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       
According to Sect. 160 subs. 1 CCP, the prosecutor’s office has the duty to investigate the matter as soon as it learns of the suspicion that a criminal offence has been committed. Section 161 subs. 1 CCP authorises the prosecutor to perform acts of investigation himself or to request the police to do so. The police are obliged to carry out such requests. The prosecutor can, moreover, order witnesses and expert witnesses to appear and testify before him (Sect. 161a CCP), and he can even request a judge (the so-called judge of the investigation, Ermittlungsrichter) to interrogate witnesses or to perform inspections of evidence on his behalf (Sect. 162 CCP). The judge of the investigation does not have discretion in performing the tasks the prosecutor demands of him. According to Sect. 162 subs. 3 CCP, the judge only reviews the legality of the interrogation or inspection; if it is not illegal he must comply with the prosecutor’s request.
All of this taken together demonstrates the strong position of the German prosecutor throughout the investigation stage of the criminal process. Only with respect to certain measures involving an invasion of citizens’ protected legal sphere (e.g., searches, seizures and surveillance measures) is it necessary for the prosecutor to obtain (prior or subsequent) authorisation from the judge of the investigation. This seems to leave little room for an independent role of the police.

And yet, the law is not unequivocal on this point. Section 163 CCP describes police functions that are difficult to reconcile with the dominating position of the prosecutor. Section 163 subs. 1 reads (in literal translation): ‘The agencies and agents of the police service have to investigate criminal offences and to give all those orders which do not bear delay and which are necessary to prevent the obfuscation of the matter. For that purpose, they are authorised to request all public agencies to provide information and, if there is danger in delay, to demand such information; they are further authorised to undertake investigations of all kinds to the extent other legal provisions do not especially regulate their authority.’ Whereas the first sentence is the original text of the CCP, the second sentence was added in 2000. Indeed, this provision is ambiguous. On the one hand, it seems to provide the police with an independent authority, even to confer on them a duty to conduct an independent investigation in criminal matters. On the other hand, this authority is (perhaps) limited to matters ‘which do not bear delay’, i.e., to the very first stage of an investigation. An argument in favour of the second position can be found in Sect. 163 subs. 2 CCP, which exhorts police to submit the file (Verhandlungen; literally: deliberations) to the prosecutor’s office without delay, implying that the prosecutor should be able to take over responsibility for the investigation as early as possible. On the other hand, it is difficult to conceive how requesting information from other public agencies – one of the activities specifically authorised in Sect. 163 subs. 1 CCP – can be a matter that has to be done on the spot lest crucial evidence disappear.

Whatever the proper legal construction of Sect. 163 subs. 1 CCP, as a practical matter the police have always interpreted this clause as an authorisation to conduct criminal investigations on their own. Reflecting their superior manpower, training, and vast experience dealing with crime, the police conduct the great majority of criminal investigations completely on their own. The file is turned over to the prosecutor’s office only then when the case is considered solved or no further possibility to investigate is judged to exist. There are only few areas where the prosecutor’s office is involved from the very beginning, for example in homicide cases and in cases of serious white-collar crime. In other matters, police contact the prosecutor when there is significant publicity (to be expected) or they need his co-operation for legal reasons. The latter is the case when a judicial warrant for arrest, search, seizure or surveillance is required, or when the judge of the investigation is to interrogate a witness. The judge of the investigation normally (except in cases of emergency) takes action only upon a request by the prosecution (cf. Sect. 165 CCP). In arrest matters, the prosecutor’s involvement is often only formal – it is the police who take the suspect before the judge and present the case against him.

