The Relationship of the Prosecution with the Police and Investigative Responsibility

107THREPORTS INTERNATIONAL OF THE TRAINING COURSE COURSE REPORTS OF THE COURSE

GROUP 1

THE RELATIONSHIP OF THE PROSECUTION WITH THE POLICE AND INVESTIGATIVE RESPONSIBILITY

Chairperson Mr. Zafar Ahmad Farooqi (Pakistan) Co-Chairperson Mr. Takahiro Saito (Japan) Rapporteurs Mr. Winfred Ansah-Akrofi (Ghana) Mr. Ersyiwo Zaimaru (Indonesia) Mr. Alex Mwachishi Chilufya (Zambia) Members Mr. Guan Fujin (China) Ms. Mariko Suzuki (Japan) Mr. Toshiaki Takahashi (Japan) Mr. Hiroyasu Ito (Japan) Mr. Lee, Yong-Hoon (Republic of Korea) Adviser Deputy Director Masahiro Tauchi (UNAFEI)

I. INTRODUCTION II. USE OF TERMS This special report is the product of an For purposes of this report, the following intense group workshop called upon to terms shall be construed as hereunder: examine and discuss the relationship “PROSECUTOR”: Any person appointed between investigation and prosecution as or designated under the law as a public it pertains to the nineteen countries prosecutor or one who acts as such on represented on the course. To realize this behalf of the state and whose powers and objective, it was necessary in each case to functions include, inter alia, the following: look at the police; to what extent, if at all, (a)the power of control over the prosecutors get involved in investigations; presentation of a case before court; the practical problems faced by and investigators, police and prosecutors alike; (b)the power of control over the the role played by public prosecutors in continuance or discontinuance of overcoming the drawbacks and problems prosecution. faced by investigators; and, recommending possible avenues of circumventing existing “POLICE”: Any organization with and perceived hurdles in the way of personnel appointed under the law and qualitative and effective investigation and exercising the power and function of a law prosecution of crime and its offenders. The enforcement officer to maintain law and countries under review were conveniently order in the country. This report focuses divided into two principal jurisdictions, on the function of the police as an namely: investigator. (1) countries in which only the police has investigative authority, and “INVESTIGATOR”: Any person who (2) countries in which the police and detects crime and discovers offenders public prosecutors are vested with through the exercise of legal powers. investigative authority.

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III. CLASSIFICATION: and any other material evidence considered RELATION OF THE PUBLIC necessary to be collected by the judicial PROSECUTOR AND THE POLICE police. Once this is satisfied, the prosecutor delivers the dossier to the trial judge. Nations have different institutions Similarly, in offenses punishable with which conduct investigations. In some more than three years’ imprisonment, a countries such as Costa Rica, Ghana, India, police officer on receipt of a complaint Kenya, Malaysia, Maldives, Nepal, hands over the investigation file to the Pakistan, Singapore, Sri Lanka, Thailand prosecutor. The prosecutor then draws up and Zambia, the authority to investigate a “formal instruction requirement” which, lies with the police. In Cameroon, China, together with the case file, he submits to Indonesia, Japan, Laos, the Philippines the examining judge. The latter effectively and the Republic of Korea, the role of takes over the case and conducts the investigation lies with both the police and necessary investigation. With the help of the prosecution. the judicial police, the collection of evidence such as witness and suspect statements, A. Countries in Which Only The ordering the production and inspection of Police Has Investigative public and private documents, and making Authority available results or reports of forensic 1. Costa Rica laboratory tests, is done by the examining judge. The prosecutor only controls the a) Organizational structure of labor of the examining judge by way of the police and the appeal to the Appeal Court if he does not prosecution agree with the proceedings followed by the Police: The investigative authority is the examining judge. After this, the dossier is judicial police, which is under the General handed over to the prosecutor for Director. The judicial police is under the prosecution. supervision of the Internal Affairs Office. When a crime which is punishable by a fine 2. Ghana or less than three years’ imprisonment is reported to the police, all investigation a) Organizational structure of thereof is conducted by the police. Upon the police and the conclusion of such investigation, the police prosecution submits the results of investigation to the Police: The investigation of all crime is prosecutor. the responsibility of the police. This power Prosecution: Public prosecutors belong to derives from the Police Service Act No. 350/ the Public Ministry under the supervision 70. The police falls under the Ministry of of the Prosecutor General. Only public Interior. The police powers of investigation prosecutors can institute criminal include the power to arrest with or without proceedings before the court. a warrant, as per section 10(1) of the CPC Act 30/60 and the power to search with or b) Role of prosecutors in police without a warrant. The police is also investigations empowered to grant bail to suspects. When a police investigator submits to the Suspects who can not be granted bail prosecutor the results of his investigation, should be brought before a court within and if it is an offense punishable with forty-eight hours. After the police has imprisonment, not exceeding three years or completed its investigations, it submits the a fine, the prosecutor must then require all dossier to the prosecutors for prosecution. relevant witness and suspect statements

