The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
As a rule, the police carry out criminal investigation. Sect. 4 CCP provides that any police officer be entitled to investigate any criminal offence. However, the legislator has expressly retained the power to authorise any other person to carry out criminal investigation in any case ad hoc for the Council of Ministers. This residual power should primarily secure and preserve the objectivity and fairness of the investigation in cases where, for one reason or another, it would be undesirable for the police to become involved. A classic example would be an investigation against police officers who have allegedly maltreated a suspect while in custody.
However, cases of this nature are, certainly, the exemption. As already mentioned, the general rule is that police carry out a criminal investigation. In doing so, they are at all times under a duty to act within the parameters set out by the law. The force operates based on a strict organisational structure, which secures the exercise of tight hierarchical control. The appropriate authorities can resort to disciplinary rules and procedures in cases where there is an impropriety in the investigation process. Legislation enacted in April 2004 provides for the establishment and operation of an independent Board, which examines complaints of any nature made by citizens against members of the police.
In this context, one should note that any evidence obtained by the police in violation of the suspect’s constitutional rights (which, in this respect, correspond squarely to the relevant rights under the European Convention on Human Rights) is inadmissible in any judicial proceedings in any court of the Republic. This is an additional and important safeguard against arbitrary police behaviour during the investigation process.
The police are under no legal obligation to consult the Office of the Attorney General in relation to investigations that they are carrying out. In practice, however, such consultation takes place on a daily basis, especially in connection with serious cases or cases where complicate legal questions arise during the investigation. In any event, the Attorney General may ask the police to inform him of progress made and issue specific instructions at any stage during the investigation process. In the same manner, police consult the Attorney General in connection to the investigation of cases involving the use of special investigation methods.
Prior consultation of the Attorney General
This close cooperation between the Law Office of the Republic and the police is a daily process and constitutes a firmly established practice. However, in certain circumstances, prior consultation of the police with the Attorney General is a pre-requisite specifically prescribed by law. By way of example, one could refer to the legislation, which regulates controlled delivery.
The relevant statute is the Prevention of Crime (Controlled Delivery and Other Special Provisions) Law of 1995 (Law 31(I)/95), whereby, in relation to certain specified crimes of serious nature (such as drug and weapon trafficking), the police are empowered to make use of the special investigation method known as controlled delivery. This legislation regulates all matters relating to the use of such special investigation technique and it ensures, inter alia, that the use thereof is under supervision of the Attorney General.
Sect. 6 Prevention of Crime Law provides that the decision for the use of this special investigation method is taken, ad hoc, by the Chief of Police or the Director of Customs and Excise, as the case may be. However, paragraph 3 of sect. 6 expressly provides that ‘the Attorney General is notified in advance for any decision for controlled delivery and, upon notification, he may give any directions he considers proper or necessary’. This is a concrete example of the legislator’s anxiety to ensure that, when using drastic investigation methods, the police operate under the vigilant eye of the Attorney General.
Furthermore, one must add that in relation to certain other means of coercion, law does not expressly provide for the supervisory involvement of the Attorney General because the use of such means by the police requires prior judicial authorisation anyway. Thus a judicial warrant of arrest is a necessary pre-requisite for the arrest of any person (except in certain exceptional circumstances prescribed by law); and, likewise, private premises can-not be searched by the police without a search warrant issued by the Court.
The prosecution service may certainly set priorities as to the instigation of investigations. It is common practice for the Attorney General to instruct police to give priority to the investigation of certain particular cases. The Attorney General issues these instructions in relation to serious matters of special concern where, for public interest purposes, speedy investigation is a necessity.
The Relation between the Public Prosecutor and the Police
As a rule, the police carry out criminal investigation. Sect. 4 CCP provides that any police officer be entitled to investigate any criminal offence. However, the legislator has expressly retained the power to authorise any other person to carry out criminal investigation in any case ad hoc for the Council of Ministers. This residual power should primarily secure and preserve the objectivity and fairness of the investigation in cases where, for one reason or another, it would be undesirable for the police to become involved. A classic example would be an investigation against police officers who have allegedly maltreated a suspect while in custody.
However, cases of this nature are, certainly, the exemption. As already mentioned, the general rule is that police carry out a criminal investigation. In doing so, they are at all times under a duty to act within the parameters set out by the law. The force operates based on a strict organisational structure, which secures the exercise of tight hierarchical control. The appropriate authorities can resort to disciplinary rules and procedures in cases where there is an impropriety in the investigation process. Legislation enacted in April 2004 provides for the establishment and operation of an independent Board, which examines complaints of any nature made by citizens against members of the police.
In this context, one should note that any evidence obtained by the police in violation of the suspect’s constitutional rights (which, in this respect, correspond squarely to the relevant rights under the European Convention on Human Rights) is inadmissible in any judicial proceedings in any court of the Republic. This is an additional and important safeguard against arbitrary police behaviour during the investigation process.
The police are under no legal obligation to consult the Office of the Attorney General in relation to investigations that they are carrying out. In practice, however, such consultation takes place on a daily basis, especially in connection with serious cases or cases where complicate legal questions arise during the investigation. In any event, the Attorney General may ask the police to inform him of progress made and issue specific instructions at any stage during the investigation process. In the same manner, police consult the Attorney General in connection to the investigation of cases involving the use of special investigation methods.
Prior consultation of the Attorney General
This close cooperation between the Law Office of the Republic and the police is a daily process and constitutes a firmly established practice. However, in certain circumstances, prior consultation of the police with the Attorney General is a pre-requisite specifically prescribed by law. By way of example, one could refer to the legislation, which regulates controlled delivery.
The relevant statute is the Prevention of Crime (Controlled Delivery and Other Special Provisions) Law of 1995 (Law 31(I)/95), whereby, in relation to certain specified crimes of serious nature (such as drug and weapon trafficking), the police are empowered to make use of the special investigation method known as controlled delivery. This legislation regulates all matters relating to the use of such special investigation technique and it ensures, inter alia, that the use thereof is under supervision of the Attorney General.
Sect. 6 Prevention of Crime Law provides that the decision for the use of this special investigation method is taken, ad hoc, by the Chief of Police or the Director of Customs and Excise, as the case may be. However, paragraph 3 of sect. 6 expressly provides that ‘the Attorney General is notified in advance for any decision for controlled delivery and, upon notification, he may give any directions he considers proper or necessary’. This is a concrete example of the legislator’s anxiety to ensure that, when using drastic investigation methods, the police operate under the vigilant eye of the Attorney General.
Furthermore, one must add that in relation to certain other means of coercion, law does not expressly provide for the supervisory involvement of the Attorney General because the use of such means by the police requires prior judicial authorisation anyway. Thus a judicial warrant of arrest is a necessary pre-requisite for the arrest of any person (except in certain exceptional circumstances prescribed by law); and, likewise, private premises can-not be searched by the police without a search warrant issued by the Court.
The prosecution service may certainly set priorities as to the instigation of investigations. It is common practice for the Attorney General to instruct police to give priority to the investigation of certain particular cases. The Attorney General issues these instructions in relation to serious matters of special concern where, for public interest purposes, speedy investigation is a necessity.
