The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
Organisation of the police
The formal organisation of the police force is laid down in the 1993 Police Act. Prior to this Act, the police force was divided into a national police force and 148 municipal police forces. The 1993 Police Act reformed the organisation and main structures of the police service. The main reason was the need to increase efficiency and effectiveness in the fight against supra-local, national and international (organised) crime.
The country is divided into 25 police regions. Each region has its own police force under the administrative management of the mayor of the largest or most central town in the region; the other mayors or burgomasters in the region participate in a supervisory council, which has very limited powers, however. The regular police force has 48,000 employees, of whom 33,000 are executive police officers, vested with the right to investigate criminal offences.
Besides the regional police forces, a national police force exists. This force consists of various units such as the motorway police, the water police, the railway police and the department of criminal investigations. (Divisie Recherche) This department is responsible for international police cooperation as well as for the international exchange of police information, and maintaining contact with Dutch liaison officers abroad and foreign liaison officers in the Netherlands. The national crime squad (Landelijk Recherche Team, LRT) forms part of this department. The regional police forces and the national police force act under the ultimate supervision of the Minister of Interior.
The regional criminal investigation service (regionale recherche dienst) forms part of the regional police force but has a separate position within it. The criminal investigation service includes specialised units, such as the criminal intelligence unit, and has around 8,000 investigation officers.
The main task of the criminal investigation police is to investigate criminal offences, either on their own initiative or in response to tip-offs from the public. Owing to the high number of criminal offences, most police time is spent processing information. As a result, the police forces in regions with major cities are often not in a position to devote sufficient time to traditional investigations. The clear up rate of registered crimes gradually went up to around 18% today.
Tasks of the police force
The task of the police force (Sect. 2 Police Act) is to enforce the legal order, and to assist those who need help. The enforcement of the legal order comprises the enforcement of criminal law, the enforcement of public order and the performance of judicial services.
When enforcing public order, the police operate under the authority of the mayor who can issue instructions in this respect.
When enforcing criminal law and performing judicial services, the police act under the authority of the prosecution service. The enforcement of criminal law comprises the effective prevention, termination and investigation of criminal offences. The prosecution service can give instructions to the police for the enforcement of criminal law.
A police officer has jurisdiction ratione loci in the whole of the Dutch territory, but as a rule he will restrict his actions to the region where he is employed. In order to carry out judicial services all senior police officers have the capacity of auxiliary to the public prosecutor (hulpofficier van justitie). In this capacity, they may carry out some tasks on behalf of the public prosecutor.
There is no sharp division between the enforcement of public order and the enforcement of criminal law, so it is not always clear under whose authority the police act. Therefore, the mayor who has the administrative management of the regional police force (korpsbeheerder) regularly meets with the head of the regional police force and the (deputy) chief of the regional prosecution service (the so-called tripartite consultation) to discuss issues such as the input of the police force to fight local crime and improve local safety.
Powers of the police force
In relation to the task to detect and investigate criminal offences, the police are vested with specific statutory powers such as arrest, police custody and seizure. Some powers may only be exercised by senior police officers who have been designated as auxiliary to the public prosecutor (hulpofficier van justitie). An auxiliary is not a member of the prosecution service, nor vested with the powers of a public prosecutor. However, he is vested with the power to use coercive measures, such as search and police custody.
The police may use force in the exercise of their police tasks. Furthermore, police may carry out a body search if safety reasons so require.
On the basis of the Police Act the police have the power to perform limited invasions of someone's privacy by means of surveillance or taking pictures of persons in public.
Supervision over the police
The prosecution service is ultimately responsible for the criminal investigation. Public prosecutors have to ensure that the police observe all statutory rules and procedures.
Formally, the public prosecutor is the senior investigator (Sects. 148 CCP and 13 Police Act). In practice, however, the police deal with most cases without prior consultation with the public prosecutor except in more important criminal cases where the latter may give detailed instructions. Otherwise, consultation takes place on a more abstract level, in order to determine the policy for the investigation of certain kinds of crime and for the use of special investigation methods (undercover agents, infiltrators etc.). This is due to the limited strength of the prosecution service, as well as the recognition that, with regard to investigative techniques and tactics, the police possess more expertise than the prosecution service.
There is also consultation in specific cases where police officers require the approval or co-operation of the public prosecutor or the examining magistrate for the use of certain means of coercion.
