The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
On May 1, 2003, the new Code of Criminal Procedure (hereafter referred to as CCP) came into operation, bringing back the number of institutions obliged to initiate criminal prosecution and to solve a crime. Previous to that, whenever there were indications that an offence had taken place, the court, the prosecutor, the investigator and the interrogation body were all obliged to institute a case within the limits of their competence, to take all measures provided for by law to establish the event of the offence, to identify the persons guilty of committing an offence, and to have them punished. Thus, these institutions investigated particular offences within the limits of their competences and they all were held equally liable for a properly conducted investigation.
At present, sect. 2 CCP prescribes that the prosecutor and the pre-trial investigation institution investigate criminal acts. That is, whenever elements of a criminal act are reported, the prosecutor and the institutions of pre-trial investigation must, within the limits of their competence, take all measures provided by the law so that an investigation is conducted and the commission of a criminal act be established within the shortest time possible. None of these institutions have been granted the right to set priorities as to the initiation of investigation of criminal acts.
Having assessed the duties of the prosecutor and the pre-trial investigation institution officer as specified by CCP, in his Guidelines for the prosecutor’s activities while organising and supervising the pre-trial investigation, the Prosecutor General pointed out that both the prosecutor who organises and supervises the pre-trial investigation, and the pre-trial investigation institution shall be held liable for the results of pre-trial investigation.
Pre-trial investigation institutions
The following pre-trial investigation institutions are currently to be identified: police, national border security service, special investigation service, military police, national security department, financial crimes investigation service, customs department, fire security and rescue department. They investigate criminal acts in the course of their direct duties determined by the laws regulating their activities. The prosecutor is not obliged to commission the pre-trial investigation institutions to investigate crimes pursuant to the guidelines relating to their competencies. However, if, in the opinion of the prosecutor, it is beneficial to make use of investigating power of a pre-trial investigation institution which is not usually attributed to that particular institution, he may commission such institution to act.
The prosecutor is entitled to conduct the whole pre-trial investigation or separate acts thereof himself. If the pre-trial investigation is conducted by a pre-trial investigation institution officer, the prosecutor who supervises and presides over him may conduct separate acts of investigation himself. In such case, the pre-trial investigation officer and the prosecutor professionally interact. For an investigation to be conducted effectively, it ought to be accepted that the pre-trial investigation officer is not just a procedural tool of the prosecutor, but rather an independent officer with a challenging mission. The more freedom a pre-trial investigation officer enjoys (without violating the limits of professional competence), the more responsibility for the performance of individual acts, as well as for the results of the full investigation, he has to take on. The pre-trial investigation officer suggests alternative paths of investigation and prepares the plan for the investigation into a criminal act, and outlines the timing, tactics, and so forth with respect to the performance of investigative acts. On the other hand, the prosecutor may adjust the investigation plan and instruct the officer who is actively engaged in the work accordingly.
Having commissioned the pre-trial investigation officers to conduct pre-trial investigation or individual investigative acts, the prosecutor is obliged to ensure that his commands are properly executed. The prosecutor may achieve this objective by supervising and controlling the work of pre-trial investigation officers. This controlling power is derived from the constitutional functions allocated to prosecutors, that is, organisation of pre-trial investigation and supervision thereof. The prosecutor must not only decide who is to conduct the pre-trial investigation, and decide upon particular pre-trial investigation acts that ought to be performed, but should remain informed about the way the investigation develops and about the outcome of the pre-trial investigation.
All instructions (both written and verbal), given by a prosecutor to the pre-trial investigation officers during a pre-trial investigation with regard to carrying it out, are binding. Appeal against such instructions or grounds for refusing to execute them are not even provided for by law. The pre-trial investigation officer, when disagreeing with the prosecutor’s instructions, may address the chief of the pre-trial investigation institution or a superior prose-cutor on this issue and indicate the problems arising from his relations with the prosecutor.
The independent role of the investigator, which had been established in the old CCP, is no longer reflected in the new CCP. According to the latter, the prosecutor shall be held liable for making all decisions of importance during the pre-trial investigation stage; therefore, the pre-trial investigation officers may autonomously perform their procedural acts only insofar as the prosecutor who supervises the pre-trial investigation permits.
The relations of the prosecutor with the pre-trial investigation institutions are very much dependent upon the criminal act which is under pre-trial investigation. In standard cases, when less serious offences are being investigated, the prosecutorial supervision of the pre-trial investigation, as well as the supervision of the acts carried out during the said investigation, may be less intensive. In complicated cases, the prosecutor is obliged to closely observe the development of the pre-trial investigation, to examine how every important act of pre-trial investigation is carried out, and to check the outcome.
The prosecutor is entitled to annul any decision made by a pre-trial investigation officer during the pre-trial investigation, or to give binding instructions to the pre-trial investigation officer with regard to rendering a legitimate and grounded decision.