Notwithstanding the practical domination of the investigation process by the police, the prosecutor’s office remains ultimately responsible. This is true in particular because the prosecutor must eventually make the decision whether or not to charge the suspect with an offence. For that reason, the prosecutor can give general instructions to the police on how particular cases are to be handled and can designate areas for priority investigation (within the boundaries set by the principle of mandatory prosecution, see below). He has, moreover, authority to request the police to perform designated acts of investigation (Sect. 161 subs. 1, CCP). In all these matters, however, information is the critical factor and as long as the prosecutor is not informed of a case he cannot direct police work. In light of the expansive interpretation the police give to their provisional authority to investigate under Sect. 163 subs. 1 CCP, and in light of their habitual disregard of their legal duty to submit the file to the prosecutor without delay (Sect. 163 subs. 2 CCP), the police do not acknowledge a formal duty to consult with the prosecutor early in the process, or even to inform him of a pending investigation, unless they consider it useful to do so. In order to make effective control and supervision by the prosecution possible, it has been suggested by a working group of German, Austrian and Swiss criminal law professors that the police routinely inform the prosecutor’s office of any investigation within a few days. The prosecutor could then entrust the police with the further investigation or could otherwise determine the kind and degree of his involvement. Although electronic data transmission would make this a fairly practical way to proceed, it is not very likely that the police will soon give up their factual monopoly on relevant information.

As has been mentioned above, the great majority of invasive investigation methods are subject to judicial authorisation. In these cases, the police cannot act alone. However, the majority of police officers are designated auxiliary officers of the prosecutor’s office (hereinafter: auxiliary officers). According to Sect. 152 Court Organisation Act (Gerichtsverfassungsgesetz), each German State designates the ranks of police officers who are auxiliary officers by law. This usually comprises all police officers above the lowest (entrance) ranks and below the top ranks.
Auxiliary officers are, on the one hand, subject to special orders of the prosecutor’s office. On the other hand, they share part of the prosecutor’s authority to independently order certain investigative measures when time constraints make it impossible to obtain prior judicial authorisation ('danger in delay' situations). This applies to body searches of a suspect, searches and seizures as well as audio surveillance outside of private rooms and long-term observation of persons (Sects. 81a subs. 2, 98 subs. 1, 105 subs. 1, 100d subs. 1, 163f subs. 3 CCP), but not to surveillance of the mail and of telephone lines, or to secret surveillance of private rooms, which are permissible only with judicial authorisation. Arrests and identity checks can be made by any police officer (Sects. 127 subs. 2, 163b subs. 1 CCP). Auxiliary officers can act on independently and do not need approval for ‘danger in delay’ measures. There are no statutory rules on the use of lay informants, and in this grey area the police often operate on their own. When an undercover police officer is to be employed in a criminal investigation, authorisation from the prosecution service is required, except when there is danger in delay. In that case, police can initiate the measure on their own but must terminate it after three days unless the prosecutor’s office has given its consent by then (Sect. 110b subs. 2 CCP).

The issue of formal control of police activities in criminal matters is rather complicated. The police force is a State matter, and regular police staff, with the exception of the Federal Border Protection Service (Bundesgrenzschutz) which has competence to act in certain areas such as train stations, are under the general authority of each State’s Ministry of the Interior. This authority also covers peace-keeping and crime prevention, which is regarded the primary task of the police. Yet, with respect to criminal investigations Sect. 161 subs. 1 CCP provides that police agencies and officers must carry out requests from the prosecutor. Therefore, a prosecutor has subject matter authority, but not personal authority, over police in criminal matters. This split authority does not usually create practical problems. In rare situations only (e.g., when hostages have been taken) there may occur a conflict of interests which must be resolved by consultation between agency heads. In 1973, all German Ministries of Justice and of the Interior have agreed upon guidelines for the resolution of possible conflicts between police (crime prevention) and prosecution service interests in crisis situations. According to these guidelines, if consensus cannot be reached and an immediate decision is necessary, the police view prevails (see Gemeinsame Richtlinien der Justizminister/-senatoren und der Innenminister/-senatoren des Bundes und der Länder über die Anwendung unmittelbaren Zwanges durch Polizeibeamte auf Anordnung des Staatsanwalts (Anlage A zu den Richtlinien für das Strafverfahren und das Bußgeldverfahren).
The prosecutor, as chief of criminal investigation, has the obligation to ensure the regularity of proceedings. This implies formal control of the prosecutor over police investigative acts. However, when the case involves personal wrongdoing of a police officer, the Ministry of the Interior is in charge of possible disciplinary proceedings.