Criminal Procedure: Comparative Aspects

Investigation of a reported offense is the first step in the criminal process. The law typically entrusts either an investigating magistrate, as in France (Code de Procédure Pénale, Loi n. 57-1426 du 31 déc. 1957 (French CPP), arts. 80, 81) and Spain (Ley de Enjuiciamiento Criminal, promulgada por real decreto de 14 de sept. de 1882 (LEC), art. 306), or the state's attorney, as in Germany (StPO, § 160) and Italy (Italian CPP, art. 327), with conducting the investigation, but in fact it is almost invariably the police who interrogate suspects and witnesses, seize physical evidence, and do everything else necessary to collect proof for a later trial (see StPO, § 163; Italian CPP, Art. 348).

Whenever it is necessary, in the course of an investigation, to seriously interfere with citizens' privacy or liberty interests, for example, by searching a home or placing a person under arrest, the police need prior judicial permission or, if exigent cirumstances have precluded the police from requesting a judicial warrant, at least a magistrate's subsequent authorization of the relevant measure. Pretrial custody, as the most serious invasion of personal liberty, invariably requires a judicial warrant (French CPP, art. 146; StPO, § 114; Italian CPP, art. 292; LEC, art. 502). Provisional arrest and short-term detention (up to two or three days) can, however, be imposed by nonjudicial officers when there is strong suspicion against a person, especially when he or she has been apprehended while committing an offense or shortly thereafter (French CPP, art. 63; StPO, § 127; Italian CPP, arts. 380–386; Spanish Constitution, art. 17 sec. 2).

When suspects are interrogated by the police, most of these systems require informing the suspect of the right to consult an attorney (French CCP, art. 63–4 (1); StPO, §§ 136 (1), 163a (4); Italian CCP, art. 350(2); LEC, art. 118). Germany and France (in custodial interrogations) also require a warning about the right to remain silent (French CCP, art. 63–1(1); StPO §§ 136(1), 163a (4)).

Searches and seizures must on principle be ordered by a magistrate, but they can be conducted without such authorization when it is necessary to act immediately, for example when illegal drugs or weapons have been seen on someone's premises and there is the risk that they will be concealed or destroyed while the police attempt to obtain a judicial warrant (French CPP, art. 56; StPO, §§ 105, 111e; Italian CPP, art 352). Searches can legally be conducted only if the police suspect that evidence of a crime or items subject to confiscation will be found. Required standards of suspicion tend to be lower in continental systems than under U.S. law (Bradley, 1983). Because the law accords the individual less extensive protection against invasions of privacy in the course of a criminal investigation, cases involving the issue of rule-breaking by the police occur less frequently than in the United States. Conflicts between the interests of vigorous law enforcement and individual rights nevertheless arise, and the protection of citizens from overzealous police is an important policy issue in all systems.