CCPE-GT(2012)3 REV 2
Strasbourg, 12 April 2012
WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
OPINION No. 7
ON THE MANAGEMENT OF THE MEANS OF PROSECUTION SERVICES
(as adopted during the 10th meeting of the ccpe-gt,
Members of the CCPE-GT concerned (see names mentioned in this structure) are invited to send their contribution to the Secretariat before the 15th May 2012.
- Terms of reference of the CCPE for 2012-2013
- Questionnaire prepared by the CCPE as the basis, number of states that replied (27 to date)
A. Reference texts (SECRETARIAT)
- Overview of the ECHR case-law on the issue
- Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system
- Other opinions of the CCPE (in particular Opinion No. 4(2009))
- European Guidelines on Ethics and Conduct for Public Prosecutors – the Budapest Guidelines (May 2005, adopted by the 6th Conference of Prosecutors General of Europe)
- Opinion no 2 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the funding and management of courts with reference to the efficiency of the judiciary and to article 6 of the European Convention on Human Rights
- European Judicial Systems: Edition 2010, Report of the European Commission for the Efficiency of Justice (CEPEJ)
- Report on European Standards as regards the independence of the judicial system – Part II: the Prosecution Service (adopted by the Venice Commission at its 85th plenary session in Venice, 17-18 December 2010)
B. Scope and purpose of the Opinion (Maria –Antonella BINO)
1. Scope of the opinion
- Main tasks of prosecutors today – traditional (fight against common crime) and new (fight against terrorism, money laundering, cybercrime etc.). Prosecutors should be in the position to react swiftly to all these challenges, in particular in view of the expectations of the public. Facing these new challenges requires significant means. Thus the fear of budgetary cuts due to the crisis
- For all types of competences: independent application of the law by prosecutors
- The extent to which prosecution services are in the position to manage the funds and resources allocated to them vary from one member State to another. The Opinion should highlight these differences
- Budget autonomy as a safeguard of independence and efficiency of the prosecution service
- Current trend towards more independence in the management of prosecution services:
(i) the need for both structural and financial independence
(ii) therefore the need for staff with managerial competencies
2. Purpose of the Opinion
Taking stock of the current situation in the member States, to elaborate proposals and recommendations for determining the needs and ensuring an efficient use of resources of prosecution services
II. NEEDS OF THE PROSECUTION SERVICES
A. Core needs of prosecution services and financial regulations (Harald RANGE)
- What tools and mechanisms are required to ensure the availability of resources for performing the duties in an efficient manner:
(i) Providing a fixed basis permitting the elaboration of budgets
(ii) Allowing a modulation in the use of the budgets
- Separate or common budgets for courts and prosecution offices? Can CCPE take a view on this? Advantages and disadvantages of the two solutions:
(i) a common budget because of common interests, is important for the coherence of action but does it allow enough autonomy?
(ii) budgets partly or totally separate allowing to act independently and at the same time save costs
- In case of common budgets for courts and prosecution offices, need of co-operation for a good use of resources and courts
- Mechanisms for rapid redistribution of resources: their importance, degree of flexibility and limits. Due to the special mission of the prosecution, a higher degree of flexibility is required as compared to other state bodies.
- Controlling and auditing of prosecution services: scope and limits.
- Necessary coordination with managers of services
- Interdependence with other government and judicial bodies.
B. Specific needs (Peter POLT/Vladimir ZIMIN)
1. Needs of the prosecutor in the criminal law field
a. With regard to investigations
- A separate chapter could be dedicated to the needs of the prosecutors with regard to investigations (e.g. for phone tapping in some cases, the law should be clear and costs low).
- The need to have qualified and effective investigators. The refusal to put such investigators at the disposal of prosecution services can be perceived as a way of putting pressure on the prosecution (e.g. in case of investigations of politically exposed persons).
b. With regard to other functions of prosecution
2. Needs of the prosecutor outside the criminal law field
III. Possible solutions
A. Human resources (Antonio VERCHER)
- Human resources are a very important element in all member States. It is therefore necessary to highlight the main principles in this sphere.
- Establish a link between the organisation of prosecution services, their costs and the performance of prosecutors.
- It may be useful in this context to delimit the different categories of persons working in prosecution offices and the tasks they perform (prosecutors and, where applicable, assistant or trainee prosecutors, administrative/technical/support staff).
- Tasks that can be accomplished by prosecutors or other staff members: magistrates/prosecutors, lawyers, assistants. Some tasks entrusted to prosecutors can be discontinued or entrusted to others. To examine the added value of the personal involvement of prosecutors.
