The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
The organization of the police
The organization of the police is regulated by the Police Act 1990. The police consist of a criminal service, a prevention service and an auxiliary service. It encompasses also prevention and antiterrorist detachments, the Police Academy, research units and judiciary police. The police are commanded by the Chief Commander of Police accountable to the Minister of Interior, appointed by the Prime Minister on the request of the former. On lower levels there are Regional Commanders of Police, County Commanders of Police and Commanders of Police Stations. The organization of the police in Warsaw differs slightly from this.
If there is a need, a Regional Commander of Police can create special police stations for railway stations, rivers, airports, and so forth. This way, police units smaller than police stations can also be established.
Non-procedural activities of the police
The Police Act 1990 has several provisions concerning non-procedural powers of the police, and besides preparatory proceedings the police undertake administrative activities, peacekeeping activities, and surveillance activities. They are obliged to execute orders of various authorities (inter alia public prosecutors) in situations pre-scribed by law. A police officer is obliged to refuse to execute such order if it would lead to committing a crime (sect. 58 Police Act).
The first group of non-procedural activities of the police relates to such tasks as issuing permissions for arms, maintaining a registry of stolen vehicles and patrolling streets.
Some powers of the police enabling the above mentioned duties to be carried out are listed in sect. 15 Police Act, for example CCTV monitoring, stopping and checking identities of suspected persons. The way the police make use of these competences could be subject to a complaint to the territorially competent public prosecutor.
Non-procedural police surveillance could take such forms as interception, using informants, controlled delivery, controlled provocations, and data processing. Interception of communications can take place on the base of regional court’s decision obtained with prior permission of the regional prosecutor or the Prosecutor General (sect. 19 Police Act) only. On the other hand, controlled provocations can be carried with a written permission of the competent regional prosecutor only, and he is to be informed periodically on activities undertaken. He can stop the activities as well (sect. 19a Police Act). There is also some supervision over controlled deliveries as the regional prosecutor must be informed about such an activity and is empowered to stop it (sect. 19b Police Act). Where the above mentioned activities lead to discovering relevant evidence, all materials must be handed over to the public prosecutor, with a motion to commence criminal proceedings if necessary.
Explanatory activities
Explanatory activities are conducted in order to check circumstances described in information about an offence or police information, when by itself this does not establish a sufficient base to start investigation (sect. 307 CCP). Such activities can be conducted for up to 30 days by the public prosecutor or the police, and are not regarded as a stage of criminal proceedings. As explanatory activities take place before criminal proceedings, they are not intended for the purpose of collecting evidence, especially oral evidence, but this rule has some exceptions (sect. 307 § 2 and 3 CCP). The usual practice is to ask for documents or to interrogate the person who has informed about the crime.
When explanatory activities are conducted by the police, the public prosecutor can supervise them. However, police are not formally obliged to inform him about undertaking them.
Investigation and inquiry (preparatory proceedings)
Preparatory proceedings are a pre-trial stage of criminal proceedings. At this stage the public prosecutor plays a key role as a dominus litis of preparatory proceedings. He is ultimately responsible for a proper criminal investigation. As stated in sect. 15 CCP, the police and other investigative bodies in criminal proceedings execute court and public prosecutors’ orders and lead preparatory proceedings under supervision of the public prosecutor within the limits established by law. These other investigative bodies are for example: the Border Guard, the Agency of Interior Security and the Forest Guard.
In relation to fiscal offences a special procedure exists. It is regulated by a separate code (the Fiscal Criminal Code 1999), and in many aspects varies from regulations contained in the CCP. Preparatory proceedings in fiscal cases are usually conducted by such bodies like the Internal Revenue or bodies of treasury control.
The CCP distinguishes two forms of preparatory proceedings: the inquiry and the investigation. On that basis there is also a difference concerning involvement of the public prosecutor.
Before July 1, 2003, an investigation could be commenced by the public prosecutor only, who was then permitted to transfer it to the police or to order the police to carry certain acts. Since then, an investigation can be initiated and carried out by police and other entitled bodies but the public prosecutor still has the power to take over the proceedings. The public prosecutor must conduct investigation by himself only:
- when the suspect is a judge, a public prosecutor, a police officer, an officer of the Interior Security Agency or the Intelligence Agency;
- when an officer of the Border Guard, the Military Guard, financial investigation units or their supervising bodies is suspected of a crime which lies within the scope of his powers or he is suspected of a crime committed in connection with discharging his duties; or
- in case of manslaughter (murder) (sect. 309 CCP).
