The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
The CCP, the PSA and the GDPS form the statutory basis of prosecution service and lay out its functions, structure, and management as well as its relationship with other institutions in the criminal justice system. The CCP gives a detailed regulation of the functions of the prosecution service and its role compared to that of the court and the police. The PSA provides general rules on functions, structure and management of prosecution service, regulations concerning the appointment to office, benefits related to office, guarantees of independence, duties of the prosecutor etc. The GDPS enacts in detail the fulfilment of the functions of the prosecution service (division between the Prosecutor General’s Office and regional prosecutor’s offices), the structure (that of the Prosecutor General’s Office, locations of the regional prosecutor’s offices) and management (the role of the Prosecutor-General and the leading prosecutors, i.e. heads of regional prosecutor’s offices).
Pursuant to Sect. 1 subs. 1 PSA the prosecution service is a government agency within the area of government of the Ministry of Justice. Section 2 subs. 1 Police Act states that the police are an institution of executive power within the area of administration of the Ministry of Internal Affairs. Hence, institutionally the prosecution service and the police fall under different ministers and that affects their functional relationship to a considerable extent. The investigative apparatus is under the control of the Minister of Internal Affairs, to be even more precise under the head of the Police Board. The Police Board is responsible for the development, strategy and management of the police. The Head of the Police Board is accountable for the performance of the police to the Minister of the Interior. Below him in the hierarchy we find police managers and originally also the police officials named heads of the pre-trial investigation.
According to former CCP, the latter had a unique position: they were responsible for directing pre-trial proceedings, and had the authority to give orders to investigators (former Sect. 107¹ CCP) but they did not perform procedural acts. Hence, in principle their role was to direct and control the work of the investigators.
Apart from the head of the pre-trial investigation mentioned above, the prosecutor also has the power to give instructions to the investigator. That kind of double leadership has caused problems, as the orders of the two so-called leaders of the pre-trial procedure have sometimes been controversial. Therefore it was decided that a change had to be made in the regulation and the new CCP does not mention the head of the pre-trial investigation anymore. Consequently, it is up to the prosecutor to direct pre-trial investigation (as the Germans call him Herrin des Ermittlungsverfahrens).
The formulation is stipulated in Sect. 30 subs. 1 CCP: The prosecution service shall ensure the legality and efficiency of preliminary proceedings. Under legality is meant that the prosecutor is the official who is responsible for securing the fundamental rights and freedoms of individuals in pre-trial proceedings. Therefore, it will look through all complaints made of the actions of the police and will take a stand on the appropriateness of and conformance with statutory rules and procedures. In order to ensure legality and efficiency Sect. 213 subs. 1 CCP grants it the authority to:
1. perform procedural acts when necessary;
2. be present at the performance of procedural acts and intervene in the course thereof;
3. terminate criminal proceedings;
4. demand that the materials of a criminal file and other materials be submitted for examination and verification;
5. issue orders to investigative bodies;
6. annul and amend decrees of investigative bodies;
7. remove an official of an investigative body from a criminal proceeding;
8. alter the investigative jurisdiction over a criminal matter;
9. declare a pre-trial proceeding completed;
10. demand that an official of an investigative body submit oral or written explanations concerning the circumstances relating to a proceeding;
11. assign the head of the probation supervision department with the duty to appoint a probation officer;
12. perform other duties arising from this Code in pre-trial proceedings.
Some of these powers already existed under the former CCP but have been modified (numbers 5, 6, 7), some on the other hand are new (numbers 2, 11). The essence of the right to give orders has changed in the sense that it has been widened considerably. Orders may extend the time-limit by when the pre-trial investigation has to be finished (former CCP set time-limits) or a concrete procedural act has to be performed. Orders can also concern investigative tactics and techniques, and in principle can address anything concerning investigation. Previously, the prosecutor could use the rights of the numbers 6 and 7 when a violation of statutory rules by the investigator was discovered. Now this is possible also e.g. in situations where the prosecutor maintains the investigator does not perform his duties satisfactorily or his decrees (legal documents by which the investigator takes procedural decisions) do not guarantee efficient pre-trial investigation.
The right to intervene in the course of procedural acts (number 2) enables the prosecutor to take the position of the investigator and to control the procedural acts performed by the investigator.
