Relation between the State Prosecutor and the Police
Chapter I
Relation between the State Prosecutor and the Police
There are two principal models of legal regulation of the relation between the state prosecutor and the police. In the first model, the police come under the jurisdiction of the state prosecutor’s office and their investigations are guided or supervised by the state prosecutor. In the second model, police are independent of the state prosecutor. Slovenia falls into the second model. Summarising the situation, it can be said that the police are independent of the public prosecutor’s office in organisational terms, while closely linked with it in carrying out their tasks, above all during the pre-trial procedure. However, the power of the public prosecutor over the work of the police has increased with new provisions to that effect in the relevant legislation.
The position of the prosecutor and the police in constitutional law, too, influences their inter-relations. The police are attached to the Ministry of the Interior and are an agency of the executive branch of power, whereas the state prosecutor’s office is an independent and autonomous judicial body within the Ministry of Justice. The police are engaged in the detection of crime, and the state prosecutor is the only agency engaged in the ex officio prosecution of criminal offences.
Phases of responsibility for the investigation
Under the Slovene legal system, the investigation of a criminal offence can go through two phases: the police investigation within the pre-trial procedure which does not form a part of the judicial criminal proceedings; and judicial investigation as the first part of judicial criminal proceedings, which may then lead to the main part of the proceedings, i.e. preparation for a trial, the trial, the phase of legal remedies and the execution of final judicial decisions. The judicial investigation is carried out by the investigating judge who is dominus litis of that part of the proceedings. In the first phase of judicial proceedings, the state prosecutor is a party to the proceedings.
Responsibility for the investigation of a criminal offence is divided and depends on the institution performing the investigation and on the phase of the proceedings. The legal duties involved in the investigation of a criminal offence can be performed by three institutions: the police, the state prosecutor and the investigating judge.
In the preliminary criminal proceedings, in which the police carry out the investigation and the state prosecutor directs their work, responsibility is divided between the police and the state prosecutor. The law has not clearly defined with whom primary responsibility for investigation rests in the pre-trial procedure. On the one hand there are the police, who must carry out their tasks in conformity with the principle of legality and deal with all the events bearing characteristic of crimes that are prosecutable ex officio. The police must gather data and information and decide whether there is a case for police investigation. In most cases, the state prosecutor is not informed of the activities of the police or the initial information available to them at the outset, except where the police wish to consult him. The decision whether or not to take measures still rests with the police. The state prosecutor can take part in decisions on the kind and extent of investigative measures after the police have informed him of grounds for suspicion that a specific criminal offence has been committed or a specific person has committed it.
The state prosecutor has no authority to decide which criminal offence will be investigated. The necessary condition for launching a police investigation and taking police measures is the existence of grounds for suspicion that a specific criminal offence has been committed. This means that a certain degree of probability that a criminal offence has been committed must exist. Penal law provides for three degrees of probability that a criminal offence has been committed, referred to as legal requirements for performing specific official acts: reasons for suspicion in order to launch a police investigation, well-founded reasons for suspicion in order to apply special operational methods and means, and well-founded suspicion for judicial investigation, accusation and certainty of conviction.
Shared responsibility
The state prosecutor starts sharing responsibility for the investigation in the pre-trial procedure at the moment police inform him that a specific crime has been committed. The state prosecutor then begins to cooperate with the police, is present during police activities, provides the police with proposals and directs the pre-trial procedure. The responsibility of the state prosecutor is confined to his own acts and activities, including the proposals, instructions and legal opinions he gives to the police. The state prosecutor is not responsible for the police investigation method chosen, since that is professional police responsibility. The police have their own resources: personnel, means, experts and finances. It is up to the police to decide whether, and how, to use these resources. There are no sanctions or coercive measures that the state prosecutor can apply against the police if they fail to implement his instructions and proposals. In this respect, responsibility rests with the police.
The statutory basis for cooperation between the state prosecutor and the police is given in the CCP, the State Prosecutor’s Office Act and the Police Act. The CCP contains general provisions on cooperation between the state prosecutor and the police. The new sect. 160 CCP, last amended in 2003, defined with greater precision the cooperation between the state prosecutor and the police. Cooperation intensified with the introduction of new legal institutions in connection with special operational methods and means.
