The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
Pre-trial investigation takes place at a police station in the context of an investigation inquiry from the moment a crime is reported until sufficient evidence has been gathered to take a decision on prosecution. After enough evidence has been collected for a particular person to be prosecuted, a case is then forwarded to the prosecutor’s office. Therefore pre-trial investigation can be divided into two main stages, the investigation inquiry by police and the criminal prosecution by the prosecutor.
Investigation inquiry powers have been granted by state law to several institutions and officials, for instance to: state police, sea captains, finance police of the State Revenue Service and the Organised Crime and Anti-corruption Office.
Investigation competences in criminal cases in the inquiry phase are determined by law, as well as by the internal organisation of the office. The pre-trial investigation at the police station or at any other office where investigation takes place, is supervised by the prosecutor’s office. In order to ensure supervision of all offices of pre-trial investigation, and also to guarantee its effectiveness, the Prosecutor General has issued an order ‘about supervision of public prosecutors in the processing and pre-trial investigation stage of criminal cases’. This order contains instructions about the division of supervision competences among prosecutor’s offices. Police should always immediately report a case processed to the prosecutor’s office. Of each case processed the police should also submit a statistic card to the prosecutor’s office.
While supervising the pre-trial investigation, the public prosecutor has the right to:
- ensure legality of the cases, by examining the notifications of cases processed;
- inspect the file and to give written and oral instructions to the officers carrying out investigation. These instructions can be either about the general direction of the investigation or about specific acts which need to be taken in the context of the investigation. When the police do not agree, these instructions or decisions can be appealed against with a superior public prosecutor;
- return the criminal case for additional investigation to the police, if there are not yet sufficient grounds for criminal prosecution;
- annul illegal decisions taken during the police inquiry;
- take part in any act of the investigation, as well as to undertake action personally;
- get acquainted with the results of criminal investigation activities and to ensure that these activities were performed in accordance with the law;
- remove any case from a police inquiry office, and to take over the investigation, or to transmit the investigation to another police inquiry office. In practice, the latter only takes place when an objective and independent investigation cannot be guaranteed by the original inquiry office;
- assess complaints about police action in a particular criminal case; and
- assess refusals to start an inquiry by police.
When the law has not been observed in the pre-trial investigation, the public prosecutor has the right to notify the head of the police inquiry office. The public prosecutor can ask the head of the inquiry to decide on a proper pun-ishment for the officer who has failed to observe the law, or to assign him to other activities, with the goal of preventing further offences of similar nature in the future.
Criminal prosecution is an exclusive power of the public prosecutor. It is initiated at the moment he decides that a person should be regarded criminally liable. After commencing criminal prosecution, the public prosecutor continues to administrate and organise pre-trial investigation. The public prosecutor can perform necessary investigation acts personally, by obtaining additional evidence, verifying circumstances of a criminal case, as well as by assigning the carrying out of investigation acts to the inquiry office. However, only the public prosecutor is entitled to perform investigation acts which involve the accused, such as the interrogation of the accused, or the confrontation with witnesses. The public prosecutor eventually forwards criminal cases to the court.
One of the goals of the criminal procedure is to provide just punishment for every person who has committed a criminal offence. The law sets no prosecution priorities, and the public prosecutor does not have a right to choose which offences will be prosecuted and which ones will not. The prosecutor’s office cannot set priorities either.
In practice, the public prosecutor and the leader of the police inquiry give information to the mass media personally or through a specialised press officer of the prosecutor’s office. However, information can only be presented in such a way that it does not harm further investigation in the case.
Joint investigation units manned by public prosecutors and police officers have been established for the investigation of serious crime and organised crime. Those units have been established by order of the Prosecutor General or by order of the chief prosecutor of the criminal law department.
Police and prosecution work together to make sure that criminal offences are discovered, offenders identified and the law applied legitimately. However, the court is the institution that takes the ultimate decision on the validity of the evidence gathered in the case.