Regarding the rights of prosecutors it has to be emphasised that an investigator has no possibility to lodge a complaint against a prosecutor. This stems from the idea that the investigator has no personal rights in criminal procedure and is functionally subordinated to the prosecutor. An order given by the prosecutor, which is illegal, does not have to be followed, of course, as it is void (Sect. 63 subs. 1, 2 Administrative Procedure Act) from the moment it was issued.
The concept of the prosecutor as the master of the pre-trial procedure requires that the prosecutor is involved in criminal proceedings from the earliest stage possible. This also means that he or she takes active leadership and gives orders. Therefore, the situation where the investigator performs procedural acts independently (Sect. 32 subs. 1 CCP) should not be seen as a rule but as an exception. Consequently, contrary to the situation under the former CCP, the prosecutor service dominates the proceedings.
Besides efficiency, the role of the prosecutor as a pre-trial leader is related to legality, and the supervision of adherence to the latter is the task of the prosecutor (Sect. 30 subs. 1, Sect. 213 subs. 1 CCP).
However, there is no statutory rule imposing a duty on the investigator to consult with the prosecutor before performing procedural acts. The Estonian legislator has not deemed it necessary to regulate the co-operation of the prosecutor and the investigator in criminal proceedings and has left it to the administrative authorities to decide upon.
The issue of how active the prosecutors will be in leading pre-trial procedure depends a great deal on the capacity of the prosecution service too. At the moment it is difficult to predict the future but one thing is clear that the prosecution service will not be able to perform this function in all criminal cases. Hence, a selection between the cases has to be made, in other words, procedural priorities will have to be set.
The necessity for procedural priorities was first recognised officially in 2000 when the Ministry of Justice in cooperation with the prosecution service and the Ministry of Interior produced a document called Approving the main goals in combating crime till 2003. The aim of this document was to divide criminal procedural resources economically, enabling the increase in procedural efficiency. Till that time an understanding existed that all crimes were equal. And therefore the police and prosecution service dealt with all of them with the same intensity. As a result, the number of crimes where a person was found guilty set against the total rate of crime was very low. This document was supposed to have brought a change in political thinking on crime. However, in reality the content of this document was not put in practice by the prosecution service and the police. This means that till the present moment there are no nation-wide clear procedural priorities in written form. However, unofficially the priorities have been named: corruption, economic crimes, crimes related to narcotics and violent crimes. These priorities have also had an impact on the structure of the prosecution service, as the Prosecutor General’s Office (PGO) contains two departments specialised in these crimes (Sects. 12-13 of GDPS).
Still, to a certain extent the document prepared in 2000 served as an example, as certain local prosecutor’s offices and police authorities have concluded mutual assistance agreements which have included procedural priorities to be set. E.g. the agreement of Harju prosecution service and Harju Police Department fixed the following priorities: serious crimes against a person, crimes creating intense mass media interest, crimes related to drugs and crimes which have been investigated more that 6 months. However, there are no data on how these priorities are being followed in practice.
Means of coercion
The following means of coercion may be used only on the basis of the decree or with the permission of the prosecutor (in case the permission of the court is also needed, it is stated so):
- seizure and examination of postal or telegraphic items (Sect. 89 subs. 1 CCP);
- search (Sect. 91 subs. 2 CCP) – the search of a notary’s office or advocate's law office shall be conducted on the basis of the decree of the prosecution service and with the permission of a preliminary investigating judge or on the basis of the court order;
- extension of compulsory placement of the suspect or accused in medical institution (Sect. 102 subs. 3 CCP);
- arrest – the suspect or accused may be arrested by request of the prosecution service and on the basis of the order of preliminary investigating judge or on the basis of a court order (Sect. 130 subs. 2 CCP);
- seizure of property – property is seized on the basis of the decree of the prosecution service and with the permission of a preliminary investigating judge or on the basis of a court order (Sect. 142 subs. 2 CCP).
Surveillance activities
Section 110 subs. 1 CCP enacts that evidence may be collected by surveillance activities in criminal proceedings if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the proceedings is a criminal offence in the first degree (carrying a statutory imprisonment of more than five years) or an intentionally committed criminal offence for which up to three years’ imprisonment is prescribed as punishment. According to Sect. 111 CCP, information obtained by surveillance activities is evidence if such information has been obtained in compliance with the requirements of law. One of such requirements is the permission that has to be granted in order to perform surveillance activities.