It has been argued that with the adoption in 1995 of a new CCP, the state prosecutor is the dominus litis of the pre-trial procedure. The CCP (1995 - CCP) and State Prosecutor’s Office Act (1994 - SPOA) contain provisions that lead to such a conclusion. Sect. 45 provides for the state prosecutor to take the necessary steps in connection with the detection of criminal offences, tracking down perpetrators and directing the pre-trial procedure. Sect. 8 State Prosecutor’s Office Act provides that in discharging the function of prosecuting criminal offences and other punishable acts, the state prosecutor cooperates with agencies of detection, directs them, and takes the necessary measures in connection with the detection of criminal offences or offenders within the scope of the state prosecutor’s authority in pre-trial procedures specified by the CCP. In turn, sect. 160 a. CCP provides that the state prosecutor can direct the work of the police by giving compulsory instructions, expert opinions and proposals for the gathering of information and other measures within the competence of the police. The second paragraph of that Sect. provides that the method of directing and informing shall be prescribed by the Government. In June 2004, the Government adopted the Decree on Cooperation between the State Prosecutor and the Police in Detecting and Prosecuting Criminal Offences. The Decree is an executive regulation that contains provisions public prosecutors and the police must adhere to in their cooperation and joint activity, and that determines their respective positions in the pre-trial procedure. Under the Decree the police are bound to inform the prosecutor of all the cases with which they are dealing. It also gives the prosecutor the authority to supervise implementation of measures in the detection of criminal offences, to become involved in the work of the police, to decide on the kind of measures to be applied and, to give counsel in legal matters. Of special importance are the provisions in relation to informing the state prosecutor. If the state prosecutor is to direct the work of the police in the pre-trial procedure, he must be well-informed about their activities. The police inform the state prosecutor of all cases based on well-founded reasons for suspicion that a crime has been committed. The state prosecutor must be informed even if the activity of the police does not result in a criminal complaint against a particular person for a particular crime. The provisions define when the state prosecutor must be informed immediately, the instances in which he must be informed within three days, and the criminal offences of which he should be notified by means of a criminal complaint. The police are bound to inform the state prosecutor once a month of their activities in supplementing the criminal complaint.
Instructions
The state prosecutor directs the work of the police in the pre-trial procedure by giving instructions, proposals and expert opinions in the course of the activities in which he takes part. The state prosecutor commits himself to directing the work of the police by making an explicit statement to that effect or by conclusive acts. The state prosecutor directs the work of the police when the Group of State Prosecutors for Special Cases deals with cases of organised crime. The state prosecutor also directs the work of the police which involves operational methods and means. Slovenian legal regulations of relations between the state prosecutor and the police contains a provision that makes the state prosecutor’s instructions to the police binding, but the state prosecutor has no authority to impose any sanction on a police officer who does not comply with his instructions. The Decree, however, provides for the possibility of sanctioning violations of the rules of cooperation between the state prosecutor and the police. A system of informing the superiors has been established in the two institutions, and conduct in conflict with the Decree may lead to the person committing the violation to be held professionally and disciplinary liable.
Covert policing
When covert investigative measures are employed in a pre-trial procedure, the state prosecutor directs the pre-trial procedure. In that case, the public prosecutor and the police not only cooperate but are dependent on each other in the execution of the tasks involved in detecting criminal offences and their perpetrators. In the event of the use of special operational methods and means in a pre-trial procedure, the state prosecutor co-decides on the police method for gathering information and evidence. When measures have been ordered by a court, the state prosecutor proposes the use of special methods and means, and issues certain orders by himself. Information is vital for the prosecutor when making a proposal, so it is important that he is in contact with the police and directs them before deciding to employ covert investigation methods and means. The application of covert investigative measures is always preceded by consultations between the police and the state prosecutor. During the implementation of the measures, the police officer who conducts the investigation must keep the state prosecutor updated on the findings. Before undertaking final action, the police inform the state prosecutor who participated in the process of application of covert investigative measures of the action they plan to undertake. After the police have discontinued the application of measures ordered by the court or by the state prosecutor, they must deliver all the recordings, messages and objects obtained by the application of the measures, together with a report on the evidence gathered, to the state prosecutor. Only then does the state prosecutor deliver the complete file to the investigating judge for him to examine whether the measures were applied in the manner authorised.
