The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
In its first book, entitled the exercise of criminal prosecution and the taking of evidence, the CCP distinguishes three authorities. In its first instruction relating to the authorities responsible for criminal prosecution and the taking of evidence it describes the activities of the criminal investigation department (chapter I), the prosecution service (chapter II) and the investigating judge (chapter III). It is useful to introduce these three authorities provided for by the CCP here.
The criminal investigation department
The term criminal investigation department applies to both a legal office or task within the framework of the investigation and to a group of people vested with these tasks. In its functioning the criminal investigation department (C.I.D.) differs from the administrative police. First of all, the CCP chapter on the C.I.D. states that it is a department under the supervision of the state prosecutor (Sect. 9 CCP), which highlights the functional pre-eminence of the prosecution service over the police force in criminal investigation. The text of the CCP subsequently gives detailed provisions on the formation of the C.I.D. The law distinguishes between different categories of civil servants allocated criminal investigation tasks, criminal investigation officers with full police powers, criminal investigation officials bestowed with less, but still considerable, powers and various civil servants and officials who have been given a limited number of criminal investigation tasks. It should be noted that not only officers of the Grand Duchy police force and the general police inspection have the status of criminal investigation officers and officials, but also customs officials and certain officials from various ministries, such as health inspection, veterinary inspection, forest management have the status of criminal investigation officers in relation to certain types of offences.
The CCP also specifies the duties of the C.I.D. and its submission to the prosecution service, a fundamental point in the light of this report. The general task assigned to the C.I.D. consists of ‘reporting breaches of the criminal law, gathering evidence and finding the offenders’ (Sect. 9 CCP).
Concerning the role of the C.I.D. in the investigation process, a fundamental distinction should be made between an open or not open investigation, that is to say whether the case has been referred by the investigating judge, or not.
If the case has been referred by the investigating judge, the C.I.D. carries out the orders of the investigating judge and obeys instructions. In other words, the C.I.D.'s role is limited to carrying out investigative acts which have been set down in the exercise of the legal task of, in the name of, or under the supervision of, the investigating judge.
When an investigation is not open, the C.I.D., in the form of criminal investigation officers with full police powers, receives complaints and denunciations and carries out what the CCP describes as a preliminary investigation (Sect. 11 CCP). Again an important distinction must be made as regards the preliminary investigation by picking out two possible scenarios. Criminal investigation officers and officials have the right to automatically carry out preliminary investigations, in concrete terms, before having informed the state prosecutor. However, they are bound to inform the state prosecutor without delay of any crimes, offences or infringements which they are aware of (Sect. 12 CCP). Once the state prosecutor has been informed, criminal investigation officers and officials carry out the preliminary investigation exclusively under his instructions and his authority.
During all acts in the exercise of their duties, members of the C.I.D. are subject to the supervision of the state public prosecutor (Sect. 13 CCP). The CCP institutes special proceedings through which the state public prosecutor supervises, inspects and sanctions the criminal investigation officer in the event of a breach of his duties and obligations or has him brought before the court (Sect. 15-2 ff. CCP).
It should be noted that in the event of a blatant crime or offence (being caught in the act), the criminal investigation officer uses important prerogatives as regards the investigation. However, the arrival of the state public prosecutor on the scene removes the jurisdiction of the criminal investigation officer. The presence of the investigating judge, in turn, removes the jurisdiction of the state public prosecutor (Sects. 31, 41 and 42 CCP).
The law of May 31, 1999, which established a Grand Duchy police force and a general police inspection, confirms the distinction to be made between the duties of the administrative police and the tasks of the criminal investigation department. The tasks which are a matter for the C.I.D. are set out in great detail. The law also refers to orders addressed to the police by the authorities provided for by law, without, however, explicitly citing these legal authorities (Sect. 49 Grand Duchy Police). Likewise, the text does not explicitly refer to the CCP for determining the competencies of criminal investigation officers, the attributions of the state prosecutor in the preliminary investigation, of the investigating judge in the cross-examination, or the powers of inspection exercised by the public prosecutor over the criminal investigation officers. The law provides that, if a member of the police is suspected of having committed a criminal offence, the legal authorities may charge the general police inspection to carry out an investigation (Sect. 76 Grand Duchy Police Act).