The sequence of criminal investigation acts performed at the inquiry stage
In general, the officer carrying out the initial inquiry has the right to perform criminal investigation acts at his own initiative. The law does not stipulate that police must consult the public prosecutor regarding investigation decisions in advance. However, the task of the public prosecutor in pre-trial investigation is, amongst others, to give directions to police on investigation acts when such assistance is requested. Besides, the public prosecutor has the right to give directions at his own initiative. However, an inquiry officer can still choose to carry out other investigation acts.
In short, the public prosecutor will often direct the process of investigation and, if necessary, give advice on the use of various means of investigation.
There are however, means of investigation which always need to be approved first, as they might infringe the suspect’s human rights. In such cases the approval of the public prosecutor or the court is required. This applies to a search, interception of correspondence, and interception of conversations which will be briefly discussed below.
A search is allowed after a decision made by the judge. In urgent cases, when the approval of the judge cannot be received immediately, for instance, during the night, the search can be performed with public prosecutor consent. In the latter case, the public prosecutor must report his decision to the judge within twentyfour hours. The range of punishable offences in the context of which a search can be applied during investigation is not limited.
Interception of correspondence, and its collection from the post and telegraph offices, can be carried out based on a decision made by the court or the judge, in the course of an investigation into serious crimes or particularly serious crimes.
Interception of conversations of the suspect or information via technical device can be carried out based on the decision made by the court or the judge. This investigation act can be used when investigating offences which carry a statutory prison sentence of more than two years.
There are also other exemptions not connected to human rights, and these are, for example, measures to secure state secret documents, and special rules concerning minors.
To guarantee the confidentiality of documents containing state secrets, there is a specific order for collecting and examining these documents. The collection and examination of the documents containing state secrets can be carried out only after a decision to that effect made by a judge.
To minimise psychological damage to under aged persons, a witness who has not reached fourteen years of age, or a victim who has not reached eighteen years of age, can only be directly interrogated after a psychologist expert has agreed this is acceptable. When a psychologist expert declares that direct interrogation is not advisable, it can only take place after authorisation of a judge.
Other coercive methods, which are not considered to be investigation acts, but at the same time can produce investigation results, can be used by the officer at his own initiative. An example of this is the forced bringing of the witness, if the persons mentioned have not appeared in accordance with the call. Another example is the arrest of the person, who is being suspected of committing a criminal offence. In the latter case, the inquiry officer should report the arrest to the public prosecutor within twenty four hours from the moment of arrest. If needed, the public prosecutor can then examine the file, and decide on the question of the validity of the arrest.
The order of execution of operational acts in the inquiry stage
Operational acts are aimed at the discovery of criminal offences, the identification of the persons who have committed these offences, and the gathering of evidence. Operational acts are:
- inquiring (gathering information on facts, persons and objects);
- observation (tracking of persons);
- examination (concerning examination of publicly accessible areas and premises only);
- analysing patterns in events (handwriting of a person, obtaining patterns of the voice and so forth);
- entry (secret entry into premises, vehicles and in other private spaces);
- experiment (to examine the probable act of suspects, to examine the existence of a matter or a process and so forth); and
- detective work and so forth.
In contrast to information obtained as a result of criminal procedural acts, information obtained as the result of operational acts cannot automatically be used as evidence in a criminal case. The inclusion of this type of information as evidence is subject to constraints. Facts collected through an operational act can be used as evidence only, when the facts can be ascertained as determined in the Criminal Code of Procedure (hereafter CCP.
Operational acts can be divided into general and specific acts. General acts, if they do not materially infringe constitutional rights of persons, can be undertaken with the direct approval of the head of office. Specific acts, if they do infringe constitutional rights of persons materially, can only be undertaken after a special procedure has been followed.
Approval of the chairman of the Supreme Court or approval of an especially authorised judge of the Supreme Court has to be obtained in order to perform:
- seizure and examination of postal or telegraphic items;
- obtaining of information through technical devices;
- interception of non public conversations (via a telephone set or any other technical communication channel); and
- compulsory placement in a medical institution.
Approval of the public prosecutor is required for the performance of the following acts:
- for an operational experiment, the goal of which is to record the acts of persons in a situation caused by criminal act or an act that is otherwise illegitimate; and
- for an operational act which entails participation in a criminal environment.
