The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
The structure of the penal process in the current CCP includes, in the initial phase of the inquiry, the investigation phase which is aimed at conducting all investigation with diligence and at collecting the evidence that will allow the public prosecutor to decide (Sect. 262 CCP) whether there are sufficient indicators of crime in order to start a prosecution (Sect. 283 CCP). In other words, the investigation has to determine that a crime has been committed, by whom, and under what conditions it took place.
The public prosecutor is responsible for this phase; he supervises the inquiry and all criminal investigation (Sects. 263 CCP and 1 and 3 Statute). The law vests the prosecution service with the main powers in the investigation but delegation of these powers to organs within the police may take place (Sect. 270 CCP).
Nowadays, a generic delegation of competences takes place in Directive No. 1/2002 of the highest prosecution authority, the Prosecutor-General (Procuradoria-Geral da República).
The ultimate legal responsibility for the criminal investigation rests with the prosecution service. However, in the political domain, this responsibility is shared between the prosecution service, namely its highest authority, the Prosecutor-General, and the Government in the person of the Minister of Justice (Sects. 220 Constitution and 11 Statute). It is the Government that proposes the nomination and dismissal of the Prosecutor-General of the Republic to the President of the Republic (Sect. 133 Constitution). Furthermore, the Government is responsible for personnel and material means made available to the prosecution service and to the police.
The responsibility for the criminal investigation rests with the prosecution service, which leads the processual phase of the inquiry (Sect. 263 CCP), and formulates the generic delegation of competencies to the police in charge of the investigation, except those exclusively reserved to the investigating judge and the prosecutor (Sect. 267 CCP).
As a consequence, the prosecution service is in charge of supervising the legality of the investigation conducted by the police (Sects. 7 Law No. 21/2000 and 3 Statute).
Supervision of the acts of the police during the inquiry is not carried out by the prosecution service only, but also by the investigating judge. The latter supervises the legality of the investigative acts of the prosecution service and of the police in order to ensure that the law is obeyed and that fundamental rights are respected during the inquiry phase.
The intervention of the investigating judge in the inquiry in order to guarantee the legality of the acts is in general expressed in Sect. 32 of the Constitution, in Sect. 79 of the Court Organisation Act, and Sects. 17, 268 and 269 of the CCP.
The intervention of the investigating judge, as inspector of the legality of acts, is never ex officio but takes place at the request of the prosecution service or of the police to check the validity of these acts (Sects. 268 and 269 CCP).
This involvement is justified by the fact that no one other than a judge may order acts which affect rights, freedom and guarantees protected by the Constitution (Sects. 268 and 269 CCP).
Investigative acts that shall be conducted by direct intervention of the judge are:
- apprehension and searches in lawyers’ offices and medical surgeries (Sects. 177 and 180 CCP);
- arrest in financial institutions/banks (Sect. 181 CCP);
- opening and reading mail (Sect. 179 CCP);
- listening to intercepted and recorded talks or communications (Sect. 188 CCP).
Investigative acts that must be authorised by the investigating judge are:
- undercover investigation to prevent crime (Sect. 3 Law No. 101/201);
- domiciliary searches (Sect. 177 CCP);
- mail apprehension, (Sect. 179 CCP);
- interception of talks or communications (Sect. 187 CCP).
In special legislation dealing with the investigation of organised and financial crime, the need for intervention of the public prosecutor and of the investigating judge are also contemplated, in as far as it concerns the use of certain methods of investigation to collect evidence.
The police have technical and tactical autonomy in conducting the investigation (Sect. 2 Law No. 101/2001). Technical autonomy entails having the freedom to choose the most suitable means of investigation in each individual case, and tactical autonomy involves the freedom to decide the timing of an intervention.
Despite the autonomy given to the police, the public prosecutor, as the competent authority to direct the inquiry, has the power to intervene in the investigation at any time. This can be done through inspection of the pace of the process, instructions to the police about practices to be followed in any investigation and the possibility to call out police whenever they regard this necessary for the accomplishment of the aims of the inquiry (Sect. 7 Law No. 101/2001).
However, whilst taking into consideration the lack of means available to the public prosecutor, the specialisation of police officers; and the need to preserve police technical and tactical autonomy, the Prosecutor-General supervises the exercise of intervention powers of the prosecution service in the following ways:
- if the crime under investigation carries a statutory prison sentence not exceeding five years, the prosecution service should only interfere if it can be justified under special circumstances. For instance, the quality of the police officers, the victims or the particular circumstances around their practices;
- if the crime carries a statutory prison sentence of more than five years in prison, the prosecution service will intervene directly in the investigation, analysing the crime, defining the procedures of the investigation or even participating in it.
