Chapter I  
The Relation between the Public Prosecutor and the Police      

As a general rule, the prosecutor has full responsibility for the investigation of any case in the system. He may initiate the investigation on his own and will decide on the manner in which it has to be conducted. When a complaint is lodged by a private person or information is reported by the police, the prosecutor has the duty to investigate in order to ascertain whether there is sufficient evidence to bring proceedings.
An exception has been provided by a statute passed by the Parliament in 2000, which has extended the jurisdiction to the justice of the peace, a lay judge established to deal with minor offences. In the proceedings in front of the justice of the peace, the police are responsible for collecting information, and conducting all the necessary investigations in order to find out whether an offence has been actually committed and to identify the offender. On the basis of a report submitted by the police, the prosecutor decides whether to charge the suspect or to dismiss the case.

Even though the prosecutor, according to the Constitution (Sect. 109), may avail himself of the police during the investigation stage, the police depends on the Executive organisationally.
One specialised branch of the police is specifically entitled to investigate crimes committed. When exercising this function, this branch is put under the direction of the prosecutor. Given the dependence of the police on the Executive, some have feared that orders given by the prosecutor might become the subject of external interference and have proposed the creation of a specific organisation for investigations in criminal proceedings.
In order to prevent undue influence of the Executive, the CCP aims to guarantee the strongest functional dependence of the police on the prosecutor. The structure of police investigations is organised through three levels: services (servizi), sections (sezioni), and other bodies competent in specific situations as defined by the law.
The innovation of the CCP of 1988 was the creation of these sections. These are units expressly established by the law and placed in each prosecu¬tion office to the tribunal. These units are manned by personnel coming from different sectors within the police. They are exclusively assigned to investi¬gating tasks in criminal proceedings and they cannot be diverted from them. By instituting these sections, the code of 1988 has granted a constant and steady support to the prosecution office.
The services, instead, are organised by each police force and include all those offices of that force (e. g. the forensic laboratory department) that have been given the main duty of covering investigating functions under the prosecutor’s direction. The law also provides that in specific situations (such as particular types of crimes) certain offices of the police should investigate and support the prosecution service.
Since the police is organised along hierarchical lines, the chief officer in each service has the task to watch over the respect of the statutory rules and procedures. As a consequence, the prosecutor can give orders, but lacks hierarchical powers to sanction the misconduct of the police. However, the Prosecutor-General to the Court of Appeal has the power to bring discipli¬nary proceedings. When this action is taken, a commission composed of two judicial officers and one police officer decides whether there has been misconduct and which sanctions must be applied. In addition, the chief officer cannot be promoted nor transferred without the consent of the Prosecutor-General.

With regard to the relation between the prosecutor and the police, the rules originally laid down by the 1988 CCP have been modified by statutes enacted in 1992 and in 2001. Even if the prosecutor is still the dominus of the investigation, it can be said that the tendency is towards strengthening the role of the police.
The police are generally the first authority to deal with an offence. They are obliged to collect information about offences committed and to prevent further offences, even on their own initiative. They must take the necessary steps to protect the evidence and gather any other data that may be useful for the enforcement of criminal law.
The police are obliged to report every offence to the prosecutor without delay, and to inform him of the basic elements of the act, of the evidence collected and of the investigations carried out. If possible, they provide data to identify the suspect, the victim and any witnesses.
When the police have carried out acts of investigation which require the assistance of a defense counsel, the offence has to be reported within 24 hours. In case of serious crimes, the prosecutor must be informed imme¬diately. Once the information is received, the prosecutor registers the reported offence (notitia criminis) in the official records. From the registration of the name of the suspect in the records, the investigations cannot last more than six months, but a new term may be granted by the judge on reasonable grounds, up to a maximum period of one year and half (two years for the most serious crimes).