On reading this law, gaps can be identified, due to the lack of a clear reference to the CCP, leaving an apparent autonomy to the police in carrying out of criminal investigations from which it does not benefit. The law of 1999 should not, however, be interpreted as questioning the fundamental rules of the CCP on the division of competencies between the police and the bodies of the judiciary. It should be noted, in this respect, that there is a bill in the process of adoption, through the addition of a specific provision in the CCP. This bill will allow the state prosecutor, in the framework of the preliminary investigation, and the investigating judge, in the cross-examination investigation, to fix the period within which the criminal investigation officers and officials may carry out operations for which they have been made responsible (Bill no. 5156).
The prosecution service
The first legal task of the prosecution service is not to lead criminal investigations but to carry out criminal prosecution and to call for the application of the law (Sects. 1 and 16 CCP). The competencies as regards the investigation constitute, however, an indispensable prerequisite for criminal prosecution.
As regards the structure of the prosecution service, a distinction is to be made between the state public prosecutor and the state prosecutors who exercise their competence in the regional jurisdiction of each of the two districts in Luxembourg.
The task of the state public prosecutor is to ensure the application of criminal law in the whole of the territory. He exercises authority over all officials of the prosecution service and may charge them to take legal action or to refer written requisitions to the competent jurisdiction in a particular case (Sect. 20 CCP). He supervises criminal investigation officers and officials in the same way. He may charge them with gathering any information which he considers useful for the good administration of justice (Sect. 21 CCP). The state prosecutor must regularly send the public prosecutor a case report (Sect. 18 CCP). Subject to these concrete attributions, which are part of the public prosecutor’s task of ensuring observation of the law through the application of justice, the public prosecutor does not get involved in individual criminal cases. He does not have the attributions of a criminal investigation officer and does not have the judicial authority to be in charge of the criminal investigation by criminal investigation officers and officials. The public prosecutor does not represent the prosecution service in cases which have been referred to the investigating judge. Members of the public prosecutor’s department do, however, file submissions in actions for annulment of pre-trial investigations or in appeals against orders of the investigating judge or the council chamber of the court brought before the council chamber of the court of appeal.
The prerogative of leading a criminal investigation, described as a preliminary investigation, belongs to the state prosecutor who carries out or has carried out all the acts needed to investigate … the offences (Sect. 24 CCP). The state prosecutor also has the power to refer a case to the investigating judge for the purposes of opening an investigation and has to get involved, as the prosecuting party, in the cross-examination procedure. He directs the criminal investigation officers who carry out the preliminary investigation on his instructions and has available all the prerogatives attached to the status of criminal investigation officer (Sects. 24 and 46 CCP). In the event of a blatant crime or offence, the state prosecutor, once he has arrived on the scene, carries out all the criminal investigation acts, so long as he is not declined jurisdiction by the presence of the investigating judge (Sect. 41 CCP).
The investigating judge
As already shown in the introduction, the penal system in Luxembourg is characterised by the institution of the investigating judge invested by the CCP with a major role in gathering evidence of an offence and of the offenders.
The investigating judge is a judge from the district court. As such, he benefits from constitutional guarantees of independence which characterise judges (Sect. 91 Constitution). In a logic of impartiality, the investigating judge carries out an investigation to incriminate and exculpate the accused (Sect. 51 CCP).
a.
The relationship between the investigating judge, the main leader of the investigation and the prosecution service, authority of legal action, may schematically be shown as follows: The investigating judge cannot refer a case to himself and can only investigate by virtue of a brief from the state prosecutor, even in the event of a blatant crime or offence (Sects. 28 and 50 CCP). However, it should be noted that the individual who claims to be the victim of an offence may set prosecution proceedings in motion by filing an action instituted by a private person for damages before the competent investigating judge (Sects. 56 and 57 CCP). Referral of a case to the investigating judge is compulsory for crimes; it is optional for offences (Sect. 49 CCP). Referral of the defendant before the chamber for offences (chambre correctionnelle) of the district court for occurrences qualified as crimes, without prior investigation, is possible if the council chamber of the district court carries out, on the charge of the state prosecutor, ‘decriminalisation’ or ‘correctionalisation’ of criminal acts through the application of extenuating circumstances (Sect. 132 CCP). It should be noted that the leading investigating judge may be asked to decline jurisdiction in favour of another judge, in the interest of good administration of justice, in response to a reasoned request of the state prosecutor, acting either spontaneously or on the request of the accused or private party (Sect. 55 CCP).