In conclusion, the system allows the police to have autonomy in the investigation, but also ensures that police always remain under legal supervision of the prosecution service and the investigating judge, and in as far as technical and tactical options are concerned, stay subject to the intervention of the prosecution service.
The public prosecutor shall be consulted in advance when means of investigation which affect fundamental rights of the citizens, the accused as well as third parties, are to be used. As a prerequisite for validity, the law, for example, requires previous authorisation by the prosecution service in the following cases:
- in case of undercover operations the action is only considered valid if the investigating judge does not oppose it within a deadline of 72 hours (Sect. 3 Law No. 101/201);
- non-domiciliary searches can be done without previous authorisation but should be validated later (Sects. 174 and 251 CCP); and
- arrests in general (Sect. 178 CCP).
Some acts in relation to the investigation must be determined by the public prosecutor, such as a decision to call in medical-legal expertise (Sects. 154 and 270 CCP).
As already mentioned, the law requires the need of intervention in the inquiry of the investigating judge, as a guarantee of the legality of the act that is open to collision with fundamental rights.
The investigating judge may intervene in the inquiry, conducting investigation acts or authorising its practice, at the request of the prosecution service or, in cases of emergency, at the request of the police (Sects. 268 and 269 CCP).
In case of emergency, the police, after consultation with the investigating judge, may take some actions without the previous consultation of the prosecutor, who will be informed only later.
The use of certain means of coercion by the police needs the approval of the prosecution service, for example:
- where the police can force people to be present or absent at certain kinds of exams, when the prosecution service has issued an order to do so (Sects. 171 to 173 CCP);
- arrests by police should be immediately communicated to the prosecutor, unless there is a judicial order; in such cases the arrests must be communicated to the judge who ordered it (Sect. 259 CCP).
Coercive means, including pre-trial detention, are applied in the investigating inquiry by the investigating judge, at the request of the prosecutor (Sect. 194 CCP). The police have no role in the application of these means, at least not from a formal point of view.
In general, the prosecution service cannot set priorities on whether or not to start an investigation because under the legality principle the police is obliged to open an inquiry when a crime has been reported (Sect. 262 CCP).
The CCP is presently under discussion. This may lead to considerable changes in all laws that set the rules for the judicial and police organisation.
The Relation between the Public Prosecutor and the Police
The structure of the penal process in the current CCP includes, in the initial phase of the inquiry, the investigation phase which is aimed at conducting all investigation with diligence and at collecting the evidence that will allow the public prosecutor to decide (Sect. 262 CCP) whether there are sufficient indicators of crime in order to start a prosecution (Sect. 283 CCP). In other words, the investigation has to determine that a crime has been committed, by whom, and under what conditions it took place.
The public prosecutor is responsible for this phase; he supervises the inquiry and all criminal investigation (Sects. 263 CCP and 1 and 3 Statute). The law vests the prosecution service with the main powers in the investigation but delegation of these powers to organs within the police may take place (Sect. 270 CCP).
Nowadays, a generic delegation of competences takes place in Directive No. 1/2002 of the highest prosecution authority, the Prosecutor-General (Procuradoria-Geral da República).
The ultimate legal responsibility for the criminal investigation rests with the prosecution service. However, in the political domain, this responsibility is shared between the prosecution service, namely its highest authority, the Prosecutor-General, and the Government in the person of the Minister of Justice (Sects. 220 Constitution and 11 Statute). It is the Government that proposes the nomination and dismissal of the Prosecutor-General of the Republic to the President of the Republic (Sect. 133 Constitution). Furthermore, the Government is responsible for personnel and material means made available to the prosecution service and to the police.
The responsibility for the criminal investigation rests with the prosecution service, which leads the processual phase of the inquiry (Sect. 263 CCP), and formulates the generic delegation of competencies to the police in charge of the investigation, except those exclusively reserved to the investigating judge and the prosecutor (Sect. 267 CCP).
As a consequence, the prosecution service is in charge of supervising the legality of the investigation conducted by the police (Sects. 7 Law No. 21/2000 and 3 Statute).
Supervision of the acts of the police during the inquiry is not carried out by the prosecution service only, but also by the investigating judge. The latter supervises the legality of the investigative acts of the prosecution service and of the police in order to ensure that the law is obeyed and that fundamental rights are respected during the inquiry phase.
The intervention of the investigating judge in the inquiry in order to guarantee the legality of the acts is in general expressed in Sect. 32 of the Constitution, in Sect. 79 of the Court Organisation Act, and Sects. 17, 268 and 269 of the CCP.
