Experiences of the Prosecution
3. Role of prosecuting authority in preliminary investigation
If we consider the fact that the position of (investigating) judges in preliminary investigation has stabilised at least in principle in the last two decades,16 the relationship between the police (and other authorities in charge of crime detection to a certain extent - increasingly) and state prose-cutors as the prosecuting authority has remained the crucial issue at this stage in the proceedings.
An in-depth analysis of relationships formed between the police and state prosecutor in prelim-inary investigation is both needed and important. If the Code continues to develop within the current framework, it will be revealed (if it has not already been revealed) that present regula-tions and current practice of the prosecution directing the authorities in charge of crime detec-tion and preliminary investigadetec-tion have been hiding, in addidetec-tion to their positive aspects, some disadvantages and flawed solutions. Secondly, if a reform aimed at adopting the so-called pros-ecutorial investigation is implemented, it should be kept in mind that relationships between the police and prosecution in such a context must be regulated in a different manner. Seemingly, the people who prepared the draft CPC-1 were not sufficiently aware of that condition because they still refered to directing quite often.17 If they refer to directing in the present context, they are wrong because, in my opinion, when the relationship between the police and prosecution in a prosecutor-led investigation is concerned, prosecutors are more involved in such investigations, with a number of subtle gradations.
3.1. I have defined prosecutorial direction of the police under the current CPC as soft encroach-ment of an independent prosecuting authority upon the territory of an independent authority in charge of crime detection. From the point of view of state prosecutors, the directing of the de-tection process and authorities in charge thereof constitutes their right, meaning that they are al-lowed to direct them when they deem it necessary, even though they are not obligated to do so.
Providing direction is his tool with which he aims to improve the detection process and in direct or indirect consequence, his performance in the broadest sense of the word.
A prosecutor will not opt for directing (the police/investigation) when he deems it unnecessary because if a case is straightforward and it is expected that crime detection authorities will deal with it successfully without an intervention from his part or when his intervention would not
15 This primarily refers to the both forms of direct indictment provided for by the Code: the first one that cannot be disputed in theory and for which an investigating judge must grant consent (Article 170, paragraph 1 of the CPC), not so much used in practice and the other one, limited to less serious criminal offences adjudicated in regular proceedings and decided on independently by the state prosecutor (Article 170, paragraph 6 of the CPC). The second type of indictment, despite theoretical scepticism about it was (and still is) used a lot in practice. In addition, it needs to be clarified that upon the introduction of objection, the possibilities for preferring this type of indictments have widen since state prosecutors are allowed to issue indictments even in cases when they have concluded plea agreements with the accused.
16 In concrete terms, a careful observer cannot but notice reservations very similar to objections made to the judge-guarantor in general; namely, that his role as a guarantor is weak because he does not oversee the entire proceedings but only certain segments thereof and that some parties to the proceedings regard his role as instrumental.
17 For instance, see Article 163, paragraph 1 of the draft CPC-1 under which the state prosecutor “shall direct and oversee” the investigation process. In that regard, another two paragraphs of the same article are even more express; paragraph 4 which reads that the state prosecutor shall instruct the police by means of “requests, consent, orders, instructions” and paragraph 5 which says that the police shall act in accordance with prosecutor’s directions.
result in improved performance of the crime detection authorities because, for instance, he has no idea what else the police could do other than what they are doing at that moment. It is also perfectly clear that in providing direction he may not exceed his authority or give instructions which are outside his purview.
The first restriction is particularly important: it is not acceptable for a prosecutor to direct the crime detection authority when something like that is not necessary. Providing direction in clear cases18 results in a decreasing level of responsibility and independence of the crime detection au-thority and the same applies to their resourcefulness and initiative, all of which are necessary el-ements of high-quality police work. On the other hand, by providing direction in clear-cut cases, prosecutors waste their abilities which should be directed towards cases that are truly complex.
As previously mentioned, the crime detection authority, which remains an independent author-ity, must act within its competences and therefore has to know what course of action to take at every moment, even without prosecutorial direction. If nothing else, it must always perform all those actions which cannot be delayed. It may not act in accordance with directions which cause it to take unlawful actions. Since this concerns a relationship between two independent author-ities, I am of the opinion that the crime detection authority is not obligated to act in accordance with every direction from the prosecution: it may decline those that are clearly unfounded, but it is expected to provide an explanation for its disagreement. The police and prosecutors must com-municate with each other, although it needs to be clear at every moment that the prosecuting au-thority is the only one to decide whether or not to bring prosecution.