Criminal acts are referred to the investigating judge (traditionally known as a referral in rem et non in personam). Briefs against a named individual or against an unknown person may be referred to him; he has the power to charge any person having taken part as an offender or as an accomplice, in the acts which have been referred to him (Sect. 50 CCP).
In accordance with the law, the investigating judge, as leader of the investigation, carries out any investigative acts which he considers useful to reveal the truth (Sect. 51 CCP). This includes visits to the scene of a crime, searches, seizures, hearing of witnesses, questioning and confrontations, expert opinions, and special surveillance measures involving all means of communication. He may issue a summons to appear in court against the accused, a warrant for arrest or committal order, i.e. remand in custody (Sects. 63-112 CCP).
In the same way, he has the right to issue international rogatory letters on the basis of relevant provisions of texts on international penal co-operation.
In principle, in cross-examination proceedings, the prosecution service, represented by the state prosecutor, is party to the proceedings in the same way as the accused or possible private parties. However, this assertion must be qualified in that the prosecution service enjoys certain prerogatives which are unavailable to private parties. This includes the right to make representations in private actions for damages, the right to request that the investigating judge be denied jurisdiction, the right to be present during questioning and confrontations, the right to require from the investigating judge any acts which may appear useful in revealing the truth, and to be informed of the proceedings for this purpose, the general right to appeal against the orders of the investigating judge and the council chamber (Sect. 53 CCP).
b.
As regards the relationship between the investigating judge and the C.I.D., the following points are relevant. Except for questioning the accused, the investigating judge may issue rogatory letters to criminal investigation officers in order to empower them to carry out any necessary investigative acts (Sect. 52 CCP). As regards these acts, the criminal investigation officers act on behalf of the investigating judge, whose orders they carry out. Moreover, during fulfilment of their task, they fall under the supervision and inspection of the state public prosecutor.
Acts in the context of the pre-trial investigation of the investigating judge may be subject to an action for annulment before the council chamber for the district court (Sect. 126 CCP). This also applies to adoption of a regulation order, i.e. to rule on the referral of the accused before the criminal judge when the investigation is over (Sect. 127 CCP). The orders of the investigating judge and the council chamber of the district court may be subject to an appeal before the council chamber of the court of appeal (Sect. 133 CCP).
The Relation between the Public Prosecutor and the Police
In its first book, entitled the exercise of criminal prosecution and the taking of evidence, the CCP distinguishes three authorities. In its first instruction relating to the authorities responsible for criminal prosecution and the taking of evidence it describes the activities of the criminal investigation department (chapter I), the prosecution service (chapter II) and the investigating judge (chapter III). It is useful to introduce these three authorities provided for by the CCP here.
The criminal investigation department
The term criminal investigation department applies to both a legal office or task within the framework of the investigation and to a group of people vested with these tasks. In its functioning the criminal investigation department (C.I.D.) differs from the administrative police. First of all, the CCP chapter on the C.I.D. states that it is a department under the supervision of the state prosecutor (Sect. 9 CCP), which highlights the functional pre-eminence of the prosecution service over the police force in criminal investigation. The text of the CCP subsequently gives detailed provisions on the formation of the C.I.D. The law distinguishes between different categories of civil servants allocated criminal investigation tasks, criminal investigation officers with full police powers, criminal investigation officials bestowed with less, but still considerable, powers and various civil servants and officials who have been given a limited number of criminal investigation tasks. It should be noted that not only officers of the Grand Duchy police force and the general police inspection have the status of criminal investigation officers and officials, but also customs officials and certain officials from various ministries, such as health inspection, veterinary inspection, forest management have the status of criminal investigation officers in relation to certain types of offences.
The CCP also specifies the duties of the C.I.D. and its submission to the prosecution service, a fundamental point in the light of this report. The general task assigned to the C.I.D. consists of ‘reporting breaches of the criminal law, gathering evidence and finding the offenders’ (Sect. 9 CCP).
Concerning the role of the C.I.D. in the investigation process, a fundamental distinction should be made between an open or not open investigation, that is to say whether the case has been referred by the investigating judge, or not.
If the case has been referred by the investigating judge, the C.I.D. carries out the orders of the investigating judge and obeys instructions. In other words, the C.I.D.'s role is limited to carrying out investigative acts which have been set down in the exercise of the legal task of, in the name of, or under the supervision of, the investigating judge.