Today, if the investigation has been started up by the public prosecutor, he can transfer it entirely or partly to the police as well as order the police to execute certain acts, except in those cases when he has to conduct the investigation himself. In every case the public prosecutor can reserve any act to be carried by him personally, especially issuing formal decisions such as charging, modification of charges or closing of investigation (sect. 311 CCP).
The provisions concerning investigation are to be applied also to an inquiry (sect. 325a CCP). The important difference is that the police are not obliged to inform the public prosecutor of starting an inquiry (sect. 325e CCP) whereas this duty exists concerning an investigation (sect. 305 CCP).
Normally, preparatory proceedings are started by issuing a written decision. However, in urgent cases the police can undertake the most necessary acts when there is a danger of loosing, contaminating or destroying evidence. In such situations, the proceedings are started by undertaking the first act, and then a formal decision on starting or discontinuing the proceedings must be issued within five days. In cases where investigations have to be led by a public prosecutor, the police transfer the files to him immediately (sect. 308 CCP).
Every decision of refusal to start an investigation and every decision on discontinuation of an investigation or inquiry issued by a body other than the public prosecutor must be confirmed by him (Sects. 305 and 325e CCP). Decisions concerning inquiries can be issued without giving reasons (sect. 325e CCP).
The public prosecutor shall file an indictment to the court within fourteen days of the conclusion of an investigation or from the date of receiving files from the police in case of an inquiry. When the person is arrested, the term is shortened to seven days (sect. 331 CCP).
Many decisions in preparatory proceedings can only be taken by the public prosecutor, for example, production orders for mail from post offices or billing data from telecommunication companies (sect. 218 CCP), appointment of experts for psychiatric opinions (sect. 202 CCP), making witnesses anonymous (sect. 184 CCP), environmental inquiry (sect. 214 CCP), and so forth. It is for the public prosecutor to conduct external inspection of the corpse (sect. 209 CCP) and to be present during post-mortem examination (sect. 209 CCP). He can request a court to grant immunity to a suspect who has fulfilled conditions to become a crown witness in an investigated case. Some decisions normally taken by a court can in urgent cases be taken provi-sionally by the public prosecutor: for example, ordering interception of communications which must be then confirmed by the court (sect. 237 CCP).
In the course of preparatory proceedings, only the public prosecutor is empowered to order such coercive measures like search and seizure (except in urgent cases when the police can decide to search and seize (sect. 217 CCP), compulsory bringing of suspected person (sect. 247 CCP), police supervision (sects. 250 and 275 CCP), penalty for non-compliance with orders (sect. 290 CCP), or freezing of property (sect. 293 CCP).
Chapter 37 CCP deals with supervision by the public prosecutor. He supervises the parts of preliminary proceedings not carried out by him. As part of his supervisory task the public prosecutor can:
- familiarize himself with the intentions of a person investigating, give directions and issue orders to be followed;
- ask for materials collected in the course of investigation;
- be present during acts carried out by others, carry them out by himself or take over the investigation; or
- issue decisions, orders or recommendations and change or annul decisions and orders issued by a person leading the investigation.
In every case, the public prosecutor can demand prior consultation before decisions are taken, restrict certain decisions, or order to be kept informed on progress in the case. If his decisions, orders or recommendations are not followed, he can commence official proceedings against the leader of the investigation. On demand of the public prosecutor, a superior of a police officer shall commence disciplinary proceedings if there is a suspicion of disciplinary misconduct (sect. 134i Police Act).
Usually, the control over preparatory proceedings is exercised when the public prosecutor is extending the period of investigation or inquiry, or when he is asked by the police for approval of their acts or for issuing a decision. Sending the files back to the police, the public prosecutor lists activities that should be done or suggests directions to be followed in an attached letter.
Some prosecution service units organize regular meetings with police to discuss problems in investigations, explain changes to the law, find ways of better cooperation, and so forth but the prosecution service has no legal power to set priorities in the instigation of investigations.