Covert investigative measures are applied in different combinations. Important considerations are the goals to be achieved, and the evidence that can be obtained, against the background of the type of criminal activity pursued by the suspects, the type of criminal offence, and the means of communication or transportation used. The state prosecutor knows, of course, what information and evidence he needs for further proceedings, which is why his participation in the pre-trial procedure is so important. Also important is the fact that sect. 159 CCP makes it possible for the state prosecutor temporarily to stay the arrest of a suspect or the application of other measures that the police would otherwise be obliged to apply for the sake of uncovering extensive criminal activity. This possibility enables the police to apply certain other covert measures, for example controlled delivery.
Covert investigative measures that may be ordered and applied include: surveillance of telecommunications by secret listening and recording, control of letters and other parcels, control of the computer system of a bank or another legal person engaging in financial and other economic activity, secret listening and recording of conversations with the consent of at least one person involved in the conversation, control of messages sent by electronic mail or by other forms of information technology, secret listening and visual surveillance of a person’s flat or other premises using technical means for documenting and, if necessary, secret entry into these premises, sham purchase, sham acceptance or giving of gifts or sham acceptance or giving of bribes, disclosure of confidential bank information, secret surveillance and undercover operations, imparting information on the participants, circumstances and other facts of specific telecommunications traffic, imparting information about the owner or user of a specific means of telecommunications traffic not published in the directories. In the application of covert investigative measures which do not encroach on fundamental human rights and freedoms, the state prosecutor has the authority to issue orders and the police to implement the measures. Such measures are, for example, sham acceptance or giving of gifts or sham acceptance or giving of bribe, secret surveillance and undercover operations in which documentation means are not used, etc. The application of measures that encroach on fundamental human rights and freedoms (the right to privacy, right to confidentiality of mail, right to inviolability of the dwelling, and so forth) is ordered by the investigating judge on a motion from the state prosecutor.
Relation between the State Prosecutor and the Police
There are two principal models of legal regulation of the relation between the state prosecutor and the police. In the first model, the police come under the jurisdiction of the state prosecutor’s office and their investigations are guided or supervised by the state prosecutor. In the second model, police are independent of the state prosecutor. Slovenia falls into the second model. Summarising the situation, it can be said that the police are independent of the public prosecutor’s office in organisational terms, while closely linked with it in carrying out their tasks, above all during the pre-trial procedure. However, the power of the public prosecutor over the work of the police has increased with new provisions to that effect in the relevant legislation.
The position of the prosecutor and the police in constitutional law, too, influences their inter-relations. The police are attached to the Ministry of the Interior and are an agency of the executive branch of power, whereas the state prosecutor’s office is an independent and autonomous judicial body within the Ministry of Justice. The police are engaged in the detection of crime, and the state prosecutor is the only agency engaged in the ex officio prosecution of criminal offences.
Phases of responsibility for the investigation
Under the Slovene legal system, the investigation of a criminal offence can go through two phases: the police investigation within the pre-trial procedure which does not form a part of the judicial criminal proceedings; and judicial investigation as the first part of judicial criminal proceedings, which may then lead to the main part of the proceedings, i.e. preparation for a trial, the trial, the phase of legal remedies and the execution of final judicial decisions. The judicial investigation is carried out by the investigating judge who is dominus litis of that part of the proceedings. In the first phase of judicial proceedings, the state prosecutor is a party to the proceedings.
Responsibility for the investigation of a criminal offence is divided and depends on the institution performing the investigation and on the phase of the proceedings. The legal duties involved in the investigation of a criminal offence can be performed by three institutions: the police, the state prosecutor and the investigating judge.