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Prosecution: The prosecutorial function 3. India is exercised by the Attorney General. That a) Organizational structure of is to say, all public prosecutors are the police and the designated by the Attorney General and prosecution operate under the Attorney General’s Police: The Central Bureau of Chambers. The Attorney General is the Investigation (CBI) is the premier Minister of Justice. There are also police investigation agency of the central prosecutors exercising the powers of government. The CBI is under the prosecution on behalf of the Attorney Ministry of Personnel and Training, headed General. Police prosecutors appear before by a Director and answerable to the Prime Circuit Tribunals, Community Tribunals Minister. The CBI has concurrent and Juvenile Courts (these are subordinate investigative jurisdiction in the Union courts of first instance). All major offenses Territories. It can also take up the (1st degree) are triable on indictment investigation of cases at the request of the before the High Court. All appeal matters state governments. Besides the CBI, there are handled by state attorneys from the are state police forces headed by Directors Attorney General’s Chambers. General of Police, who are appointed by the state government concerned. The police b) Role of prosecutors in police has power to initiate investigations of investigations cognizable offenses itself but require a The police seeks legal advice from the court order for non-cognizable offenses. Attorney General whenever necessary Other investigative powers, include arrest, during the course of an investigation. After search, seizure and interview suspects and the police has completed an investigation, witnesses. a duplicate docket of the case to be tried Prosecution: The prosecution wing in a on indictment is sent to the Attorney state is headed by the Director of General’s Chambers. Before the prosecutor Prosecutions who is responsible for the initiates criminal proceedings in court, he prosecution of cases in the Magistrate’s studies the docket. Should there be any Courts. He is aided by the Additional, need for further investigation, he advises Deputy and Assistant Public Prosecutors the investigator to do so. The prosecutor (Grade I and Grade II), appointed by the also arranges pretrial conferences. Here state government. Public prosecutors who he meets and interviews all parties of a prosecute cases in the High Court are case, with a view to clarifying certain issues appointed by the state government from and ascertaining the relevance of the panel of suitable lawyers prepared by witnesses. This also gives the prosecutor the state government in consultation with a chance to expose and work on weaknesses the High Court. Public prosecutors who in the case before the matter goes to trial. appear in Sessions Courts are also During investigations, the prosecutor appointed by the state government from applies to the court for arrest, search and such panel in consultation with the detention warrants, which are then Sessions Judge. They do not fall under the executed by police investigators. jurisdiction and control of the Director of Prosecutions, but rather are responsible to the District Magistrate. The prosecution agency does not have a national level body. At the central level, the Attorney General is the most senior law

309 RESOURCE MATERIAL SERIES No. 53 officer of the Government of India with b) Role of prosecutors in police legal power to address all courts in the investigations country. Prosecutors appointed by the The prosecutor has no authority to central government appear in High and conduct investigations. The role of the District Courts in cases involving the prosecutor is an advisory one. In certain central government. cases though, the Attorney General can instruct the Commissioner of Police to b) Role of prosecutors in police initiate investigations if there is a greater investigations public interest to be served. At the Though prosecutors have no powers to conclusion of each investigation, the police initiate and conduct investigations, the files the case with prosecutors for police seeks legal advice from prosecutors prosecution. during investigations. The police respects Prosecutors study the investigation file and complies with the legal advice given and when necessary request the police to by prosecutors. However, prosecutors have carry out additional investigations such as no legal authority to direct or supervise the the recording of additional statements from police. Prosecutors are employed in the witnesses, the interrogation of any other CBI to provide legal services to the suspect and inspection of certain investigative body on a daily basis. The documents. Head of the Legal Division of the CBI is called the Legal Advisor and is assisted by 5. Malaysia Additional and Deputy Legal Advisors and a) Organizational structure of Public Prosecutors. These law officers the police and the guide the process of every criminal prosecution investigation by reviewing cases and Police: In Malaysia, the Royal Malaysian offering legal insights into those cases and Police is under the Ministry of Home useful guidelines on how to proceed with Affairs. The investigation is usually done particular investigations. by the police. However, only police officers of above the rank of sergeant have 4. Kenya investigative powers. In non-seizable a) Organizational structure of offenses, the investigating officer can only the police and the carry out investigation after he has prosecution obtained an Order to Investigate (O.T.I.) Police: The National Police is under the from the public prosecutor as provided Office of the President. The police initiates under section 108(2) of the Criminal and conducts all criminal investigations. Procedure Code. In carrying out In the course of these investigations, the investigation, the police can detain any police consults prosecutors for advice. The person suspected of committing any police department is headed by the seizable offense for a period not more than Commissioner of Police. twenty-four hours. If it is necessary to Prosecution: The Attorney General is the detain the suspect for further investigation, prosecution authority. All public the police officer must produce the suspect prosecutors including police prosecutors, before a Magistrate’s Court and request an exercise prosecutorial functions on behalf order of remand for a period of not more of the Attorney General. In matters of than fourteen days. prosecution, police prosecutors are Prosecution: The prosecution of criminal controlled by the Attorney General. cases is a function of the Attorney General.

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Public prosecutors exercise this power on before trial. The prosecutors can not give behalf of the Attorney General. Police directions to the police on how to conduct officers are also allowed to prosecute as per investigation. Once the investigation by the section 20 of the Police Act, 1967 and police is completed, the case is sent to the sections 377 and 378 of the CPC. Attorney General’s Office, which can request Prosecution by the police prosecutor is the police to conduct supplementary carried out in the Magistrate’s Courts and investigation if necessary. The police has the Sessions Courts. While the police no legal obligation to follow the request. prosecutor performs prosecution in the However, in practice, the Attorney General’s courts, they act on behalf of public advice or request is followed. prosecutors. 7. Nepal b) Role of prosecutors in a) Organizational structure of investigations the police and the Public prosecutors do not have the legal prosecution authority to conduct investigations, save Police: The Police Headquarters are for police prosecutors who have under the Ministry of Home Affairs. The investigative powers by virtue of the police police is authorized to conduct office. Public prosecutors, at best, advise investigation, detect suspects, manage and instruct police investigators in the crime scenes and collect physical evidence. legal efficacy and expediency of carrying The police can arrest a suspect with or out investigations. Thus advice relates to without warrant and can detain for a period cases brought to the notice of prosecutors of twenty-four hours without recourse to during the investigation stage and those the court or the prosecutor. However, the cases whose files have been submitted to police should within that time bound (i.e., the prosecution office for study with a view twenty-four hours) produce the accused to instituting criminal proceedings. before the court for additional time, if needed for further investigation. If the 6. Maldives court also deems necessary that the a) Organizational structure of investigator needs additional time, then the police and the the court may permit him to detain a prosecution suspect for an additional period of twenty- Police: The police is under the Ministry five days. If the court feels that it is not of Defense and National Security. The necessary to detain a suspect, he will police conducts investigation and can immediately be released. The investigating arrest suspects, as well as search and seize police officer should take the statements on its own decision without warrants. of witnesses and other third parties in the Prosecution: The prosecutors are under presence of the public prosecutor. When the Attorney General. The Attorney the investigating police officer concludes General is appointed by the President. The his investigation, the results should be other prosecutors (the State Attorneys) are submitted to the public prosecutor to frame appointed by the Office of the President. the charge-sheet. Prosecution: The prosecutorial function b) Role of prosecutor in police is independently exercised by the Attorney investigations General of the Kingdom of Nepal, which Prosecutors do not conduct investigations. he can delegate to his subordinate officers They do not meet suspects or witnesses too. Thus in Nepal, except for the Attorney