If the act constitutes a petty offence only (which is examined in different proceedings) the public prosecutor refuses to initiate preparatory proceedings or discontinues those already commenced, and refers the case to the police to be taken to the court or takes the case to the court himself (sect. 18 CCP). Besides that, if the suspect has committed an act in the state of non-accountability and there are grounds for applying precautionary measures, the public prosecutor can address the court with a motion for discontinuation of proceedings and application of precautionary measures (sect. 324 CCP).
The public prosecutor addresses the competent authorities in case of discovering any circumstances facilitating committing a crime or hampering its detection. In his address he can demand starting disciplinary or official proceedings (sect. 19 CCP). In case of a refusal to start or discontinue preparatory proceedings, he can refer the case to the competent authority in order to initiate official or disciplinary proceedings, or can have the case examined by a competent social or professional institution (sect. 18 CCP).
In situations listed in sect. 327 CCP, the public prosecutor can re-open discontinued preliminary proceedings. In case of unreasonable discontinued proceedings, the power to annul the decision lies with the Prosecutor General (sect. 328 CCP).
The institution of an investigating judge is not present in the criminal procedure anymore. Despite that, some control over preparatory proceedings is vested with the courts. The court is empowered to apply certain measures like arrest and interception of communications. It is also entitled to decide on certain remedial motions after decisions by the public prosecutor. It also has some competences in the evidence phase of preparatory proceedings like hearing a child victim of sexual abuse (art. 185a CCP). The decision not to start an investigation or to discontinue proceedings can be brought to court and the court can revoke the decision pointing out what activities should be undertaken in the case, which is binding for the public prosecutor (sect. 330 CCP). Also, after the case has been brought to a court, but before opening of the trial, the court can send back the case to the public prosecutor, pointing out deficiencies of preparatory proceedings that could not be easily removed by the court (sect. 345 CCP). In such a situation, having completed preparatory proceedings, the public prosecutor can bring a new indictment, sustain the old one, fill a motion for conditional discontinuation of proceedings to the court or discontinue proceedings himself (sect. 346 CCP)
The Relation between the Public Prosecutor and the Police
The organization of the police
The organization of the police is regulated by the Police Act 1990. The police consist of a criminal service, a prevention service and an auxiliary service. It encompasses also prevention and antiterrorist detachments, the Police Academy, research units and judiciary police. The police are commanded by the Chief Commander of Police accountable to the Minister of Interior, appointed by the Prime Minister on the request of the former. On lower levels there are Regional Commanders of Police, County Commanders of Police and Commanders of Police Stations. The organization of the police in Warsaw differs slightly from this.
If there is a need, a Regional Commander of Police can create special police stations for railway stations, rivers, airports, and so forth. This way, police units smaller than police stations can also be established.
Non-procedural activities of the police
The Police Act 1990 has several provisions concerning non-procedural powers of the police, and besides preparatory proceedings the police undertake administrative activities, peacekeeping activities, and surveillance activities. They are obliged to execute orders of various authorities (inter alia public prosecutors) in situations pre-scribed by law. A police officer is obliged to refuse to execute such order if it would lead to committing a crime (sect. 58 Police Act).
The first group of non-procedural activities of the police relates to such tasks as issuing permissions for arms, maintaining a registry of stolen vehicles and patrolling streets.
Some powers of the police enabling the above mentioned duties to be carried out are listed in sect. 15 Police Act, for example CCTV monitoring, stopping and checking identities of suspected persons. The way the police make use of these competences could be subject to a complaint to the territorially competent public prosecutor.
Non-procedural police surveillance could take such forms as interception, using informants, controlled delivery, controlled provocations, and data processing. Interception of communications can take place on the base of regional court’s decision obtained with prior permission of the regional prosecutor or the Prosecutor General (sect. 19 Police Act) only. On the other hand, controlled provocations can be carried with a written permission of the competent regional prosecutor only, and he is to be informed periodically on activities undertaken. He can stop the activities as well (sect. 19a Police Act). There is also some supervision over controlled deliveries as the regional prosecutor must be informed about such an activity and is empowered to stop it (sect. 19b Police Act). Where the above mentioned activities lead to discovering relevant evidence, all materials must be handed over to the public prosecutor, with a motion to commence criminal proceedings if necessary.
