The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
The organisation of the police
The former tripartite organisation of the police, i.e. the gendarmerie, the judicial police (police judiciaire) and the communal police (police communale), was restructured by the Integrated Police Force Act of December 7, 1998 (IPFA) into a two-levelled integrated police, i.e. the local and the federal police.
On local level every of the 196 police-zones – each consisting of one or more municipalities – has a local police at its disposal (Sects. 9-11 IPFA), which is headed by a force-commander. The local police forces deal mainly with basic police matters, including all tasks, both administrative and judicial, that are necessary to control local events and phenomena that occur within the territory of the police zones (Sect. 3 IPFA).
The federal police is made up of centralised as well as de-centralised police offices (Sects. 93-94 IPFA). Across the territory of the State both perform specialised and supra-local tasks of an administrative as well as a judicial nature, according to the principles of specialisation and subsidiary. The federal police acts also in a supportive way to the local forces (Sect. 3 IPFA).
The Commissioner-General, who is the head of the federal police, co-ordinates five general directorates, 27 de-centralised co-ordinating and supporting services, as well as 27 de-centralised judicial services. While each co-ordinating and supporting service is directed by an administrative director-co-ordinate, each judicial service is headed by a judicial director (Sects. 103-105 IPFA). These de-centralised services, which are situated in the judicial districts, de facto constitute a third co-ordinating intermediate level in the organisation of the police.
The public prosecutor as dominus litis in the preliminary inquiry
Although the public prosecution service – together with the Minister of Justice – traditionally holds the power of supervision over the police forces, for many years it hardly developed any active policy on investigation and prosecution in practice. As a result, the police nearly automatically found itself in a position to determine quasi-autonomously which forms of crime to focus on and in which way to dispose of minor offences, e.g. by way of a notification to the offender or by a simple dismissal at police level. The long-term consequences of such situation were problematic as the legal supervisory task of the prosecution offices gradually eroded in practice and were reduced to discussing individual cases and incidents. Moreover, the adequate functioning of the criminal justice system as an effective, efficient and meticulous system was jeopardised. This, in turn, produced frustrations from both sides. The police became demoralised because much of its work was simply dismissed by the district offices of the public prosecution service, while the latter became distressed because the large numbers of cases coming in prevented them from focusing on their own core business, namely to investigate and to prosecute (more serious) crime.
However, this situation underwent considerable change in the course of the last fifteen years. In this context, reference has to be made to the Act of March 12, 1998, concerning the improvement of the criminal justice process in the phase of the preliminary inquiry and the judicial inquiry which filled the lacunae in the Code of Criminal Procedure (CCP) concerning the preliminary inquiry and confirmed the important role that the public prosecution service has to play – together with the police services – in the field of criminal investigation. The public prosecutor is not only in charge of, and responsible for, the preliminary inquiry, he also safeguards legality in relation to the collection of evidence (Sects. 28bis subs. 1 and 3 CCP). Given this position, the public prosecutor can assign the police force that will perform or direct the inquiry from an operational viewpoint, without nevertheless being able to nominate a specific official (Sects. 28ter subs. 3 CCP). With regard to so-called proactive investigation, it should furthermore be stressed that in principle the public prosecutor has to give his prior and written consent before any investigation can be performed (Sect. 28bis subs. 2 CCP).
Since the public prosecutor is an officier de police judiciaire (Sect. 9 CCP), he has a general competence to investigate crimes and he can – at least in theory – perform all investigations himself. In practice however, the police carries out the investigation, while the public prosecutor only determines the direction of the inquiry, rather than being present when a specific task is performed. In this respect, every member of the police who has been reported an offence has to make up a record (procès-verbal) and has to submit this to the public prosecutor, together with the relevant information (Sects. 53-54 CCP). However, is has to be noted that it is the police who initially ascertain whether or not an offence has been committed, and thus decide whether or not a report should be made.
The Act of March 12, 1998 has furthermore made clear that the district prosecutor has the right – and even the duty – to develop and to apply a real policy vis-à-vis the (judicial) police under his direct supervision (Sect. 28ter subs. 1 CCP). The prosecutor can thus decide which offences have to get priority within his judicial district. He cannot, however, disrespect the directives of the Minister of Justice in relation to investigation and prosecution policy. This should be the solution to the problematic tradition existing in the public prosecution service of having no deliberate and directed policy in the fields of investigation and prosecution, which weakened the adequate functioning of the whole criminal justice system.
