Introduction
Introduction
In the Grand Duchy of Luxembourg, questions relating to status and duties of the prosecution service in relation to the judiciary, the police and the executive power are governed by a series of legal texts, the most important of which is the Code of Criminal Procedure (hereinafter: CCP). The CCP dates from November 17, 1808 and was promulgated by Napoleon I on December 9, 1808, when Luxembourg formed the French department called ‘des Forêts’. Together with other Napoleonic Codes this law was preserved after the fall of the empire and the subsequent creation of the Grand Duchy of Luxembourg as an independent state by the Final Act of the Congress of Vienna in 1815.
The CCP experienced its first major reform more than a century after it came into force, with the law on cross-examination dating November 19, 1929, which was considered very liberal at the time. Since then, more than 20 amending laws have been passed. Of these, the Act of June 17, 1987, abolishing the jury and modifying competence and procedure in investigating and trying infractions, and the Act of June 16, 1989 modifying the first book of the CCP are of great importance. Even if these laws have not affected the status of the prosecution service, they have specified its competencies and modernised the terminology used. A series of proposals for the amendment of certain provisions of the CCP is in the process of being drawn up.
Apart from the CCP, there is good reason to take the other laws into account, such as the law of March 7, 1980 on judicial organisation, as well as the law of May 31, 1999 establishing a Grand Duchy police force and a general police inspection.
The present national report emphasises the relationship between the prosecution service and the police on the one hand, and the prosecution service and political powers on the other hand. It should be stated straightaway that, following the example of Belgian and French systems, the legal order in Luxembourg is characterised by a tripartite distribution of power. In the management of criminal investigation and prosecution, there is a tripartite distribution of power among three authorities which each take on very specific tasks: the public prosecutor, the investigating judge and the police.
It is indispensable to consider the role of the investigating judge and to take the procedure called cross-examination into account. In this procedure, an independent investigating judge investigates the case for incriminating and exculpating the accused (Sect. 51 subs. 1 CCP). The parties to this procedure, the prosecution service as the prosecuting party, the accused as the defending party and the victims who form the plaintiffs, have the right to become actively involved. They do so by requesting certain investigations or by disputing these investigations before the council chamber of the district court and, in appeal proceedings, the council chamber of the appeal court.
The role of the police, and of the criminal investigation department in particular, differs depending on whether the police intervenes, or may intervene, on its own initiative or acts under the authority of the state prosecutor or on the basis of the rogatory letters of the investigating judge. Consequently, we should not be restricted to the relationship between the police and the prosecution service here, but should bear in mind the triangular relationship between the police, the prosecution service and the investigating judge. In this respect, the successive stages an investigation normally goes through must be distinguished.
In the Grand Duchy of Luxembourg, questions relating to status and duties of the prosecution service in relation to the judiciary, the police and the executive power are governed by a series of legal texts, the most important of which is the Code of Criminal Procedure (hereinafter: CCP). The CCP dates from November 17, 1808 and was promulgated by Napoleon I on December 9, 1808, when Luxembourg formed the French department called ‘des Forêts’. Together with other Napoleonic Codes this law was preserved after the fall of the empire and the subsequent creation of the Grand Duchy of Luxembourg as an independent state by the Final Act of the Congress of Vienna in 1815.
The CCP experienced its first major reform more than a century after it came into force, with the law on cross-examination dating November 19, 1929, which was considered very liberal at the time. Since then, more than 20 amending laws have been passed. Of these, the Act of June 17, 1987, abolishing the jury and modifying competence and procedure in investigating and trying infractions, and the Act of June 16, 1989 modifying the first book of the CCP are of great importance. Even if these laws have not affected the status of the prosecution service, they have specified its competencies and modernised the terminology used. A series of proposals for the amendment of certain provisions of the CCP is in the process of being drawn up.
Apart from the CCP, there is good reason to take the other laws into account, such as the law of March 7, 1980 on judicial organisation, as well as the law of May 31, 1999 establishing a Grand Duchy police force and a general police inspection.
The present national report emphasises the relationship between the prosecution service and the police on the one hand, and the prosecution service and political powers on the other hand. It should be stated straightaway that, following the example of Belgian and French systems, the legal order in Luxembourg is characterised by a tripartite distribution of power. In the management of criminal investigation and prosecution, there is a tripartite distribution of power among three authorities which each take on very specific tasks: the public prosecutor, the investigating judge and the police.
It is indispensable to consider the role of the investigating judge and to take the procedure called cross-examination into account. In this procedure, an independent investigating judge investigates the case for incriminating and exculpating the accused (Sect. 51 subs. 1 CCP). The parties to this procedure, the prosecution service as the prosecuting party, the accused as the defending party and the victims who form the plaintiffs, have the right to become actively involved. They do so by requesting certain investigations or by disputing these investigations before the council chamber of the district court and, in appeal proceedings, the council chamber of the appeal court.
The role of the police, and of the criminal investigation department in particular, differs depending on whether the police intervenes, or may intervene, on its own initiative or acts under the authority of the state prosecutor or on the basis of the rogatory letters of the investigating judge. Consequently, we should not be restricted to the relationship between the police and the prosecution service here, but should bear in mind the triangular relationship between the police, the prosecution service and the investigating judge. In this respect, the successive stages an investigation normally goes through must be distinguished.