Explanatory activities
Explanatory activities are conducted in order to check circumstances described in information about an offence or police information, when by itself this does not establish a sufficient base to start investigation (sect. 307 CCP). Such activities can be conducted for up to 30 days by the public prosecutor or the police, and are not regarded as a stage of criminal proceedings. As explanatory activities take place before criminal proceedings, they are not intended for the purpose of collecting evidence, especially oral evidence, but this rule has some exceptions (sect. 307 § 2 and 3 CCP). The usual practice is to ask for documents or to interrogate the person who has informed about the crime.
When explanatory activities are conducted by the police, the public prosecutor can supervise them. However, police are not formally obliged to inform him about undertaking them.
Investigation and inquiry (preparatory proceedings)
Preparatory proceedings are a pre-trial stage of criminal proceedings. At this stage the public prosecutor plays a key role as a dominus litis of preparatory proceedings. He is ultimately responsible for a proper criminal investigation. As stated in sect. 15 CCP, the police and other investigative bodies in criminal proceedings execute court and public prosecutors’ orders and lead preparatory proceedings under supervision of the public prosecutor within the limits established by law. These other investigative bodies are for example: the Border Guard, the Agency of Interior Security and the Forest Guard.
In relation to fiscal offences a special procedure exists. It is regulated by a separate code (the Fiscal Criminal Code 1999), and in many aspects varies from regulations contained in the CCP. Preparatory proceedings in fiscal cases are usually conducted by such bodies like the Internal Revenue or bodies of treasury control.
The CCP distinguishes two forms of preparatory proceedings: the inquiry and the investigation. On that basis there is also a difference concerning involvement of the public prosecutor.
Before July 1, 2003, an investigation could be commenced by the public prosecutor only, who was then permitted to transfer it to the police or to order the police to carry certain acts. Since then, an investigation can be initiated and carried out by police and other entitled bodies but the public prosecutor still has the power to take over the proceedings. The public prosecutor must conduct investigation by himself only:
- when the suspect is a judge, a public prosecutor, a police officer, an officer of the Interior Security Agency or the Intelligence Agency;
- when an officer of the Border Guard, the Military Guard, financial investigation units or their supervising bodies is suspected of a crime which lies within the scope of his powers or he is suspected of a crime committed in connection with discharging his duties; or
- in case of manslaughter (murder) (sect. 309 CCP).
Today, if the investigation has been started up by the public prosecutor, he can transfer it entirely or partly to the police as well as order the police to execute certain acts, except in those cases when he has to conduct the investigation himself. In every case the public prosecutor can reserve any act to be carried by him personally, especially issuing formal decisions such as charging, modification of charges or closing of investigation (sect. 311 CCP).
The provisions concerning investigation are to be applied also to an inquiry (sect. 325a CCP). The important difference is that the police are not obliged to inform the public prosecutor of starting an inquiry (sect. 325e CCP) whereas this duty exists concerning an investigation (sect. 305 CCP).
Normally, preparatory proceedings are started by issuing a written decision. However, in urgent cases the police can undertake the most necessary acts when there is a danger of loosing, contaminating or destroying evidence. In such situations, the proceedings are started by undertaking the first act, and then a formal decision on starting or discontinuing the proceedings must be issued within five days. In cases where investigations have to be led by a public prosecutor, the police transfer the files to him immediately (sect. 308 CCP).
Every decision of refusal to start an investigation and every decision on discontinuation of an investigation or inquiry issued by a body other than the public prosecutor must be confirmed by him (Sects. 305 and 325e CCP). Decisions concerning inquiries can be issued without giving reasons (sect. 325e CCP).
The public prosecutor shall file an indictment to the court within fourteen days of the conclusion of an investigation or from the date of receiving files from the police in case of an inquiry. When the person is arrested, the term is shortened to seven days (sect. 331 CCP).