It is worth mentioning another development that could give rise to a new relationship between the public prosecution service and the police. Already in the 1990s, a handful of prosecution offices started experimenting with a system of autonomous disposition of certain cases by the police. In these projects, the police forces received a larger degree of freedom in registering and investigating a limited number of offences, such as e.g. threats, vandalism, libel, certain types of theft etc. The ultimate objective of these experiments was to reduce the workload for the public prosecution service, by encouraging police forces to investigate the cases concerned, which however still reside with the district prosecution service. In this sense, the concept autonomous is misleading and should be substituted for another one. All in all, however, the experiments – which have gained legal recognition through the Act of March 12, 1998 (Sect. 28bis subs. 1 CCP) – do show great potential for the more adequate functioning of the criminal justice system. At this moment, they already alleviate the workload of the public prosecution service concerning minor offences, and thus enable them to devote more time and resources to more serious offences. In the future of course, these pilot projects could constitute the basis for more far-reaching solutions, whereby the police could indeed dispose of minor criminal cases in a swift and independent manner.
Within the scope of the preliminary inquiry, the police and the public prosecutor can make no inroads into the basic rights and liberties of the citizens, unless the law contains a clear power to do so (Sect. 47ter subs. 1 CCP). Next to the possible seizure of the objects mentioned in the Sects. 35 and 35ter CCP, and the specific rules for catching someone in the act (in flagrante delicto), reference should be made here to arrest on the one hand, and special investigation methods on the other hand.
The special investigation methods and other means of coercion
With the Act of January 6, 2003 (Law Gazette May 12, 2003) the use of special investigation methods – i.e. observation, infiltration and the use of informants (Sect. 47ter subs. 1 CCP) – has been officially regulated. These methods are carried out by the police forces that have been assigned by the Minister of Justice, in a preliminary or in a judicial inquiry under the authority of the public prosecutor. These methods aim at prosecuting offenders and at tracing, collecting, registering and processing of data and information on the basis of serious indications of already committed offences – whether or not ascertained – or of offences that will be committed in the near future. When the special investigation methods cross the boundaries of a district or when they relate to the competences of the federal prosecutor, the competent prosecutors are obliged to notify one another and to make sure the methods can be carried out well (Sect. 47ter subs. 2 CCP). Noteworthy is, that even special investigation methods that have been ordered by the investigating judge, are carried out by the public prosecutor (Sect. 56bis CCP).
Observation
According to the statutory definition observation is looking at one or more persons, their presence and their behaviour, or at certain objects, places or happenings by the police in a systematic manner (Sect. 47sexies subs. 1 CCP). In order to be systematic the observation has to be carried out for more than five subsequent days, or for any five days in one month. Furthermore, an observation is regarded systematic if technical means are used, if the observation has an international character, or if a special unit of the federal police carries out the observation.
The public prosecutor can order an observation in a preliminary inquiry whenever such is required, and provided that other investigative measures are not sufficient to find out the truth. However, an observation with the use of technical means can only be ordered in those cases where serious indications exist of offences that are punishable with a correctional prison sentence of at least 1 year (Sect. 47sexies subs. 2 CCP).
In principle the order of the public prosecutor has to be in writing (Sect. 47sexies subs. 3 CCP). The police officer who is in charge of the observation has to report to the public prosecutor. This written report is kept in a separate and confidential file, in which the order to observe is put as well.
Infiltration
According to the statutory definition infiltration is the keeping in close touch by a police officer under a false identity with one or more persons of whom serious indications exist that they have committed or will commit either offences within a criminal organisation, or offences of the limited list of the serious offences named in Sect. 90ter subs. 2 to 4 CCP (Sect. 47octies subs. 1 CCP). In exceptional cases where it seems necessary for the infiltration to succeed, the police officer can get help from a person who is not a member of the police, for a short period of time only.
The public prosecutor can order an infiltration in the preliminary inquiry whenever such is required and provided that other investigative measures are not sufficient to find out the truth (Sect. 47sexies subs. 3 CCP).
In principle the order of the public prosecutor has to be in writing (Sect. 47sexies subs. 3 CCP). The police officer who is in charge of the infiltration has to report to the public prosecutor. This written report and the order to infiltrate are kept in a separate and confidential file.
