The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
The French judicial police is directed by the public prosecutor, supervised by the prosecutor general and controlled by the investigating chamber (Sect. 13 of the Code of Criminal Procedure: hereafter CCP). Within each appeal court’s territorial jurisdiction, the judicial police is placed under the supervision of the public prosecutor and under the control of the investigating chamber in accordance with Sect. 224 CCP onwards.
But among all the hierarchical superiors of the judicial police, the district prosecutor is the closest. The CCP confers on him the direction of the judicial police during the preliminary enquiry or enquiry of flagrancy (Sect. 12 CCP). Judicial police operations are carried out under the direction of the district prosecutor by the officers, civil servants and other officers designated (Sect. 13 CCP.
The public prosecutor controls the judicial police in three different ways:
- supervising and checking investigations;
- being in charge in the co-ordination of the services involved; and
- choose the service that will be responsible for the inquiries.
Supervising and checking the conduct of investigations
Without being police officers themselves, the prosecutors and their deputies have all the powers of a judicial police officers. Even if they do not use these powers frequently, they can decide to personally take part in investigation.
However, in practice, in order to receive complaints and conduct investigations, the prosecutors usually request the assistance of judicial police officers, the regional services of judicial police or specialised services: ‘the district prosecutor has the right to require directly the assistance of the police in the performance of his duties’ (Sect. 42 CCP). That explains why the district prosecutor must ensure that the judicial police officers respect the statutory rules and procedures.
The modalities of the supervision of the conduct of investigations are defined in Sects. 12 (cf. supra) and 41 of the CCP:
Section 41 states: ‘the district prosecutor institutes or initiates any step necessary for the discovery and prosecution of violations of criminal law. To this end, he directs the activity of the judicial police officers and other officers within the area of jurisdiction of his court. The district prosecutor supervises police custody measures. He visits the places where persons have been held whenever he considers this necessary and at least once every year; he keeps a record listing the number and frequency of the checks carried out in the various places. He has all the powers and prerogatives attached to the capacity of judicial police officer provided for by section II of Chapter I of Title I, as well as by specific criminal legislation. In the event of a flagrant offence, he exercises the powers granted by Sect. 68. The district prosecutor may also request, as the case may be, the assistance of the penal social integration and probation service, of the competent supervised education service, or of any person accredited pursuant to the conditions set out by Sect. 81, sixth paragraph, in order to check the material, family and social situation of a person under investigation, and in order to be informed of the appropriate measures to support the social integration of the person concerned. In the event of a prosecution initiated against an adult of less than twenty-one years of age at the time of committing the offence, where the penalty incurred is not in excess of five years of imprisonment, such steps must be ordered before any submission designed to obtain a pre-trial detention order. The district prosecutor may also have recourse to an association providing help and assistance to victims of crime, which has entered into an agreement with the managers of the court of appeal, in order that help may be provided to the victim of the offence’.
These sections provide the public prosecutor with two important powers: he can act through giving instructions and has the right to be informed by judicial police officers.
To make their power of supervision efficient, the district prosecutors must send general directives to investigators in which they explain the choices and the priorities in the policy on crime. The district prosecutors can also issue directives about specific cases.
At first, preliminary inquiries are initiated either upon the instructions of the district prosecutor, or on the own initiative of the judicial police members (Sect. 75 subs. 1 CCP). Then, regarding the red handed offence investigation, the district prosecutor may also order all judicial police officers to continue their operations (Sect. 68 subs. 3 CCP), can extend the last of the flagrant offence investigation (Sect. 77 of the Law Perben II and Sect. 53 subs. 2 CCP). On other hand, the prosecutor himself makes a decision in to order the seizure of objects and documents useful for the discovery of the truth (Sect. 56 CCP), and to extend police custody (Sects. 63 and 77 CCP). The district prosecutor can even take the place of the judicial police officer exercising all judicial police powers (Sect. 68 subs. 2 CCP) and he can authorise them to proceed with examinations abroad when the police judicial got the authorisation of the concerned country.