In the preliminary criminal proceedings, in which the police carry out the investigation and the state prosecutor directs their work, responsibility is divided between the police and the state prosecutor. The law has not clearly defined with whom primary responsibility for investigation rests in the pre-trial procedure. On the one hand there are the police, who must carry out their tasks in conformity with the principle of legality and deal with all the events bearing characteristic of crimes that are prosecutable ex officio. The police must gather data and information and decide whether there is a case for police investigation. In most cases, the state prosecutor is not informed of the activities of the police or the initial information available to them at the outset, except where the police wish to consult him. The decision whether or not to take measures still rests with the police. The state prosecutor can take part in decisions on the kind and extent of investigative measures after the police have informed him of grounds for suspicion that a specific criminal offence has been committed or a specific person has committed it.
The state prosecutor has no authority to decide which criminal offence will be investigated. The necessary condition for launching a police investigation and taking police measures is the existence of grounds for suspicion that a specific criminal offence has been committed. This means that a certain degree of probability that a criminal offence has been committed must exist. Penal law provides for three degrees of probability that a criminal offence has been committed, referred to as legal requirements for performing specific official acts: reasons for suspicion in order to launch a police investigation, well-founded reasons for suspicion in order to apply special operational methods and means, and well-founded suspicion for judicial investigation, accusation and certainty of conviction.
Shared responsibility
The state prosecutor starts sharing responsibility for the investigation in the pre-trial procedure at the moment police inform him that a specific crime has been committed. The state prosecutor then begins to cooperate with the police, is present during police activities, provides the police with proposals and directs the pre-trial procedure. The responsibility of the state prosecutor is confined to his own acts and activities, including the proposals, instructions and legal opinions he gives to the police. The state prosecutor is not responsible for the police investigation method chosen, since that is professional police responsibility. The police have their own resources: personnel, means, experts and finances. It is up to the police to decide whether, and how, to use these resources. There are no sanctions or coercive measures that the state prosecutor can apply against the police if they fail to implement his instructions and proposals. In this respect, responsibility rests with the police.
The statutory basis for cooperation between the state prosecutor and the police is given in the CCP, the State Prosecutor’s Office Act and the Police Act. The CCP contains general provisions on cooperation between the state prosecutor and the police. The new sect. 160 CCP, last amended in 2003, defined with greater precision the cooperation between the state prosecutor and the police. Cooperation intensified with the introduction of new legal institutions in connection with special operational methods and means.
It has been argued that with the adoption in 1995 of a new CCP, the state prosecutor is the dominus litis of the pre-trial procedure. The CCP (1995 - CCP) and State Prosecutor’s Office Act (1994 - SPOA) contain provisions that lead to such a conclusion. Sect. 45 provides for the state prosecutor to take the necessary steps in connection with the detection of criminal offences, tracking down perpetrators and directing the pre-trial procedure. Sect. 8 State Prosecutor’s Office Act provides that in discharging the function of prosecuting criminal offences and other punishable acts, the state prosecutor cooperates with agencies of detection, directs them, and takes the necessary measures in connection with the detection of criminal offences or offenders within the scope of the state prosecutor’s authority in pre-trial procedures specified by the CCP. In turn, sect. 160 a. CCP provides that the state prosecutor can direct the work of the police by giving compulsory instructions, expert opinions and proposals for the gathering of information and other measures within the competence of the police. The second paragraph of that Sect. provides that the method of directing and informing shall be prescribed by the Government. In June 2004, the Government adopted the Decree on Cooperation between the State Prosecutor and the Police in Detecting and Prosecuting Criminal Offences. The Decree is an executive regulation that contains provisions public prosecutors and the police must adhere to in their cooperation and joint activity, and that determines their respective positions in the pre-trial procedure. Under the Decree the police are bound to inform the prosecutor of all the cases with which they are dealing. It also gives the prosecutor the authority to supervise implementation of measures in the detection of criminal offences, to become involved in the work of the police, to decide on the kind of measures to be applied and, to give counsel in legal matters. Of special importance are the provisions in relation to informing the state prosecutor. If the state prosecutor is to direct the work of the police in the pre-trial procedure, he must be well-informed about their activities. The police inform the state prosecutor of all cases based on well-founded reasons for suspicion that a crime has been committed. The state prosecutor must be informed even if the activity of the police does not result in a criminal complaint against a particular person for a particular crime. The provisions define when the state prosecutor must be informed immediately, the instances in which he must be informed within three days, and the criminal offences of which he should be notified by means of a criminal complaint. The police are bound to inform the state prosecutor once a month of their activities in supplementing the criminal complaint.