When an investigation is not open, the C.I.D., in the form of criminal investigation officers with full police powers, receives complaints and denunciations and carries out what the CCP describes as a preliminary investigation (Sect. 11 CCP). Again an important distinction must be made as regards the preliminary investigation by picking out two possible scenarios. Criminal investigation officers and officials have the right to automatically carry out preliminary investigations, in concrete terms, before having informed the state prosecutor. However, they are bound to inform the state prosecutor without delay of any crimes, offences or infringements which they are aware of (Sect. 12 CCP). Once the state prosecutor has been informed, criminal investigation officers and officials carry out the preliminary investigation exclusively under his instructions and his authority.
During all acts in the exercise of their duties, members of the C.I.D. are subject to the supervision of the state public prosecutor (Sect. 13 CCP). The CCP institutes special proceedings through which the state public prosecutor supervises, inspects and sanctions the criminal investigation officer in the event of a breach of his duties and obligations or has him brought before the court (Sect. 15-2 ff. CCP).
It should be noted that in the event of a blatant crime or offence (being caught in the act), the criminal investigation officer uses important prerogatives as regards the investigation. However, the arrival of the state public prosecutor on the scene removes the jurisdiction of the criminal investigation officer. The presence of the investigating judge, in turn, removes the jurisdiction of the state public prosecutor (Sects. 31, 41 and 42 CCP).
The law of May 31, 1999, which established a Grand Duchy police force and a general police inspection, confirms the distinction to be made between the duties of the administrative police and the tasks of the criminal investigation department. The tasks which are a matter for the C.I.D. are set out in great detail. The law also refers to orders addressed to the police by the authorities provided for by law, without, however, explicitly citing these legal authorities (Sect. 49 Grand Duchy Police). Likewise, the text does not explicitly refer to the CCP for determining the competencies of criminal investigation officers, the attributions of the state prosecutor in the preliminary investigation, of the investigating judge in the cross-examination, or the powers of inspection exercised by the public prosecutor over the criminal investigation officers. The law provides that, if a member of the police is suspected of having committed a criminal offence, the legal authorities may charge the general police inspection to carry out an investigation (Sect. 76 Grand Duchy Police Act).
On reading this law, gaps can be identified, due to the lack of a clear reference to the CCP, leaving an apparent autonomy to the police in carrying out of criminal investigations from which it does not benefit. The law of 1999 should not, however, be interpreted as questioning the fundamental rules of the CCP on the division of competencies between the police and the bodies of the judiciary. It should be noted, in this respect, that there is a bill in the process of adoption, through the addition of a specific provision in the CCP. This bill will allow the state prosecutor, in the framework of the preliminary investigation, and the investigating judge, in the cross-examination investigation, to fix the period within which the criminal investigation officers and officials may carry out operations for which they have been made responsible (Bill no. 5156).
The prosecution service
The first legal task of the prosecution service is not to lead criminal investigations but to carry out criminal prosecution and to call for the application of the law (Sects. 1 and 16 CCP). The competencies as regards the investigation constitute, however, an indispensable prerequisite for criminal prosecution.
As regards the structure of the prosecution service, a distinction is to be made between the state public prosecutor and the state prosecutors who exercise their competence in the regional jurisdiction of each of the two districts in Luxembourg.
The task of the state public prosecutor is to ensure the application of criminal law in the whole of the territory. He exercises authority over all officials of the prosecution service and may charge them to take legal action or to refer written requisitions to the competent jurisdiction in a particular case (Sect. 20 CCP). He supervises criminal investigation officers and officials in the same way. He may charge them with gathering any information which he considers useful for the good administration of justice (Sect. 21 CCP). The state prosecutor must regularly send the public prosecutor a case report (Sect. 18 CCP). Subject to these concrete attributions, which are part of the public prosecutor’s task of ensuring observation of the law through the application of justice, the public prosecutor does not get involved in individual criminal cases. He does not have the attributions of a criminal investigation officer and does not have the judicial authority to be in charge of the criminal investigation by criminal investigation officers and officials. The public prosecutor does not represent the prosecution service in cases which have been referred to the investigating judge. Members of the public prosecutor’s department do, however, file submissions in actions for annulment of pre-trial investigations or in appeals against orders of the investigating judge or the council chamber of the court brought before the council chamber of the court of appeal.
