodies responsible for the judicial administration. It is understood that in Estonia the use of resources is coordinated, but such coordination is not formalised. In Bulgaria, the prosecution may enter cooperation agreements with the relevant agencies.

35. Specialisation of prosecutors is known in many countries, particularly where they play an active role in investigations. However, its scope varies depending on the specific crime situation, available resources and size of the country. The areas of specialisation that seem to be most common are: economic, financial and organised crime, terrorism, drug and human trafficking, sex crimes, juvenile crime, corruption, computer crime and some other17.

36. All countries concerned by such specialisation assess its results as positive: according to them it allows improving the speediness and quality of investigations, and it has also proven helpful for international cooperation.

37. In terms of giving priority to certain types of cases, the situation is different from country to country. Some prosecution services are required to prioritise cases they deal with in accordance with the current crime policy adopted by the government18. In other countries prosecution may set its priorities on a case-by-case basis. In Germany regional prosecution offices of the Länder may run specific programmes aimed at tackling particular types of crime (e.g. corruption); however, these programmes are funded from separate budgets. In Switzerland cases involving serious transborder crime may be treated as a matter of priority.

38. In other countries it is not possible to give priority to any cases as it is considered to be in contradiction with the principle of legality19.

5. DESCRIPTION OF THE SYSTEM OF MANAGEMENT BY RESULTS

39. Almost a half of the countries having responded to the questionnaire indicated that a system of management by results is in place in their prosecution services in one way or another. No specific problems with this system were reported. The results achieved are monitored at the level of prosecution offices as well as at the level of individual performance of prosecutors.

40. The representatives of Denmark indicated that the objectives set for the prosecution are formalised in internal performance contracts concluded between higher and lower prosecution offices.

41. The objectives set include efficiency, productivity and processing time. Benchmarks may be established and used to compare the results of different offices, and to adjust workload subsequently. In most cases these objectives are formalised internally. Very few countries indicated that the performance objectives are set by way of negotiation, or that they are coordinated with other authorities involved in criminal proceedings.

42. In several countries regulations are in place which define the optimal workload for prosecutors, but this is rather an exception than the rule. However, often there are informal mechanisms in place for monitoring the de facto workload of prosecutors that permit to react in case of need and redistribute resources. The main indicator used for comparison is the average number of cases processed a prosecutor within a given period of time.

6. FOLLOW-UP OF RESULTS AND REPORTING

43. In the majority of countries having responded to the questionnaire, prosecution services are concerned by the government strategies aimed at making savings or improving the use of resources already available.

44. It appears that the results of the prosecutors’ activity are monitored closely almost everywhere. The social impact of their work is also evaluated in some way, either internally (i.e. the prosecution service itself monitors the effect of its work) or externally. In the latter case this impact is evaluated, for example, by the parliament or by research institutions (either public or private) and the media.

45. Internal audits are also widespread, and their recommendations are implemented as far as possible.

B. CONCLUSIONS

46. On the one hand, the activity of prosecutors is considered to be part of the core mission of the state in all member States. Therefore close attention is paid to ensuring that prosecution services have at their disposal adequate financial, human and technical resources.

47. On the other hand, it is not uncommon for members of the prosecution to regard these resources as insufficient. Rapid development of technology, new sophisticated types of crime require that prosecution be adequately equipped in order to investigate and/or prosecute various types of offences.

48. There is a common understanding that qualified personnel represents the key resource of the prosecution, and most efforts should be channelled into recruiting, training and retaining such personnel (this applies both to prosecutors and to support staff).

49. As far as the budget autonomy is concerned, as well as the mechanisms allowing to react rapidly and meet urgent demands for specific resources, different countries have adopted different models. In general the more flexible these models are, the more they seem to be appreciated by members of the prosecution services.

APPENDIX I : BUDGETS ALLOCATED TO PROSECUTION SERVICES OF SELECTED COUNCIL OF EUROPE MEMBER STATES IN 2008-2011 (in thousand Euro)20

  year

2008

2009

2010

2011

 

total

staff

other

% of staff

total

staff

other

% of staff

total

staff

other

% of staff

total

staff

other

% of staff

country

 

 

 

to total

 

 

 

to total

 

 

 

to total

 

 

 

to total

Albania

7 231

n/a

n/a

n/a

8 686

n/a

n/a

n/a

8 902

n/a

n/a

n/a

12 343

n/a

n/a

n/a

Armenia

5 265

n/a

n/a

n/a

5 048

n/a

n/a

n/a

5 337

n/a

n/a

n/a

5 885

n/a

n/a

n/a

Austria

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Bulgaria

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

 

 