Until recently, the prosecution service did not perform its supervisory role over the police properly. The police enjoyed too much autonomy in their investigative activities, in particular in the fight against organised crime.
The 1996 report by the Parliamentary Inquiry Committee on Police Investigation made clear that the police used illegitimate undercover policing methods extensively. In using those methods, the golden rule: ‘no competence without responsibility, no responsibility without accountability’ was ignored. The main reasons for this were: the lack of legislation and clear rules, the lack of authority and supervision by the prosecution service and the lack of organisation in the police force, fostered by the relative independence of the Criminal Intelligence Units, whose investigation was either sealed off – only to be disclosed by the public prosecutor in court – or remained secret. Due to the conclusion of the Parliamentary Inquiry Committee and the ensuing Parliamentary debate, statutory rules on investigative police methods have been enacted in 2000.
Furthermore, in 1999 a reorganisation of the prosecution service took place in order to improve its supervisory role over the police.
Instructions to the police
Public prosecutors have taken a more active part in investigative work by issuing written or oral instructions to the police on the investigation of specific offences. This is a result of the increasing complexity of cases and the lack of financial resources, which has made it necessary to fix priorities when instituting investigations.
Recently, March 1, 2003, the Board of Prosecutors-General has issued an instruction to the police on how to prioritise or not investigation of crime (State Journal 2003, 41). There are two basic rules in this instruction: the first is, that investigation by the police always shall take place when the offender is known except in trivial cases which did not cause danger, injury or damage. Furthermore, investigation may be given a lower priority when this is explicit policy – e.g. no investigation in a case of domestic violence in order to make voluntary aid possible.
The second basic rule is: the more serious the crime, the more intensive the investigation shall be. In the instruction both basic rules are further elaborated so that police officers can assess more easily what crimes shall be investigated.
Furthermore, the Supreme Court’s rulings on inadmissible evidence have increasingly stressed the importance of public prosecutors, in ascertaining what methods should be employed in the investigation as early as possible.
It follows from the above, that the police are largely responsible for investigating the facts and ascertaining the truth. The majority of criminal offences which come to trial, are prosecuted on the basis of information collected by investigating police officers only.
The Relation between the Public Prosecutor and the Police
Organisation of the police
The formal organisation of the police force is laid down in the 1993 Police Act. Prior to this Act, the police force was divided into a national police force and 148 municipal police forces. The 1993 Police Act reformed the organisation and main structures of the police service. The main reason was the need to increase efficiency and effectiveness in the fight against supra-local, national and international (organised) crime.
The country is divided into 25 police regions. Each region has its own police force under the administrative management of the mayor of the largest or most central town in the region; the other mayors or burgomasters in the region participate in a supervisory council, which has very limited powers, however. The regular police force has 48,000 employees, of whom 33,000 are executive police officers, vested with the right to investigate criminal offences.
Besides the regional police forces, a national police force exists. This force consists of various units such as the motorway police, the water police, the railway police and the department of criminal investigations. (Divisie Recherche) This department is responsible for international police cooperation as well as for the international exchange of police information, and maintaining contact with Dutch liaison officers abroad and foreign liaison officers in the Netherlands. The national crime squad (Landelijk Recherche Team, LRT) forms part of this department. The regional police forces and the national police force act under the ultimate supervision of the Minister of Interior.
The regional criminal investigation service (regionale recherche dienst) forms part of the regional police force but has a separate position within it. The criminal investigation service includes specialised units, such as the criminal intelligence unit, and has around 8,000 investigation officers.
The main task of the criminal investigation police is to investigate criminal offences, either on their own initiative or in response to tip-offs from the public. Owing to the high number of criminal offences, most police time is spent processing information. As a result, the police forces in regions with major cities are often not in a position to devote sufficient time to traditional investigations. The clear up rate of registered crimes gradually went up to around 18% today.
Tasks of the police force
The task of the police force (Sect. 2 Police Act) is to enforce the legal order, and to assist those who need help. The enforcement of the legal order comprises the enforcement of criminal law, the enforcement of public order and the performance of judicial services.
When enforcing public order, the police operate under the authority of the mayor who can issue instructions in this respect.
When enforcing criminal law and performing judicial services, the police act under the authority of the prosecution service. The enforcement of criminal law comprises the effective prevention, termination and investigation of criminal offences. The prosecution service can give instructions to the police for the enforcement of criminal law.
