Opdated: 02.12.2006

Discretion.

Use of force.
Section 67 of the Criminal Procedures Act provides the police with general authority to investigate and prosecute cases of crime. It also provides the police with authority to seek court permission to apply certain coercive measures, such as arrest and seizure of property, during the investigation and prosecution process. These coercive measures are described in Chapters 14-17 of the Criminal Procedures Act and amplified in Chapters 8-11 of the Prosecution Instruction of 1985.

Rules governing the use of weapons by police are contained in the Weapon Instruction (WI) of 1989. The instruction covers the use of guns, explosives, gas and batons. Batons and gas can only be used in "especially dangerous situations" or when police cannot carry through a task without being subject to a risk of injury.

Guns shall only be used as a "last option", when:
(a) police or others are threatened by weapons or violence and the use of guns seems necessary to prevent the loss of human life or serious injury; or
(b) it is necessary to immediately apprehend a person who is suspected of, or charged with, a serious violent offence, including attempts at such offences, or a person who is otherwise seen as being of special danger to national security, to life or health; or
(c) it is necessary to prevent serious damage to foreign property, or when especially important interests of society are threatened.

Before using weapons, police must consider the danger or risk of injury to which outsiders will be subjected. If circumstances allow, they must initially warn a person that weapons will be used against him or her if he or she does not obey police orders. They must also fire a warning shot. Explosives can only be used in order to gain access to locked or barricaded premises, when the conditions in Section 19 of Weapon Instruction are fulfilled, and upon an order from a police commissioner.

Police on routine patrol do not carry guns. Police commissioners can authorize that police when patrolling by car take handguns. In such cases, the weapons and ammunition must be kept in locked cabinets in the patrol cars. Special police units can carry other types of weapons, if permitted by the Ministry of Justice. Police are allowed, on a case-by-case basis, to carry guns in certain dangerous situations.

Decision to arrest.
The major legal requirements that must be met before the police can arrest a person are provided in Chapter 14 of the Criminal Procedures Act. Generally, the decision to arrest a person must be made by an official of the Public Prosecuting Authority, which includes the higher-ranking police officials, or a court. An ordinary police officer or private citizen may make an arrest on his or her own initiative if delay "entails any risk." However, the Public Prosecuting Authority must subsequently ratify these sorts of arrests as soon as possible.There are no statistics available on the number of arrests made without a warrant.

Whether a person is arrested depends primarily on the type of penalty for the offence he or she is suspected of having committed, along with the risk that he or she will try to evade prosecution and/or commit another crime. Section 171 of the Criminal Procedures Act states that any person who is suspected "with just cause" of committing a felony punishable by more than 6 months' imprisonment may be arrested when:

(1) "There is reason to fear that he will evade prosecution or the execution of a sentence or other precautions";

(2) "There is an immediate risk that he will interfere with any evidence in the case...";

(3) "It is deemed necessary in order to prevent him from again committing a criminal act punishable by imprisonment for a term exceeding 6 months"; or

(4) "He himself requests it for reasons that are found to be satisfactory [...]."

None of these four conditions need to be met in order to arrest a person suspected of a felony punishable by imprisonment of 10 years or more. Such a person may be arrested if he or she confesses to the felony or there are circumstances "that strengthen the suspicion to a marked degree."

Persons "caught in the act" of committing a crime may be arrested irrespective of the penalty the crime incurs. This is also the case when there is "reason to fear" that a suspect will evade prosecution by fleeing abroad. After being arrested, a person must be brought before a court "as soon as possible and as far as possible on the day following the arrest", so that an order can be issued that the person be remanded in custody.
It is possible for police to detain a person for up to 4 hours without arresting him or her. This temporary detention can be imposed on persons who "disturb the public peace and order", or who do not comply with a police request to give their name, age and place of residence, or who are found in the vicinity of a place where a felony is "deemed" to have occurred immediately beforehand. Further guidelines on when and how police may detain persons who disturb the public peace and order are provided in Chapt 9 of the Police Instruction.

Search and seizure.
The police may search a person's premises if that person "is with just cause suspected of any act punishable by law with imprisonment." The police may also conduct a bodily search of such a person "if there is reason to assume that it may lead to the discovery of evidence or of objects that may be seized." Pursuant to Sect. 157 of the Criminal Procedures Act, it is also possible to conduct a physical examination of a suspect during a court inquiry.

In certain circumstances, police can search the premises of persons other than the suspect and to conduct bodily searches of these persons. All searches must be made pursuant to a court order, unless the person concerned consents to the search, is "caught in the act" or there is "strong suspicion" of an act punishable by more than 6 months' imprisonment and there is an "immediate risk that the purpose of the search will otherwise be thwarted." Searches should be conducted "as far as possible" in the presence of an independent witness. Upon being arrested, a person may also be searched in order to find and dispossess him or her of anything that may be used for the purpose of violence or escape.

Any objects "deemed to be significant as evidence" may be seized. Seizure will normally be the result of a written decision of the Public Prosecution Authority or a court, but a police officer can effect a seizure on his or her own initiative "when carrying out a decision to make an arrest or search, and otherwise when delay entails a risk." Any seizure may be challenged in a court.

Confessions.
Police have no authority to order any person, including suspects, to make a statement. However, they can record any statements that are made by the suspect. Suspects must be informed that they are not obliged to make any statement, before they are examined. In addition, persons conducting an examination of a suspect, such as the police, prosecuting authority, and court, must not use "promises, false information, threats or coercion", or "any means that reduce the level of consciousness or ability of the person charged to make up his own mind freely."

If the suspect admits to having committed a crime, he or she must then be asked whether s/he admits being guilty and liable to a penalty. If an unreserved confession is made, the suspect must be asked whether he or she consents to the case being adjudicated in a court of summary jurisdiction.