Inquisitorial system

Inquisitorial system
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems, such as France and Italy, or legal systems based on Islamic law like Saudi Arabia, rather than in common law systems. It is the prevalent legal system in Continental Europe, Latin America, African countries not formerly under British rule, East Asia (except Hong Kong), Indochina, Thailand, and Indonesia. Most countries with an inquisitorial system also have some form of civil code as their main source of law.
Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors or infractions, such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common-law system. Some legal scholars consider inquisitorial misleading, and prefer the word nonadversarial. The function is often vested in the office of the public procurator, as in China, Japan, and Germany.
Overview
In an inquisitorial system, the trial judges (mostly plural in serious crimes) are inquisitors who actively participate in fact-finding public inquiry by questioning defense lawyers, prosecutors, and witnesses. They could even order certain pieces of evidence to be examined if they find presentation by the defense or prosecution to be inadequate. Prior to the case getting to trial, magistrate judges (juges d'instruction in France) participate in the investigation of a case, often assessing material by police and consulting with the prosecutor.
The inquisitorial system applies to questions of criminal procedure at trial, not substantive law; that is, it determines how criminal inquiries and trials are conducted, not the kind of crimes for which one can be prosecuted or the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy, and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.
In an adversarial system, judges focus on the issues of law and procedure and act as a referee in the contest between the defense and the prosecutor. Juries decide matters of fact, and sometimes matters of the law. Neither judge nor jury can initiate an inquiry, and judges rarely ask witnesses questions directly during trial. In some United States jurisdictions, it is common practice for jurors to submit questions to the court that they believe were not resolved in direct or cross-examination. After testimony and other evidence are presented and summarized in arguments, the jury will declare a verdict (literally true statement) and in some jurisdictions the reasoning behind the verdict; however, discussions among jurors cannot be made public except in extraordinary circumstances.
Appeals on the basis of factual issues, such as sufficiency of the sum total of evidence that was properly admitted, are subject to a standard of review that is in most jurisdictions deferential to the judgment of the fact-finder at trial, be that a judge or a jury. The failure of a prosecutor to disclose evidence to the defense, for example, or a violation of the defendant's constitutional rights (legal representation, right to remain silent, an open and public trial) can trigger a dismissal or re-trial. In some adversarial jurisdictions (e.g., the United States, and England and Wales), a prosecutor cannot appeal a "not guilty" verdict (absent corruption or gross malfeasance by the court).
In adversarial systems, the defendant may plead "guilty" or "no contest," in exchange for reduced sentences, a practice known as plea bargaining, or a plea deal, which is an extremely common practice in the United States. In theory, the defendant must allocute or "voice" his or her crimes in open court, and the judge must believe the defendant is telling the truth about his or her guilt. In an inquisitorial system, a confession of guilt would not be regarded as ground for a guilty verdict. The prosecutor is required to provide evidence supporting a guilty verdict. But this requirement is not unique to inquisitorial systems, as many or most adversarial systems impose a similar requirement under the name corpus delicti.
History
Given that the criminal procedural system can be defined as a set of regulations governing the prosecution of offenders, we will review the major systems that have influenced societies throughout history, before delving into the specifics of the Romanian criminal procedural system.Classification of Systems. As noted by 18th-century jurist Mario Pagano, the nature of the criminal procedural system often mirrors a society's level of civilization and the dynamics between the state, order, and its citizens. In the realm of law, procedural and criminal norms serve to highlight a society's socio-political and cultural will during a specific historical period, emphasizing the goal of preventing and combatting crime. However, for a genuine democracy to exist, criminal procedural law should maintain a balance between the requirements of suppressing criminal activities (such as fighting crime and ensuring social protection) and safeguarding individual interests (thereby establishing limits on the power of the state).
Over time, regulations concerning criminal proceedings have been shaped based on the significance of the roles in the judicial process: prosecution, which is the responsibility of the Public Prosecutor; defense, naturally handled by the accused; and adjudication, exclusively carried out by the judge.
