The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
Introduction
There are three types of pre-trial proceedings, which are governed by the Code of Criminal Procedure (Act No. 141/1961 Coll., hereafter called CCP). The most common of these is the pre-trial investigation. The other two are: accelerated pre-trial proceedings concerned with less serious offences and simple evidence, and the so-called verification procedure which precedes investigation. The aim of the latter is a thorough verification of basic information as to whether there is a reasonable suspicion and whether there is a suspect.
Communication between the public prosecutor and the police forms an integral part of all three types of pre-trial proceedings.
The most frequent and important communication between public prosecutor and police takes place during investigation.
Responsibility for proper criminal investigation
In general, investigation is lead by the Service of the Criminal police and Investigation. Its departments with territorially restricted competence were established by the Police Act (Act no. 283/1991 Coll., as amended).
However, the public prosecutor himself carries out investigation into offences committed by members of the police and members of the Security Intelligence Service and the Foreign Information Bureau. This measure has been taken because investigation of police officers in these types of cases proved to be ineffective and biased as a result of existing professional relationships.
During investigation, police proceed autonomously in order to find the necessary evidence leading to clarification of all basic facts as fast as possible. Police search and submit evidence to the public prosecutor regardless of whether it is in favour of the accused or not (sect. 2 CCP).
The public prosecutor is authorised to participate in any acts taken by the police, perform a single act or the entire investigation in person, and take decisions on any matter. Nevertheless, such procedure is rare in practice. It occurs when it is an offence where the public prosecutor conducts an exclusive investigation, or his involvement is necessitated by the severity and complexity of the case, or because the accused is under arrest and so forth. Even in most of the latter cases, the presence of the public prosecutor during acts performed by the police is sufficient.
The public prosecutor is responsible for supervising whether all statutory rules and procedures in pre-trial proceedings are respected. During supervision, the public prosecutor enforces the basic rules of criminal proceedings (sect. 2 CCP) and all other provisions of the CCP regulating pre-trial proceedings.
The police are autonomous in performing acts that form part of the criminal procedure, which means that they are not bound by public prosecutor’s instructions, if given at all.
The public prosecutor takes all final decisions such as discontinuing prosecution, transfer of the case, approval of a settlement and conditional suspension of criminal prosecution in pre-trial proceedings. At any time, the public prosecutor can determine the scope and volume of evidence to be searched for and produced in pre-trial proceedings. This means, that it is the prosecutor’s duty to ensure that police respect all CCP provisions in pre-trial proceedings, and proceed in accordance with the purpose of the criminal procedure and the basic principles of criminal procedure. The public prosecutor has to keep track of the status and results of the pre-trial proceedings, has to manage the course of events effectively, and correct any faults immediately.
The public prosecutor has to pay particular attention to avoiding frivolous prosecution, unlawful deprivation of liberty, and infringements of other basic human rights and freedoms. He is also responsible for the course and result of pre-trial proceedings.
When supervising the observation of the law in pre-trial proceedings, the public prosecutor creates conditions for submission of an indictment or another solution to the case, thereby fulfilling the so-called verification and filtration functions of the pre-trial proceedings.
During the entire pre-trial proceedings, the accused as well as the injured person have the right to ask the public prosecutor to address delays in proceedings or mistakes by police in the procedure at any time.
Means of coercion and approval of the public prosecutor
The police do not have a direct obligation to consult on the course of investigation with the public prosecutor and can proceed autonomously. However, the use of some means of investigation by police is subject to prior approval of the public prosecutor. These are means that infringe basic human rights and freedoms but still do not necessitate approval of a judge. These are the following means:
- arrest of the accused by the police (sect. 75 CCP):
If there is some reason for arrest, and it is impossible to provide an order for custody in advance due to the exigency of the case, the police may take the accused into custody by themselves for the time being. They are then obliged to forthwith inform the public prosecutor of the detention so that a motion for taking the accused into custody can be submitted, if necessary. The time of arrest may not exceed 48 hours.
- arrest of a suspect (sect. 76 CCP)
Police can, in urgent cases, detain a suspect when there is a reason for arrest, without commencing the criminal procedure. An arrest necessitates prior approval of the public prosecutor. An arrest without such approval is possible in urgent cases only, when prior approval could not have been obtained. This applies in particular to suspects caught in the act or on the run. The time of arrest may not exceed 48 hours.