- A system for calculating the workload of prosecutors must be designed in order to identify their evolving needs (human and technical resources): e.g. due to the rise in criminality, the need to supply statistical data etc.
- In case more autonomy is granted: use of external or internal expertise (e.g. technical consultants for prosecutors, IT specialists, translators). There is a need to recruit experts, it is not enough to train the available staff.
- Foresee the possible gender balance issues in this context.
B. Financial resources (Gabriela SCUTEA)
- It may be useful to list here the main sources of funding available to prosecution services (state budget allocations, external public funds – originating from the EU, the World Bank – and other assets where applicable) as well as main types of expenditure.
- Indicate which external sources of funding are acceptable in order to avoid corruption (prohibition of grants from political parties etc.).
- The need to set out principles of an efficient management of resources and efficient coordination when other bodies are involved in investigations.
- Prosecution services should enjoy as much autonomy in budgetary matters as possible. If they are given such autonomy, there is a need to train prosecutors in management and recruit qualified managers.
- Can prosecutors’ activity generate profit/revenue? Prosecution services develop confiscation policies (they are encouraged), is it possible to use this as a source of funding?
- To what extent should prosecution services be involved in the elaboration of budgets? Prosecution service is best placed to estimate its financial needs.
- Who is to supervise the financial management performed by the prosecution independently?
- Who assumes liability for prosecutors’ mistakes? Damages to be paid, insurance to be foreseen.
C. Equipment and material resources (Gabriela SCUTEA)
- Use of centralised IT systems for planning, monitoring and comparing the expenditure of prosecution services.
- Use of IT equipment in daily work (e.g. videoconferencing). E-justice. Common IT systems with the judiciary. Electronic case management permitting to reduce the length of proceedings. Data protection.
- Need for adequate premises where public can be received.
D. The means of prosecution services and government austerity plans (Peter POLT/Olivier DE BAYNAST)
- It is necessary that, as one of the core organs of the state, the prosecution always has access to adequate resources if it is to accomplish its mission, and in particular to fight criminality successfully. The prosecutor should be able to do work of high quality. The society should not be made to sacrifice security (in exchange for savings).
- The situation of economic crisis currently requires additional efforts from prosecutors. Justice needs to be done, even if the situation is difficult.
- Not all member States are touched by the current economic crisis in the same way.
- Prosecutors must be consulted on the savings to be made.
E. Management by results (Raija TOIVIAINEN/Alessandra GIRALDI)
- Not all countries seem to have the same approach to (concept of) management by results. It may be interesting to examine the main features and advantages of such system, linking it to the visibility of the prosecutors’ action and its social impact.
- Generally speaking, if prosecution services have accomplished their tasks correctly demonstrating good results, they are in a stronger position when requesting additional means. This should also imply that the prosecutor should be accountable for his actions.
- Management by results is a useful tool for evaluating the needs of prosecution services.
- Management approach in the judiciary:
(i) What management methods to use?
(ii) What objectives are to be achieved?
(iii) Who sets these objectives?
- Flexibility in the allocation of additional means is necessary. Statistics are a helpful tool in preparing estimates for future budgets.
- However, trying to achieve better results prosecutors should not tend to more repression (number of persons detained). Is the number of convictions a reliable element in the assessment of results of prosecutors’ activity? Approaches quantitative (the time a prosecutor and other authorities involved in proceedings spend to process a case) and qualitative (good cooperation between the different persons involved in proceedings in some priority areas, professionalism and new working methods).
IV. CONCLUSIONS AND RECOMMENDATIONS
To be completed
1. Prosecution services must have sufficient means in order to fulfil their various mission (cf CEPEJ report)
2. Prosecutors should estimate their needs, negotiate their budget and decide how to use the resources allocated
3. Prosecution services have final responsibility for the budgets allocated to them. Links with results of the services
4. Modern management methods should be used. Necessary transparency
5. Need for a flexibility in the management of budgets
6. Management training for prosecutors to be ensured
7. Resources to be adapted to the new challenges related to the globalisation.
8. The situation of economic crisis currently requires additional efforts from prosecutors. Justice needs to be done, even if the situation is difficult
9. Prosecutors must be consulted on the savings to be made
10. Is the management by results the solution?
11. Necessary coordination between the prosecutor and the manager of the prosecution services
To be decided: whether an explanatory report setting out various models of competencies with regard to establishing and managing the budgets of prosecution services should be attached to the Opinion.