In France, judicial police officers have important powers:
1. ordering expertise: according to Sect. 60 CCP ‘Where there is occasion to carry out any forensic, technical or scientific examination, a judicial police officer has recourse to all qualified persons’;
2. placing in custody a person against whom a plausible reason or reasons for suspecting of having committed or having attempted to commit an offence exist (Sect. 1 of the law Perben II, Sects. 63, 77, 154, 706-73, 706-88 CCP). This procedure exists for the preliminary enquiry as well as for the red handed offence investigation. However, the district prosecutor and the judicial police officers cannot do the same thing: the prosecutor only controls this measure as the judicial police officer has to inform him at the beginning of the arrest and detention;
3. infiltrating criminal groups (Sects. 1, 17, 694-7 to 694-9, 706-81 to 706-87 CCP). This procedure concerns the offences contained in the Sect. 706-73 CCP and must be authorised by the district prosecutor or by the investigating judge. This decision has to mention the offences that justify the use of this means and the identity of the judicial police officer responsible;
4. intercepting telephone communications (Sect. 1 law of March 9, 2004, 706-95 CCP). The district prosecutor must involve the liberty and custody judge who is the only one who can authorise the use of this procedure. This means concerns the offences contained in Sect. 706-73 CCP;
5. making seizures and searches in different places (Sects. 56, 76, 96, 57, 59, 706-28, 706-73 CCP). Regarding red handed offences, these acts are carried out by judicial police officers and the district prosecutor and, in case of preliminary inquiries by the judicial police officers and other officers mentioned in Sect. 20 CCP. If an investigation is opened, these acts are initiated by the investigating judge or by judicial police officers through a rogatory letter. However, a search of the chambers of an advocate or of his domicile may only be made by a judge or prosecutor and in the presence of the president of the bar association or of his delegate. Furthermore, a search of the premises of a press or audio-visual communication undertaking may only be made by a judge or prosecutor who ensures that such investigations do not violate the freedom of exercise of the profession of journalist, and do not unjustifiably obstruct or delay the distribution of information. A search of the office of a doctor, notary, attorney or bailiff is made by a judge or prosecutor, and in the presence of the person responsible for the professional college or organisation to which the person concerned belongs, or in the presence of his representative;
6. asking any person to reveal his identity by any means, where some matter relating to him gives rise to the belief, without prior consultation with the public prosecutor (Sect. 78-2 CCP);
7. hearing any person who could give some information about the case, without having prior consultation with the public prosecutor.
Furthermore, supervision means that all useful information must be transmitted to the public prosecutor by reports mentioned in the Sect. 19 CCP which reads: ‘Judicial police officers are required to notify the district prosecutor forthwith of the felonies, misdemeanours and petty offences of which they have knowledge. As soon as their operations are concluded, they must send him the original copy as well as a certified copy of the official records they have drafted. Any document or other instrument related to the offence is sent to him at the same time; the objects seized are held at his disposal. Official records must state the capacity as officer of the judicial police of the person who drew them up’.
This obligation to inform the prosecutors about flagrant misdemeanours and felonies was since many years to be found in the Sect. D.3 CCP. Then, the law of June 15, 2000, creating a Sect. 75-1 CCP, described this obligation of information. On the one hand the preliminary enquiry is ordered by the prosecutor, who fixes the delay to do this enquiry and extends it only in consideration of justifications given by the investigators. On the other hand, if the investigation is automatically conducted, the prosecutor must be informed of the progress after six months. Regarding the flagrant offence investigation, the law of March 9, 2004 modified the rules concerning the extension of this enquiry: normally this enquiry cannot exceed eight days but when some investigations cannot be postponed, the district prosecutor can extend it for eight days for the offences punished by at least five years of imprisonment.
The simple affirmation of a prosecutors control authority would not be very efficient. That is why they have to assess the work of police judicial officers (Sects. D44 to D47 CCP). According to Sect. 19-1 CCP, this assessment is taken into account for the evolution of the career of police judicial members.
Furthermore, Sect. 38 CCP states that the public prosecutor can select police officers when the actions of the judicial police may be forbidden to some officers, and these cases, of the specialised investigation chamber of the court of appeal.
Co-ordinating the services
According to Sect. D.2 CCP, all judicial police officers have the same powers and responsibilities. In this area, the public prosecutor has to supervise good relations between the different services of investigations. Section D.2-1 CCP also explicitly states that all services have to maintain relations of Cupertino and mutual legal assistance. This is even more necessary now that increasingly, prosecutors use direct transmission procedures created by the law of June 15, 2000. This system allows direct transmission of files to the territorially competent service without transmission to the public prosecutor. However, the circular of December 4, 2000 prescribes that the prosecutor can choose between direct transmission and transmission via the prosecutor.
This very efficient new possibility does not reduce the controlling power of the public prosecutor, at least by phone, because this procedure of direct transmission must stay an exception. Furthermore, if there is dismissal, it is better transmitted to the public prosecutor because then it will be registered to the office of penal order. In that way, there will be proof of handling of the case.
Choosing the service of inquiry
In practice, the public prosecutor does not have to choose because the complaint has to be submitted to the competent service within the area of jurisdiction and the rules of competence that can be found in Sects. 15-1 and R15-18 to R-15-33 CCP are generally clear enough to prevent problems.
However, if the necessities of the inquiry so require, the public prosecutor can hand over the case to another service. This decision is based on the circumstances of the case and does not need to be motivated. Nevertheless, the prosecutor has to explain it at least to the director of the service, in order to ensure good relations between services.