3.2. For state prosecutors to be able to direct a detection process, certain conditions need to be met. The first and undoubtedly most important one is that they need to be well-informed: a state prosecutor needs to be informed in a timely and satisfactory fashion about the fact that there is a case which might require him to become involved. Such information may be received from any-one19 and more often than not, it will naturally come from the crime detection authority.
Little attention has been devoted to the issue of providing timely information. The central prob-lem lies in a (rigid) structure of the (old) code which somehow became focused on the crimi-nal charge as a document which transfers a case from the hands of the police to the hands of the prosecutor whose further activities it should stimulate. It is not familiar with the concept of time-ly exchange of information between the crime detection authority and the prosecution or of co-operation between them, especially in cases when the crime detection authority acts based on its own findings.
18 Throughout my long career, I have found that (and this applies in general, not only to providing direction) many people are happy to deal with clear-cut cases and the major part of them runs away from difficult, slow and borderline cases. It is a question of psychology:
clear-cut cases offer good chances of positive end-results people can take pride in, which can be gratifying and useful in every respect. Only the rarely committed ones will know that stakes were too high and maybe even completely unnecessary for a result which would be the same without them. As opposed to this, dealing with difficult cases may be unfavourable, if not risky from the point of view of professional satisfaction. There is a considerable risk that it will not end successfully. Success has many fathers, but failure is an orphan.
19 The CPC contains a provision requiring state prosecutors to react even when they hear rumors about a criminal offence (see Article 161, paragraph 2 of the CPC). It is not possible to elaborate here on all the aspects of that provision, its origin and consequences on the work of prosecutors or issues that it raises. For the purpose of this paper, it suffices to say that it is one of the most typical situations that can promt prosecutors to direct the police or other crime detection authorities.
3.3. In that regard, a practice has developed in Slovenia, which has been persistent in imposing problematic solutions. Both sides are responsible for this: the police, because they consider pros-ecutorial direction as instrumental, as some kind of prospros-ecutorial oversight of police activities together with their potential mistakes and state prosecutors whose aim is to get rid of the task of providing direction because they see it as additional burden and because they are aware that they do not have command of it and thus do not feel self -confident enough in their work.
Consequently, it is important to provide for that particular relation in the overall relationship be-tween the police and prosecution. It has been revealed that it would not be easy to accomplish such a task if we intend to provide for the subject matter and not the form. The detection stage is a part of proceedings which is full of dramatic events, surprises, and unavoidable need for quick reactions. It is difficult, even impossible, to formulate it by rules which will provide for all of its potential forms. However, with a view to bringing certain order into providing direction, the Slovenian Association of Prosecutors and the police signed a special co-operation agreement in 2001.20 That document, entitled Rules of professional co-operation, had as its starting point a postion that the police had to inform the state prosecutor about each case in connection with which there were grounds to believe that a crime had been committed, whereas the state pros-ecutor was allowed to direct police activities. In cases when undercover investigative measures were undertaken, providing direction by the prosecutor was intended to be the rule. The Rules were an attempt to define as precisely as possible what was included in the scope of providing direction in preliminary investigation as well as to enumerate police duties with regard to pro-viding information to the prosecution. The Rules imposed by the heads of two authorities as le-gal grounds for cooperation have also raised some doubts, although as umbrella rules, they have been comparatively successful in taking into account the positions and roles of both authorities.
It is my belief that a leap in the wrong direction occurred when the Government interfered in the relationship between the police and prosecution service by adopting its first and then yet an-other decree on co-operation between the state prosecution service and crime detection authori-ties.21 In all fairness, Article 160.a of the CPC22 did provide, technically speaking, a legal basis for issuing that decree since it defined in more detail than the above-mentioned principled provi-sion contained in Article 45 of the CPC duties to be fulfilled by state prosecutors in the process of giving directions not only to the police, but also to other state authorities in charge of crime de-tection. Likewise, that provision has been sedes materiae for organising specialised investigation teams and finally, as previously mentioned, it does give the Government authority to lay down procedures, cases, time limits and manner of providing direction and information.
In the light of the cited CPC provision, the manner in which co-operation was organised con-sidering its subject matter seemed acceptable at first glance. Nevertheless, it is a moot point in my judgement, if the Government – which in Slovenia does not have jurisdiction over criminal prosecution, notwithstanding rules it may impose in the sphere of criminal prosecution, even
20 See Rules of professional co-operation between the police and state prosecution service in the process of detecting and prosecuting criminal offenders issued by the then Director General of the police, Marko Pogorec, and Chief Prosecutor Zdenka Cerar. The Rules came into force in November 2001.
