Week 1.

C.H. Brants & A.A. Franken, ‘The protection of fundamental human rights in criminal process’, Utrecht Law Review

Legal systems and procedural traditions are to be distinguished as being either adversarial or inquisitorial. Adversarial systems are the so-called common law (English countries, like the UK, USA and colonies) and inquisitorial systems are civil law (European countries and colonies). There are also countries which have a mixed system. The question whether a legal system is adversarial or inquisitorial is important, because the criminal proceedings are different in the different systems.

Individual, state and individual rights and freedoms

The civil law system has the purpose to realize the ‘common good’. There are powers needed to carry out this task, so the liberty of the individuals is threatened. Only the state can achieve and uphold the liberty of the individual, so that the common good can be established. The State’s power is curtailed by the primacy of written rules under law, abstract constitutional rights of the individual and the division of power within the state, which implies judicial scrunity (review) executive action on the basis of written law and hierarchical monitoring and control within the executive itself.

Legally conferred powers in the written law are the only powers which can provide the State the possibility to infringe on individual rights; without legally written law they can do nothing.

In adversarial systems, the individuals define their relationships to the state in terms of the rule of law: as a set of concrete rights and freedoms from particular forms of state intrusion, which they themselves can assert. Under the common law system, executive organs of criminal justice do not monitor (to check or watch someone in order to find out what is happening) each other. They exist in a state of coordinate authority, and all their tasks are governed by the rule of law. Executive officials may do everything, they need no conferred powers, they may do anything which is not expressly forbidden in law. All law must be statutory, coming from the government, to be enforced by the executive and applied by the courts and interpreted in so far as the law is not clear.

However, it is impossible to legislate every situation, so interpretation by the judge is mostly needed (changing situations)

The common law is built up by judicial interpretation, the interpretation will be found by the Court, so there is no need to make a codification. However, countries with common law systems do have bills and codifications.

Common and civil law in practice

Legal traditions and styles of procedure

The differences in civil law and common law affect the way in which the criminal process is organised as a process of truth, finding that at the same time may not encroach unduly on the fundamental individual rights of those concerned. All countries have other legal traditions and legal cultures.

Where common law and civil law traditions are generally associated with adversarial and inquisitorial styles of procedure respectively, it must be examined how these embody different concepts of truth finding and fair trial and the relationship between them.

Nowadays, there is no such thing as purely inquisitorial or purely adversarial procedure. However, it is possible to characteristic a procedure as inquisitorial or adversarial. Even between close neighbour countries there could be small differences in the procedure systems.

Both adversarial and inquisitorial procedures are concerned with determining the truth and therefore with establishing guilt or innocence in a fair manner that allows scope for individual rights and interests. Everybody will seek the relevant truth, so the truth which could be legitimate for all concerned and society in general.

Checks and balances

The trial must be fair, acceptable and legitimate to all concerned. To be able to examine a trial to be fair, there must be checks & balances. For the adversarial system to work, equality between the prosecutor and defendant is a must. The defendant must for example be provided with a good lawyer, to be able to compete the evidence which the prosecutor is bringing up against him. There must be equality of arms, not only in theory, but also in practice. If there is no good lawyer, or he’s too expensive, than there is no safety net (because the judge is not a truth finder). The outcome of the case is dependant of the evidence which is brought forward by the parties.

In inquisitorial procedures it is important that the State will examine if the crime control and due process are both respected. Judicial control is needed for the criminal proceedings to be fair. Also, the judges must be actively in truth finding and they must give reasoned decisions. The defendant must have the right to a retrial before a higher court, if he disagrees on the decision. The state officials have to be examined on their integrity, and their visible commitment to non-partisan truth finding. The judge must always be impartial and the prosecutor must be non-partial.

Adversarial & inquisitorial systems in practice

In both adversarial and inquisitorial systems, it is up to the prosecution to prove the case against the defendant beyond reasonable doubt. The difference between the systems lies in the way in which the prosecution case is built up, its significance in setting the agenda for trial and the position of the suspect/defendant. Defining characteristics may be found in the nature of pre-trial investigation, the roles of investigators, the activity of the judge, the scope of the defence rights etc.

Year of summary

• Summary of the article C.H. Brants & A.A. Franken, ‘The protection of fundamental human rights in criminal process’, Utrecht Law Review
• Utrecht University (2016/2017)