In general terms, procedural regulations can be categorized into three main types of procedural systems: the accusatorial, inquisitorial, and mixed systems. While the first two represent typical systems, the third, the mixed system, serves as an eclectic approach that aims to reconcile elements of the accusatorial and inquisitorial models.The Accusatorial System. This system is characterized by a straightforward criminal process, freedom to present evidence, as well as the principles of orality and publicity in trials. It demands that the entire process is conducted openly from the outset, without any provisions for secret proceedings. The proceedings take place in front of an impartial judge, acting as a spectator and a fair arbiter who ensures that procedural rules are upheld.
Central to this system is the concept of equality between the prosecution and the defense. The criminal proceedings reflect an ideal configuration, with the judge at the apex, and the prosecution and defense at the base, opposing each other while possessing equal rights and powers.
During the initial phase, the prosecuting authority (originally private and later public, with the role of prosecution eventually assumed by the Public Prosecutor) collects evidence. This entity is responsible for proving the guilt of the accused, as the accused is presumed innocent from the outset. While the accused is not obliged to demonstrate their innocence (based on the presumption of innocence), they have the right to present counter-evidence if there are indications of their guilt.
Evidential material and counter-evidence are openly discussed before the judge, who plays a passive role and does not initiate any investigations, even when the evidence is produced by the prosecution. The judge's decision is based on the evidence provided by the parties. In cases of doubt, sacred forms of evidence, ordeals, judicial oaths, or judicial duels may be employed.
The accusatorial system was characteristic of Greek and classical Roman law and some of its features are still present in the regulations of contemporary democratic states.
The accusatorial procedure was developed in England, where the famous habeas corpus institution symbolized the essence of this system. Habeas corpus allowed individuals deprived of their freedom to request the immediate examination of their legal status by a judge, who would issue an order requiring the detainee's presentation. The jailer would be obliged to provide reasons for the detention, and the detainee, in response, would state their grounds for release. Ultimately, the judge would make the determination.
Today, habeas corpus primarily signifies a restrained trial, which respects the rights of the accused.
Habeas corpus was "exported" to numerous countries worldwide, including North and South America, Africa, Asia, and Europe. Notably, Spain embraced this institution, as reflected in Article 17 of its Constitution, which states that the law will establish a habeas corpus procedure. Spain subsequently implemented this by law in 1984. This legal instrument is regarded as one of the most important techniques for safeguarding fundamental rights.
The Inquisitorial System. A. The inquisitorial system stands in stark contrast to the accusatorial model. It is characterized by the dominance of the prosecution, which is handled by a public entity with judicial functions.
In the inquisitorial system, the role of the prosecution is not equivalent to that of the defense; instead, it is characterized by its commitment to social protection.
This system often involves the compromise of the right to defense and, in some cases, even freedom. In this model, the accused may become or tend to become a passive subject of a public inquisition.
Key attributes of the inquisitorial system include a lack of publicity and orality, with proceedings conducted in writing and kept confidential. This system is bereft of the notion of adversarial parties; instead, it consists of individuals accused of crimes. In the absence of voluntary confessions, evidence is gathered through the use of torture.
Under the inquisitorial system, criminal proceedings are initiated automatically by the authority responsible for gathering evidence and adjudicating the case.
Over time, a strict discipline regarding evidence was developed, with legal and formal evidence criteria that could not be contested.
The resolution of cases typically occurs through a judge's decision, generally without the need for adversarial debates.
B. Starting in the 13th century, due to concerns that the accusatorial system provided too many protections to individuals and too few to society, nearly all European countries shifted to the inquisitorial model, with England being the primary exception, as it retained the accusatorial system.
The inquisitorial model saw significant development in canon law, and secular justice later adopted many of its elements. The name of the system itself was borrowed from the institution established by Pope Innocent III based on rules set out in the Lateran Council in 1215. This institution, known as the "Inquisition," was further organized by Pope Gregory IX and had one of its most intense applications in Spain.
In the secular inquisitorial process, instructions were introduced, carried out by specialized magistrates known as investigating judges. These judges based their work on the presumption of the accused's guilt.