Use of informants
In order to get information, a policeman can keep in touch with an informant of whom it is suspected that he has close connections with one or more persons of whom there exist serious indications that they would commit or have committed offences on a regular basis (Sect. 47decies subs. 1 CCP).
Both in the centralised federal police as in the de-centralised police offices, a specific officer is responsible for the administration of the use of these informants (Sect. 47sexies subs. 3 CCP). They are to report to the federal prosecutor, respectively the prosecutor of the judicial district, minimally once every three months (Sect. 47sexies subs. 3 CCP).
When the use of informants gives rise to serious indications concerning offences that are committed or will be committed, the public prosecutor is to be informed in writing by the local officer responsible for the administration of the use of informants. These reports are kept in a separate and confidential file. Taking the relevance of the information and the safety of the informant into account, the public prosecutor then decides whether to make a report (procès-verbal) of the information received. Furthermore, the public prosecutor can forbid the local officer responsible for the use of informants to work with certain information that has been received by an informant.
The arrest
The general powers of judicial arrest are formulated in Sects. 1 and 2 of the Act of July 20, 1990 concerning pre-trial detention (Law Gazette August 14, 1990).
If a person is caught in flagrante delicto, policemen are empowered to deprive the suspect of a crime, or misdemeanour, of his freedom. However, they are obliged to place him immediately at the disposal of an officer of judicial police, who will take a decision on the arrest of the suspect. If he arrests the suspect, he is obliged to inform either the public prosecutor about this decision promptly or, in case the offence concerned is already the object of a judicial inquiry, the investigating judge. The deprivation of freedom, the formal arrest included, may not last for more than 24 hours, this term starting at the moment that the suspect, as a result of the official intervention, no longer disposes of the freedom to come and go. If the public prosecutor wants to keep the suspect under arrest for a longer period than these 24 hours, he will have to ask the investigating judge to render an arrest warrant. It should be noted that every police arrest must be recorded in writing and that the report must list certain specifications, indicated in Sect. 1 of the Act.
The arrest of someone who is not caught in flagrante delicto, is dealt with in Sect. 2 of the Act. In this hypothesis only the public prosecutor has the competence to decide upon the deprivation of a person’s freedom. Policemen are only empowered to take measures to prevent the person from fleeing or attempting to escape supervision.
The Relation between the Public Prosecutor and the Police
The organisation of the police
The former tripartite organisation of the police, i.e. the gendarmerie, the judicial police (police judiciaire) and the communal police (police communale), was restructured by the Integrated Police Force Act of December 7, 1998 (IPFA) into a two-levelled integrated police, i.e. the local and the federal police.
On local level every of the 196 police-zones – each consisting of one or more municipalities – has a local police at its disposal (Sects. 9-11 IPFA), which is headed by a force-commander. The local police forces deal mainly with basic police matters, including all tasks, both administrative and judicial, that are necessary to control local events and phenomena that occur within the territory of the police zones (Sect. 3 IPFA).
The federal police is made up of centralised as well as de-centralised police offices (Sects. 93-94 IPFA). Across the territory of the State both perform specialised and supra-local tasks of an administrative as well as a judicial nature, according to the principles of specialisation and subsidiary. The federal police acts also in a supportive way to the local forces (Sect. 3 IPFA).
The Commissioner-General, who is the head of the federal police, co-ordinates five general directorates, 27 de-centralised co-ordinating and supporting services, as well as 27 de-centralised judicial services. While each co-ordinating and supporting service is directed by an administrative director-co-ordinate, each judicial service is headed by a judicial director (Sects. 103-105 IPFA). These de-centralised services, which are situated in the judicial districts, de facto constitute a third co-ordinating intermediate level in the organisation of the police.
The public prosecutor as dominus litis in the preliminary inquiry
Although the public prosecution service – together with the Minister of Justice – traditionally holds the power of supervision over the police forces, for many years it hardly developed any active policy on investigation and prosecution in practice. As a result, the police nearly automatically found itself in a position to determine quasi-autonomously which forms of crime to focus on and in which way to dispose of minor offences, e.g. by way of a notification to the offender or by a simple dismissal at police level. The long-term consequences of such situation were problematic as the legal supervisory task of the prosecution offices gradually eroded in practice and were reduced to discussing individual cases and incidents. Moreover, the adequate functioning of the criminal justice system as an effective, efficient and meticulous system was jeopardised. This, in turn, produced frustrations from both sides. The police became demoralised because much of its work was simply dismissed by the district offices of the public prosecution service, while the latter became distressed because the large numbers of cases coming in prevented them from focusing on their own core business, namely to investigate and to prosecute (more serious) crime.