The intervention of the investigating judge, as inspector of the legality of acts, is never ex officio but takes place at the request of the prosecution service or of the police to check the validity of these acts (Sects. 268 and 269 CCP).
This involvement is justified by the fact that no one other than a judge may order acts which affect rights, freedom and guarantees protected by the Constitution (Sects. 268 and 269 CCP).
Investigative acts that shall be conducted by direct intervention of the judge are:
- apprehension and searches in lawyers’ offices and medical surgeries (Sects. 177 and 180 CCP);
- arrest in financial institutions/banks (Sect. 181 CCP);
- opening and reading mail (Sect. 179 CCP);
- listening to intercepted and recorded talks or communications (Sect. 188 CCP).
Investigative acts that must be authorised by the investigating judge are:
- undercover investigation to prevent crime (Sect. 3 Law No. 101/201);
- domiciliary searches (Sect. 177 CCP);
- mail apprehension, (Sect. 179 CCP);
- interception of talks or communications (Sect. 187 CCP).
In special legislation dealing with the investigation of organised and financial crime, the need for intervention of the public prosecutor and of the investigating judge are also contemplated, in as far as it concerns the use of certain methods of investigation to collect evidence.
The police have technical and tactical autonomy in conducting the investigation (Sect. 2 Law No. 101/2001). Technical autonomy entails having the freedom to choose the most suitable means of investigation in each individual case, and tactical autonomy involves the freedom to decide the timing of an intervention.
Despite the autonomy given to the police, the public prosecutor, as the competent authority to direct the inquiry, has the power to intervene in the investigation at any time. This can be done through inspection of the pace of the process, instructions to the police about practices to be followed in any investigation and the possibility to call out police whenever they regard this necessary for the accomplishment of the aims of the inquiry (Sect. 7 Law No. 101/2001).
However, whilst taking into consideration the lack of means available to the public prosecutor, the specialisation of police officers; and the need to preserve police technical and tactical autonomy, the Prosecutor-General supervises the exercise of intervention powers of the prosecution service in the following ways:
- if the crime under investigation carries a statutory prison sentence not exceeding five years, the prosecution service should only interfere if it can be justified under special circumstances. For instance, the quality of the police officers, the victims or the particular circumstances around their practices;
- if the crime carries a statutory prison sentence of more than five years in prison, the prosecution service will intervene directly in the investigation, analysing the crime, defining the procedures of the investigation or even participating in it.
In conclusion, the system allows the police to have autonomy in the investigation, but also ensures that police always remain under legal supervision of the prosecution service and the investigating judge, and in as far as technical and tactical options are concerned, stay subject to the intervention of the prosecution service.
The public prosecutor shall be consulted in advance when means of investigation which affect fundamental rights of the citizens, the accused as well as third parties, are to be used. As a prerequisite for validity, the law, for example, requires previous authorisation by the prosecution service in the following cases:
- in case of undercover operations the action is only considered valid if the investigating judge does not oppose it within a deadline of 72 hours (Sect. 3 Law No. 101/201);
- non-domiciliary searches can be done without previous authorisation but should be validated later (Sects. 174 and 251 CCP); and
- arrests in general (Sect. 178 CCP).
Some acts in relation to the investigation must be determined by the public prosecutor, such as a decision to call in medical-legal expertise (Sects. 154 and 270 CCP).
As already mentioned, the law requires the need of intervention in the inquiry of the investigating judge, as a guarantee of the legality of the act that is open to collision with fundamental rights.
The investigating judge may intervene in the inquiry, conducting investigation acts or authorising its practice, at the request of the prosecution service or, in cases of emergency, at the request of the police (Sects. 268 and 269 CCP).
In case of emergency, the police, after consultation with the investigating judge, may take some actions without the previous consultation of the prosecutor, who will be informed only later.
The use of certain means of coercion by the police needs the approval of the prosecution service, for example:
- where the police can force people to be present or absent at certain kinds of exams, when the prosecution service has issued an order to do so (Sects. 171 to 173 CCP);
- arrests by police should be immediately communicated to the prosecutor, unless there is a judicial order; in such cases the arrests must be communicated to the judge who ordered it (Sect. 259 CCP).
Coercive means, including pre-trial detention, are applied in the investigating inquiry by the investigating judge, at the request of the prosecutor (Sect. 194 CCP). The police have no role in the application of these means, at least not from a formal point of view.
In general, the prosecution service cannot set priorities on whether or not to start an investigation because under the legality principle the police is obliged to open an inquiry when a crime has been reported (Sect. 262 CCP).
The CCP is presently under discussion. This may lead to considerable changes in all laws that set the rules for the judicial and police organisation.