Section 112 subs. 3 CCP regulates that the permission of a preliminary investigating judge is necessary for the collection of evidence by the following surveillance activities:
- covert examination of postal or telegraphic items (Sect. 116 CCP);
- wire tapping or covert observation of information transmitted through technical communication channels or other information (Sect. 118 CCP);
- staging of a criminal offence (Sect. 119 CCP).
However, pursuant to Sect. 114 subs. 4 CCP in cases of urgency, surveillance activities specified in Sects. 116, 118 and 119 CCP of this Code may be conducted without the permission of the judge on the basis of an order of the head of the Police Board, Central Criminal Police or the Security Police Board or an official appointed by him or her. The prosecution service has to be notified whether permission for surveillance activities was granted or was refused and also has to be informed on the facts on which the request for permission was based within three days (Sect. 114 subs.5 CCP).
Section 120 subs. 3 CCP enacts that a police officer may be involved on the basis of the decree of the PGO. Permission for the involvement of a police officer is granted up to six months and the permission may be extended by six months at a time.
Neither the CCP nor any other legal act imposes on the police a duty to consult the prosecutor on the use of special investigative activities. Section 20 subs. 5 of GDPS only states that supervision over surveillance activities is performed by regional prosecutor’s office in whose jurisdiction the surveillance file is opened and Sect. 20 subs. 6 GDPS adds that supervision over exceptional surveillance activities is performed by prosecutors of the regional prosecutor’s office having acquired this right by written order of the Prosecutor General.
In practice, the prosecutor usually becomes informed about these activities through the opening of a surveillance file and in cases where the police have to provide information in order to get the permission for a procedural act (e.g. permission for search). Hence, the prosecutor may obtain knowledge about surveillance activities by asking the police about them but in practice the prosecutors rarely use this possibility. Consequently, surveillance activities are the domain of the police.
The Relation between the Public Prosecutor and the Police
The CCP, the PSA and the GDPS form the statutory basis of prosecution service and lay out its functions, structure, and management as well as its relationship with other institutions in the criminal justice system. The CCP gives a detailed regulation of the functions of the prosecution service and its role compared to that of the court and the police. The PSA provides general rules on functions, structure and management of prosecution service, regulations concerning the appointment to office, benefits related to office, guarantees of independence, duties of the prosecutor etc. The GDPS enacts in detail the fulfilment of the functions of the prosecution service (division between the Prosecutor General’s Office and regional prosecutor’s offices), the structure (that of the Prosecutor General’s Office, locations of the regional prosecutor’s offices) and management (the role of the Prosecutor-General and the leading prosecutors, i.e. heads of regional prosecutor’s offices).
Pursuant to Sect. 1 subs. 1 PSA the prosecution service is a government agency within the area of government of the Ministry of Justice. Section 2 subs. 1 Police Act states that the police are an institution of executive power within the area of administration of the Ministry of Internal Affairs. Hence, institutionally the prosecution service and the police fall under different ministers and that affects their functional relationship to a considerable extent. The investigative apparatus is under the control of the Minister of Internal Affairs, to be even more precise under the head of the Police Board. The Police Board is responsible for the development, strategy and management of the police. The Head of the Police Board is accountable for the performance of the police to the Minister of the Interior. Below him in the hierarchy we find police managers and originally also the police officials named heads of the pre-trial investigation.
According to former CCP, the latter had a unique position: they were responsible for directing pre-trial proceedings, and had the authority to give orders to investigators (former Sect. 107¹ CCP) but they did not perform procedural acts. Hence, in principle their role was to direct and control the work of the investigators.
Apart from the head of the pre-trial investigation mentioned above, the prosecutor also has the power to give instructions to the investigator. That kind of double leadership has caused problems, as the orders of the two so-called leaders of the pre-trial procedure have sometimes been controversial. Therefore it was decided that a change had to be made in the regulation and the new CCP does not mention the head of the pre-trial investigation anymore. Consequently, it is up to the prosecutor to direct pre-trial investigation (as the Germans call him Herrin des Ermittlungsverfahrens).