- seizure of objects (exhibit) (sect. 79 CCP)
When an object is important for the criminal procedure and is not rendered by its holder upon demand, the object can be seized in pre-trial proceedings by order of the police or the public prosecutor. To issue such order, police need prior approval of the public prosecutor. If prior approval could not have been obtained, police can issue such order without prior approval and in urgent cases only.
- freezing of a bank account or account with another financial institution (sect. 79a CCP)
If facts indicate, that assets in a bank account are intended for committing an offence, were used for committing an offence, or are the proceeds of crime, the public prosecutor or the police may decide to freeze the bank account in pre-trial proceedings. The police need prior approval of the public prosecutor for such decision. However, prior public prosecutor’s approval is not necessary in urgent cases that must be dealt with without delay. In such cases, police are obliged to submit their decision to the public prosecutor within 48 hours and the public prosecutor either approves or cancels it.
The public prosecutor in the pre-trial proceedings may decide to freeze booked securities. The police may decide to freeze booked securities in urgent cases that must be handled without delay. The police are obliged to submit their decision to the public prosecutor within 48 hours and the public prosecutor either approves or cancels the decision.
In pre-trial proceedings, the public prosecutor or the police can order a search of premises or land. The police need prior approval of the public prosecutor to do so. The police may search premises or land without a public prosecutor’s order or approval only, if prior order or approval could not have been obtained and the case is urgent, or the user of the premises or land concerned agrees with the search.
The public prosecutor, or the police after public prosecutor’s approval, can order a person search in pre-trial proceedings.
Pursuant to sect. 86 CCP, if is necessary to search the content of undelivered mail or telegrams for the clarification of facts important for criminal procedure in a specific case, the public prosecutor can order the post or forwarder in pre-trial proceedings to render them to the public prosecutor or the police. Transport of mail can be suspended by order of the police without public prosecutor’s approval, if the case is urgent and prior approval could not have been obtained. Police are obliged to inform the public prosecutor within 24 hours.
In pre-trial proceedings, the public prosecutor can order tracking a parcel. Police track the parcel according to the public prosecutor’s instructions. Police can start tracking without public prosecutor’s approval, if the case is urgent and prior approval could not have been obtained. If the latter occurs, police must inform the public prosecutor of this without delay and proceed according to his instructions. Police shall discontinue tracking by order of the public prosecutor. If it is obvious, that handling the parcel poses serious hazard to human life of health, serious damage to property or if there is serious danger that it will become impossible to continue to track the parcel, the po-lice can do so without public prosecutor’s approval.
With public prosecutor’s approval, police can discontinue the criminal prosecution temporarily and for the time necessary, when this is necessary for the clarification of an offence committed to the benefit of criminal conspiracy or another premeditated criminal act, or for the ascertainment of offenders. This discontinuation can last no longer than two months, but prosecution can be extended repeatedly.
Instructions to the police regarding their investigative activities
The public prosecutor can order police to take action for the clarification of the case or ascertainment of the offender. To be specific, the public prosecutors can:
- remove a case from a police department and take measures to charge another department with the case;
- order that the case is handled by another police officer within the police department in charge;
- issue binding instructions to police on their investigative activities;
- request examination of police files, documents, materials and reports on offences and so forth, in order to assess whether the police has commenced criminal prosecution in time and has proceeded duly and lawfully;
- participate in activities of the police, perform a specific activity or conduct the whole investigation in person and issue a final or temporary decision in any matter;
- return the case to the police with instructions to supplement the investigation; or
- cancel unlawful or groundless police decisions and measures and take a new decision (sects. 157 and 174 CCP).
The public prosecutor issues written instructions on criminal investigations. The instructions are binding upon the police.
Use of special investigation methods
According to the CCP, special investigation methods are called operational means of searching, namely:
- sham transfer (sect. 158c CCP)
- tracking of people and objects (sect. 158d CCP)
- use of undercover agents for infiltration inside criminal groups (sect. 158e CCP).
Sham transfer means a test or pseudo purchase, sale or another transfer of an object:
- the holding of which necessitates special permit;
- the holding of which is prohibited; and
- originated from a crime, or
- intended for committing a crime.
The sham transfer is subject to written approval of the public prosecutor. The sham transfer can only be carried out without approval, if the case is urgent. In such case, the police are obliged to ask public prosecutor’s approval without delay. If the approval is not obtained within 48 hours, the police must discontinue the sham transfer and is not allowed to utilise the information obtained.