Investigation techniques
The Law on Operational Activity determines that the police may independently perform specific acts established by law such as use of informants, infiltration, and so forth. In order to perform these acts of operational activity, no assent or approval by the prosecutor is needed. However, secret entry into residential and non-residential premises, interference in vehicles and their inspection, temporary seizure of documents and inspection thereof, seizure of the samples of materials, raw materials, production, or of other objects, for the purposes of inspection without announcing about the seizure, secret monitoring of postal consignments, remittances, and postal documents, use of technical means following a special procedure, and obtaining information from the telecommunications operators and the providers of telecommunication services must be authorised. This should be done by the presiding judges of the regional courts or by the chairmen of the criminal cases divisions of the said courts, under the reasoned motions made by the Prosecutor General or a Deputy Prosecutor General commissioned by him, or by the chief regional prosecutors or deputy chief regional prosecutors commissioned by them, and prepared on the basis of the data submitted by the chiefs of the operational activity or deputy chiefs commissioned by them.
While investigating minor, serious, or very serious crimes, the pre-trial investigation officers, upon the authorisation of the court, may use a mode of conduct simulating a criminal act. Only the prosecutor may apply to the pre-trial judge for issuing an appropriate order.
In the course of pre-trial investigation, the competence to perform proce-dural acts or decide upon the method of their implementation is shared by the pre-trial investigation officer, the prosecutor and the pre-trial judges. The pre-trial investigation officers may perform particular procedural acts at their discretion, whereas other procedural acts may be performed only after authorisation (i.e. decision concerning the performance of the said act) of the prosecutor or the pre-trial judge. The pre-trial investigation officer may in-dependently, without special authorisation, summon to questionings, question witnesses, the victims, or the suspects, arrange identification parades. He may also apply the following procedural measures of constraint: bringing in a person, provisional arrest and invasive body search. He also has a right to take samples from the person for comparative analysis, take photographs, film, measure the suspect, and take his fingerprints for dactylographic analysis. In order to apply procedural measures of constraint, an authorisation of the pre-trial judge is needed. Only the prosecutor may apply to the court with a request to impose the following measures of constraint upon the suspect: house arrest, arrest, and the obligation to live separately from the victim. He may also request a court order to carry out search, seizure, seizure of postal consignments, and monitoring and recording of the information passed through the telecommunication networks.
The Relation between the Public Prosecutor and the Police
On May 1, 2003, the new Code of Criminal Procedure (hereafter referred to as CCP) came into operation, bringing back the number of institutions obliged to initiate criminal prosecution and to solve a crime. Previous to that, whenever there were indications that an offence had taken place, the court, the prosecutor, the investigator and the interrogation body were all obliged to institute a case within the limits of their competence, to take all measures provided for by law to establish the event of the offence, to identify the persons guilty of committing an offence, and to have them punished. Thus, these institutions investigated particular offences within the limits of their competences and they all were held equally liable for a properly conducted investigation.
At present, sect. 2 CCP prescribes that the prosecutor and the pre-trial investigation institution investigate criminal acts. That is, whenever elements of a criminal act are reported, the prosecutor and the institutions of pre-trial investigation must, within the limits of their competence, take all measures provided by the law so that an investigation is conducted and the commission of a criminal act be established within the shortest time possible. None of these institutions have been granted the right to set priorities as to the initiation of investigation of criminal acts.
Having assessed the duties of the prosecutor and the pre-trial investigation institution officer as specified by CCP, in his Guidelines for the prosecutor’s activities while organising and supervising the pre-trial investigation, the Prosecutor General pointed out that both the prosecutor who organises and supervises the pre-trial investigation, and the pre-trial investigation institution shall be held liable for the results of pre-trial investigation.
Pre-trial investigation institutions
The following pre-trial investigation institutions are currently to be identified: police, national border security service, special investigation service, military police, national security department, financial crimes investigation service, customs department, fire security and rescue department. They investigate criminal acts in the course of their direct duties determined by the laws regulating their activities. The prosecutor is not obliged to commission the pre-trial investigation institutions to investigate crimes pursuant to the guidelines relating to their competencies. However, if, in the opinion of the prosecutor, it is beneficial to make use of investigating power of a pre-trial investigation institution which is not usually attributed to that particular institution, he may commission such institution to act.
