Comparative Criminal Law, Lecture 1 (2016/2017)

Comparative Criminal Law

Lecture 1, 14 February 2017

(R.S.B. Kool, Introduction).

The criminal question

‘the constellation of images, ideas, processes and attitudes towards crime, safety, punishment, control and fear that are fundamental in shaping social control more generally and criminal justice in particular’. The keyword is diversity. This is a very broad definition, it features criminal law as an element of social policy, culture. Law is a living instrument and it’s altering every day, especially in the current period.

We should compare different criminal systems, to classify social (legal) arrangements, to fight ethnocentrism and to gain deeper understanding of one’s own system (Academic incentive). Be curious and willing to learn from others! Crime is an international issue, for example cyber crime. We should secure basic levels of cooperation and face global challenges (Practical incentive). Finally, we have human rights standards (Political incentive).

Differences within criminal law

• Archetypes: civil law vs. common law: one of a kind, sharia law.
• Legal pluralism rules: there are mixed systems.

Research orientations

• Relativist postiiton (contextualisation; qualitative)
• Positivist approach (similarities; quantitative)
• Course focus: comparison on sub-items of an archetypical case executed by ‘arm chair travellers’.

Pitfalls

• Criminological Tourism (‘Cherry Picking’).
• Touching base (relevance of sources/observations): No use of Wikipedia, use legislative sources.
• Law in book vs. Law in action. The law in action may be very different than you may see the regulations in the books. You should bear in mind that not just the Law from the books is important, but also the law in action/practice. 

Course focus

For the paper, you should pick a procedural topic only! Substantives are not allowed. 

Truth-finding: there are different ways to achieve the truth, think about the differences in the adversarial and inquisitorial systems.

Styles of procedures: inquisitorial vs. adversarial. 

Positions of police/defence, public prosecutor, judicial decision makers.

The jury system is a very expensive issue. If they can avoid to go to trial, then they will settle and not go to the court. In only 5% of the criminal cases, a jury system is used, because it's very expensive to collect the jury members. 

Inquisitorial and adversarial

Pre-trial investigation: position of the suspect (subject or object), scope of the defence rights, active/passive trial judge, absence/presence of pre-trial dossier prepared by state officials.

The Inquisitorial system has the following characterisations: benevolent, active state, police and PPS execute an unbiased inquiry, dossier, relative paucity of the defence rights, no filter on evidence limited disclosure of evidence, active trial judge, lay participation less significant, verification procedure.

The adversarial system had the following characterisations: malevolent, passive state, Rule of Law: Custom and interpretation, partisan police & prosecutor, no dossier/file, party autonomy truth will emerge by the clash of opinions, prominent position of defence (equal parties), direct evidence, passive trial judge & lay participation, trial is a grande finale, limited hierarchical monitoring, restricted appeal. 

You can see the differences in the systems very clearly. But there are also countries with a mixed system! Bear this in mind, not all countries have a purely inquisitorial of aversarial system. This theory only consists in paper.