6.1 - Criminal Investigation Procedures

• The investigation stage is a set of procedures by the Public Prosecution, following the law and before the trial, aimed at finding the truth by looking at crime-related evidence and linking it to a specific perpetrator.
• Examples of investigation procedures are arrest, search, delegation, interrogation, and pretrial detention.

Investigative vs. Pre-investigative Procedures

• Investigative procedures are done by the Public Prosecution as an investigative authority.
• Pre-investigative procedures are completed by law enforcement with limited judicial authority, like police or some members of the Public Prosecution.
• Pre-investigative procedures don't start criminal proceedings, but investigative procedures do.
• Investigative procedures stop the statute of limitations, unlike pre-investigative ones, unless the accused is present or formally notified during the latter.

Importance and Safeguards of the Investigation Stage

• It's a key phase in criminal proceedings; court decisions often rely on evidence from this stage, especially if it's seen as more accurate than trial evidence because it's gathered close to the crime.
• For serious crimes, an investigation is required before prosecution; for less serious cases, the Public Prosecution can skip the investigation if pre-investigation findings are enough.
• The aim is to balance the state's right to punish offenders and the accused's right to be presumed innocent until proven guilty.

Independence and Impartiality of the Investigator

• It's vital for investigators to be independent to safeguard rights and freedoms, ensuring fairness.
• Public Prosecution is seen as independent from the executive, promoting fair investigations without external pressures.
• This system simplifies and speeds up criminal processes.

Rights of the Accused

• The accused has the right to legal representation during the investigation, including access to records, but the Public Prosecution can restrict the lawyer's presence if deemed necessary.
• The lawyer's role is limited to attending, not speaking.
• The accused has the right to provide statements freely, without coercion or unlawful interrogation methods.

Documentation

• Documenting the investigation is mandatory to ensure authenticity and reliability, preventing reliance on memory.
• Records must be made contemporaneously and by a clerk, allowing the prosecutor to focus.

Investigative Procedures - Interrogation and Confrontation

• Interrogation involves the investigator confirming the accused's identity and questioning them in detail about the charges, including presenting incriminating evidence.
• It is different from questioning by law enforcement, which is limited to informing the accused of charges without detailed discussion.
• Confrontation brings the accused together with other accused individuals or witnesses to discuss specific evidence, allowing for clarification of contradictions.
• Confrontation is specific to certain evidence, while interrogation is a broader questioning on all available evidence.

Safeguards of Interrogation

• Safeguards are in place to ensure the accused's freedom while giving statements, preventing false confessions due to fear or pressure. Safeguards also apply to confrontations.
• Interrogation must be done exclusively by the Public Prosecution and can't be delegated to law enforcement, except when a delay would risk the investigation.
• The accused has the right to remain silent and cannot be forced to answer questions.
• The accused can have legal counsel present and review documents, though this right may be denied if it conflicts with the investigation's interests.

Nature and Restrictions of Interrogation

• Interrogation interrupts the statute of limitations.
• Interrogation isn't allowed if legal restrictions apply to the Public Prosecution's authority, like needing a complaint or authorization.
• Interrogation is mandatory when an investigation is required, especially in felony cases, and for arrested suspects, who must be interrogated immediately.

Nullity of Interrogation

• Absolute Nullity: Occurs if conducted by an unauthorized person, or with coercion/deception.
• Can be invoked at any stage, including the Court of Cassation.
• Relative Nullity: Occurs if the accused's lawyer is not allowed to be present or review documents.
• Can't be raised for the first time before the Court of Cassation.

Pretrial Detention (Remand)

• It means depriving the accused of liberty temporarily by order of the investigative or judicial authority, following legal regulations.
• It requires the accused to have the opportunity to detail their case while being questioned.
• The law sets several conditions as safeguards for a valid pretrial detention order.

Conditions for Pretrial Detention

• Authority: Only the Public Prosecution or competent court can issue a pretrial detention order.
  • Law enforcement cannot.
• Offenses: Permitted only for felonies or misdemeanors not solely punishable by a fine.
  • Not allowed for infractions or minor misdemeanors.
• Juveniles: Pretrial detention isn't allowed.
  • Instead, they may be placed in a juvenile care facility or with parents/guardian.
• Evidence: There must be sufficient evidence indicating the accused committed the offense.
• Interrogation: Accused must be interrogated first.

Duration of Pretrial Detention

• The Public Prosecution can order pretrial detention for seven days, renewable once for up to fourteen days.
• Extensions beyond 21 days require a judge's order, for up to 30 days, subject to renewal.
• The accused can appeal the extension order within three days of notification.

Laws on Terrorist Crimes

• Federal Law No. 7 of 2014 sets an exception for terrorist crimes, allowing the Public Prosecution to detain the accused for 14 days, renewable up to three months, with further extensions needing a court order.

Expiration and Release

• Pretrial detention ends when the reasons are no longer valid.
• Authorities may release accused if the reasons that made the detention necessary no longer exist (discretionary temporary release).
• Mandatory temporary release exists in certain cases.

Mandatory Temporary Release

Mandatory temporary release is required:

• If the crime doesn't permit pretrial detention.
• If there's a decision not to pursue the case or an acquittal.
• If the detention period expires without renewal.
• If the detention period reaches the maximum penalty for the crime.

Discretionary Release

• According to Article 108, the Public Prosecution can temporarily release a suspect held for a felony/misdemeanor unless they've been referred to court.
• Article 111 doesn't allow temporary release if the crime's punishment is death/life imprisonment, except with Attorney General approval.

Conditions of Release

• Release can be conditional on a financial or personal guarantee to ensure appearance, compliance, etc.
• The guarantee amount can be paid by the accused/another person and is forfeited to the government if obligations aren't met.
• The guarantee is refunded if the case is dismissed or an acquittal is issued.

Re-detention

• According to Article 115, a release order doesn't prevent a new arrest/detention if:
• Evidence strengthens.
• Obligations are breached.
• New circumstances arise.
• The court can issue a new arrest order if these conditions are met, based on a request from prosecution.

Disposition of Investigation - Dismissal of Case

• Dismissal with Prejudice: There are no grounds for criminal proceedings.
• Referral the case to the competent court.

Dismissal with Prejudice Details

• Dismissal with Prejudice: Order to dismiss the case if there are no grounds to proceed
• Felony: This decision needs to be issued by an Advocate General/designee, and approved by the Attorney General/deputy

Elements of Dismissal

• Needs to be a detailed Information (name, age, information etc.)
• Reasons for dismissal.
• What charges are against them.
• Authority decides that they will not proceed with the case.

Dismissal Requirements

• Must base the order on prior investigate procedures.
• This must occur whether the order has been conducted alone or with another party
• Order must be written
• Has the order to be must be reasoned?

Reasons for Dismissal

• Reasons for dismissing break down between legal and with substantive (non-legal) reasons
• There can also be : Non-criminalized acts, failure to meet standards etc

Res Judicata Effect

• The res judicata effect prevents the individual from subjection to further action with same act
• This takes immediate effect, for all parties

Conditions for Res Judicata

To invoke you must meet the following conditions:

• Similarity of case
• Similarity of the accused; has to be the same in most cases

Exceptions

• Revocation by Attorney General
• Revocation due to new evidence
• Revocation based on appeal of victim

Dismissal of Case

• Dismissal with prejudice (lawsuit cannot continue)
• Dismissal without prejudice (Lawsuit can)
• Dismissal without prejudice by prosecutions
• Referral in misdemeanors and violations; according to Article 121 of the Criminal Procedure Law