Tracking of people and objects entails getting knowledge of people and objects in a secret way, by technical or other means.
Police do not need approval for general surveillance of people and objects.
Any tracking where sound, video or other recordings are to be made is subject to prior written approval of the public prosecutor.
If the tracking results in an infringement of inviolability of a dwelling or mail, or the contents of other documents and recordings kept in private are to be ascertained by technical means, it is subject to prior approval of the judge. Approvals of the public prosecutor and the judge are issued based on a written, justified application.
If the case is urgent and does not require approval of the judge, tracking may commence without approval. Nevertheless, police are obliged to apply for the approval without delay, and if they do not obtain it in 48 hours, they must discontinue the tracking, destroy any recordings and can not use the information obtained in any way.
Tracking is not subject to the above conditions, if the person whose rights are to be infringed approves. If such approval is withdrawn, tracking must be discontinued without delay.
As regards the use of undercover agents, police have this power in proceedings regarding extremely serious premeditated offence, regarding offences committed to the benefit of criminal conspiracy, or in case of other premeditated offences that must be prosecuted under an international treaty.
The use of these agents is subject to approval of the High Court Judge on the motion of the High public prosecutor. The public prosecutor checks and reviews the agent’s activities, and that is why he has to:
- request the information necessary for assessment whether the grounds for the use of agents continue and whether the agent’s activities are lawful;
- assess on a regular basis, and at least every three months, whether the grounds for the use of agents continue to be valid. Failing that, the agent’s activities are discontinued. The police provide the public prosecutor with a record of results of the use of agent.
Legality principle
The investigative, prosecuting and adjudicating bodies (the police, public prosecutor and the court) are bound by the principle of legality and the principle of officialtry. This means that once the police or public prosecutor get to know of a crime in any way, they must commence criminal proceedings on their own initiative and continue them by virtue of their office (principle of officialtry). The only priority set by the CCP in this respect, is in case the accused is under arrest. Then, the law imposes the duty to accord priority treatment to the case with utmost acceleration on the police and the public prosecutor (sect. 71 CCP).
The Relation between the Public Prosecutor and the Police
Introduction
There are three types of pre-trial proceedings, which are governed by the Code of Criminal Procedure (Act No. 141/1961 Coll., hereafter called CCP). The most common of these is the pre-trial investigation. The other two are: accelerated pre-trial proceedings concerned with less serious offences and simple evidence, and the so-called verification procedure which precedes investigation. The aim of the latter is a thorough verification of basic information as to whether there is a reasonable suspicion and whether there is a suspect.
Communication between the public prosecutor and the police forms an integral part of all three types of pre-trial proceedings.
The most frequent and important communication between public prosecutor and police takes place during investigation.
Responsibility for proper criminal investigation
In general, investigation is lead by the Service of the Criminal police and Investigation. Its departments with territorially restricted competence were established by the Police Act (Act no. 283/1991 Coll., as amended).
However, the public prosecutor himself carries out investigation into offences committed by members of the police and members of the Security Intelligence Service and the Foreign Information Bureau. This measure has been taken because investigation of police officers in these types of cases proved to be ineffective and biased as a result of existing professional relationships.
During investigation, police proceed autonomously in order to find the necessary evidence leading to clarification of all basic facts as fast as possible. Police search and submit evidence to the public prosecutor regardless of whether it is in favour of the accused or not (sect. 2 CCP).
The public prosecutor is authorised to participate in any acts taken by the police, perform a single act or the entire investigation in person, and take decisions on any matter. Nevertheless, such procedure is rare in practice. It occurs when it is an offence where the public prosecutor conducts an exclusive investigation, or his involvement is necessitated by the severity and complexity of the case, or because the accused is under arrest and so forth. Even in most of the latter cases, the presence of the public prosecutor during acts performed by the police is sufficient.
The public prosecutor is responsible for supervising whether all statutory rules and procedures in pre-trial proceedings are respected. During supervision, the public prosecutor enforces the basic rules of criminal proceedings (sect. 2 CCP) and all other provisions of the CCP regulating pre-trial proceedings.
The police are autonomous in performing acts that form part of the criminal procedure, which means that they are not bound by public prosecutor’s instructions, if given at all.