However, this situation underwent considerable change in the course of the last fifteen years. In this context, reference has to be made to the Act of March 12, 1998, concerning the improvement of the criminal justice process in the phase of the preliminary inquiry and the judicial inquiry which filled the lacunae in the Code of Criminal Procedure (CCP) concerning the preliminary inquiry and confirmed the important role that the public prosecution service has to play – together with the police services – in the field of criminal investigation. The public prosecutor is not only in charge of, and responsible for, the preliminary inquiry, he also safeguards legality in relation to the collection of evidence (Sects. 28bis subs. 1 and 3 CCP). Given this position, the public prosecutor can assign the police force that will perform or direct the inquiry from an operational viewpoint, without nevertheless being able to nominate a specific official (Sects. 28ter subs. 3 CCP). With regard to so-called proactive investigation, it should furthermore be stressed that in principle the public prosecutor has to give his prior and written consent before any investigation can be performed (Sect. 28bis subs. 2 CCP).
Since the public prosecutor is an officier de police judiciaire (Sect. 9 CCP), he has a general competence to investigate crimes and he can – at least in theory – perform all investigations himself. In practice however, the police carries out the investigation, while the public prosecutor only determines the direction of the inquiry, rather than being present when a specific task is performed. In this respect, every member of the police who has been reported an offence has to make up a record (procès-verbal) and has to submit this to the public prosecutor, together with the relevant information (Sects. 53-54 CCP). However, is has to be noted that it is the police who initially ascertain whether or not an offence has been committed, and thus decide whether or not a report should be made.
The Act of March 12, 1998 has furthermore made clear that the district prosecutor has the right – and even the duty – to develop and to apply a real policy vis-à-vis the (judicial) police under his direct supervision (Sect. 28ter subs. 1 CCP). The prosecutor can thus decide which offences have to get priority within his judicial district. He cannot, however, disrespect the directives of the Minister of Justice in relation to investigation and prosecution policy. This should be the solution to the problematic tradition existing in the public prosecution service of having no deliberate and directed policy in the fields of investigation and prosecution, which weakened the adequate functioning of the whole criminal justice system.
It is worth mentioning another development that could give rise to a new relationship between the public prosecution service and the police. Already in the 1990s, a handful of prosecution offices started experimenting with a system of autonomous disposition of certain cases by the police. In these projects, the police forces received a larger degree of freedom in registering and investigating a limited number of offences, such as e.g. threats, vandalism, libel, certain types of theft etc. The ultimate objective of these experiments was to reduce the workload for the public prosecution service, by encouraging police forces to investigate the cases concerned, which however still reside with the district prosecution service. In this sense, the concept autonomous is misleading and should be substituted for another one. All in all, however, the experiments – which have gained legal recognition through the Act of March 12, 1998 (Sect. 28bis subs. 1 CCP) – do show great potential for the more adequate functioning of the criminal justice system. At this moment, they already alleviate the workload of the public prosecution service concerning minor offences, and thus enable them to devote more time and resources to more serious offences. In the future of course, these pilot projects could constitute the basis for more far-reaching solutions, whereby the police could indeed dispose of minor criminal cases in a swift and independent manner.
Within the scope of the preliminary inquiry, the police and the public prosecutor can make no inroads into the basic rights and liberties of the citizens, unless the law contains a clear power to do so (Sect. 47ter subs. 1 CCP). Next to the possible seizure of the objects mentioned in the Sects. 35 and 35ter CCP, and the specific rules for catching someone in the act (in flagrante delicto), reference should be made here to arrest on the one hand, and special investigation methods on the other hand.
The special investigation methods and other means of coercion
With the Act of January 6, 2003 (Law Gazette May 12, 2003) the use of special investigation methods – i.e. observation, infiltration and the use of informants (Sect. 47ter subs. 1 CCP) – has been officially regulated. These methods are carried out by the police forces that have been assigned by the Minister of Justice, in a preliminary or in a judicial inquiry under the authority of the public prosecutor. These methods aim at prosecuting offenders and at tracing, collecting, registering and processing of data and information on the basis of serious indications of already committed offences – whether or not ascertained – or of offences that will be committed in the near future. When the special investigation methods cross the boundaries of a district or when they relate to the competences of the federal prosecutor, the competent prosecutors are obliged to notify one another and to make sure the methods can be carried out well (Sect. 47ter subs. 2 CCP). Noteworthy is, that even special investigation methods that have been ordered by the investigating judge, are carried out by the public prosecutor (Sect. 56bis CCP).
