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Strasbourg, 1st February 2007 CCPE-Bu (2007) 06
[ccpe-bu/doc2007/06 en] English only / Anglais seulement

BUREAU OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
(CCPE-Bu)

2nd Meeting
Strasbourg, 7-9 February 2007

ROLE OF THE PUBLIC PROSECUTION SERVICE OUTSIDE THE CRIMINAL FIELD

Working document prepared by Hungarian, Portuguese and Russian delegations

ROLE OF THE PUBLIC PROSECUTION SERVICE OUTSIDE THE CRIMINAL FIELD

The Recommendation n.º (2000) 19 – as it reads on the explanatory memorandum - «is exclusively concerned with the public prosecutor’s role in the criminal justice system, although public prosecutors may also in some countries be assigned other important tasks in the fields of commercial or civil law, for example».

Following up this Recommendation, the 5th Conference of Prosecutors General in Europe, held in Celle, Germany, addressed, for the first time, the question of the role of prosecution services outside the criminal field, and «observed that in most legal systems prosecutors had also responsibilities, sometimes substantial ones, in civil, commercial, social and administrative matters and even responsibility for overseeing the lawfulness of Government departments' decisions» (Conclusion nº 4).

Taking into account the lack of any international guiding principle and the importance of this issue for the public, the Conference decided «to pursue its consideration of the matter and instructed its Bureau to submit a reflection document at its next plenary session».

The competences of Public Prosecutors outside the criminal field was one of the main themes considered by the 6th Conference, held in Budapest, in 2005. The conclusions underlined «the variety of public prosecution systems in this field, resulting from different traditions in Europe», where some member States do not feel any need to provide extra-penal competencies to the pubic prosecutor while, at the same time, other countries consider it as an integral part of their system to grant pubic prosecutors competencies outside the criminal sector, adding that there is no reason not to consider this as an appropriate practice as well.

Again, the Conference underlined the absence of any specific international guidelines in this field, and conclude (conclusion 7.4) «that this important and complex issue deserved further consideration at a later stage». The Bureau of the Conference was instructed to continue its work taking into account in particular, the case law in this area to report back to the Conference

It is to be noted, as continuously emphasized by the Conference, that the intervention by prosecution services beyond the criminal sphere could never call into question the principle of separation of powers of the legislative, the executive and the judiciary, nor the fact that it is ultimately for the competent trial courts and them alone, to settle disputes after hearing all parties.

In order to organize the Budapest Conference, 29 replies to a specific questionnaire were received, none having been received thereafter despite the reminder included in the conclusions of the same Conference.

Last but not least, the Framework Overall Action Plan for the CCPE (CCPE (2006) 05 Rev final) includes, among other priority actions and following a preliminary study and the conclusions of the Budapest Conference, to undertake further inquiries on this subject in view of the preparation of an opinion.

Having in mind the aforesaid and the close connection between the prosecutor’s activities outside the criminal field and the need for protection of the Human rights and freedoms, the Bureau of the Consultative Council of the European Prosecutors, during its third meeting:

    1. Noted that the non-criminal law activity of Public Prosecution Service – where such competence exists – contributes to strengthen legality and enforce public interest, in particular, offering to the Public Prosecution Service in criminal field a multidisciplinary contribution for complex proceedings in certain cases (v.g. in the field of environmental or consumer protection)
    2. Taken into account that previous researches and the results of the Budapest conference have not dealt with concrete dogmatic issues which can be discussed and compared in order to reinforce the law-maker’s conceptions on establishing or extending the non-criminal activities of the prosecutor.
    3. Ascertained that there are no specific international principles guiding the activity of Public Prosecutors outside the criminal field;
    4. Emphasized that no other body or committee is dealing with this theme which is of crucial importance for the PP’s activities, in particular to establish the limits of the division of powers and the prosecutorial activity in a harmonised approach.
    5. Recognized that a reflection on such absence and the preparation of a document on the role of the Public Prosecution Service outside the Criminal Field could represent an added value for the activities of the Consultative Council of the European Prosecutors;
    6. Considered that time has come to analyse in depth and with priority the theme «The role of the Public Prosecution Service outside the Criminal Field», following the recommendations from the Conferences of Public Prosecutors in Celle and Budapest and the Framework Overall Action Plan for the CCPE;

Adopted the following:

    1. Decides to enrol, as first priority, on the list of the activities of the Consultative Council of the European Prosecutors to next year «The role of the Public Prosecution Service outside the Criminal Field»;
    2. Asks the representatives of Hungry, Portugal and Russian Federation to put forward a draft questionnaire, supplementary to the one fulfilled to the Budapest Conference, to be analysed at the third meeting of the Bureau;
    3. Requests the Secretariat to make a research on the relevant case law related to Public Prosecutors functions, in particular of the European Court of Human Rights, highlighting the principles deriving therefrom.

Peter Polt (Hungary)
j. m. Da Silva Miguel (Portugal)
Vladimir Zimin (Russian Federation)