Who is responsible for legal investigations?

Investigative procedures can be undertaken by the police on their own initiative. But there are also prosecutorial and other non-police investigations which are ordered by a court. Prosecutorial investigations ordered by a court are generally used when the area of investigation reveals to be particularly sensitive. As investigations may include infringement of basic rights of the persons being investigated, prosecutorial oversight or court orders serve to guarantee fair trial and protection of rights. Investigations often are complex and require specialised resources and skilled personnel. In that sense specialised units of police investigators and prosecutors have been established in some countries [5].

Depending on the legal system and the nature of the claim, private parties can initiate investigations or parallel investigations on their own initiative. In adversarial proceedings of the common law system (e.g., in the US) the parties (represented by their lawyers) bear the responsibility of investigating the facts, interviewing witnesses, consulting experts. The burden of producing evidence lies with the parties. The judge and/or the jury have the role of a neutral referee and the court is limited to consider the evidence submitted by the parties. In an inquisitorial trial of the civil law systems the primary responsibility to investigate the facts lies with the prosecutor, who is required to collect all relevant evidence.

In any case prosecutors and judges always have the responsibility to ensure that evidence has been gathered in a proper way without using coercive means and that evidentiary material is carefully preserved. Evidence obtained under torture or coercion shall not be admissible.

The bodies involved in legal investigations include:  

• Police and other competent bodies acting with or without judicial warrant. However, it is crucial for an independent investigation that the body investigating complaints is truly independent from those against whom the allegation is made, e.g., if the complaints are directed against the police, the internal accountability mechanisms of the police should not be involved in the investigation as they are not independent [6] ;
• Prosecutor’s office;
• National human rights institutions, commissions or ombudspersons can on their own motion to gather evidence on human rights violations, depending on their mandate [7];
• Lawyers representing the victim or the perpetrator;
• Judicial commissions of inquiries [8].
  

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5. E.g. in Denmark the Spec