Criminal Procedure Systems: Inquisitorial, Adversarial, and Mixed
ITEM 3
CRIMINAL PROCESS
The criminal procedure systems have always been a system of law that reacts when infringed. It is punishable by law to prevent private revenge. It was the church that said to protect individuals with the Inquisition. The state must protect society and avenge the crimes of the powerful and the weak.
There are three systems of criminal procedure:
- The indictment: The injured person drives the process. This produces injustices, and not everyone can do it.
- The inquisitive: Crime affects us all.
- The mixed system or formal accusation: This system provides the best aspects of the inquisitorial system and the best measures of the adversarial system. It has been in force since the nineteenth century.
Adversarial System
This system is governing in the cradle of our civilization (Greece and Rome). It was introduced in Greece, and Rome developed it. It corresponds to a private criminal law because it punishes the offense and given that claim, punitive or not. In Greece, it is believed that certain crimes do not relate only to the injured but are an offense to society, the birth of a right of society and not the victim. The holders of prosecution are, therefore, all citizens.
You also need a prosecutor because otherwise, there is no trial, whether or not to be offended. This is essential; therefore, it has some prosecutors who are trained to bring the testing process and are the ones who can open a process. Therefore there must be a process for the parties. It is a trial of an accused against his peers because there is no state actor, but there is a public reaction.
Basic Principles of This Process:
- Right of all citizens to know that they will have to hold the process.
- Need for someone other than the court or the judge to maintain the prosecution.
- The judge acts as a referee, directs the process, and produces the result but does not intervene.
- The judge is not a professional judge but a popular assembly; therefore, the judgments are not appealable governing.
- The accused remains free until there is an accusatory statement, governing the presumption of innocence.
- Absolute equality between the adversarial and the defendant.
- The jury must limit their decision to the facts developed in the process provided by the parties.
This principle is very respectful of the principle of equality and with citizens. But this leads to unfair results because not all citizens are equal, even though the law may determine. Therefore, it is found in Rome that this system does not guarantee order and safety because many crimes go unpunished for lack of means. Reforms are made because it was understood that certain crimes were prosecuted ex officio by the authorities, although there were no reactions. This transformation led to a new system: the inquisitive.
Inquisitorial System
Although it begins in Rome, it culminates in the Middle Ages through the Christian church. The church believed that all crimes were sins and therefore could not remain indifferent. It introduces the figure of the judge, which has to judge and is a citizen. This required uncovering the truth, and also, the criminal process has a purpose that transcends the sentencing, which is the confession. This system will begin over the years 300/400 and is valid until the beginning of the XIX century but with some changes. It will spread across most of Europe except England.
Basic Principles of This Process:
- Concentration of the three functions: to accuse, defend and judge in one person, the Judge (fundamental difference).
- This procedure is secret, not contradictory, not public, and is written.
- The confession of the accused is the guilty plea and is considered the showpiece event. Torture is used to increase awareness of guilt, although it comes to death.
- This system gives rise to some abuses (was locked inform the accused without reason), and then he was losing faith. This crisis comes in the middle of the eighteenth century, which begins to criticize the system, and faith is lost because it gives greater weight to human life. The reform began as a thought, the initiators of this change was in the Enlightenment. It is recognized that torture is a research method, and it starts a fight against the inquisitorial system; it is believed that it violates human rights. A procedural system does not deserve that name if there are no contradictions. At the beginning of the XIX century, it is beyond the principles of the inquisitorial system is abandoned, but not quite.
Mixed System
This system includes basic principles of the adversarial system with its own institutions, fundamentally the inquisitorial system. The existence of a public institution dedicated to public prosecution (prosecution) and one has been remained from the record. The initial process can be automatically and acted by written and secret; there is an institution formed by professionals who have the task of judging and blaming.
This mixed system was not introduced until 1872 but was introduced gradually. There is a secret stage, in writing, but the sentence can only be based on the evidence before the court. Practice in the previous sentence will not leave the State to individuals; it continues to pursue the crimes. The principle of the adversarial system: there will be no prosecution process; the State wrote to a court to prosecute the crime. This system aims at ensuring the independence of the court, a system which currently governs in all Europe except England.
Basic Principles of This Process:
- Absolute separation of the three functions: Investigating (Public Prosecutor), accusing (citizens), and judging (judges and courts).
- The preliminary investigation depends on whether there is a trial or not, but
- The trial is public, conflicting, and is governed by the principle of integration, and the court can help citizens. (art. 504-505 Lec)
The Criminal Justice System of the Criminal Procedure Act
Our Lec. Responds to the mixed system and was adopted in 1882. The governing and non-adversarial system. You can start the process without a public or private complaint. A judge may initiate the process automatically simply by criminis news. At this stage, it does not apply. But after a discussion of the contents, it cannot be passed on to the next phase without an accuser (Art. 642 to 645 Lec.), popular or private. Although the prosecutor may also appear (Article 733 Lec) where the court has already decided to pass sentence and does, you can give what is called in which the prosecutor may make an approach to the court, and it can be transcendent if any of the parties endorses it, then you can re-sentencing, the prosecutor posed a question to the court, and this can be taken into account or not.
Section 729.2 Lec.: The court, ex officio, may order the practice tests that are not provided by the parties.