The merging of law enforcement and rightholders is a persistent figure of law in the Commission's thinking. It was also clearly expressed in IPRED2, the "joint investigation teams" article. Prof. Hilty criticised it accordingly: "23. The privatisation of criminal prosecution in favour of individual stakeholders’ interests implied therein should be rejected for reasons of general legal policy. In democratic societies bound by the rule of law, the state is endowed with a legal monopoly over the use of force. Private parties are not entitled to avail themselves of criminal prosecution measures in order to combat violations of the law committed by fellow citizens. Instead, each individual only has the right to claim protection by the state, if necessary to be ensured by means of criminal law. The clearly defined rules
of criminal procedure are only binding upon the criminal prosecution authorities. And even if criminal procedural law were equally applicable to all members of joint investigation teams, democratically legitimised control would be lacking, as proprietors of IP rights do not hold a public office and are therefore not bound by internal directions issued by the prosecuting authority. The obligation of Member States to delegate functions within the conduct of criminal investigations to private parties in such a diffuse manner is therefore incompatible with the fundamental structure of a democratic society."
The merging of law enforcement and rightholders is a persistent figure of law in the Commission's thinking. It was also clearly expressed in IPRED2, the "joint investigation teams" article. Prof. Hilty criticised it accordingly: "23. The privatisation of criminal prosecution in favour of individual stakeholders’ interests implied therein should be rejected for reasons of general legal policy. In democratic societies bound by the rule of law, the state is endowed with a legal monopoly over the use of force. Private parties are not entitled to avail themselves of criminal prosecution measures in order to combat violations of the law committed by fellow citizens. Instead, each individual only has the right to claim protection by the state, if necessary to be ensured by means of criminal law. The clearly defined rules
of criminal procedure are only binding upon the criminal prosecution authorities. And even if criminal procedural law were equally applicable to all members of joint investigation teams, democratically legitimised control would be lacking, as proprietors of IP rights do not hold a public office and are therefore not bound by internal directions issued by the prosecuting authority. The obligation of Member States to delegate functions within the conduct of criminal investigations to private parties in such a diffuse manner is therefore incompatible with the fundamental structure of a democratic society."