The Relation between the Public Prosecutor and the Police
The French judicial police is directed by the public prosecutor, supervised by the prosecutor general and controlled by the investigating chamber (Sect. 13 of the Code of Criminal Procedure: hereafter CCP). Within each appeal court’s territorial jurisdiction, the judicial police is placed under the supervision of the public prosecutor and under the control of the investigating chamber in accordance with Sect. 224 CCP onwards.
But among all the hierarchical superiors of the judicial police, the district prosecutor is the closest. The CCP confers on him the direction of the judicial police during the preliminary enquiry or enquiry of flagrancy (Sect. 12 CCP). Judicial police operations are carried out under the direction of the district prosecutor by the officers, civil servants and other officers designated (Sect. 13 CCP.
The public prosecutor controls the judicial police in three different ways:
- supervising and checking investigations;
- being in charge in the co-ordination of the services involved; and
- choose the service that will be responsible for the inquiries.
Supervising and checking the conduct of investigations
Without being police officers themselves, the prosecutors and their deputies have all the powers of a judicial police officers. Even if they do not use these powers frequently, they can decide to personally take part in investigation.
However, in practice, in order to receive complaints and conduct investigations, the prosecutors usually request the assistance of judicial police officers, the regional services of judicial police or specialised services: ‘the district prosecutor has the right to require directly the assistance of the police in the performance of his duties’ (Sect. 42 CCP). That explains why the district prosecutor must ensure that the judicial police officers respect the statutory rules and procedures.
The modalities of the supervision of the conduct of investigations are defined in Sects. 12 (cf. supra) and 41 of the CCP:
Section 41 states: ‘the district prosecutor institutes or initiates any step necessary for the discovery and prosecution of violations of criminal law. To this end, he directs the activity of the judicial police officers and other officers within the area of jurisdiction of his court. The district prosecutor supervises police custody measures. He visits the places where persons have been held whenever he considers this necessary and at least once every year; he keeps a record listing the number and frequency of the checks carried out in the various places. He has all the powers and prerogatives attached to the capacity of judicial police officer provided for by section II of Chapter I of Title I, as well as by specific criminal legislation. In the event of a flagrant offence, he exercises the powers granted by Sect. 68. The district prosecutor may also request, as the case may be, the assistance of the penal social integration and probation service, of the competent supervised education service, or of any person accredited pursuant to the conditions set out by Sect. 81, sixth paragraph, in order to check the material, family and social situation of a person under investigation, and in order to be informed of the appropriate measures to support the social integration of the person concerned. In the event of a prosecution initiated against an adult of less than twenty-one years of age at the time of committing the offence, where the penalty incurred is not in excess of five years of imprisonment, such steps must be ordered before any submission designed to obtain a pre-trial detention order. The district prosecutor may also have recourse to an association providing help and assistance to victims of crime, which has entered into an agreement with the managers of the court of appeal, in order that help may be provided to the victim of the offence’.
These sections provide the public prosecutor with two important powers: he can act through giving instructions and has the right to be informed by judicial police officers.
To make their power of supervision efficient, the district prosecutors must send general directives to investigators in which they explain the choices and the priorities in the policy on crime. The district prosecutors can also issue directives about specific cases.
At first, preliminary inquiries are initiated either upon the instructions of the district prosecutor, or on the own initiative of the judicial police members (Sect. 75 subs. 1 CCP). Then, regarding the red handed offence investigation, the district prosecutor may also order all judicial police officers to continue their operations (Sect. 68 subs. 3 CCP), can extend the last of the flagrant offence investigation (Sect. 77 of the Law Perben II and Sect. 53 subs. 2 CCP). On other hand, the prosecutor himself makes a decision in to order the seizure of objects and documents useful for the discovery of the truth (Sect. 56 CCP), and to extend police custody (Sects. 63 and 77 CCP). The district prosecutor can even take the place of the judicial police officer exercising all judicial police powers (Sect. 68 subs. 2 CCP) and he can authorise them to proceed with examinations abroad when the police judicial got the authorisation of the concerned country.
