The Relation between the Public Prosecutor and the Police

The Relation between the Public Prosecutor and the Police

Chapter I   
The Relation between the Public Prosecutor and the Police       
Organisation of the police
The Austrian police is still divided into two groups, namely the federal police force (Bundespolizei) and the rural constabulary (Gendarmerie), originally created after the French model. The head of the police is the Minister of the Interior.

The federal police force consists of the constabulary (Sicherheitswache) and the criminal investigations division (Kriminalbeamtenkorps). In addition, there are special task forces. In most major towns there exist federal police departments (Bundespolizeidirektionen), each headed by a director of police. The police departments are divided into Kommissariate, which themselves are divided into police stations (Wachzimmer).

The officers of the rural constabulary have a different status from police officers as, in contrast, they may request rather than summon, and bring in the accused and witnesses. False testimony before the police constitutes an offence, false testimony before the Gendarmerie does not. If a person refuses to give evidence, the police may fine him up to € 726,-. The investigating judge is even allowed to impose coercive detention up to six weeks. The gendarmerie does not have comparable means of coercion. This is why public prosecutors would ask the investigating judge to interrogate reluctant witnesses.

In 2002, the federal office of criminal investigation (Bundeskriminalamt) was established as an organisational unit within the Ministry of the Interior to ensure an effective nationwide fight against crime, and to set up a centralised unit for international police co-operation. Registration offices for money laundering, crimes against environment and child pornography have been set up also.

As to the tasks of the police, one can distinguish between maintaining public order and security (also by preventing crimes) and investigating crimes that have already been committed. Of course this differentiation is not always that clear in practice. Nevertheless, it is necessary to make this distinction as there are major differences in the prerequisites and limits for police intervention and in legal protection against such interventions or remedial rights. Police interventions in the context of criminal proceedings (crime investigation) in principle are dependent on orders of the public prosecutor or the court, unless there is a case of imminent danger. Prevention of danger falls within the competence of the police alone.

In contrast to their tasks concerning prevention of dangers, the role of the police in the field of prosecution and investigation of crimes is hardly regulated by law at present. The Police Act of 1991 basically does not refer to criminal proceedings and the CCP only provides rudimentary regulations on police investigations. Therefore, mainly laws on administrative procedure are to be applied. As has been mentioned above, however, the Code of Criminal Procedure Reform Act deals with the improvement of this unsatisfying situation and gives police investigation an adequate legal basis.

One of the current big issues in Austria is police reform. In November 2003, a draft of an amendment to the 1991 Austrian Police Act (Sicherheitspolizeigesetz) was presented by the Ministry of the Interior following the goal to amalgamate the police force and the rural constabulary to create a more efficient, united, federal police force (with the name Bundespolizei). State police departments shall be divided into district and town police departments, and police stations at the local level. The deadline for expert valuation was May 2004. According to the Ministry of the Interior, the new organisational framework for the Austrian police force shall pass Parliament in the autumn of 2004 at the latest.
Pre-trial investigation stages
The public prosecutor starts pre-trial investigatory proceedings either after having received a report, or based on his own observations. According to the traditionally strict principle of legality (Legalitätsprinzip), the public prosecutor is obliged to prosecute ex officio all criminal acts that come to his notice and that are not offences subject to private prosecution, such as offences against a person‘s honour, the abuse of wire-taps and tape-recordings, the disclosure of business secrets and various offences against property committed by a relative. This principle is also true for complainant offences (Antragsdelikte) that may only be investigated and prosecuted by the public prosecutor if a formal complaint has been made by the victim to the criminal justice authorities, and for offences that are to be prosecuted by the public prosecutor but need permission of the victim at the latest before the main trial begins, the so-called Ermächtigungsdelikte. The victim may withdraw the complaint or permission until the end of the main trial. There still is a discussion on the justification of this type of offences.

The modern principle of legality, which is a basic principle of modern criminal law trusting in prevention rather than retribution and providing various alternative sanctions, of course, cannot be understood as an obligation to bring all cases before the court by filing charges, but as an obligation to prosecute and find an adequate preventive, maybe informal, reaction or sanction. Such a principle of legality emanating from the constitutional equal protection clause (principle of equality before the law), of course, may come close to the principle of expediency, if understood as a possibility to dismiss cases if certain explicitly and clearly described legal criteria are met. It has nothing to do, however, with the principle of discretionary prosecution (Opportunitätsprinzip), respectively with the principle of expediency in the true sense, which means that generally the public prosecutor has discretionary power to drop cases. Just the opposite is true.