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General, no any other agency (neither the and public prosecutors are appointed by the investigator nor the victim) can prosecute. provincial government. The Attorney The Attorney General is appointed and can General and his deputy represent the be dismissed by His Majesty’ the King upon federal government in the Supreme Court. the recommendation of the Prime Minister. The Advocate General and the Assistant the Advocate General appear in the High b) Role of prosecutors in police Court on behalf of the government. In investigations District Sessions Courts and Magistrates’ Though the Nepalese public prosecutor Courts, the Public Prosecutors and District is not directly involved in investigating a Attorneys represent the government. crime and his participation during the investigation is limited, as and when the b) Role of prosecutors in police investigating police officer submits the case investigations to the public prosecutor, before putting it Public prosecutors do not investigate forward to the court, the public prosecutor crime, but advise the police on better legal can direct or instruct the investigating approaches to investigations. They can police officer to collect some more evidence request the police to do supplementary or interrogate someone, if necessary. The investigation when evidence is lacking in investigating police officer should obey a case. The prosecutors do not control or such directions or instructions. supervise police investigations.

8. Pakistan 9. Singapore a) Organizational structure of a) Organizational structure of the police and the the police and the prosecution prosecution Police: The Federal Police is under the Police: The police is under the Ministry Ministry of the Interior. The Provincial of Home Affairs. The police conducts Police comes under the Provincial Home investigations, and has power of arrest with Department. or without a warrant for non-seizable and The investigation of crime is the seizable offenses. It can also search and responsibility of the police. Like in most seize property upon a warrant from the common law countries, the police is court. empowered to arrest without a warrant for Prosecution: Public prosecution is under cognizable offenses and produce such the Attorney General’s authority. The arrestees before the court within twenty- Attorney General, who is the Public four hours. Thereafter, only the court has Prosecutor, is appointed by the President the power to sanction further remand of on the advice of the Prime Minister. The an accused person by issuing an extended Deputy Public Prosecutors are appointed remand warrant of up to fourteen days. by the Legal Service Commission or the Prosecution: The Attorney General is the Senior Personnel Board. As for police ultimate prosecution authority. He is prosecutors, they are appointed by the appointed by the President on the police force. recommendation of the Prime Minister, and he is also a cabinet minister of the federal b) Role of prosecutors in police government. investigations The Advocate General is the Head of After the investigation by the police is Prosecution at the provincial state level, completed, the case is sent to the Attorney

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General’s Chambers. The prosecutors do not power to advise the police at any stage of conduct investigations by themselves, but criminal inquiry. Further, State Counsels supervise and control the process of can require the police to carry out further evidence collection by the police. This is investigations into specific areas of a case done by giving advice and directions to the once a review of the investigation file has police on the conduct of investigations. After exposed deficiencies in evidence collection. investigations are completed and when the case is ready for trial, the prosecutors may 11. Thailand interview witnesses prior to going to court a) Organizational structure of to establish the credibility of the witnesses the police and the or to clarify the issues. Should the prosecution prosecutors feel that the investigation is Police: The police falls under the incomplete, they can return the case file to Ministry of Interior. The power to police pointing out areas requiring attention investigate all criminal offenses is and what needs to be done. exercised by the police. Section 121 of the The police investigator and the Thai CPC confers this power on police prosecutors maintain a good working officials. Police are also empowered to relationship. carry out arrests, searches and seizures and detain suspects by themselves. They 10. Sri Lanka have the power to issue warrants by a) Organizational structure of themselves for purposes of search and the police and the arrest when necessary. The police can prosecution detain a suspect for up to three days prior Police: The police is under the Ministry to a court appearance. The court can allow of Defense. It exercises all powers of the extension of remand warrants for investigation. The police can arrest and intervals of twelve days up to a maximum detain a suspect up to twenty-four hours of eighty-four days. under a warrant issued by the court. This Prosecution: The Attorney General is the detention can be extended up to fifteen repository of the prosecution function. He days. falls under the direct supervision of the Prosecution: The Attorney General is the Prime Minister. He is assisted by four head of all prosecutions. The Attorney Deputy Attorney Generals, the Director of General is responsible for initiating and the Criminal Litigation Department and the conducting all public prosecutions. Directors General of regional departments. Prosecutors fall under the Ministry of The public prosecutors under the Attorney Justice. The Attorney General is appointed General’s Office are career professionals. by the President. Police prosecutors are answerable to the b) Role of prosecutors in police Attorney General in all matters affecting investigations their prosecutorial work. The prosecutors are not involved in police investigations. They wait for the b) Role of prosecutors in police investigation report from the police. The investigations police inquiry file gives the prosecutors a State Counsels are prosecutors in the chance to deliberate and assess the Attorney General’s Department. They are evidential value and sufficiency of the authorized to direct or supervise investigation before deciding whether to investigation. State Counsels have the prosecute or not.