The Relation between the Public Prosecutor and the Police
Pre-trial investigation takes place at a police station in the context of an investigation inquiry from the moment a crime is reported until sufficient evidence has been gathered to take a decision on prosecution. After enough evidence has been collected for a particular person to be prosecuted, a case is then forwarded to the prosecutor’s office. Therefore pre-trial investigation can be divided into two main stages, the investigation inquiry by police and the criminal prosecution by the prosecutor.
Investigation inquiry powers have been granted by state law to several institutions and officials, for instance to: state police, sea captains, finance police of the State Revenue Service and the Organised Crime and Anti-corruption Office.
Investigation competences in criminal cases in the inquiry phase are determined by law, as well as by the internal organisation of the office. The pre-trial investigation at the police station or at any other office where investigation takes place, is supervised by the prosecutor’s office. In order to ensure supervision of all offices of pre-trial investigation, and also to guarantee its effectiveness, the Prosecutor General has issued an order ‘about supervision of public prosecutors in the processing and pre-trial investigation stage of criminal cases’. This order contains instructions about the division of supervision competences among prosecutor’s offices. Police should always immediately report a case processed to the prosecutor’s office. Of each case processed the police should also submit a statistic card to the prosecutor’s office.
While supervising the pre-trial investigation, the public prosecutor has the right to:
- ensure legality of the cases, by examining the notifications of cases processed;
- inspect the file and to give written and oral instructions to the officers carrying out investigation. These instructions can be either about the general direction of the investigation or about specific acts which need to be taken in the context of the investigation. When the police do not agree, these instructions or decisions can be appealed against with a superior public prosecutor;
- return the criminal case for additional investigation to the police, if there are not yet sufficient grounds for criminal prosecution;
- annul illegal decisions taken during the police inquiry;
- take part in any act of the investigation, as well as to undertake action personally;
- get acquainted with the results of criminal investigation activities and to ensure that these activities were performed in accordance with the law;
- remove any case from a police inquiry office, and to take over the investigation, or to transmit the investigation to another police inquiry office. In practice, the latter only takes place when an objective and independent investigation cannot be guaranteed by the original inquiry office;
- assess complaints about police action in a particular criminal case; and
- assess refusals to start an inquiry by police.
When the law has not been observed in the pre-trial investigation, the public prosecutor has the right to notify the head of the police inquiry office. The public prosecutor can ask the head of the inquiry to decide on a proper pun-ishment for the officer who has failed to observe the law, or to assign him to other activities, with the goal of preventing further offences of similar nature in the future.
Criminal prosecution is an exclusive power of the public prosecutor. It is initiated at the moment he decides that a person should be regarded criminally liable. After commencing criminal prosecution, the public prosecutor continues to administrate and organise pre-trial investigation. The public prosecutor can perform necessary investigation acts personally, by obtaining additional evidence, verifying circumstances of a criminal case, as well as by assigning the carrying out of investigation acts to the inquiry office. However, only the public prosecutor is entitled to perform investigation acts which involve the accused, such as the interrogation of the accused, or the confrontation with witnesses. The public prosecutor eventually forwards criminal cases to the court.
One of the goals of the criminal procedure is to provide just punishment for every person who has committed a criminal offence. The law sets no prosecution priorities, and the public prosecutor does not have a right to choose which offences will be prosecuted and which ones will not. The prosecutor’s office cannot set priorities either.
In practice, the public prosecutor and the leader of the police inquiry give information to the mass media personally or through a specialised press officer of the prosecutor’s office. However, information can only be presented in such a way that it does not harm further investigation in the case.
Joint investigation units manned by public prosecutors and police officers have been established for the investigation of serious crime and organised crime. Those units have been established by order of the Prosecutor General or by order of the chief prosecutor of the criminal law department.
Police and prosecution work together to make sure that criminal offences are discovered, offenders identified and the law applied legitimately. However, the court is the institution that takes the ultimate decision on the validity of the evidence gathered in the case.