The public prosecutor takes all final decisions such as discontinuing prosecution, transfer of the case, approval of a settlement and conditional suspension of criminal prosecution in pre-trial proceedings. At any time, the public prosecutor can determine the scope and volume of evidence to be searched for and produced in pre-trial proceedings. This means, that it is the prosecutor’s duty to ensure that police respect all CCP provisions in pre-trial proceedings, and proceed in accordance with the purpose of the criminal procedure and the basic principles of criminal procedure. The public prosecutor has to keep track of the status and results of the pre-trial proceedings, has to manage the course of events effectively, and correct any faults immediately.
The public prosecutor has to pay particular attention to avoiding frivolous prosecution, unlawful deprivation of liberty, and infringements of other basic human rights and freedoms. He is also responsible for the course and result of pre-trial proceedings.
When supervising the observation of the law in pre-trial proceedings, the public prosecutor creates conditions for submission of an indictment or another solution to the case, thereby fulfilling the so-called verification and filtration functions of the pre-trial proceedings.
During the entire pre-trial proceedings, the accused as well as the injured person have the right to ask the public prosecutor to address delays in proceedings or mistakes by police in the procedure at any time.
Means of coercion and approval of the public prosecutor
The police do not have a direct obligation to consult on the course of investigation with the public prosecutor and can proceed autonomously. However, the use of some means of investigation by police is subject to prior approval of the public prosecutor. These are means that infringe basic human rights and freedoms but still do not necessitate approval of a judge. These are the following means:
- arrest of the accused by the police (sect. 75 CCP):
If there is some reason for arrest, and it is impossible to provide an order for custody in advance due to the exigency of the case, the police may take the accused into custody by themselves for the time being. They are then obliged to forthwith inform the public prosecutor of the detention so that a motion for taking the accused into custody can be submitted, if necessary. The time of arrest may not exceed 48 hours.
- arrest of a suspect (sect. 76 CCP)
Police can, in urgent cases, detain a suspect when there is a reason for arrest, without commencing the criminal procedure. An arrest necessitates prior approval of the public prosecutor. An arrest without such approval is possible in urgent cases only, when prior approval could not have been obtained. This applies in particular to suspects caught in the act or on the run. The time of arrest may not exceed 48 hours.
- seizure of objects (exhibit) (sect. 79 CCP)
When an object is important for the criminal procedure and is not rendered by its holder upon demand, the object can be seized in pre-trial proceedings by order of the police or the public prosecutor. To issue such order, police need prior approval of the public prosecutor. If prior approval could not have been obtained, police can issue such order without prior approval and in urgent cases only.
- freezing of a bank account or account with another financial institution (sect. 79a CCP)
If facts indicate, that assets in a bank account are intended for committing an offence, were used for committing an offence, or are the proceeds of crime, the public prosecutor or the police may decide to freeze the bank account in pre-trial proceedings. The police need prior approval of the public prosecutor for such decision. However, prior public prosecutor’s approval is not necessary in urgent cases that must be dealt with without delay. In such cases, police are obliged to submit their decision to the public prosecutor within 48 hours and the public prosecutor either approves or cancels it.
The public prosecutor in the pre-trial proceedings may decide to freeze booked securities. The police may decide to freeze booked securities in urgent cases that must be handled without delay. The police are obliged to submit their decision to the public prosecutor within 48 hours and the public prosecutor either approves or cancels the decision.
In pre-trial proceedings, the public prosecutor or the police can order a search of premises or land. The police need prior approval of the public prosecutor to do so. The police may search premises or land without a public prosecutor’s order or approval only, if prior order or approval could not have been obtained and the case is urgent, or the user of the premises or land concerned agrees with the search.
The public prosecutor, or the police after public prosecutor’s approval, can order a person search in pre-trial proceedings.
Pursuant to sect. 86 CCP, if is necessary to search the content of undelivered mail or telegrams for the clarification of facts important for criminal procedure in a specific case, the public prosecutor can order the post or forwarder in pre-trial proceedings to render them to the public prosecutor or the police. Transport of mail can be suspended by order of the police without public prosecutor’s approval, if the case is urgent and prior approval could not have been obtained. Police are obliged to inform the public prosecutor within 24 hours.