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If the evidence is insufficient, they then file or docket to the prosecution office for request the police to do further study and advice. investigations or to send witnesses to them Prosecutors may suggest to police for further questioning. investigators from a legal point of view how the inquiry should be conducted and what 12. Zambia elements of evidence to look for in order to satisfy the offense. The police usually a) Organizational structure of comply with the advice of prosecutors. the police and the A prosecutor must satisfy himself that prosecution the investigation is thorough before he can Police: The police department is under proceed to court. the Ministry of Home Affairs. The police is the main investigative security organ of B. Countries in Which the Police and the state. Police officers are empowered Prosecutors Have Investigative both under the Police Act and the CPC to Authority effect arrest with or without a warrant, to conduct search and seizure, and to detain 1. Cameroon suspects in police custody for a period of a) Organizational structure of twenty-four hours. the police and the Detained suspects should be produced prosecution before court within twenty-four hours for Police: The public security police, the the judicial authorities to determine the gendarmerie and the judicial police legality of an arrest and subsequent constitute the main investigative agencies. detention. However, section 33 of the CPC The gendarmerie falls under the Ministry allows the police to detain a suspect beyond of Defense and is responsible for twenty-four hours for purposes of an investigations in the rural areas, where investigation if the circumstances do not police structures are in existence or make it practicable to produce him before inadequate. The public security police falls court within twenty-hour hours, but may under the National Delegation of Internal do so as soon as it is practicable. Security, which is answerable to the Prosecution: The Director of Public Republican President. Prosecutors (DPP) is the prosecuting In the conduct of investigations, the authority. He is independent of the police and gendarmerie act as judicial Attorney General but comes under the police officers and assist the judiciary in Ministry of Legal Affairs. He is appointed the control of the State Counsel. Generally by the President and enjoys a the judicial police is competent to constitutional tenure of office equivalent investigate felonies and complex to a puisne judge of the High Court. misdemeanors nationwide and participates State advocates and police officers are in international investigations. It should appointed by the DPP to act for him as be noted that the control and supervision public prosecutors pursuant to sections 86 of the judicial police in administrative and 87 of the CPC. matters such as promotions, transfers and disciplinary matters revert to the b) Role of prosecutors in police supervisors within the police and investigations gendarmarie command structures. Public prosecutors are not investigators Prosecution: Prosecution is under the either by law or practice. After the police Legal Department. The Minister of Justice has done its inquiry, it forwards the inquiry exercises overall control over the Legal

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Department. The head of prosecution is regard that warrants of arrest, search, called the Procureur General and assisted remand, etc., are made his prerogative. by Advocate-Generals, Substitute-Generals Investigation officers, (i.e., the police) and Attachés. Only the public prosecutors execute these warrants under the can initiate and conduct public prosecution supervision and control of the State for and on behalf of the state. Counsel.

b) Role of prosecutors in police 2. China investigations a) Organizational structure of Under the Ordinance on Judicial the police and the Organization, the State Counsel has prosecution absolute power to conduct personally Police: The police, under the Public investigations for all offences. However, Security Organ, is responsible for the in practice, he investigates in relation to general investigation of crime and exercise serious offences such as murder and powers of detention, arrest and assassinations, particularly sensitive cases interrogation. or those involving senior officials. Prosecution: Public prosecutors fall Where a crime has been committed, the under the People’s Procuratorates, which victim, witness or any person having are the state organs of legal supervision. knowledge of the circumstances may report The Procurator General of the Supreme them orally or in writing either to the State People’s Procuratorate is elected by the Counsel or any other investigative agency. National People’s Congress. The public The State Counsel upon receipt of the crime prosecutors are appointed and dismissed report forwards the same to the competent by the corresponding level Standing investigative agency with specific Committee of the People’s Congress. The instructions as to the manner in which prosecution performs its duty investigations should be conducted. If independently. dissatisfied with the conduct of investigations, he may order fresh or b) Role of prosecutors in police complementary measures. investigations Basically, there are two types of The People’s Procuratorates are investigations, that is, preliminary responsible for prosecutorial work; investigation and flagrante delicto approving arrest, investigating cases of investigations. Where a suspect is arrested corruption and bribery in public offices and in relation to a case of flagrante delicto, the initiating public prosecution, as per CPL police shall conduct him to the nearest Article 3. In other words, public State Counsel within twenty-four hours. procurators, like the police, have the The suspect may only be detained authority to interrogate suspects, interview thereafter by order of the State Counsel. witnesses, search, seize, inspect, examine, The said order is valid for twenty-four detain and arrest suspects. When the police hours and may be extended thrice. wishes to have a person arrested, it must Thereafter, if investigations are not seek approval from the procurators. completed the suspect must be released. Further, the law obliges the police to submit The State Counsel has wide powers to itself to the supervision of the procurators order any measures necessary during vis-à-vis police duties. This means that investigation to enable him to obtain procurators have the power to require the evidence that will contribute to the police to file a case for investigation, send manifestation of the truth. It is in this