If necessary, the prosecutor may conduct provisional inquiries (Vorerhebungen) to find out whether formal criminal proceedings are to be initiated and against whom. These provisional inquiries constitute the first phase of the entire pre-trial proceedings (Vorverfahren) which are divided into the stage of provisional inquiries, and the following stage of preliminary investigations (Voruntersuchung).
Provisional inquiries
The prosecutor as dominus litis orchestrates these provisional inquiries without being allowed to take evidence (Sect. 97 subs. 2 CCP). Although public prosecutors are obliged to be objective and to find out the material truth, the CCP does not allow them to carry out investigations personally, suspecting them of being one-sided and prejudiced against the defendant and considering that they are bound by instructions. Prosecutors therefore operate from behind their desks, which seem to be a particular problem when thinking of their new adjudicative competences applying diversion measures.

The actual taking of evidence has to be carried by the federal police, the rural constabulary, the district courts or the investigating judge (Sect. 88 subs. 1 CCP). The police (hence including the Gendarmerie) and the courts are obliged to follow the requests from the public prosecutor, even if they consider them to be superfluous or futile. The public prosecutor may request the police to question suspects, witnesses or other persons, and attend the questioning if he wishes to do so. Basically, prosecutors are free to decide whom they will ask to carry out the taking of evidence, the police or the court. Section 9 subs. 1 of the Public Prosecution Act Ordinance of 1986, however, explicitly states that the public prosecutor has to request the police as far as this is possible and expedient, and otherwise the courts. If the prosecutor wants to have specific actions carried out he has to petition the investigating judge. The investigating judge then has to give the adequate orders (e.g. search warrant, seizing order, and warrant of arrest). Experts have to be invited by the court. Investigation methods like wire-tapping, bugging or screening have to be ordered by the investigating judge or a specific court chamber at the regional court, the so-called Ratskammer. In cases of imminent danger, the public prosecutor may request the police to search premises and to seize objects, as well as to inspect the scene and to participate in these actions, but the protocols have to be approved by the investigating judge as soon as possible.

Prosecution acts fall within public administration (Hoheitsverwaltung). They are not subject to the jurisdiction of the Administrative Court of Justice or the Supreme Constitutional Court however, as these acts do not constitute decisions on rights of persons. The prosecution order to search premises in cases of imminent danger is an exception to this principle.

The public prosecutor is not the superior authority with regard to the police. The Austrian prosecutor does only have a functional right to give instructions vis-à-vis the police, therefore he is allowed to ask for specific actions, but does not have the authority to determine the time or way of carrying it out. How to carry out investigations lies within the competence of the police. Police actions are administrative actions. The public prosecutor is just obliged to define the kind of action as precisely as possible without being required to give reasons for it.

If the police get to know about an offence, they are obliged to start criminal investigations. The police have to send the report to the public prosecutor then have to wait for further instructions. Only urgent investigations may be carried out immediately to secure evidence (Sect. 24 CCP). In practice, however, all necessary gathering of evidence is done by the police only, and then the final results are submitted to the prosecutor. If the police, however, want to carry out specific actions violating civil rights, they have to request permission from the public prosecutor who has to petition the investigating judge or the court chamber to give the order. This holds true for actions like e.g. the search of premises, taking a person into custody, bugging or screening. In cases of imminent danger, the police may arrest a person without prior permission but have to request the prosecutor a warrant of arrest from the judge in due time if the suspect remains kept in custody. If the public prosecutor does not consider the arrest necessary, the police is not allowed to keep the person under arrest or to ask the investigating judge directly instead. In a case of imminent danger, the police may also search premises and seize objects, but they have to get judicial confirmation as soon as possible. Evidence by inspection (Augenschein) is reserved to the investigating judge. The police, however, may visit the scene on their own in cases of imminent danger. In the main trial usually only the protocol of the inspection is read. There can be no wire-tapping, bugging (except for seizure of hostages) or screening without a judicial order. As for the use of informants or infiltration the police do not have to consult the public prosecutor in advance. At present there is no competence to order or to control such special investigations on the side of the prosecution. For a multitude of police routine actions like observation, taking photographs, search of cars, cordoning off etc, an explicit legal basis does not exist within the framework of criminal prosecution. In contrast, the Police Act provides precise legal regulations for police interventions in the framework of prevention of dangers as long as there is no concrete person under suspicion.