Only in early stage of the proceedings the police are partially independent of the prosecutor. In fact, once the information has been received, the prosecu¬tor takes the lead in the investigation and has the power to give guidelines to the police. Nevertheless, until these guidelines are issued by the prosecutor, the police are entitled to continue their investigations in order to find out the corpus delicti and to identify the suspect and the witnesses.
After the prosecutor has taken control over the investigation, the autonomy of the police is strictly limited. On the one hand, the police must follow the guidelines and carry out the investigative acts ordered by the prosecutor. On the other, they can conduct all other investigations necessary in order to ascertain the offence on their own initiative, but the prosecutor must be promptly informed.
The instructions given by the prosecutor can concern specific investigative acts, but can also be generic and indicate the kind of information related to the offence which must be gathered by the police only. However, the prosecutor’s guidelines are always directly connected to the specific case under investigation; in this regard, they are not general instruc¬tions, given to the police to be applied in all cases. The latter solution could not be adopted because police duties shall be defined by law.
In these specific instructions, the police may be requested to summon and question the witnesses and the victim; they may also be requested to question the suspect, on condition that he is not under arrest and is assisted by the defense counsel. Moreover, the police may perform searches and seizures ordered by the prosecutor. In the latter case, the police have discretionary powers with regard to the choice of the most suitable means for reaching the targets laid down by the guidelines.
Notwithstanding the guidelines set by the prosecutor, the police can continue to investigate on their own initiative, although the investigations carried out have to be aimed to reach the same targets as those laid down by the prosecutor. In particular, the police may always, without a specific order, summon and question witnesses and the victim, as well as the suspect (on condition that he is not under arrest and is assisted by the defense counsel). Witnesses are obliged to report to the police if summoned and they also are obliged to tell the truth under penal sanction.  From this point of view, there is no difference between being questioned by police or by the prosecutor. Only when a person is caught in the act of committing a crime, the police can search persons and premises on their own initiative without a warrant, but the search, and the prospective seizure, must be validated by the prosecutor afterwards.

According to the general rule establishing that the prosecutor is directly in charge of the investigation, the police are not entitled to use special investigation methods like agents provocateurs, infiltration and undercover operations on their own initiative. As regards informers, who are commonly employed, the police are allowed to keep their names secret, although in that case the information cannot be used as evidence.
Important exceptions are established by special statutory provisions. First of all, in case of drug offences, police officers who are assigned to special groups can decide to purchase drugs in order to ascertain the offence and collect evidence, but the prosecutor shall be immediately informed of the operation. In these cases, police officers can decide to delay arrests, searches and seizures, when it is deemed necessary in order to collect important evidence and to find out the perpetrators of the offence. In these circum¬stan¬ces too, the prosecutor shall be informed within 24 hours by submitting a report. The prosecutor has the power to order the police to carry out the delayed acts immediately; or the prosecutor can set guidelines for the operation.
Other special methods of investigation can be used by the police in order to repress sexual offences against minors, but the prior approval of the prosecutor is necessary. Particularly, it is allowed to buy child pornography materials just in order to collect evidence. Moreover, the police can activate decoy websites within undercover operations in order to detect crimes related to the distribution and use of child pornography materials on the web. For the same purposes laid down with regard to the drugs offences, arrests, searches and seizures can be delayed.

The detention of a person suspected of a crime can be ordered by a judge only, at the request of the prosecutor and when there are reasonable grounds to believe that he is about to destroy evidence, to escape, or to commit others offences.
The prosecutor and the police have very limited powers with regard to the use of means of coercion. The prosecutor is entitled to arrest a person provisionally (fermo di indiziato di delitto) when there is sufficient evidence against him and there is a reasonable risk of escape. In this case too, the prosecutor must request the judge to validate the arrest within 48 hours and eventually, ask for detention of the suspect. The fermo can be ordered by the police also and under the same conditions, when the prosecutor has not yet taken over the investigation or, because of urgency it is not possible to wait for his decision.
The police have the power to arrest a person provisionally when he is caught in the act of committing a crime (arresto in flagranza). The law lays down the cases in which the arrest is compulsory (most serious offences) and those in which is discretionary (less serious offences). The discretion derives from the fact that police have to consider the dangerousness of the person, based on his personalità (character) and the circumstances of the offence. Within 24 hours, the police must report the arrest to the prosecutor and he, within the following 24 hours, must request the judge to validate the arrest.