The police in Serbia did not provide any reasoning for noncompliance with prosecutors’ order in almost 70 percent of cases.
By Dr Marina Matić Bošković (Public Prosecutors Association) / Photo: Scott Olson/Getty Images
The Criminal Procedure Code (CPC) in Serbia, effective from October 2013, established the dominant position of the prosecutor in the investigation phase. After almost four years of implementation of the new Code, it’s important to discuss challenges that leading role of prosecutor impose in practice. This is vital because operative cooperation between police and prosecutors is one of the major preconditions for the effective fight against corruption and crime.
Leading Role Only On Paper
The prosecution in Serbia has the lead role in collecting evidence and presenting it before the court.
In the new CPC, an initiative of providing evidence has been entirely transferred to the public prosecutor meaning that the burden of proving an allegation now rests on the prosecutor. The prosecutor is responsible for collecting evidence which will help him or her to decide whether an indictment shall be raised against a person.
The Prosecutor’s Office is not just a passive entity ”awaiting” police criminal charges without the ability to influence on their content, but on the contrary, has the authority to actively participate in the drafting of the criminal charges and in preparing arguments in form of evidence and data for its final submission.
The police are required to comply with every request of the competent public prosecutor, as well as to notify the competent public prosecutor of all actions taken with the aim of detecting a crime and locating a suspect. The police do not finish its work in preliminary proceedings, moreover, the police should be a public prosecutor’s indispensable partner until an indictment has been raised.
The police have obligation to inform the public prosecutor about actions taken in the short period of 24 hours. The public prosecutor, who is leading preliminary investigation proceedings, may order the police to take certain actions to detect crimes and find suspects. The police are authorized to independently carry out the specific evidentiary actions in preliminary investigation proceedings whose results may be used in criminal proceedings.
Practice Is Not a “Main Course”
The tight cooperation between prosecutors and police is critical to the success of any criminal investigation, especially investigation of corruption cases, but their position and structure shape the cooperation.
Prosecution service is part of the justice system, with own structure and hierarchical organization, while the police is a separate system with an own chain of command. This double chain of command is challenging in the practice, especially in the sensitive type of cases like corruption cases. It might happen that police officer receives different orders, one from the prosecutor and one from the superior police officer. It is not realistic to expect that police officer will obey the instruction of the prosecutor and neglect order the superior officer.
The majority of prosecutors and police assess cooperation between these two institutions as good. However, it is important to mention that this is perception. Moreover, during the survey, it was noticed that police officers and prosecutors assume as good cooperation one that is without conflict. Good cooperation is that which lead to results (indictments).
Lack of prosecutor’s tool to takeover command over the police is the biggest shortcomings in the current system and present obstacle for effective suppression of corruption.
The prosecutor’s competences to lead corruption investigation and give orders to police need to be supported by the mechanisms and tools enabling them to exercise these powers. For example, when the police authority does not comply with a request of the public prosecutor, the public prosecutor in Serbia have the possibility to immediately notify the head of that authority, or the competent minister, the Government or the competent working body of the National Assembly. If within 24 hours of receipt of the notification the police fail to comply with the request of the public prosecutor, the public prosecutor can request the initiation of disciplinary proceedings against the person responsible for not complying with his request. That means that the public prosecutor has the authority to initiate disciplinary procedures, but would need the competence to impose disciplinary sanctions to have an efficient investigation.
It is challenging to objectively assess cooperation between police and prosecutors beyond perception since the most of it is in the form of telephone conversations. To overcome this challenge more than 200 investigation cases from 10 different prosecutors’ offices were analyzed.
In more than 50 percent of analyzed cases, the public prosecutor had to intervene to police to comply with his/her order. It is important to notice that in the majority of cases prosecutor intervene after two or more months after the initial order. An additional reason for concern is the fact that in almost 70 percent of cases the police did not provide any reasoning for noncompliance with prosecutors’ order.
The weak position of prosecutor is confirmed with the low number of notifications to the police superior in case of noncompliance with prosecutors’ order (only 17 percent). These figures show the position of prosecution service in the system of the separation of powers, where the police as part of the Government has a stronger position than a prosecution that is perceived in the middle, between judiciary and executive.
The public prosecutors still lack skills to fully exercise their authority to assign to the police certain investigative actions. This challenge is even more important for corruption cases since public prosecutors do not generally possess the required knowledge to determine necessary police actions or guide police officers. Both police and prosecutors expressed the need for additional training to increase knowledge and capacities of both actors of the criminal procedure. Increased skills of prosecutors will improve their position and authority among police officers.
How to Improve Situation
Short term recommendation for overcoming existing challenges in cooperation is harmonization of legislation that regulates work of police and prosecutors. Amendments to relevant laws and bylaws will remove unclear provisions and fill legal gaps that currently exists.
In a long term, the effective criminal investigations and cooperation between police and prosecutors could be achieved if Serbia establishes prosecutors’ police to avoid challenges with the double chain of command. More than 80 percent of surveyed prosecutors and police supported this solution that exists in some European jurisdictions.
In addition, to ensure effective fight against corruption the constitutional position of prosecutors and constitutional guarantees of independence should be strengthened. Head of prosecutors’ offices are elected in the political process and hierarchical structure reinforces political influence through the whole prosecutorial pyramid. Having that in mind it is almost impossible to have an investigation of corruption cases in which politicians on power are involved. The existence of the instructions and nonexistence of the random case allocation prevent independence in the decision-making of individual prosecutors (deputy prosecutor).