The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
Who is mainly responsible for a proper criminal investigation depends on the kind of investigation conducted. According to the CCP, in the pre-trial phase of the criminal proceedings two forms of procedure can be distinguished in which different judicial functionaries are responsible:
a. the main investigation, applied in felony cases and some serious misdemeanours, is carried out by an investigating judge, similar to the French juge d’ instruction. The latter is to a great extent independent in his acts and he may follow any proposals made to him by the public prosecutor only if he considers it expedient. In some cases, however, (e.g. if he is going to order the pre-trial detention of the accused) he has to request the written agreement of the public prosecutor, and if these two judicial functionaries disagree, the judicial council (i.e. the indictment chamber) decides on the issue (Sect. 283 subs. 1 CCP);
b. the summary investigation is applied in misdemeanour cases and is carried out by the investigating officers. The latter include magistrates, police officers and some special officers competent to investigate special categories of offences, e.g. officers of the harbour service or of the customs offices.
While both forms of investigation are introduced by written mandate of the public prosecutor (Sect. 43 CCP), his involvement in the summary investigation is conducted by investigating officers under his direction. Consequently, the police officers, when they are investigating criminal offences in the pre-trial phase of proceedings, are acting under direct instructions from the public prosecutor. According to Sect. 248 subs. 1 CCP. Cf. and Sect. 25 subs. 1 of the COA the competence of the public prosecutor includes: …(d) the supervision and control of police authorities with respect to prevention and repression of crimes.
However, with respect to offences committed by, or by complicity of police officers, it is provided that the public prosecutors at the Courts of Appeal of Athens and Thessaloniki supervise the investigations (Sect. 3 of Law 2713/1999). It is also specified that this supervision includes the right to be informed of all relevant information received or denunciations made to the Department (Direction) on Internal Affairs of the Police, to follow up the investigation of such cases, to give instructions, to direct investigations and to be present during investigation acts.
In investigating a criminal offence police officers have to follow the relevant provisions of the CCP and have to submit the reports of activities to the public prosecutor. If they have some doubts as to which procedure to follow, they will ask for instructions from the public prosecutor, who may also give them such instructions on his own initiative.
The investigating officers, including police officers, examine witnesses, summon the accused to defend himself, view sites and objects with the help, if necessary, of experts and coroners, conduct searches and seize evidence (Sects. 343, 353 and 354 CCP). A house search must be conducted if this is necessary for the discovery of the offence or for an assessment of the damages caused by it. The law does not demand prior permission from the public prosecutor for such a search. However, a police officer must conduct the search jointly with a judicial officer, who should be a member of the prosecution service or a magistrate (Sect. 355 subs. 2 CCP). This prerequisite is now required by Sect. 9 subs. 1 of the Constitution.
Special investigation methods have been introduced recently (Law 1729/1987) and may be applied only when the investigation concerns drug offences, offences of police officers and offences of founding or participating in criminal organisations, provided in Sect. 187 CC. According to Sect. 253A CCP, these methods are the investigative infiltration, the controlled delivery or transports of drugs, the registration of activities outside a residence by special devices registering sounds or pictures, and the treatment of facts or information on personal data.
The relevant activities are permitted only if:
a. there are serious indications that offences relating to criminal organisations may have been committed; and
b. if the dismantling of such organisations would otherwise be impossible or especially difficult.
In order to be conducted lawfully, these methods must be authorised by the judicial council (indictment chamber) on proposal of the public prosecutor. In very urgent cases the public prosecutor or the investigating judge may grant authorisation, but then, within three days, they must apply for the ex post approval of the judicial council (indictment chamber).
After receiving the mandate to investigate from the public prosecutor, the investigating judge and investigating officer may as a rule proceed with individual acts of investigation, without it being necessary to obtain prior approval by the public prosecutor. However, a warrant of arrest or a pre-trial detention order can be issued by the investigating judge only with the agreement of the public prosecutor, or by the judicial council (or indictment chamber), Sect. 283 subs. 1 CCP.
The public prosecutor is bound by the limits of the legality principle, so there are no real possibilities for setting priorities when to institute investigations and when not. However, if there are legal grounds for priority to be given to the investigation of a certain offence, in practice the public prosecutor has some discretionary power to set priorities justified on such grounds.
