Criminal Procedure Systems: Adversarial, Inquisitorial, and Mixed
ITEM 3: Criminal Process
Criminal Procedure Systems
Legal systems have always reacted to infringements, with punishments established to prevent private revenge. Initially, the church aimed to protect individuals through the Inquisition. Later, the state took on the role of protecting society and avenging crimes against all citizens, regardless of their power or status.
Three primary criminal procedure systems exist:
- Indictment System: The injured party drives the process, leading to potential injustices and unequal access to justice.
- Inquisitorial System: Recognizes that crime affects society as a whole, granting the state significant power in the process.
- Mixed System (Formal Accusation): Combines the best aspects of the inquisitorial and adversarial systems and has been prevalent since the 19th century.
Adversarial System
Originating in ancient Greece and Rome, the adversarial system reflects a private approach to criminal law, focusing on punishing offenses based on individual claims. In Greece, the concept emerged that certain crimes harmed society as a whole, not just the victim, giving rise to a public right to prosecute. This necessitates a prosecutor to initiate and manage the trial process.
Basic Principles of the Adversarial System:
- Transparency: All citizens have the right to know the process.
- Independent Prosecution: An entity separate from the court maintains the prosecution.
- Impartial Judge: The judge acts as a referee, overseeing the process without direct intervention.
- Trial by Peers: Judgment is rendered by a popular assembly, with no appeals allowed.
- Presumption of Innocence: The accused remains free until proven guilty.
- Equality between Parties: The adversarial and the defendant have equal standing.
- Fact-Based Decisions: The jury’s decision must be based solely on the evidence presented during the trial.
While respecting equality and citizen involvement, this system can lead to unfair outcomes due to inherent societal inequalities. Recognizing this, Rome implemented reforms allowing authorities to prosecute certain crimes ex officio, even without a private complaint. This shift paved the way for the inquisitorial system.
Inquisitorial System
While its roots trace back to Rome, the inquisitorial system reached its peak during the Middle Ages under the Christian church. The church viewed all crimes as sins, requiring intervention. The judge, a citizen, was tasked with uncovering the truth and obtaining a confession, which was considered paramount. This system dominated Europe (except England) from the 4th/5th centuries until the early 19th century.
Basic Principles of the Inquisitorial System:
- Concentration of Power: The judge handles investigation, prosecution, and judgment.
- Secrecy and Lack of Transparency: Proceedings are conducted in secret, without public access or adversarial debate, and documented in writing.
- Emphasis on Confession: The accused’s confession is the ultimate goal, with torture sometimes employed to extract it.
This system’s potential for abuse (e.g., unjustified imprisonment) led to its decline. Criticism arose during the Enlightenment, with torture condemned as inhumane and the lack of adversarial process questioned. By the early 19th century, the inquisitorial system’s core principles were largely abandoned.
Mixed System
The mixed system integrates key elements of both the adversarial and inquisitorial systems. It incorporates a public prosecution institution (prosecutor) and retains written records from the inquisitorial model. However, the trial phase is public and adversarial, with the court potentially assisting citizens (Articles 504-505 of the Spanish Criminal Procedure Law).
Introduced gradually, the mixed system became fully established in Spain in 1872. It features a secret, written initial investigation phase. However, the final judgment must be based solely on evidence presented during the public trial. The state retains the responsibility to prosecute crimes, upholding a key principle of the adversarial system. This system, aiming to ensure judicial independence, is currently employed throughout Europe, with the exception of England.
Basic Principles of the Mixed System:
- Separation of Powers: Investigation (Public Prosecutor), prosecution (citizens), and judgment (judges and courts) are distinct functions.
- Preliminary Investigation: Determines whether a trial is necessary.
- Public Trial: The trial is open to the public, adversarial, and guided by the principle of completeness, allowing the court to assist citizens.
The Criminal Justice System of the Spanish Criminal Procedure Act
The Spanish Criminal Procedure Act of 1882 reflects the mixed system. It allows for initiating proceedings based on public or private complaints or even ex officio by a judge based on criminis news. While the initial investigation is non-adversarial, the subsequent phases require an accuser (Articles 642-645). The prosecutor can also participate (Article 733). Notably, the court can order additional evidence gathering ex officio (Article 729.2).