The prerogative of leading a criminal investigation, described as a preliminary investigation, belongs to the state prosecutor who carries out or has carried out all the acts needed to investigate … the offences (Sect. 24 CCP). The state prosecutor also has the power to refer a case to the investigating judge for the purposes of opening an investigation and has to get involved, as the prosecuting party, in the cross-examination procedure. He directs the criminal investigation officers who carry out the preliminary investigation on his instructions and has available all the prerogatives attached to the status of criminal investigation officer (Sects. 24 and 46 CCP). In the event of a blatant crime or offence, the state prosecutor, once he has arrived on the scene, carries out all the criminal investigation acts, so long as he is not declined jurisdiction by the presence of the investigating judge (Sect. 41 CCP).
The investigating judge
As already shown in the introduction, the penal system in Luxembourg is characterised by the institution of the investigating judge invested by the CCP with a major role in gathering evidence of an offence and of the offenders.
The investigating judge is a judge from the district court. As such, he benefits from constitutional guarantees of independence which characterise judges (Sect. 91 Constitution). In a logic of impartiality, the investigating judge carries out an investigation to incriminate and exculpate the accused (Sect. 51 CCP).
a.
The relationship between the investigating judge, the main leader of the investigation and the prosecution service, authority of legal action, may schematically be shown as follows: The investigating judge cannot refer a case to himself and can only investigate by virtue of a brief from the state prosecutor, even in the event of a blatant crime or offence (Sects. 28 and 50 CCP). However, it should be noted that the individual who claims to be the victim of an offence may set prosecution proceedings in motion by filing an action instituted by a private person for damages before the competent investigating judge (Sects. 56 and 57 CCP). Referral of a case to the investigating judge is compulsory for crimes; it is optional for offences (Sect. 49 CCP). Referral of the defendant before the chamber for offences (chambre correctionnelle) of the district court for occurrences qualified as crimes, without prior investigation, is possible if the council chamber of the district court carries out, on the charge of the state prosecutor, ‘decriminalisation’ or ‘correctionalisation’ of criminal acts through the application of extenuating circumstances (Sect. 132 CCP). It should be noted that the leading investigating judge may be asked to decline jurisdiction in favour of another judge, in the interest of good administration of justice, in response to a reasoned request of the state prosecutor, acting either spontaneously or on the request of the accused or private party (Sect. 55 CCP).
Criminal acts are referred to the investigating judge (traditionally known as a referral in rem et non in personam). Briefs against a named individual or against an unknown person may be referred to him; he has the power to charge any person having taken part as an offender or as an accomplice, in the acts which have been referred to him (Sect. 50 CCP).
In accordance with the law, the investigating judge, as leader of the investigation, carries out any investigative acts which he considers useful to reveal the truth (Sect. 51 CCP). This includes visits to the scene of a crime, searches, seizures, hearing of witnesses, questioning and confrontations, expert opinions, and special surveillance measures involving all means of communication. He may issue a summons to appear in court against the accused, a warrant for arrest or committal order, i.e. remand in custody (Sects. 63-112 CCP).
In the same way, he has the right to issue international rogatory letters on the basis of relevant provisions of texts on international penal co-operation.
In principle, in cross-examination proceedings, the prosecution service, represented by the state prosecutor, is party to the proceedings in the same way as the accused or possible private parties. However, this assertion must be qualified in that the prosecution service enjoys certain prerogatives which are unavailable to private parties. This includes the right to make representations in private actions for damages, the right to request that the investigating judge be denied jurisdiction, the right to be present during questioning and confrontations, the right to require from the investigating judge any acts which may appear useful in revealing the truth, and to be informed of the proceedings for this purpose, the general right to appeal against the orders of the investigating judge and the council chamber (Sect. 53 CCP).
b.
As regards the relationship between the investigating judge and the C.I.D., the following points are relevant. Except for questioning the accused, the investigating judge may issue rogatory letters to criminal investigation officers in order to empower them to carry out any necessary investigative acts (Sect. 52 CCP). As regards these acts, the criminal investigation officers act on behalf of the investigating judge, whose orders they carry out. Moreover, during fulfilment of their task, they fall under the supervision and inspection of the state public prosecutor.
Acts in the context of the pre-trial investigation of the investigating judge may be subject to an action for annulment before the council chamber for the district court (Sect. 126 CCP). This also applies to adoption of a regulation order, i.e. to rule on the referral of the accused before the criminal judge when the investigation is over (Sect. 127 CCP). The orders of the investigating judge and the council chamber of the district court may be subject to an appeal before the council chamber of the court of appeal (Sect. 133 CCP).