In France, judicial police officers have important powers:
1. ordering expertise: according to Sect. 60 CCP ‘Where there is occasion to carry out any forensic, technical or scientific examination, a judicial police officer has recourse to all qualified persons’;
2. placing in custody a person against whom a plausible reason or reasons for suspecting of having committed or having attempted to commit an offence exist (Sect. 1 of the law Perben II, Sects. 63, 77, 154, 706-73, 706-88 CCP). This procedure exists for the preliminary enquiry as well as for the red handed offence investigation. However, the district prosecutor and the judicial police officers cannot do the same thing: the prosecutor only controls this measure as the judicial police officer has to inform him at the beginning of the arrest and detention;
3. infiltrating criminal groups (Sects. 1, 17, 694-7 to 694-9, 706-81 to 706-87 CCP). This procedure concerns the offences contained in the Sect. 706-73 CCP and must be authorised by the district prosecutor or by the investigating judge. This decision has to mention the offences that justify the use of this means and the identity of the judicial police officer responsible;
4. intercepting telephone communications (Sect. 1 law of March 9, 2004, 706-95 CCP). The district prosecutor must involve the liberty and custody judge who is the only one who can authorise the use of this procedure. This means concerns the offences contained in Sect. 706-73 CCP;
5. making seizures and searches in different places (Sects. 56, 76, 96, 57, 59, 706-28, 706-73 CCP). Regarding red handed offences, these acts are carried out by judicial police officers and the district prosecutor and, in case of preliminary inquiries by the judicial police officers and other officers mentioned in Sect. 20 CCP. If an investigation is opened, these acts are initiated by the investigating judge or by judicial police officers through a rogatory letter. However, a search of the chambers of an advocate or of his domicile may only be made by a judge or prosecutor and in the presence of the president of the bar association or of his delegate. Furthermore, a search of the premises of a press or audio-visual communication undertaking may only be made by a judge or prosecutor who ensures that such investigations do not violate the freedom of exercise of the profession of journalist, and do not unjustifiably obstruct or delay the distribution of information. A search of the office of a doctor, notary, attorney or bailiff is made by a judge or prosecutor, and in the presence of the person responsible for the professional college or organisation to which the person concerned belongs, or in the presence of his representative;
6. asking any person to reveal his identity by any means, where some matter relating to him gives rise to the belief, without prior consultation with the public prosecutor (Sect. 78-2 CCP);
7. hearing any person who could give some information about the case, without having prior consultation with the public prosecutor.
Furthermore, supervision means that all useful information must be transmitted to the public prosecutor by reports mentioned in the Sect. 19 CCP which reads: ‘Judicial police officers are required to notify the district prosecutor forthwith of the felonies, misdemeanours and petty offences of which they have knowledge. As soon as their operations are concluded, they must send him the original copy as well as a certified copy of the official records they have drafted. Any document or other instrument related to the offence is sent to him at the same time; the objects seized are held at his disposal. Official records must state the capacity as officer of the judicial police of the person who drew them up’.
This obligation to inform the prosecutors about flagrant misdemeanours and felonies was since many years to be found in the Sect. D.3 CCP. Then, the law of June 15, 2000, creating a Sect. 75-1 CCP, described this obligation of information. On the one hand the preliminary enquiry is ordered by the prosecutor, who fixes the delay to do this enquiry and extends it only in consideration of justifications given by the investigators. On the other hand, if the investigation is automatically conducted, the prosecutor must be informed of the progress after six months. Regarding the flagrant offence investigation, the law of March 9, 2004 modified the rules concerning the extension of this enquiry: normally this enquiry cannot exceed eight days but when some investigations cannot be postponed, the district prosecutor can extend it for eight days for the offences punished by at least five years of imprisonment.
The simple affirmation of a prosecutors control authority would not be very efficient. That is why they have to assess the work of police judicial officers (Sects. D44 to D47 CCP). According to Sect. 19-1 CCP, this assessment is taken into account for the evolution of the career of police judicial members.
Furthermore, Sect. 38 CCP states that the public prosecutor can select police officers when the actions of the judicial police may be forbidden to some officers, and these cases, of the specialised investigation chamber of the court of appeal.
Co-ordinating the services
According to Sect. D.2 CCP, all judicial police officers have the same powers and responsibilities. In this area, the public prosecutor has to supervise good relations between the different services of investigations. Section D.2-1 CCP also explicitly states that all services have to maintain relations of Cupertino and mutual legal assistance. This is even more necessary now that increasingly, prosecutors use direct transmission procedures created by the law of June 15, 2000. This system allows direct transmission of files to the territorially competent service without transmission to the public prosecutor. However, the circular of December 4, 2000 prescribes that the prosecutor can choose between direct transmission and transmission via the prosecutor.
This very efficient new possibility does not reduce the controlling power of the public prosecutor, at least by phone, because this procedure of direct transmission must stay an exception. Furthermore, if there is dismissal, it is better transmitted to the public prosecutor because then it will be registered to the office of penal order. In that way, there will be proof of handling of the case.
Choosing the service of inquiry
In practice, the public prosecutor does not have to choose because the complaint has to be submitted to the competent service within the area of jurisdiction and the rules of competence that can be found in Sects. 15-1 and R15-18 to R-15-33 CCP are generally clear enough to prevent problems.
However, if the necessities of the inquiry so require, the public prosecutor can hand over the case to another service. This decision is based on the circumstances of the case and does not need to be motivated. Nevertheless, the prosecutor has to explain it at least to the director of the service, in order to ensure good relations between services.