315 RESOURCE MATERIAL SERIES No. 53 an officer to participate in the discussion of search, seizure, interrogation and of a major case investigated by the police detention to prosecutors. Besides the or demand that there be a re-inspection or investigation by prosecutors themselves, re-examination of evidence in matters of the public prosecutor exercises a great deal criminal investigation (CPL articles 66, 87 of control and influence over police and 107). However, in cases of corruption, investigations. For instance, the bribery and dereliction of duty committed investigator shall inform the public by state personnel and other major crimes prosecutor about the commencement of the of abuse of official powers, procurators file investigation; the public prosecutor shall the cases for investigation and subsequent grant extension of remand to the prosecution. investigator for completing the In reviewing the case that requires investigation; the public prosecutor shall supplementary investigation, the give instructions to the investigator and the procurator may return the case to the investigator shall complete the case bundle Public Security Organ for supplementary according to the instruction of the public investigation and may also investigate on prosecutor; and if the investigator stops an its own. investigation, he shall inform the public prosecutor, and, likewise, if the prosecutor 3. Indonesia stops prosecution, he shall so inform the concerned investigator. a) Organizational structure of the police and the 4. Japan prosecution Police: The State Police is a component a) Organizational structure of of the Indonesia Armed Forces and is led the police and the by the Commander-in-Chief of the Armed prosecution Forces. The State Police is responsible for Police: The police of Japan consists of the the investigation of general crime. Article National Police Agency and the Prefectural 7(1) of Act No.8/1981 gives power to the Police Headquarters. The National Police police to receive reports and complaints Agency is supervised by the National Police about crime and take steps to establish the Safety Commission, and the Prefectural existence of an offense and identity of an Police Headquarters is supervised by the offender. This includes the power of arrest, Prefectural Police Safety Commission. search, detention, interrogation, and Criminal cases are mainly investigated by termination of investigation. the police which belongs the Prefectural Prosecution: The Prosecution Service is Police Headquarters. The National Police headed by the Attorney General who is Agency conducts coordination between the responsible for the prosecution of all Prefectural Police Headquarters. The criminal cases. Prosecution is under the police has investigative powers of all crimes Attorney General’s Office. The Attorney and exercises such incidental powers as General is a member of cabinet. arrest, search, seizure and interrogation. Prosecution: Public prosecution is under b) Role of prosecutors in police the Ministry of Justice. The Public investigations Prosecutor General is the chief law officer The public prosecutor has investigative and prosecution authority. power in corruption and anti-subversion offenses (Law No. 3 of 1971 and Law No.11/ Pnps/ 1963). These laws give wider powers

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b) The role of prosecutors in Procedure Code vests the power to initiate police investigations and conclude the investigation of crime in The public prosecutor has concurrent the public prosecutor. investigative powers with the police. In Prosecution: The Public Prosecutor’s practice, the police does the initial Office belongs to the Ministry of Justice. investigation, after which the case with The Prosecutor’s Office is an independent documents is sent to a public prosecutor’s entity comprising the Supreme Public office. In the same way, an arrested person Prosecutor’s Office, five High Public must be sent to a public prosecutor within Prosecutor’s Office, twelve Public forty-eight hours. The public prosecutor Prosecutor’s Offices and their branches, would then interrogate the suspect and, if each corresponding to a respective court. necessary, request police to carry out All public prosecutors are qualified certain complementary investigation to attorneys. obtain relevant evidence. Public prosecutors also choose to interview the b) Role of prosecutors in police victims of crime and witnesses before investigations deciding whether to prosecute or not. As the law vests the power of Ordinarily, particularly in serious offenses, investigation in the public prosecutor, it is public prosecutors get involved from the the responsibility of the public prosecutor start. The police report to the public to take a lead in initiating and directing prosecutor concerning the investigation the conduct of criminal investigation. and, together, the police and the public Consequently, the police and special prosecutor plan the investigation strategy, investigative agencies conduct the evidence required, and when to initiate investigations in accordance with the compulsory investigation. In cases general standard and/or special direction initiated by the public prosecutors office, issued by the public prosecutor, and public prosecutors conduct independent necessarily, transfer all cases to the pubic investigation. The PPOs have a criminal prosecutor for the conclusion of an investigation division of specialized investigation. investigators, mostly in economic crimes. In short, the public prosecutor has the authority and duty to supervise judicial 5. Republic of Korea police officials. The police must request the public prosecutor for issuance of a warrant a) Organizational structure of of arrest or detention by a judge. the police and the It is noteworthy that in practice most prosecution public prosecutors are enthusiastic to do Police: The Korean National Police is their own probes into serious crimes. Cases under the National Police Agency (NPA), an of organized crime, white collar crime, drug independent agency of the Ministry of Home offenses, environmental offenses, Affairs. The National Police Commission corruption, are mainly investigated and (NPC) conducts administrative supervision prosecuted by the public prosecutors over the police. Under the NPA, there are themselves. Provincial Police Agencies in each province. Police stations are administered through the PPAS. The police serves as investigative assistant to the public prosecutor, even though it may in practice initiate the investigation of most crimes. The Criminal

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6. Lao People’s Democratic 7. The Philippines Republic a) Organizational structure of a) Organizational structure of the police and the the police and the prosecution prosecution Police: The police is under the Department Police: The police is under the Ministry of the Interior and Local Government of Interior. The Minister of Interior is Head (DILG). A police officer is appointed and of the police. He is appointed and dismissed dismissed by the Head of DILG. by the Prime Minister. The police has the The authority to investigate crime is power to investigate crime. This power vested in the police. This includes the extends to arrest, search, seizure, and the power to interrogate suspects, interview interrogation and interview of suspects and witnesses, search and seizure and arrest witnesses. However, the police must obtain without warrant. a warrant from the court or a prosecutor Prosecution: The prosecution is under the in order to effect arrest, search or seizure. Department of Justice. Public prosecutors Prosecution: The Attorney General are appointed and dismissed by the Prosecutor is the head of public prosecutors. President of the Philippines on the He is appointed and dismissed by the recommendation of the Secretary of Justice. National Assembly, on recommendation of When a complaint is submitted to a a Standing Committee. The Attorney public prosecutors office, the public General Prosecutor appoints and dismisses prosecutors also conduct investigation, the chief of public prosecutors at provincial, which they call “preliminary investigation”. prefectural and district levels. During the preliminary investigation, public prosecutors have the right to b) The role of prosecutors in interrogate the suspect and interview police investigations witnesses, but they do not have the right Public prosecutors have the authority to to execute other investigative measures. initiate investigations of all crime. They The police and the public prosecutors can have the power to arrest, search, seize and investigate all kinds of cases, except graft interrogate suspects by themselves. They and corrupt crime. can also issue warrants of arrest, search, seizure and detention. Public prosecutors b) Role of prosecutors in police can take up a case from the police and investigations conduct supplementary investigation. Prosecutors have no hand in the When the police get information about investigation of the police. In the crime, they normally report to prosecutors Philippines, the police and the public about the case within forty-eight hours. In prosecutors office belong to different practice, prosecutors only conduct ministries, and, thus, they work investigations of corruption by themselves. independently. Once a case is investigated The prosecutors work through the police, by the police, it will be the only ordering them to execute warrants of investigating agency, and the public arrests, search, seizure and detention. prosecutor is not involved in the case. Public prosecutors, however, work very Public prosecutors do not conduct closely with the police and conduct joint supplementary investigation by investigations in cases of corruption. themselves, and cannot take over the case from the police.