A police officer has jurisdiction ratione loci in the whole of the Dutch territory, but as a rule he will restrict his actions to the region where he is employed. In order to carry out judicial services all senior police officers have the capacity of auxiliary to the public prosecutor (hulpofficier van justitie). In this capacity, they may carry out some tasks on behalf of the public prosecutor.
There is no sharp division between the enforcement of public order and the enforcement of criminal law, so it is not always clear under whose authority the police act. Therefore, the mayor who has the administrative management of the regional police force (korpsbeheerder) regularly meets with the head of the regional police force and the (deputy) chief of the regional prosecution service (the so-called tripartite consultation) to discuss issues such as the input of the police force to fight local crime and improve local safety.
Powers of the police force
In relation to the task to detect and investigate criminal offences, the police are vested with specific statutory powers such as arrest, police custody and seizure. Some powers may only be exercised by senior police officers who have been designated as auxiliary to the public prosecutor (hulpofficier van justitie). An auxiliary is not a member of the prosecution service, nor vested with the powers of a public prosecutor. However, he is vested with the power to use coercive measures, such as search and police custody.
The police may use force in the exercise of their police tasks. Furthermore, police may carry out a body search if safety reasons so require.
On the basis of the Police Act the police have the power to perform limited invasions of someone's privacy by means of surveillance or taking pictures of persons in public.
Supervision over the police
The prosecution service is ultimately responsible for the criminal investigation. Public prosecutors have to ensure that the police observe all statutory rules and procedures.
Formally, the public prosecutor is the senior investigator (Sects. 148 CCP and 13 Police Act). In practice, however, the police deal with most cases without prior consultation with the public prosecutor except in more important criminal cases where the latter may give detailed instructions. Otherwise, consultation takes place on a more abstract level, in order to determine the policy for the investigation of certain kinds of crime and for the use of special investigation methods (undercover agents, infiltrators etc.). This is due to the limited strength of the prosecution service, as well as the recognition that, with regard to investigative techniques and tactics, the police possess more expertise than the prosecution service.
There is also consultation in specific cases where police officers require the approval or co-operation of the public prosecutor or the examining magistrate for the use of certain means of coercion.
Until recently, the prosecution service did not perform its supervisory role over the police properly. The police enjoyed too much autonomy in their investigative activities, in particular in the fight against organised crime.
The 1996 report by the Parliamentary Inquiry Committee on Police Investigation made clear that the police used illegitimate undercover policing methods extensively. In using those methods, the golden rule: ‘no competence without responsibility, no responsibility without accountability’ was ignored. The main reasons for this were: the lack of legislation and clear rules, the lack of authority and supervision by the prosecution service and the lack of organisation in the police force, fostered by the relative independence of the Criminal Intelligence Units, whose investigation was either sealed off – only to be disclosed by the public prosecutor in court – or remained secret. Due to the conclusion of the Parliamentary Inquiry Committee and the ensuing Parliamentary debate, statutory rules on investigative police methods have been enacted in 2000.
Furthermore, in 1999 a reorganisation of the prosecution service took place in order to improve its supervisory role over the police.
Instructions to the police
Public prosecutors have taken a more active part in investigative work by issuing written or oral instructions to the police on the investigation of specific offences. This is a result of the increasing complexity of cases and the lack of financial resources, which has made it necessary to fix priorities when instituting investigations.
Recently, March 1, 2003, the Board of Prosecutors-General has issued an instruction to the police on how to prioritise or not investigation of crime (State Journal 2003, 41). There are two basic rules in this instruction: the first is, that investigation by the police always shall take place when the offender is known except in trivial cases which did not cause danger, injury or damage. Furthermore, investigation may be given a lower priority when this is explicit policy – e.g. no investigation in a case of domestic violence in order to make voluntary aid possible.
The second basic rule is: the more serious the crime, the more intensive the investigation shall be. In the instruction both basic rules are further elaborated so that police officers can assess more easily what crimes shall be investigated.
Furthermore, the Supreme Court’s rulings on inadmissible evidence have increasingly stressed the importance of public prosecutors, in ascertaining what methods should be employed in the investigation as early as possible.
It follows from the above, that the police are largely responsible for investigating the facts and ascertaining the truth. The majority of criminal offences which come to trial, are prosecuted on the basis of information collected by investigating police officers only.
