The Power to Define the Criminal Classification of Investigated Conduct: An Analysis of the Procedural Roles of the Public Prosecution Service, the Judge, and the Investigative Police

Abstract

This article analyzes the roles performed by the Public Prosecution Service, the judge, and the police during the criminal investigation phase in light of the accusatory system, specifically regarding the authority to classify the investigated conduct; the Public Prosecution Service is responsible for external control of police activities and holds the authority to initiate criminal prosecution, which grants it the power to define the legal classification of conduct at this stage; the judge may reduce the classification proposed by the Public Prosecution Service only when such classification results in an undue restriction of the suspect’s fundamental rights; any disagreements between the Public Prosecution Service and the police regarding the formal charging of a suspect are resolved through the direct exercise of the constitutional prerogatives of the Public Prosecution Service during the investigation phase; the study thus proposes a constitutional reinterpretation of the act of formal charging in light of the accusatory system.