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IV. DRAWBACKS AND PROBLEMS in a detention center or judicial custody. In OF INVESTIGATIONS CONDUCTED such cases, the police can request the court BY POLICE INVESTIGATORS for adjournment of trial till the other suspects are arrested. In this situation, Investigation into the breach of criminal the investigation can be delayed. This way laws plays an important and primary role the justice for victim as well as defendant in achieving justice and fair play in every is delayed. This situation is sometimes society. justified, but sometimes due to other rush The group after studying the work, the police becomes lazy. relationship between the police and the Delay in investigation could be due to prosecution during investigation has the following reasons: identified some drawbacks and problems (1) Excessive work load of investigators in police investigation. at a given time which may either be due to an increase in crime or a A. Inappropriate Procedural shortage of manpower. This is Approach mostly in countries where Inappropriate procedural approaches prosecutors do not assist in include where investigators engage in investigations. When such illegal investigations such as arresting or situations exist, efficient and detaining suspects without a legal basis or effective investigations are beyond the legalized period and the use of sacrificed. In some instances such excessive force on suspects when seizing delay leads to the discharge of the physical evidence and obtaining the offenders in the court. statements. When the latter happens, such (2) In some instances, the police statements are rejected by the court, with initiates investigation very late, and the consequent result of not obtaining a consequently, either the suspect conviction in that particular case. This escapes or implements used in the happens in countries where statements crime are destroyed. taken by the police are admissible in the (3) The frequent deployment and court. transfer of police officers are causes which contribute to delays in B. Delay in Investigations investigation by the police. An Delay of investigation could be due to officer does not undertake his career different reasons. In Japan, sometimes for at one station or in one unit. When very important and sensitive cases, the it happens, discontinuity is created police takes a long time. Moreover, public in the investigation of cases which prosecutors also are in the picture and in that officer may be handling. the collection of some important evidence, delay can happen. In the Republic of Korea C. Inadequate Legal and sometimes when suspects have moved to Investigative Knowledge another place, the cases are transferred and this can cause delay in investigation. 1. It was realized that some investigators Delay, for example, occurs in some lack adequate knowledge. The problem is countries in a case where two or more that during investigations, they at times do suspects are involved but the police could not understand correctly who should be the arrest only one. After the maximum period target of the investigation, what crime the of detention expires, the suspect is offense constitutes, what evidence to look produced before the court which places him for, and how to interrogate the witnesses

319 RESOURCE MATERIAL SERIES No. 53 and the suspects. The training offered to police does not convey the necessary them during their recruitment is not job- information to the prosecutor, and, in such specific and is usually very short (six months cases, the prosecutor can not advise at the or, at most, twelve months). They, therefore, appropriate time. become ill-equipped for the job that they take on. E. Lack of Forensic Science In some situations, the investigation is Facilities not fully carried out on alibi, the search is In some countries where the forensic not fully conducted for the important laboratories for testing fingerprints, fire- evidence, the statements of witness as well arms, DNA, etc., can be conducted are few as the accused person are not recorded or situated at far distances. As a result, in correctly, and there may be contradictions the investigation of such related cases, the among the evidence, which the investigator material evidence may arrive very late, may not be able to notice due to the lack of thereby impairing the early completion of adequate legal and investigative an investigation. Due to the lengthy knowledge. procedures associated with scientific evidence, the police tries to avoid its use 2. Due to advancements in and rely on easy ways to collect evidence. communications and the introduction of the Internet, organized criminals use the F. Political/Governmental Influence modern techniques for which the In some countries where the police is investigators, police and prosecutors are controlled by the executive, political not much trained. Consequently, they face influence is exerted in some cases difficulty in completing the investigations investigated by the police. These influences into offenses committed by use of such may come in the course of investigations, modern technologies. when high-ranking government officials and politicians have a direct or indirect D. Lack of Coordination between the interest in the case. Police and the Prosecution In studying the system of countries, it V. ROLE PLAYED BY was observed that the police and the PROSECUTORS IN OVERCOMING prosecution are under different THESE DRAWBACKS departments. The police and the The group identified that prosecutors prosecution sometimes lack coordination play diverse roles in solving the problems on investigative issues. The approach of and drawbacks identified above. However police and prosecution are sometimes these roles depend on the enactments different. Sometimes the prosecutor has a establishing the police and the prosecution different idea necessary for achieving good and the commitment to work together to investigation results. However, due to the achieve criminal justice in their countries. lack of coordination, it can not be The group members suggested the communicated to the police. following roles which prosecutor could play In some countries, prosecutors only get in overcoming these drawbacks. to know of cases after the investigations have been completed and they are asked A. Suggestions for Inappropriate to prosecute the cases. It may be too late Procedural Approach even for the prosecutor to suggest for In such cases, the prosecutor should additional investigations for the collection immediately study an investigation and of additional evidence. Sometimes the