At this stage of criminal proceedings, the investigating judge also has to confine himself to carrying out the prosecutor’s requests (Sect. 89 CCP). If he considers certain actions to be necessary, he has to request the prosecutor, and this can be done by phone. In cases requiring immediate action however, he may act on his own.

If the prosecutor during this first phase of pre-trial proceedings has found that there is insufficient evidence or the act is not punishable, he withdraws the complaint (Sect. 90 CCP) and the file is closed. The victim is to be informed. If provisional inquiries are conducted against unknown offenders and they cannot be found or against offenders who cannot be apprehended, the proceedings are to be interrupted (Sect. 412 CCP) although they may be continued at any time. If there is sufficient reason to initiate formal criminal proceedings against a certain suspect, the public prosecutor may petition the investigating judge to begin a preliminary investigation (Voruntersuchung).

If there even is sufficient evidence to bring formal charges, but punishment does not seem to be necessary, the public prosecutor decides to apply diversion measures; otherwise he may file charges immediately, and move to a trial if a preliminary investigation is not mandatory.

Private prosecutors may have carried out provisional inquiries also, but only under judicial control. The private prosecutor has to ask for the taking of evidence in every single case. The court may reject them to be superfluous or futile and may fix a dead-line for further requests. If the private prosecutor fails to observe the time limit he is considered to have given up prosecution.
Preliminary investigation
The preliminary investigation is conducted to determine whether formal charges against a certain person are to be brought. It has to be conducted on grounds of a specific offence allegedly committed by a certain offender. There is no preliminary investigation against unknown offenders.

If there is no sufficient evidence, if the act in question is not punishable by law, or is not to be prosecuted due to legal impediments, the investigating judge has to reject the prosecutor‘s petition to begin preliminary investigations. This decision may be appealed against, but the public prosecutor also may continue provisional inquiries and petition to begin preliminary investigations again. The file will be closed only when the prosecutor withdraws the complaint.

According to the CCP, the emphasis in the pre-trial procedure lies on the preliminary investigation: the actual investigation and gathering of evidence should happen at this stage directed by the investigating judge (who from now on is dominus litis). Contrary to the phase of provisional inquiries, the investigating judge is now not restricted to granting or refusing specific requests by the public prosecutor (Sect. 96 CCP), and he decides which evidence has to be taken. He takes evidence by himself but he also may call in the police (Sect. 93 subs. 1 CCP). Investigations by the police are allowed on request of the investigating judge only. The inspection of the scene of crime has to be carried out by the investigating judge himself. The parties may request the investigating judge to take certain evidence. If the judge wants to reject the request, he has to do that by a motivated ruling against which an appeal is possible. In practice, however, also at this stage of proceedings the necessary gathering of evidence often lies entirely with the police.

Usually, the parties do not participate in interrogations by the court during pre-trial investigations. However, in specific cases laid down by law, they are called in. They have to be called in, for example, to carry out an inspection of the scene. If the investigating judge wants to take the suspect into pre-trial custody he may only do so at the request of the public prosecutor. Custody has to be terminated if the prosecutor requests termination. Termination against the will of the prosecution is only possible after remand proceedings.

If the public prosecutor withdraws the complaint before the preliminary investigation is completed, the investigating judge has to terminate proceedings. The private participant may then decide to take over the case as a subsidiary prosecutor within 14 days after being notified. Proceedings are over, when the private prosecutor fails to observe the time limit.

The investigating judge decides at which point the preliminary investigation is completed. This means he decides when there is sufficient evidence to bring charges and he then closes the preliminary investigation and sends the file to the public prosecutor. Within 14 days, the latter has to file formal charges, may request further completion or can notify the investigating judge that he will not pursue the case. If the latter is the case, the file has to be closed. The private participant then has the opportunity to file charges himself within 14 days.
If the investigating judge holds that there is insufficient evidence or the act is not punishable (e.g. Sect. 42 CC) he terminates proceedings. This decision can be appealed against. Proceedings also are to be interrupted (Sect. 412 CCP).

Since January 1, 2000 the public prosecutor, as well as the investigating judge, also has the possibility to apply diversion measures at this stage of proceedings.
The Austrian criminal procedure is a rational investigative process under the paternalistic guardianship of the court, aimed at finding the objective truth. The court, that is the investigating judge as well as the trial court, must gather all incriminating and exonerating evidence without being bound by motions or petitions from the public prosecutor or the counsel for the defence. This is the principle of independent investigation (amtswegige Wahrheitserforschung, Instruktionsgrundsatz). Of course, this principle does not prevent the prosecution or the defence from petitioning the court for the discovery of evidence.

