Principles of Criminal Procedure: Inquisitorial & Accusatorial Systems
Basic Principles of the Inquisitorial System
The inquisitorial system, historically prevalent in many parts of Europe, operates on several key principles:
- Concentration of Functions: The judge handles the roles of accusation, defense, and judgment, a significant departure from the accusatorial system.
- Secrecy and Lack of Contradiction: Proceedings are conducted in secret, without public scrutiny or the opportunity for the accused to directly confront the evidence against them.
- Emphasis on Confession: The confession of the accused is considered the most crucial piece of evidence. Historically, torture was employed to extract confessions, even at the risk of death.
These characteristics led to significant abuses, such as the imprisonment of individuals without justification. By the mid-18th century, the system faced growing criticism, particularly during the Enlightenment. Thinkers began to question the reliance on torture and the lack of due process, advocating for greater respect for human rights and the principles of a fair trial. This movement eventually led to the decline of the inquisitorial system and the rise of the accusatorial system in the 19th century.
Principles of Criminal Procedure in the Accusatorial System
Modern criminal procedure, largely based on the accusatorial system, incorporates several fundamental principles:
1. Principle of Necessity
Criminal proceedings are mandatory when there’s evidence of a crime. This ensures that crimes are investigated, perpetrators are prosecuted, and appropriate penalties are imposed, including civil liability when applicable. This principle prevents extrajudicial punishments and upholds the right to a fair trial, as guaranteed by Article 24.2 of the Spanish Constitution (CE).
2. Rule of Law
Criminal proceedings must be initiated based on evidence suggesting a criminal act. The prosecutor or the court must act ex officio upon learning of a potential crime. Individuals can also initiate proceedings by filing a complaint. This contrasts with civil procedure, where proceedings are typically initiated and driven by the affected party.
3. Principle of Contradiction
This principle, crucial in both criminal and civil proceedings, ensures that decisions are based on the evidence presented and debated by both the prosecution and the defense. The accused has the right to defend themselves and present evidence in their favor, particularly during the oral trial phase.
4. Free Assessment of Evidence (Article 742 of the Spanish Criminal Procedure Law – Lecri)
The court has the discretion to weigh the evidence presented and make its judgment accordingly.
5. Right to Judicial Protection (Article 24.1 CE)
Every individual has the right to seek protection from the courts in the exercise of their rights and interests. The Constitutional Court has affirmed the prohibition of special courts, except in specific cases defined by law.
6. Right to Be Informed of the Charges (Article 24.2 CE)
The accused has the right to be informed of the charges against them, enabling them to prepare an adequate defense.
7. Right Not to Self-Incriminate (Article 24.2 CE)
The accused has the right to remain silent and not to confess guilt.
8. Right to Initiate Criminal Proceedings
Any citizen, even those not directly affected by a crime, can initiate criminal proceedings. However, Article 280 of the Lecri requires the complainant to provide a bond to cover potential costs, ensuring responsible use of this right.
Further Principles of Procedure
A. Principle of Orality (Article 120.2 CE)
Criminal proceedings should be predominantly oral, especially in criminal cases. This ensures transparency and allows the court to directly assess the credibility of witnesses and evidence. However, written procedures are still used in certain stages, such as the summary phase, which can even be conducted in secret under specific circumstances (Article 302 Lecri).
B. Principle of Immediacy
The court should have direct contact with the parties and evidence throughout the proceedings. This means attending all hearings, examining evidence firsthand, and hearing testimonies directly, except in exceptional circumstances (Article 448 Lecri).
C. Principle of Publicity (Article 120.1 CE)
Judicial proceedings should be open to the public, except for exceptions defined by procedural laws. The judge can order secret investigations for a limited period (Article 302 Lecri) to protect the integrity of the investigation.
D. Principle of Concentration
Procedural actions should be concentrated in a single hearing or a series of closely spaced hearings. This helps ensure that the court retains a clear and accurate memory of the evidence and testimonies when making its judgment.