The formulation is stipulated in Sect. 30 subs. 1 CCP: The prosecution service shall ensure the legality and efficiency of preliminary proceedings. Under legality is meant that the prosecutor is the official who is responsible for securing the fundamental rights and freedoms of individuals in pre-trial proceedings. Therefore, it will look through all complaints made of the actions of the police and will take a stand on the appropriateness of and conformance with statutory rules and procedures. In order to ensure legality and efficiency Sect. 213 subs. 1 CCP grants it the authority to:
1. perform procedural acts when necessary;
2. be present at the performance of procedural acts and intervene in the course thereof;
3. terminate criminal proceedings;
4. demand that the materials of a criminal file and other materials be submitted for examination and verification;
5. issue orders to investigative bodies;
6. annul and amend decrees of investigative bodies;
7. remove an official of an investigative body from a criminal proceeding;
8. alter the investigative jurisdiction over a criminal matter;
9. declare a pre-trial proceeding completed;
10. demand that an official of an investigative body submit oral or written explanations concerning the circumstances relating to a proceeding;
11. assign the head of the probation supervision department with the duty to appoint a probation officer;
12. perform other duties arising from this Code in pre-trial proceedings.
Some of these powers already existed under the former CCP but have been modified (numbers 5, 6, 7), some on the other hand are new (numbers 2, 11). The essence of the right to give orders has changed in the sense that it has been widened considerably. Orders may extend the time-limit by when the pre-trial investigation has to be finished (former CCP set time-limits) or a concrete procedural act has to be performed. Orders can also concern investigative tactics and techniques, and in principle can address anything concerning investigation. Previously, the prosecutor could use the rights of the numbers 6 and 7 when a violation of statutory rules by the investigator was discovered. Now this is possible also e.g. in situations where the prosecutor maintains the investigator does not perform his duties satisfactorily or his decrees (legal documents by which the investigator takes procedural decisions) do not guarantee efficient pre-trial investigation.
The right to intervene in the course of procedural acts (number 2) enables the prosecutor to take the position of the investigator and to control the procedural acts performed by the investigator.
Regarding the rights of prosecutors it has to be emphasised that an investigator has no possibility to lodge a complaint against a prosecutor. This stems from the idea that the investigator has no personal rights in criminal procedure and is functionally subordinated to the prosecutor. An order given by the prosecutor, which is illegal, does not have to be followed, of course, as it is void (Sect. 63 subs. 1, 2 Administrative Procedure Act) from the moment it was issued.
The concept of the prosecutor as the master of the pre-trial procedure requires that the prosecutor is involved in criminal proceedings from the earliest stage possible. This also means that he or she takes active leadership and gives orders. Therefore, the situation where the investigator performs procedural acts independently (Sect. 32 subs. 1 CCP) should not be seen as a rule but as an exception. Consequently, contrary to the situation under the former CCP, the prosecutor service dominates the proceedings.
Besides efficiency, the role of the prosecutor as a pre-trial leader is related to legality, and the supervision of adherence to the latter is the task of the prosecutor (Sect. 30 subs. 1, Sect. 213 subs. 1 CCP).
However, there is no statutory rule imposing a duty on the investigator to consult with the prosecutor before performing procedural acts. The Estonian legislator has not deemed it necessary to regulate the co-operation of the prosecutor and the investigator in criminal proceedings and has left it to the administrative authorities to decide upon.
The issue of how active the prosecutors will be in leading pre-trial procedure depends a great deal on the capacity of the prosecution service too. At the moment it is difficult to predict the future but one thing is clear that the prosecution service will not be able to perform this function in all criminal cases. Hence, a selection between the cases has to be made, in other words, procedural priorities will have to be set.