As time passed, the trial became public and adversarial, although the preceding phase, which involved the collection of evidence, remained secretive and non-adversarial. This procedural framework was illustrated by the French Criminal Procedure Code of 1808 and served as a model for many European nations. While this inquisitorial framework still exists in some continental European countries today, it has undergone significant modifications, adding elements of the accusatorial system.
The Mixed System. As the name implies, this eclectic system incorporates selected features from both the accusatorial and inquisitorial systems. Historical experience has shown that it is quite challenging to reconcile the inquisitorial demands of fighting crime with the accusatorial requirements of defending the accused.
The inquisitorial system, which primarily prioritizes social defense, corresponds to an authoritarian form of the state, which often shows little sensitivity to the rights of the accused. In contrast, the accusatorial system, which provides stronger safeguards for the interests of the defense until it establishes a certain level of equality in the adversarial contest
Until the development of the Catholic Medieval Inquisition in the 12th century, the legal systems used in medieval Europe generally relied on the adversarial system to determine whether someone should be tried and whether a person was guilty or innocent. Under this system, unless people were caught in the act of committing crimes, they could not be tried until they had been formally accused by their victim, the voluntary accusations of a sufficient number of witnesses, or by an inquest (an early form of grand jury) convened specifically for that purpose. A weakness of this system was that, because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, victims and would-be witnesses could be hesitant to make accusations to the court, for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as trial by ordeal or combat were accepted.
Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the ecclesiastical court system. Under the new (inquisitional procedure), an ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative. If the (possibly secret) testimony of those witnesses accused a person of a crime, that person could be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use of the inquisitional system. The council forbade clergy from conducting trials by ordeal or combat.
As a result, in parts of continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated. In France, the — lay courts — also employed inquisitorial proceedings.
In England, however, King Henry II had established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law courts continued to operate under the adversarial system. The adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."
The first territory to wholly adopt the inquisitional system was the Holy Roman Empire. The new German legal process was introduced as part of the of 1498 and then the of 1507. The adoption of the (of Charles V) in 1532 made inquisitional procedures empirical law. It was not until Napoleon introduced the on 16 November 1808, that the classical procedures of inquisition were ended in all German territories.
In the development of modern legal institutions that took place in the 19th century, for the most part jurisdictions codified their private law and criminal law, and reviewed and codified the rules of civil procedure as well. It was through this development that the role of an inquisitorial system became enshrined in most European civilian legal systems. However, there exist significant differences of operating methods and procedures between 18th century courts and 19th-century courts. In particular, limits on the powers of investigators were typically added, as well as increased rights of the defense.
It is too much of a generalization to say that the civil law is purely inquisitorial and the common law adversarial. The ancient Roman custom of arbitration has now been adapted in many common-law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland, Quebec, and Louisiana, while the substantive law is civil in nature and evolution, the procedural codes that have developed over the last few hundred years are based upon the English adversarial system.
Modern usage
France
The main feature of the inquisitorial system in criminal justice in France, and other countries functioning along the same lines, is the function of the examining or investigating judge, also called a magistrate judge. The examining judge conducts investigations into serious crimes or complex inquiries. As a member of the judiciary, they are independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions, which is supervised by the Minister of Justice.
Despite high media attention and frequent portrayals in TV series, examining judges are active in a small minority of cases. In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges. The vast majority of cases are therefore investigated directly by law enforcement agencies (police, gendarmerie) under the supervision of the Office of Public Prosecutions (procureurs).
Examining judges are used for serious crimes, e.g., murder and rape, and for crimes involving complexity, such as embezzlement, misuse of public funds, and corruption. The case may be brought before the examining judge either by the public prosecutor (procureur) or, more rarely, by the victim (who may compel an instruction even if the public prosecutor rules the charges to be insufficient).
The judge questions witnesses, interrogates suspects, and orders searches for other investigations. Their role is not to prosecute the accused, but to gather facts, and as such their duty is to look for any and all evidence, whether incriminating or exculpatory (à charge et à décharge). Both the prosecution and the defense may request the judge to act, and may appeal the judge's decisions before an appellate court. The scope of the inquiry is limited by the mandate given by the prosecutor's office: the examining judge cannot open a criminal investigation sua sponte.