Observation
According to the statutory definition observation is looking at one or more persons, their presence and their behaviour, or at certain objects, places or happenings by the police in a systematic manner (Sect. 47sexies subs. 1 CCP). In order to be systematic the observation has to be carried out for more than five subsequent days, or for any five days in one month. Furthermore, an observation is regarded systematic if technical means are used, if the observation has an international character, or if a special unit of the federal police carries out the observation.
The public prosecutor can order an observation in a preliminary inquiry whenever such is required, and provided that other investigative measures are not sufficient to find out the truth. However, an observation with the use of technical means can only be ordered in those cases where serious indications exist of offences that are punishable with a correctional prison sentence of at least 1 year (Sect. 47sexies subs. 2 CCP).
In principle the order of the public prosecutor has to be in writing (Sect. 47sexies subs. 3 CCP). The police officer who is in charge of the observation has to report to the public prosecutor. This written report is kept in a separate and confidential file, in which the order to observe is put as well.
Infiltration
According to the statutory definition infiltration is the keeping in close touch by a police officer under a false identity with one or more persons of whom serious indications exist that they have committed or will commit either offences within a criminal organisation, or offences of the limited list of the serious offences named in Sect. 90ter subs. 2 to 4 CCP (Sect. 47octies subs. 1 CCP). In exceptional cases where it seems necessary for the infiltration to succeed, the police officer can get help from a person who is not a member of the police, for a short period of time only.
The public prosecutor can order an infiltration in the preliminary inquiry whenever such is required and provided that other investigative measures are not sufficient to find out the truth (Sect. 47sexies subs. 3 CCP).
In principle the order of the public prosecutor has to be in writing (Sect. 47sexies subs. 3 CCP). The police officer who is in charge of the infiltration has to report to the public prosecutor. This written report and the order to infiltrate are kept in a separate and confidential file.
Use of informants
In order to get information, a policeman can keep in touch with an informant of whom it is suspected that he has close connections with one or more persons of whom there exist serious indications that they would commit or have committed offences on a regular basis (Sect. 47decies subs. 1 CCP).
Both in the centralised federal police as in the de-centralised police offices, a specific officer is responsible for the administration of the use of these informants (Sect. 47sexies subs. 3 CCP). They are to report to the federal prosecutor, respectively the prosecutor of the judicial district, minimally once every three months (Sect. 47sexies subs. 3 CCP).
When the use of informants gives rise to serious indications concerning offences that are committed or will be committed, the public prosecutor is to be informed in writing by the local officer responsible for the administration of the use of informants. These reports are kept in a separate and confidential file. Taking the relevance of the information and the safety of the informant into account, the public prosecutor then decides whether to make a report (procès-verbal) of the information received. Furthermore, the public prosecutor can forbid the local officer responsible for the use of informants to work with certain information that has been received by an informant.
The arrest
The general powers of judicial arrest are formulated in Sects. 1 and 2 of the Act of July 20, 1990 concerning pre-trial detention (Law Gazette August 14, 1990).
If a person is caught in flagrante delicto, policemen are empowered to deprive the suspect of a crime, or misdemeanour, of his freedom. However, they are obliged to place him immediately at the disposal of an officer of judicial police, who will take a decision on the arrest of the suspect. If he arrests the suspect, he is obliged to inform either the public prosecutor about this decision promptly or, in case the offence concerned is already the object of a judicial inquiry, the investigating judge. The deprivation of freedom, the formal arrest included, may not last for more than 24 hours, this term starting at the moment that the suspect, as a result of the official intervention, no longer disposes of the freedom to come and go. If the public prosecutor wants to keep the suspect under arrest for a longer period than these 24 hours, he will have to ask the investigating judge to render an arrest warrant. It should be noted that every police arrest must be recorded in writing and that the report must list certain specifications, indicated in Sect. 1 of the Act.
The arrest of someone who is not caught in flagrante delicto, is dealt with in Sect. 2 of the Act. In this hypothesis only the public prosecutor has the competence to decide upon the deprivation of a person’s freedom. Policemen are only empowered to take measures to prevent the person from fleeing or attempting to escape supervision.