The sequence of criminal investigation acts performed at the inquiry stage
In general, the officer carrying out the initial inquiry has the right to perform criminal investigation acts at his own initiative. The law does not stipulate that police must consult the public prosecutor regarding investigation decisions in advance. However, the task of the public prosecutor in pre-trial investigation is, amongst others, to give directions to police on investigation acts when such assistance is requested. Besides, the public prosecutor has the right to give directions at his own initiative. However, an inquiry officer can still choose to carry out other investigation acts.
In short, the public prosecutor will often direct the process of investigation and, if necessary, give advice on the use of various means of investigation.
There are however, means of investigation which always need to be approved first, as they might infringe the suspect’s human rights. In such cases the approval of the public prosecutor or the court is required. This applies to a search, interception of correspondence, and interception of conversations which will be briefly discussed below.
A search is allowed after a decision made by the judge. In urgent cases, when the approval of the judge cannot be received immediately, for instance, during the night, the search can be performed with public prosecutor consent. In the latter case, the public prosecutor must report his decision to the judge within twentyfour hours. The range of punishable offences in the context of which a search can be applied during investigation is not limited.
Interception of correspondence, and its collection from the post and telegraph offices, can be carried out based on a decision made by the court or the judge, in the course of an investigation into serious crimes or particularly serious crimes.
Interception of conversations of the suspect or information via technical device can be carried out based on the decision made by the court or the judge. This investigation act can be used when investigating offences which carry a statutory prison sentence of more than two years.
There are also other exemptions not connected to human rights, and these are, for example, measures to secure state secret documents, and special rules concerning minors.
To guarantee the confidentiality of documents containing state secrets, there is a specific order for collecting and examining these documents. The collection and examination of the documents containing state secrets can be carried out only after a decision to that effect made by a judge.
To minimise psychological damage to under aged persons, a witness who has not reached fourteen years of age, or a victim who has not reached eighteen years of age, can only be directly interrogated after a psychologist expert has agreed this is acceptable. When a psychologist expert declares that direct interrogation is not advisable, it can only take place after authorisation of a judge.
Other coercive methods, which are not considered to be investigation acts, but at the same time can produce investigation results, can be used by the officer at his own initiative. An example of this is the forced bringing of the witness, if the persons mentioned have not appeared in accordance with the call. Another example is the arrest of the person, who is being suspected of committing a criminal offence. In the latter case, the inquiry officer should report the arrest to the public prosecutor within twenty four hours from the moment of arrest. If needed, the public prosecutor can then examine the file, and decide on the question of the validity of the arrest.
The order of execution of operational acts in the inquiry stage
Operational acts are aimed at the discovery of criminal offences, the identification of the persons who have committed these offences, and the gathering of evidence. Operational acts are:
- inquiring (gathering information on facts, persons and objects);
- observation (tracking of persons);
- examination (concerning examination of publicly accessible areas and premises only);
- analysing patterns in events (handwriting of a person, obtaining patterns of the voice and so forth);
- entry (secret entry into premises, vehicles and in other private spaces);
- experiment (to examine the probable act of suspects, to examine the existence of a matter or a process and so forth); and
- detective work and so forth.
In contrast to information obtained as a result of criminal procedural acts, information obtained as the result of operational acts cannot automatically be used as evidence in a criminal case. The inclusion of this type of information as evidence is subject to constraints. Facts collected through an operational act can be used as evidence only, when the facts can be ascertained as determined in the Criminal Code of Procedure (hereafter CCP.
Operational acts can be divided into general and specific acts. General acts, if they do not materially infringe constitutional rights of persons, can be undertaken with the direct approval of the head of office. Specific acts, if they do infringe constitutional rights of persons materially, can only be undertaken after a special procedure has been followed.
Approval of the chairman of the Supreme Court or approval of an especially authorised judge of the Supreme Court has to be obtained in order to perform:
- seizure and examination of postal or telegraphic items;
- obtaining of information through technical devices;
- interception of non public conversations (via a telephone set or any other technical communication channel); and
- compulsory placement in a medical institution.
Approval of the public prosecutor is required for the performance of the following acts:
- for an operational experiment, the goal of which is to record the acts of persons in a situation caused by criminal act or an act that is otherwise illegitimate; and
- for an operational act which entails participation in a criminal environment.