In pre-trial proceedings, the public prosecutor can order tracking a parcel. Police track the parcel according to the public prosecutor’s instructions. Police can start tracking without public prosecutor’s approval, if the case is urgent and prior approval could not have been obtained. If the latter occurs, police must inform the public prosecutor of this without delay and proceed according to his instructions. Police shall discontinue tracking by order of the public prosecutor. If it is obvious, that handling the parcel poses serious hazard to human life of health, serious damage to property or if there is serious danger that it will become impossible to continue to track the parcel, the po-lice can do so without public prosecutor’s approval.
With public prosecutor’s approval, police can discontinue the criminal prosecution temporarily and for the time necessary, when this is necessary for the clarification of an offence committed to the benefit of criminal conspiracy or another premeditated criminal act, or for the ascertainment of offenders. This discontinuation can last no longer than two months, but prosecution can be extended repeatedly.
Instructions to the police regarding their investigative activities
The public prosecutor can order police to take action for the clarification of the case or ascertainment of the offender. To be specific, the public prosecutors can:
- remove a case from a police department and take measures to charge another department with the case;
- order that the case is handled by another police officer within the police department in charge;
- issue binding instructions to police on their investigative activities;
- request examination of police files, documents, materials and reports on offences and so forth, in order to assess whether the police has commenced criminal prosecution in time and has proceeded duly and lawfully;
- participate in activities of the police, perform a specific activity or conduct the whole investigation in person and issue a final or temporary decision in any matter;
- return the case to the police with instructions to supplement the investigation; or
- cancel unlawful or groundless police decisions and measures and take a new decision (sects. 157 and 174 CCP).
The public prosecutor issues written instructions on criminal investigations. The instructions are binding upon the police.
Use of special investigation methods
According to the CCP, special investigation methods are called operational means of searching, namely:
- sham transfer (sect. 158c CCP)
- tracking of people and objects (sect. 158d CCP)
- use of undercover agents for infiltration inside criminal groups (sect. 158e CCP).
Sham transfer means a test or pseudo purchase, sale or another transfer of an object:
- the holding of which necessitates special permit;
- the holding of which is prohibited; and
- originated from a crime, or
- intended for committing a crime.
The sham transfer is subject to written approval of the public prosecutor. The sham transfer can only be carried out without approval, if the case is urgent. In such case, the police are obliged to ask public prosecutor’s approval without delay. If the approval is not obtained within 48 hours, the police must discontinue the sham transfer and is not allowed to utilise the information obtained.
Tracking of people and objects entails getting knowledge of people and objects in a secret way, by technical or other means.
Police do not need approval for general surveillance of people and objects.
Any tracking where sound, video or other recordings are to be made is subject to prior written approval of the public prosecutor.
If the tracking results in an infringement of inviolability of a dwelling or mail, or the contents of other documents and recordings kept in private are to be ascertained by technical means, it is subject to prior approval of the judge. Approvals of the public prosecutor and the judge are issued based on a written, justified application.
If the case is urgent and does not require approval of the judge, tracking may commence without approval. Nevertheless, police are obliged to apply for the approval without delay, and if they do not obtain it in 48 hours, they must discontinue the tracking, destroy any recordings and can not use the information obtained in any way.
Tracking is not subject to the above conditions, if the person whose rights are to be infringed approves. If such approval is withdrawn, tracking must be discontinued without delay.
As regards the use of undercover agents, police have this power in proceedings regarding extremely serious premeditated offence, regarding offences committed to the benefit of criminal conspiracy, or in case of other premeditated offences that must be prosecuted under an international treaty.
The use of these agents is subject to approval of the High Court Judge on the motion of the High public prosecutor. The public prosecutor checks and reviews the agent’s activities, and that is why he has to:
- request the information necessary for assessment whether the grounds for the use of agents continue and whether the agent’s activities are lawful;
- assess on a regular basis, and at least every three months, whether the grounds for the use of agents continue to be valid. Failing that, the agent’s activities are discontinued. The police provide the public prosecutor with a record of results of the use of agent.
Legality principle
The investigative, prosecuting and adjudicating bodies (the police, public prosecutor and the court) are bound by the principle of legality and the principle of officialtry. This means that once the police or public prosecutor get to know of a crime in any way, they must commence criminal proceedings on their own initiative and continue them by virtue of their office (principle of officialtry). The only priority set by the CCP in this respect, is in case the accused is under arrest. Then, the law imposes the duty to accord priority treatment to the case with utmost acceleration on the police and the public prosecutor (sect. 71 CCP).