320 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE suggest to the police to undertake the cases, the investigation is also transferred investigation in the right way according to to another police officer. law. In cases where evidence is inadmissible in court due to illegal B. Suggestions for Delays in investigative procedure, the public Investigation prosecutor should tell the police that the The group has suggested as under to evidence is inadmissible and request them avoid delays: to look for other evidence. In serious cases, the public prosecutor should release the 1. For cases of public interest, the suspect and drop the case. Also prosecutor prosecutor can ask the senior police officers can recommend for administrative action to reduce the work load of a particular against the police officer. officer so that he can complete the While studying the systems as to this investigation of such cases. issue, it was observed that in Japan prosecutors carefully inquire and interview 2. In a system where the prosecution is the suspects and witnesses regarding in a position to know the progress of a case whether excessive force or threats and or receive complaints from the public with other mental pressures were used in regard to delay of investigation, the seizing the physical evidence or obtaining prosecutor can ask the police to report on the statements by the police. They also look the progress of an investigation form time into the admissibility of evidence, and if to time and also to explain the reasons for they feel that the evidence will be found any delay. The prosecutor should give inadmissible, the prosecutors will instruct instructions and guidance in order to the police to look for other evidence. In expedite the investigation. serious cases, the prosecutor releases the In those countries where the prosecutor suspect and drops the case. In the Republic has no legal authority to know the progress of Korea, the prosecutors have to inspect of an investigation, it is suggested that the police detention facility regularly. If some legal provision be made so that this any illegality by police is discovered, they is possible. release the suspects or order the police to submit the case to the prosecutors 3. Senior police officers should avoid immediately. Similarly, in China, when the transferring any investigation officer who prosecutors learn of an illegal investigation is involved in an important investigation. through a complaint by the victim, a Bill is The prosecutor may also suggest that the issued to the police demanding correction senior police officers to stay such transfer of the illegality. In Indonesia, prosecutors till the completion of the pending play role in cases of torture by asking the investigation. police to release the suspects as soon as possible. They ask the police to release and C. Suggestions for Inadequate Legal also recommend for action against the and Investigative Knowledge police. 1. Regarding inadequate knowledge of In countries like Ghana, India, Pakistan investigation and law, it was suggested the and Zambia where prosecutors have no prosecutors be allowed to give from time power of investigation, senior police officers to time guidance to the police in each case. make frequent visits to the police detention Also it was suggested that on-the-job facility, and if any suspects are found to training and short-term refresher courses have been held beyond the legal detention be arranged where prosecutors are allowed time, their release is ordered. In some to give lectures as to how cases are

321 RESOURCE MATERIAL SERIES No. 53 conducted in the court and value of prosecutors should also give guidance to evidence. investigators in identifying the important 2. In consideration of advancements in scientific evidence. technology, special training programs It is also suggested that more forensic should be introduced for the police and the science laboratories be equipped, since in prosecutors. In this case, immediate some countries there is only one. technical help can be taken by companies The prosecutors should also advise the which are producing such technology. The police about the importance of scientific opinion of such experts can be sought evidence like blood tests in murder cases, during investigation. The police and the or in cases where firearms are used, prosecution departments should have ballistic tests. experts on computers. F. Suggestions for Political/ D. Suggestions for Lack of Governmental Influence Coordination between the Police To avoid political pressure in serious and the Prosecution organized or corruption cases against It was suggested that the police and the politicians and senior civil servants, the prosecution should have regular and ad hoc investigator should try to maintain the meetings from time to time. During such secrecy of evidence. After the arrest of the meetings, the police can discuss the suspect, they can give proper information position of pending investigations and to the media so that they can get support prosecutors can advise on these so that the from the public and can avoid such investigation can be completed in a correct pressure. and timely manner. In important cases, Where prosecutors have the authority to the police and the prosecutors should have investigate, they should give instructions meetings during the investigation and to police for proper investigation. In spite before the indictment for such cases, of these instructions, if the police is still wherever needed. under political pressure, the prosecutors In countries where prosecutors have a should take over the investigation. role during investigation like China, Japan Both the police and public prosecutors and the Republic of Korea, such meetings should show professionalism and act are often held. But those countries where according to the law. there is no such provision (though It is suggested that an agency be unofficially they might be holding meetings established which is free from influence but not often), it is suggested that a system from the executive and which has the be initiated where the police and prosecutor authority to call case papers from police, have regular meetings. when it feels that some political interference is involved. In such cases, it E. Suggestions for Lack of Forensic should take immediate legal action against Science Facilities such illegal influence. Regarding shortage of forensic science facilities and laboratories, the investigator VI. INVESTIGATION INITIATED BY should prioritize the collection of evidence. PUBLIC PROSECUTORS Those which are important and require In Cameroon, China, Indonesia, Japan, technical opinion regarding fingerprints, Laos, the Philippines and the Republic of chemical examinations, DNA testing, Korea where prosecutors also have the firearms report, etc., should be completed authority to initiate the investigation of as early as possible. In such cases, the

322 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE cases, they do not investigate all the cases In Cameroon, Laos and the Philippines, in practice. public prosecutors have authority to In China, according to Article 18 of the investigate the case, but in practice most Criminal Procedure Law of the People’s cases are investigated by the police under Republic of China, “with regard to the the supervision of prosecutors. crime of corruption and bribery, the crime In countries where prosecutors initiate of dereliction of duty committed by state investigation, it was realized that due to personnel, the crime of illegal definition, the effective role of prosecution, there are extorting confession by torture, retaliation certain benefits which lead to a good and framing and illegal search to infringe investigation. As prosecutors have on citizens’ rights of the person committed adequate legal knowledge as well as by state personnel who take advantage of conversant in legal interpretation, they the functions and powers and the crime of prepare good cases for indictment. Their infringement on citizens’ democratic rights, ability and experience have been deemed peoples procuratorates (public as a benefit for the law enforcement system prosecutors)” should file such criminal in combating crime. Earlier involvement cases for investigation. by prosecutors in investigation, guarantees In Japan, Article 6(1) of the Public a successful prosecution and conviction. Prosecutors Office Law states “Public prosecutors may investigate any criminal VII. PROBLEMS IN offense,” and Article 191(1) of the Code of INVESTIGATIONS INITIATED BY Criminal Procedure states “A public PUBLIC PROSECUTORS prosecutor may, if he deems necessary, In countries where prosecutors have the investigate an offense himself.” In practice, authority to initiate the investigation such however, they investigate major corruption as in China, Indonesia, Japan and the tax evasion or bankruptcy cases, etc. Republic of Korea, the group workshop has In Indonesia, the prosecutors investigate found some problems faced by the public corruption and subversion cases. Moreover prosecutors, namely: in subversion cases, the prosecutor is assisted by the police and the army for A. Limited Number of Prosecutors summoning witnesses and arresting In most prosecution offices, there is a suspects. limited number of prosecutors and The Criminal Procedure Code of the assistant officials, especially for initiating Republic of Korea vests the power of the the investigation. As it has been realized, initiation and conclusion of criminal initiating the investigation has been time- investigation solely on the public consuming since the public prosecutors prosecutor. The police and other special have to conduct investigation by investigative agencies serve only as themselves (such as collecting evidence assistants to the public prosecutor and interrogation of the suspects and should conduct investigation in accordance witnesses, search and seizure, etc.). At the to the general standard and/or special same time, the number of cases that must directions issued by the public prosecutor. be handled has been increasing. This Most cases involving serious offenses such problem is more serious when the as organized crime, white-collar crime, prosecutor’s office has to deal with corruption, drug offenses and prosecution in the court and supervise the environmental offenses are handled by the police investigation. public prosecutor from the beginning.