The prosecutor is entitled to conduct the whole pre-trial investigation or separate acts thereof himself. If the pre-trial investigation is conducted by a pre-trial investigation institution officer, the prosecutor who supervises and presides over him may conduct separate acts of investigation himself. In such case, the pre-trial investigation officer and the prosecutor professionally interact. For an investigation to be conducted effectively, it ought to be accepted that the pre-trial investigation officer is not just a procedural tool of the prosecutor, but rather an independent officer with a challenging mission. The more freedom a pre-trial investigation officer enjoys (without violating the limits of professional competence), the more responsibility for the performance of individual acts, as well as for the results of the full investigation, he has to take on. The pre-trial investigation officer suggests alternative paths of investigation and prepares the plan for the investigation into a criminal act, and outlines the timing, tactics, and so forth with respect to the performance of investigative acts. On the other hand, the prosecutor may adjust the investigation plan and instruct the officer who is actively engaged in the work accordingly.
Having commissioned the pre-trial investigation officers to conduct pre-trial investigation or individual investigative acts, the prosecutor is obliged to ensure that his commands are properly executed. The prosecutor may achieve this objective by supervising and controlling the work of pre-trial investigation officers. This controlling power is derived from the constitutional functions allocated to prosecutors, that is, organisation of pre-trial investigation and supervision thereof. The prosecutor must not only decide who is to conduct the pre-trial investigation, and decide upon particular pre-trial investigation acts that ought to be performed, but should remain informed about the way the investigation develops and about the outcome of the pre-trial investigation.
All instructions (both written and verbal), given by a prosecutor to the pre-trial investigation officers during a pre-trial investigation with regard to carrying it out, are binding. Appeal against such instructions or grounds for refusing to execute them are not even provided for by law. The pre-trial investigation officer, when disagreeing with the prosecutor’s instructions, may address the chief of the pre-trial investigation institution or a superior prose-cutor on this issue and indicate the problems arising from his relations with the prosecutor.
The independent role of the investigator, which had been established in the old CCP, is no longer reflected in the new CCP. According to the latter, the prosecutor shall be held liable for making all decisions of importance during the pre-trial investigation stage; therefore, the pre-trial investigation officers may autonomously perform their procedural acts only insofar as the prosecutor who supervises the pre-trial investigation permits.
The relations of the prosecutor with the pre-trial investigation institutions are very much dependent upon the criminal act which is under pre-trial investigation. In standard cases, when less serious offences are being investigated, the prosecutorial supervision of the pre-trial investigation, as well as the supervision of the acts carried out during the said investigation, may be less intensive. In complicated cases, the prosecutor is obliged to closely observe the development of the pre-trial investigation, to examine how every important act of pre-trial investigation is carried out, and to check the outcome.
The prosecutor is entitled to annul any decision made by a pre-trial investigation officer during the pre-trial investigation, or to give binding instructions to the pre-trial investigation officer with regard to rendering a legitimate and grounded decision.
Investigation techniques
The Law on Operational Activity determines that the police may independently perform specific acts established by law such as use of informants, infiltration, and so forth. In order to perform these acts of operational activity, no assent or approval by the prosecutor is needed. However, secret entry into residential and non-residential premises, interference in vehicles and their inspection, temporary seizure of documents and inspection thereof, seizure of the samples of materials, raw materials, production, or of other objects, for the purposes of inspection without announcing about the seizure, secret monitoring of postal consignments, remittances, and postal documents, use of technical means following a special procedure, and obtaining information from the telecommunications operators and the providers of telecommunication services must be authorised. This should be done by the presiding judges of the regional courts or by the chairmen of the criminal cases divisions of the said courts, under the reasoned motions made by the Prosecutor General or a Deputy Prosecutor General commissioned by him, or by the chief regional prosecutors or deputy chief regional prosecutors commissioned by them, and prepared on the basis of the data submitted by the chiefs of the operational activity or deputy chiefs commissioned by them.
While investigating minor, serious, or very serious crimes, the pre-trial investigation officers, upon the authorisation of the court, may use a mode of conduct simulating a criminal act. Only the prosecutor may apply to the pre-trial judge for issuing an appropriate order.
In the course of pre-trial investigation, the competence to perform proce-dural acts or decide upon the method of their implementation is shared by the pre-trial investigation officer, the prosecutor and the pre-trial judges. The pre-trial investigation officers may perform particular procedural acts at their discretion, whereas other procedural acts may be performed only after authorisation (i.e. decision concerning the performance of the said act) of the prosecutor or the pre-trial judge. The pre-trial investigation officer may in-dependently, without special authorisation, summon to questionings, question witnesses, the victims, or the suspects, arrange identification parades. He may also apply the following procedural measures of constraint: bringing in a person, provisional arrest and invasive body search. He also has a right to take samples from the person for comparative analysis, take photographs, film, measure the suspect, and take his fingerprints for dactylographic analysis. In order to apply procedural measures of constraint, an authorisation of the pre-trial judge is needed. Only the prosecutor may apply to the court with a request to impose the following measures of constraint upon the suspect: house arrest, arrest, and the obligation to live separately from the victim. He may also request a court order to carry out search, seizure, seizure of postal consignments, and monitoring and recording of the information passed through the telecommunication networks.