21 See Decree on co-operation between state prosecution service and the police in detecting and prosecuting criminal offenders (Official Gazette of the RS, no. 52/04) and Decrees on co-operation between state prosecution service, the police and other competent government authorities in detecting and prosecuting criminal offences and actions of specialised and joint investigation teams (Official Gazette of the RS, no. 83/10).
22 This provision has been relatively new – it was introduced by the Amendment CPC-E in 2003 (Official Gazette of the RS, no. 56/03).
to govern apparently technical issues – is allowed to dictate what the state prosecution service – which is an independent state authority in charge of criminal prosecution – should do. Namely, it should be noted, without going into detail at this point, that according to the practice of the Constitutional Court, the state prosecution service has until lately been regarded as a sui gener-is authority, which, as held by that Court, could not be classified as a body belonging to the ex-ecutive branch without any reservations. Only recently did the Constitutional Court include the state prosecution service into the executive branch more explicitly, while emphasising a high de-gree of state prosecutors’ independence as the authority in charge of criminal prosecution.2324 In brief, the decree might constitute an encroachment on the autonomy of the state prosecution ser-vice inasmuch as it lays down that serser-vice’s tasks and duties.
In terms of its content, the first decree was fairly restrained since it regulated only police duties with regard to providing information to state prosecutors, activities of state prosecutors in the process of giving directions to the police and in particular, undercover investigative measures. In that respect, the most controversial provision pertained to what was understood to mean direc-tion25 since that issue falls under the purview of prosecution and it was certainly not something for which the government had authority.
As opposed to the first one, the second decree was a complex regulation. As previously men-tioned, it did not pertain only to the police, but to all state institutions which could come into contact with criminal offences in the course of their work. It specified police duties with regard to providing information to state prosecutors about uncovered crimes as well as about actions and measures planned to be taken by the police in a similar manner as the first one, although more precisely. The scope of chapter on direction had been broadened a lot and there were an in-creasing number of provisions under which state prosecutors were directly bound to take certain actions. It was followed by chapters on undercover investigative measures, security measures of confiscation of material gain, then on specialised and joint investigation teams, and finally, even on training and co-operation. In brief, a genuine little code of conduct between state prosecutors, the police, and various other state authorities, oscillating between the subject-matter that is legal in nature, which is the reason why a government could not be competent for it, and completely professional issues, whose fitting into a mould of regulations is not wise.
The last step, by which a certain level of grotesque has already been reached when the regulation of relationships between the police and prosecution in preliminary investigation is concerned, was taken only recently, no more than a year ago. Namely, the new act which governs the organ-isation of the police26 lays down that notwithstanding the code governing criminal procedure, it shall be deemed that a state prosecutor has assumed the direction of the police work in prelimi-nary investigation as of the moment he is informed about a criminal offence.27 In other words, it is evident from the cited provision that not only do the police (if we are to use legislator’s term)
23 In order to avoid misinterpretation, it needs to be clarified that Slovenian laws governing the prosecution service specify that holders of prosecutorial function are individual state prosecutors (as in decentralised systems), not the head of the authority or even chief prosecutor in the country (as in monocratic systems). This has been so since the first law on state prosecution was enacted in independent Slovenia in 1994.
24 For more on this subject, see Decision by the Constitutional Court of the RS no. U-I-42/12 of February 7, 2013.
25 The Decree specified in its Article 11 that direction included instructions and proposals, expert opinions and activities of prosecutors in procedural actions, as well as prosecutors’ decisions on police measures against suspects deprived of liberty.
26 Organisation and Activities of the Police Act (ZODPol), Official Gazette of the RS, no. 15/13.
27 See Article 4, paragraph 8 of the Organisation and Activities of the Police Act.
see direction in markedly instrumental terms, but they also see it as a mechanisms for dispensing with responsibility for their own activeness (and naturally, inactivity) and transferring it to state prosecutors. Seemingly, this provisions is so far removed from reality that it has not until now awaken any special interest among professional audience, which otherwise would be well-de-served; also, police attempts to apply it in practice or cite it have not been noticed.
In brief, Slovenian attempts to provide by regulations for prosecutorial direction of the police in preliminary investigation, i.e. the central relationship at that stage of the proceedings, have not been successful in my judgement. The new and expected standard of quality has not been at-tained. The relationship between the police and prosecution still remains a tough nut yet to be cracked.