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B. Difficulty in Finding Clues and national interest, etc., could be given Credible Evidence of Crime priority. The cases committed in secrecy like corruption and bribery are difficult to 2. Temporary Attachment System detect, as there is no direct victim. If in some offices the work load is too Evidence is hard to come by due to the heavy, some prosecutors from other offices secrecy surrounding these transactions. could be temporarily attached to assist. In such cases, public prosecutors rely on the statements of witnesses and the 3. Cooperation between confession of the suspects. However, the Prosecutors with the Police and suspects tend to deny the facts and the Other Investigative Agencies witnesses tend not to cooperate with the In view of the limited number of public prosecutors in the trial stage. prosecutors, when initiating and conducting the investigation of cases, C. Media Publicity public prosecutors can ask for cooperation When competition for giving news starts from the police if necessary. There may be in the media, it becomes difficult to keep relevant cases which are found as offshoots the secrecy of an investigation, and once of another investigation initiated by the information is leaked, the related persons public prosecutors and which can be and suspects do not cooperate in the investigated by the police. In such cases, investigation, the suspects and the the public prosecutors can ask the police witnesses could escape and also the defense to investigate such offshoots. It is councel of suspects becomes more active, suggested that when prosecutors need thereby making investigation difficult. In some help, the police should extend sophisticated cases, the suspects and the immediate cooperation. witnesses destroy the evidence, which As in China, Indonesia, Japan and the further frustrates proving the offense. Republic of Korea, in special cases of taxes, customs, security transactions, the officers VIII. SOLUTIONS TO THE of respective department give permanent PROBLEMS IN INVESTIGATION cooperation. In Japan, some tax officers INITIATED BY PUBLIC are permanently attached to the special PROSECUTORS investigation department of the prosecutors offices. In view of the problems in investigations initiated by public prosecutors, the group B. Suggestions for Difficulty Finding workshop identified some possible Clue and Credible Evidence solutions, namely: Public prosecutors should have their own sources of information, which can A. Suggestions for Limited Number provide clues to cases. The public of Prosecutors prosecutors can also ask the public to assist 1. Investigation of Selected Cases in giving information. While investigating To overcome the problem of overwork, it other cases and examining relevant can be suggested to the appropriate documents, public prosecutors must try to authority that the number of prosecutors find clues of other big offenses. Public be increased. However, while it is difficult, prosecutors should also pay attention to the the investigation of selected cases like those correspondence from the public relating to of corruption against civil servants, information on cases. politicians, subversive activities, cases of

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In Japan, public prosecutors can obtain or where they have the authority to information relating to all crimes directly investigate, the results of investigation are from the public or government officials good and the conviction rate are higher. through all means of communication, Conversely, in those countries where complaints and so on. In China, there is a prosecutors are not authorized to criminal report center in each public investigate and do not have any role during procuratorate office, where they receive investigation, the conviction rate is information about crimes from the public. comparatively lower. This information is subsequently sent to The other benefit can be that prosecutors the most appropriate departments. In could give reasonable instruction or advice Indonesia, there is “P.O. Box 5000” for to police, keeping in view their experience receiving such information. and knowledge. This also contributes to While recording the statements of the shortening the time period for the witnesses and suspects, public prosecutors investigation. have to obtain credible and concrete As discussed in the proceeding statements, which will support a paragraphs, it was acknowledged that conviction. investigation by prosecutors is very beneficial due to their adequate knowledge C. Suggestions for Media Publicity of law and legal interpretation. This When the media competes for experience improves the standard of information, it becomes difficult for investigation. prosecutors to conduct an investigation. In It is noteworthy that investigation and such cases, the secrecy of information and prosecution are fundamentally linked and investigation must be maintained. inseparable. Consequently, where those The senior officers of public prosecutor’s powers are not deposited in one agency, the offices or the public relations department relevant investigation and prosecution should brief the press from time to time so agencies must complement each other, that the media does not publish articles always realizing that neither function or based on mere speculation or conjecture. agency is inferior. The members of the group workshop IX. CONCLUSION concluded that the role of prosecution must be made effective in order to have a good From the study and discussion of the criminal justice system. It is expected that criminal systems of different countries, it those countries where prosecutors have no was gathered that for any criminal justice role in investigation, will also realize the system to succeed, each pillar of criminal importance of such role. In these countries, justice administration has to play an the system should be modified so that important role. The group workshop prosecutors can play an active role in the studied the role of prosecution and improvement of investigation and thereby prosecutors in investigation. It was assure due process of law. observed that prosecutors have a twofold role in investigation and prosecution. These roles are commonly established in the criminal procedures of each country, but tend to differ from country to country. During the study of the criminal systems of those countries where prosecutors have an authorized role in police investigation

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