The public prosecutor has formal standing as a party in court proceedings, representing the interests of the state. Nevertheless, just like the court prosecutors are also obliged by law to be objective and to explore substantive truth. The prosecutor has a duty to ensure that all evidence material, thus including any evidence which may exonerate the defendant, is presented to the court (Sect. 3 CCP). He has to submit both incriminating and exonerating evidence and in so far he is responsible for a proper criminal investigation. The public prosecutor keeps the power of disposition in the case as he can abstain from prosecution until the end of the main trial. To ensure compliance of police investigations with statutory rules and procedures does not lie within the competence of the public prosecution service but is the task of the police themselves.

Precondition for prosecution is that there is sufficient ground for it: a public prosecutor may petition the investigating judge to begin a preliminary investigation only, in case of reasonable suspicion of an offence. He is only allowed to bring formal charges against the suspect if a conviction is more probable than an acquittal. The public prosecutor is not obliged to charge for a trial if he believes the suspect to be innocent. When deciding on these matters he has to observe Supreme Court case law decisions.

When the results of a preliminary investigation warrant that charges be brought, the public prosecutor has to indict the suspect, otherwise he risks becoming liable for breach of official duty (Sect. 302 CC). This is also the case if he abstains from prosecution without proper investigation.
Code of Criminal Procedure Reform Act
The current practice of leaving the whole pre-trial proceedings in the hands of the police is quite efficient, but lacks fundamental guarantees with regard to the defendant’s rights. The new concept of pre-trial proceedings entering into force in 2008 is a model of pre-trial police investigations lead by the public prosecutor under judicial control. The aim of the new law is to establish a new interrelation between the investigating role of the police, the position of the public prosecutor as leader of the investigation, the controlling function of the investigating judge as well as to strengthen the defendant‘s and victim‘s rights. The new division of labour mirrors current practice: investigations are carried out by police. This development is now given an adequate legal basis for the first time. In addition, the police are given a legal basis for special investigation techniques to fight organised crime (undercover investigations, DNA-analysis, observation, etc). Dominus litis is the public prosecutor, who now is the head of united pre-trial proceedings, and who is now allowed to carry out investigations by himself. Prosecution and police have to carry out investigations in co-operation; in as far as this is not possible, the prosecutor has to give orders which have to be followed by police.

Depending on the severity of intrusion into civil rights the Reform Act differentiates between investigative measures and other actions the police are allowed to carry out on their own, on request of the public prosecutor or with permission of the court. As far as a prosecutorial request needs the permission of the court, the public prosecutor has to ask the court for this permission. If the court gives the permission, the public prosecutor decides on the conduct. If the public prosecutor decides not to carry it out he informs the court about this decision.
If police need the request of the public prosecutor for a certain action, they may in case of imminent danger act on their own, but have to get prosecutorial permission as soon as possible after. If police, however, need the permission of the court for a certain investigative measure, they may only act on their own in case of imminent danger if the law explicitly allows for that. The police have to report to the public prosecutor about specific cases laid down by law.

The investigating judge will loose his present investigative role but will have to exercise judicial control to protect civil rights. In special cases, the court has to take evidence at the request of the public prosecutor like the reconstruction of the course of the criminal act or adversary questioning (kontradiktorische Vernehmung). In addition, the prosecutor may request a judicial taking of evidence if there is a special public interest in a case, e.g. in politically explosive cases in order to guarantee more objectivity.

Finally, the court has to decide on appeal against prosecutorial or police action.

Taken all together, this means a significant upgrading of the position and the role of the public prosecutor: he will have to decide which facts shall be investigated, and which evidence shall be taken by exercising co-ordination and control functions. As to the relationship between the police and the public prosecution, a model of co-operation, but with clear leadership on the part of the public prosecutor, shall be established: a system of flexible joint operation.

The police may exceed concrete requests of the prosecutor within certain limits; the prosecutor will have the right to participate in the investigations and may issue orders concerning single actions to be taken by the police. Additionally, he may personally take evidence or ask an expert to do so. These new competences are of special importance looking at his new responsibilities concerning diversion. A limitation, rather than abolition, of the right to give instructions (Weisungsrecht) to public prosecutors has been discussed in this context but has not yet been decided on.