Many decisions in preparatory proceedings can only be taken by the public prosecutor, for example, production orders for mail from post offices or billing data from telecommunication companies (sect. 218 CCP), appointment of experts for psychiatric opinions (sect. 202 CCP), making witnesses anonymous (sect. 184 CCP), environmental inquiry (sect. 214 CCP), and so forth. It is for the public prosecutor to conduct external inspection of the corpse (sect. 209 CCP) and to be present during post-mortem examination (sect. 209 CCP). He can request a court to grant immunity to a suspect who has fulfilled conditions to become a crown witness in an investigated case. Some decisions normally taken by a court can in urgent cases be taken provi-sionally by the public prosecutor: for example, ordering interception of communications which must be then confirmed by the court (sect. 237 CCP).
In the course of preparatory proceedings, only the public prosecutor is empowered to order such coercive measures like search and seizure (except in urgent cases when the police can decide to search and seize (sect. 217 CCP), compulsory bringing of suspected person (sect. 247 CCP), police supervision (sects. 250 and 275 CCP), penalty for non-compliance with orders (sect. 290 CCP), or freezing of property (sect. 293 CCP).
Chapter 37 CCP deals with supervision by the public prosecutor. He supervises the parts of preliminary proceedings not carried out by him. As part of his supervisory task the public prosecutor can:
- familiarize himself with the intentions of a person investigating, give directions and issue orders to be followed;
- ask for materials collected in the course of investigation;
- be present during acts carried out by others, carry them out by himself or take over the investigation; or
- issue decisions, orders or recommendations and change or annul decisions and orders issued by a person leading the investigation.
In every case, the public prosecutor can demand prior consultation before decisions are taken, restrict certain decisions, or order to be kept informed on progress in the case. If his decisions, orders or recommendations are not followed, he can commence official proceedings against the leader of the investigation. On demand of the public prosecutor, a superior of a police officer shall commence disciplinary proceedings if there is a suspicion of disciplinary misconduct (sect. 134i Police Act).
Usually, the control over preparatory proceedings is exercised when the public prosecutor is extending the period of investigation or inquiry, or when he is asked by the police for approval of their acts or for issuing a decision. Sending the files back to the police, the public prosecutor lists activities that should be done or suggests directions to be followed in an attached letter.
Some prosecution service units organize regular meetings with police to discuss problems in investigations, explain changes to the law, find ways of better cooperation, and so forth but the prosecution service has no legal power to set priorities in the instigation of investigations.
If the act constitutes a petty offence only (which is examined in different proceedings) the public prosecutor refuses to initiate preparatory proceedings or discontinues those already commenced, and refers the case to the police to be taken to the court or takes the case to the court himself (sect. 18 CCP). Besides that, if the suspect has committed an act in the state of non-accountability and there are grounds for applying precautionary measures, the public prosecutor can address the court with a motion for discontinuation of proceedings and application of precautionary measures (sect. 324 CCP).
The public prosecutor addresses the competent authorities in case of discovering any circumstances facilitating committing a crime or hampering its detection. In his address he can demand starting disciplinary or official proceedings (sect. 19 CCP). In case of a refusal to start or discontinue preparatory proceedings, he can refer the case to the competent authority in order to initiate official or disciplinary proceedings, or can have the case examined by a competent social or professional institution (sect. 18 CCP).
In situations listed in sect. 327 CCP, the public prosecutor can re-open discontinued preliminary proceedings. In case of unreasonable discontinued proceedings, the power to annul the decision lies with the Prosecutor General (sect. 328 CCP).
The institution of an investigating judge is not present in the criminal procedure anymore. Despite that, some control over preparatory proceedings is vested with the courts. The court is empowered to apply certain measures like arrest and interception of communications. It is also entitled to decide on certain remedial motions after decisions by the public prosecutor. It also has some competences in the evidence phase of preparatory proceedings like hearing a child victim of sexual abuse (art. 185a CCP). The decision not to start an investigation or to discontinue proceedings can be brought to court and the court can revoke the decision pointing out what activities should be undertaken in the case, which is binding for the public prosecutor (sect. 330 CCP). Also, after the case has been brought to a court, but before opening of the trial, the court can send back the case to the public prosecutor, pointing out deficiencies of preparatory proceedings that could not be easily removed by the court (sect. 345 CCP). In such a situation, having completed preparatory proceedings, the public prosecutor can bring a new indictment, sustain the old one, fill a motion for conditional discontinuation of proceedings to the court or discontinue proceedings himself (sect. 346 CCP)