Instructions
The state prosecutor directs the work of the police in the pre-trial procedure by giving instructions, proposals and expert opinions in the course of the activities in which he takes part. The state prosecutor commits himself to directing the work of the police by making an explicit statement to that effect or by conclusive acts. The state prosecutor directs the work of the police when the Group of State Prosecutors for Special Cases deals with cases of organised crime. The state prosecutor also directs the work of the police which involves operational methods and means. Slovenian legal regulations of relations between the state prosecutor and the police contains a provision that makes the state prosecutor’s instructions to the police binding, but the state prosecutor has no authority to impose any sanction on a police officer who does not comply with his instructions. The Decree, however, provides for the possibility of sanctioning violations of the rules of cooperation between the state prosecutor and the police. A system of informing the superiors has been established in the two institutions, and conduct in conflict with the Decree may lead to the person committing the violation to be held professionally and disciplinary liable.
Covert policing
When covert investigative measures are employed in a pre-trial procedure, the state prosecutor directs the pre-trial procedure. In that case, the public prosecutor and the police not only cooperate but are dependent on each other in the execution of the tasks involved in detecting criminal offences and their perpetrators. In the event of the use of special operational methods and means in a pre-trial procedure, the state prosecutor co-decides on the police method for gathering information and evidence. When measures have been ordered by a court, the state prosecutor proposes the use of special methods and means, and issues certain orders by himself. Information is vital for the prosecutor when making a proposal, so it is important that he is in contact with the police and directs them before deciding to employ covert investigation methods and means. The application of covert investigative measures is always preceded by consultations between the police and the state prosecutor. During the implementation of the measures, the police officer who conducts the investigation must keep the state prosecutor updated on the findings. Before undertaking final action, the police inform the state prosecutor who participated in the process of application of covert investigative measures of the action they plan to undertake. After the police have discontinued the application of measures ordered by the court or by the state prosecutor, they must deliver all the recordings, messages and objects obtained by the application of the measures, together with a report on the evidence gathered, to the state prosecutor. Only then does the state prosecutor deliver the complete file to the investigating judge for him to examine whether the measures were applied in the manner authorised.
Covert investigative measures are applied in different combinations. Important considerations are the goals to be achieved, and the evidence that can be obtained, against the background of the type of criminal activity pursued by the suspects, the type of criminal offence, and the means of communication or transportation used. The state prosecutor knows, of course, what information and evidence he needs for further proceedings, which is why his participation in the pre-trial procedure is so important. Also important is the fact that sect. 159 CCP makes it possible for the state prosecutor temporarily to stay the arrest of a suspect or the application of other measures that the police would otherwise be obliged to apply for the sake of uncovering extensive criminal activity. This possibility enables the police to apply certain other covert measures, for example controlled delivery.
Covert investigative measures that may be ordered and applied include: surveillance of telecommunications by secret listening and recording, control of letters and other parcels, control of the computer system of a bank or another legal person engaging in financial and other economic activity, secret listening and recording of conversations with the consent of at least one person involved in the conversation, control of messages sent by electronic mail or by other forms of information technology, secret listening and visual surveillance of a person’s flat or other premises using technical means for documenting and, if necessary, secret entry into these premises, sham purchase, sham acceptance or giving of gifts or sham acceptance or giving of bribes, disclosure of confidential bank information, secret surveillance and undercover operations, imparting information on the participants, circumstances and other facts of specific telecommunications traffic, imparting information about the owner or user of a specific means of telecommunications traffic not published in the directories. In the application of covert investigative measures which do not encroach on fundamental human rights and freedoms, the state prosecutor has the authority to issue orders and the police to implement the measures. Such measures are, for example, sham acceptance or giving of gifts or sham acceptance or giving of bribe, secret surveillance and undercover operations in which documentation means are not used, etc. The application of measures that encroach on fundamental human rights and freedoms (the right to privacy, right to confidentiality of mail, right to inviolability of the dwelling, and so forth) is ordered by the investigating judge on a motion from the state prosecutor.