The Relation between the Public Prosecutor and the Police
Who is mainly responsible for a proper criminal investigation depends on the kind of investigation conducted. According to the CCP, in the pre-trial phase of the criminal proceedings two forms of procedure can be distinguished in which different judicial functionaries are responsible:
a. the main investigation, applied in felony cases and some serious misdemeanours, is carried out by an investigating judge, similar to the French juge d’ instruction. The latter is to a great extent independent in his acts and he may follow any proposals made to him by the public prosecutor only if he considers it expedient. In some cases, however, (e.g. if he is going to order the pre-trial detention of the accused) he has to request the written agreement of the public prosecutor, and if these two judicial functionaries disagree, the judicial council (i.e. the indictment chamber) decides on the issue (Sect. 283 subs. 1 CCP);
b. the summary investigation is applied in misdemeanour cases and is carried out by the investigating officers. The latter include magistrates, police officers and some special officers competent to investigate special categories of offences, e.g. officers of the harbour service or of the customs offices.
While both forms of investigation are introduced by written mandate of the public prosecutor (Sect. 43 CCP), his involvement in the summary investigation is conducted by investigating officers under his direction. Consequently, the police officers, when they are investigating criminal offences in the pre-trial phase of proceedings, are acting under direct instructions from the public prosecutor. According to Sect. 248 subs. 1 CCP. Cf. and Sect. 25 subs. 1 of the COA the competence of the public prosecutor includes: …(d) the supervision and control of police authorities with respect to prevention and repression of crimes.
However, with respect to offences committed by, or by complicity of police officers, it is provided that the public prosecutors at the Courts of Appeal of Athens and Thessaloniki supervise the investigations (Sect. 3 of Law 2713/1999). It is also specified that this supervision includes the right to be informed of all relevant information received or denunciations made to the Department (Direction) on Internal Affairs of the Police, to follow up the investigation of such cases, to give instructions, to direct investigations and to be present during investigation acts.
In investigating a criminal offence police officers have to follow the relevant provisions of the CCP and have to submit the reports of activities to the public prosecutor. If they have some doubts as to which procedure to follow, they will ask for instructions from the public prosecutor, who may also give them such instructions on his own initiative.
The investigating officers, including police officers, examine witnesses, summon the accused to defend himself, view sites and objects with the help, if necessary, of experts and coroners, conduct searches and seize evidence (Sects. 343, 353 and 354 CCP). A house search must be conducted if this is necessary for the discovery of the offence or for an assessment of the damages caused by it. The law does not demand prior permission from the public prosecutor for such a search. However, a police officer must conduct the search jointly with a judicial officer, who should be a member of the prosecution service or a magistrate (Sect. 355 subs. 2 CCP). This prerequisite is now required by Sect. 9 subs. 1 of the Constitution.
Special investigation methods have been introduced recently (Law 1729/1987) and may be applied only when the investigation concerns drug offences, offences of police officers and offences of founding or participating in criminal organisations, provided in Sect. 187 CC. According to Sect. 253A CCP, these methods are the investigative infiltration, the controlled delivery or transports of drugs, the registration of activities outside a residence by special devices registering sounds or pictures, and the treatment of facts or information on personal data.
The relevant activities are permitted only if:
a. there are serious indications that offences relating to criminal organisations may have been committed; and
b. if the dismantling of such organisations would otherwise be impossible or especially difficult.
In order to be conducted lawfully, these methods must be authorised by the judicial council (indictment chamber) on proposal of the public prosecutor. In very urgent cases the public prosecutor or the investigating judge may grant authorisation, but then, within three days, they must apply for the ex post approval of the judicial council (indictment chamber).
After receiving the mandate to investigate from the public prosecutor, the investigating judge and investigating officer may as a rule proceed with individual acts of investigation, without it being necessary to obtain prior approval by the public prosecutor. However, a warrant of arrest or a pre-trial detention order can be issued by the investigating judge only with the agreement of the public prosecutor, or by the judicial council (or indictment chamber), Sect. 283 subs. 1 CCP.
The public prosecutor is bound by the limits of the legality principle, so there are no real possibilities for setting priorities when to institute investigations and when not. However, if there are legal grounds for priority to be given to the investigation of a certain offence, in practice the public prosecutor has some discretionary power to set priorities justified on such grounds.