 

n/a

n/a

n/a

n/a

Croatia

3 282

2 174

1 108

66,20%

5 510

2 136

3 374

38,80%

2 984

2 100

884

70,40%

2 859

2 089

770

73,10%

Czech Republic

84 110

54 930

29 180

65,30%

89 331

56 618

32 713

63,40%

83 647

54 023

29 623

64,60%

79 209

51 383

27 825

64,90%

Denmark

89 100

71 300

17 800

80,00%

93 600

75 400

18 200

80,60%

98 900

79 000

19 900

79,90%

98 500

78 100

20 400

79,30%

Estonia

10 300

8 600

1 700

83,50%

9 500

7 400

2 100

77,90%

9 200

7 200

2 000

78,30%

9 200

7 200

2 000

78,30%

Finland

38 476

30 958

7 518

80,50%

39 779

31 540

8 240

79,30%

41 551

33 074

8 477

79,60%

42 458

34 031

8 427

80,20%

France

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Georgia

9 417

6 961

2 456

73,90%

7 228

6 696

532

92,60%

7 334

6 556

778

89,40%

7 572

6 744

827

89,10%

Germany

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Greece

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Hungary

106 243

70 250

35 993

66,10%

100 770

65 036

35 734

64,50%

99 203

64 441

34 762

65,00%

102 921

68 643

34 278

66,70%

Italy

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Latvia

23 656

15 795

7 861

66,80%

18 175

13 114

5 060

72,20%

15 182

10 603

4 579

69,80%

20 182

14 362

5 820

71,20%

Liechtenstein

1 464

1 390

74

95,00%

1 763

1 613

150

91,50%

2 070

1 908

162

92,20%

2 150

1 997

154

92,90%

Monaco

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Montenegro

4 998

n/a

n/a

n/a

4 539

n/a

n/a

n/a

5 177

n/a

n/a

n/a

5 365

n/a

n/a

n/a

Norway

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Poland

367 890

274 424

93 466

74,60%

381 495

296 163

85 332

77,60%

404 319

314 565

89 754

77,80%

415 936

321 979

93 957

77,40%

Portugal

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Romania

163 845

139 849

23 997

85,40%

134 556

111 836

22 721

83,10%

160 950

140 383

20 566

87,20%

133 361

n/a

n/a

n/a

Russian Federation

972 609

n/a

n/a

n/a

1 050 946

n/a

n/a

n/a

938 132

n/a

n/a

n/a

1 006 198

n/a

n/a

n/a

Slovakia

59 255

45 342

13 913

76,50%

64 298

51 389

12 908

79,90%

64 289

52 964

11 326

82,40%

63 614

52 802

10 812

83,00%

Slovenia

18 376

15 811

2 565

86,00%

18 223

15 900

2 323

87,30%

19 024

16 774

2 250

88,20%

18 739

16 473

2 266

87,90%

Spain

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

Sweden

110 000

90 000

20 000

81,80%

117 000

94 000

23 000

80,30%

132 000

106 000

260 000

80,30%

131 000

107 000

240 000

81,70%

Switzerland

28 420

17 020

11 400

59,90%

30 857

19 448

11 409

63,00%

31 586

19 331

12 255

61,20%

44 140

26 374

17 766

59,80%

Ukraine

153 541

n/a

n/a

n/a

89 078

n/a

n/a

n/a

107 099

n/a

n/a

n/a

214 695

n/a

n/a

n/a


1 This Report is based on the replies to the questionnaire received from 30 countries: Albania, Armenia, Austria, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Italy, Latvia, Liechtenstein, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland and Ukraine.

2 Albania, Armenia, Bulgaria, Croatia, Greece, Hungary, Italy, Latvia, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Switzerland, Ukraine.

3 Austria, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Liechtenstein, Sweden.

4 Bulgaria, Finland, Italy, Latvia, Monaco, Romania, Sweden.

5 The latter is the case, for example, in Norway where the King in Council is formally entitled to give the Director of Public Prosecution instructions with respect to specific cases. However, this has never been done, as it would be contrary to a long-standing tradition and to the official position taken by the Parliament on the issue of autonomy of the public prosecution.

6 Other bodies responsible for the creation of prosecutor positions are the Ministry of Finance (Slovakia), the Ministry of Interior (Slovenia, where this is said to be a transitional situation), the Superior Council for Justice (Bulgaria, Greece) and the Government in general (Liechtenstein).

7 This is the case in Denmark; however, such contract that is concluded between the Prosecution Service and the Ministry of Justice is not legally binding.

8 Armenia, Hungary, Latvia, Russia, Slovakia and Ukraine.

9 Austria, France, Germany, Portugal.

10 E.g. in Czech Republic and in Greece.

11 Denmark, Latvia, Portugal, Russia, Slovenia, Sweden, Ukraine.

12 Estonia, Finland, Romania and Sweden.

13 See Appendix I for more details.

14 Austria, France, Greece, Spain.

15 This section does not apply to Armenia, Denmark, Russia and Spain where pre-trial investigations are generally outside the sphere of competence of prosecutors; it applies to Czech Republic, Finland, Slovakia and Slovenia only in part for the same reason.

16 E.g. several hours in Georgia and Monaco; an application for the purchase of special equipment that cannot be covered by the ordinary budget can take up to a month in Italy.

17 Some countries also know specialised branches of prosecution, such as transport, environment or military prosecution, or war crimes prosecutors; in Greece, there are prosecutors dealing with crime involving objects of the national cultural heritage; in Hungary, some prosecutors specialise in crimes related to the former communist regime.

18 E.g. crimes committed by juvenile offenders or crimes against children are given priority in terms of investigation in Sweden; cases involving a deprivation of freedom, crimes involving minors, corruption and organised crime are dealt with as a matter of priority in Croatia.

19 This is the case of Austria, Bulgaria, Czech Republic, France, Georgia, Hungary, Latvia, Liechtenstein and Poland.

20 n/a – no data available