The necessity for procedural priorities was first recognised officially in 2000 when the Ministry of Justice in cooperation with the prosecution service and the Ministry of Interior produced a document called Approving the main goals in combating crime till 2003. The aim of this document was to divide criminal procedural resources economically, enabling the increase in procedural efficiency. Till that time an understanding existed that all crimes were equal. And therefore the police and prosecution service dealt with all of them with the same intensity. As a result, the number of crimes where a person was found guilty set against the total rate of crime was very low. This document was supposed to have brought a change in political thinking on crime. However, in reality the content of this document was not put in practice by the prosecution service and the police. This means that till the present moment there are no nation-wide clear procedural priorities in written form. However, unofficially the priorities have been named: corruption, economic crimes, crimes related to narcotics and violent crimes. These priorities have also had an impact on the structure of the prosecution service, as the Prosecutor General’s Office (PGO) contains two departments specialised in these crimes (Sects. 12-13 of GDPS).
Still, to a certain extent the document prepared in 2000 served as an example, as certain local prosecutor’s offices and police authorities have concluded mutual assistance agreements which have included procedural priorities to be set. E.g. the agreement of Harju prosecution service and Harju Police Department fixed the following priorities: serious crimes against a person, crimes creating intense mass media interest, crimes related to drugs and crimes which have been investigated more that 6 months. However, there are no data on how these priorities are being followed in practice.
Means of coercion
The following means of coercion may be used only on the basis of the decree or with the permission of the prosecutor (in case the permission of the court is also needed, it is stated so):
- seizure and examination of postal or telegraphic items (Sect. 89 subs. 1 CCP);
- search (Sect. 91 subs. 2 CCP) – the search of a notary’s office or advocate's law office shall be conducted on the basis of the decree of the prosecution service and with the permission of a preliminary investigating judge or on the basis of the court order;
- extension of compulsory placement of the suspect or accused in medical institution (Sect. 102 subs. 3 CCP);
- arrest – the suspect or accused may be arrested by request of the prosecution service and on the basis of the order of preliminary investigating judge or on the basis of a court order (Sect. 130 subs. 2 CCP);
- seizure of property – property is seized on the basis of the decree of the prosecution service and with the permission of a preliminary investigating judge or on the basis of a court order (Sect. 142 subs. 2 CCP).
Surveillance activities
Section 110 subs. 1 CCP enacts that evidence may be collected by surveillance activities in criminal proceedings if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the proceedings is a criminal offence in the first degree (carrying a statutory imprisonment of more than five years) or an intentionally committed criminal offence for which up to three years’ imprisonment is prescribed as punishment. According to Sect. 111 CCP, information obtained by surveillance activities is evidence if such information has been obtained in compliance with the requirements of law. One of such requirements is the permission that has to be granted in order to perform surveillance activities.
Section 112 subs. 3 CCP regulates that the permission of a preliminary investigating judge is necessary for the collection of evidence by the following surveillance activities:
- covert examination of postal or telegraphic items (Sect. 116 CCP);
- wire tapping or covert observation of information transmitted through technical communication channels or other information (Sect. 118 CCP);
- staging of a criminal offence (Sect. 119 CCP).
However, pursuant to Sect. 114 subs. 4 CCP in cases of urgency, surveillance activities specified in Sects. 116, 118 and 119 CCP of this Code may be conducted without the permission of the judge on the basis of an order of the head of the Police Board, Central Criminal Police or the Security Police Board or an official appointed by him or her. The prosecution service has to be notified whether permission for surveillance activities was granted or was refused and also has to be informed on the facts on which the request for permission was based within three days (Sect. 114 subs.5 CCP).
Section 120 subs. 3 CCP enacts that a police officer may be involved on the basis of the decree of the PGO. Permission for the involvement of a police officer is granted up to six months and the permission may be extended by six months at a time.
Neither the CCP nor any other legal act imposes on the police a duty to consult the prosecutor on the use of special investigative activities. Section 20 subs. 5 of GDPS only states that supervision over surveillance activities is performed by regional prosecutor’s office in whose jurisdiction the surveillance file is opened and Sect. 20 subs. 6 GDPS adds that supervision over exceptional surveillance activities is performed by prosecutors of the regional prosecutor’s office having acquired this right by written order of the Prosecutor General.
In practice, the prosecutor usually becomes informed about these activities through the opening of a surveillance file and in cases where the police have to provide information in order to get the permission for a procedural act (e.g. permission for search). Hence, the prosecutor may obtain knowledge about surveillance activities by asking the police about them but in practice the prosecutors rarely use this possibility. Consequently, surveillance activities are the domain of the police.