In the past the examining judge could order committal of the accused, this power being subject to appeal. However, this is no longer authorized, and other judges have to approve a committal order.
If the examining judge decides there is a valid case against a suspect, the accused is sent for adversarial trial by jury. The examining judge does not sit on the trial court which tries the case and is prohibited from sitting for future cases involving the same defendant. The case is tried before the court in a manner similar to that of adversarial courts: the prosecution (and on occasion a plaintiff) seeks the conviction of accused criminals, the defense attempts to rebut the prosecution claims, and the judge and jury draw their conclusions from the evidence presented at trial.
As a result of judicial investigation and defendants being able to have judicial proceedings dismissed on procedural grounds during the examining phase, cases where the evidence is weak tend not to reach the trial stage. Conversely, the guilty plea and plea bargaining were until recently unknown to French law. They are accepted only for crimes for which the prosecution seeks a sentence not exceeding one year imprisonment. Therefore, most cases go to trial, including cases where the prosecution is almost sure to gain a conviction. In countries such as the United States, the latter cases would be settled by plea bargain.
Other types
Administrative justice
In administrative courts, such as the Conseil d'État, litigation proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing; the plaintiff writes to the court, which asks explanations from the administration or public service concerned; when answered, the court may then ask further detail from the plaintiff, etc. When the case is sufficiently complete, the lawsuit opens in court; however, the parties are not required to attend the court appearance. This method reflects the fact that administrative lawsuits are for the most part about matters of formal procedure and technicalities.
Inquisitorial tribunals within the United States
Certain administrative proceedings within some common-law jurisdictions in the United States may be similar to their civil law counterparts but are conducted on a more inquisitorial model. For instance tribunals dealing with minor traffic violations at the New York City Traffic Violations Bureau are held before an adjudicator, who also functions as a prosecutor. They question witnesses before rendering judgements and setting fines.
These types of tribunals or boards function as an expedited form of justice, in which the state agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process or fundamental justice. The accused party has an opportunity to place his or her objections on the record.
References
Bibliography
Antonia Fiori, "Quasi denunciante fama : note sull’introduzione del processo tra rito accusatorio e inquisitorio", in Der Einfluss der Kanonistik auf die europäische Rechtskultur, 3. Strafrecht und Strafprozeß, éd. O. Condorelli, Fr. Roumy, M. Schmoeckel, Cologne, Weimar, Vienne, 2012, p. 351-367, online.
Richard M. Fraher, « IV Lateran's Revolution in Criminal Procédure : the Birth of inquisitio, the End of Ordeals and Innocent III's Vision of Ecclesiastical Politics », dans Studia in honorem eminentissimi cardinalis Alphonsi M. Stickler, éd. Rosalius Josephus Castillo Lara, Rome, Librairie Ateneo Salesiano (Pontificia studiorum universitas salesiana, Facilitas juris canonici, Studia et textus historie juris canonici, 7), 1992, p. 97-111.
Lotte Kéry, « Inquisitio-denunciatio-exceptio : Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht », Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 87, 2001, p. 226-268.
Julien Théry, « fama : L’opinion publique comme preuve. Aperçu sur la révolution médiévale de l'inquisitoire (XIIe-XIVe s.) », in La preuve en justice de l'Antiquité à nos jours, ed. Br. Lemesle, Rennes, Presses Universitaires de Rennes, 2003, p. 119-147, online.
Julien Théry-Astruc, "Judicial Inquiry as an Instrument of Centralized Government : The Papacy’s Criminal Proceedings against Prelates in the Age of Theocracy (mid-12th to mid-14th century)", in "Proceedings of the 14th International Congress of Medieval Canon Law", Città del Vaticano, 2016, p. 875-889, online.
Winfried Trusen, « Der Inquisitionsprozess : seine historischen Grundlagen und frühen Formen », Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 74, 1988, p. 171-215.
Further reading
French Code of Criminal Procedure (Code de procédure pénale)
legislative part
regulatory section — regulations taken after advice of the Conseil d'État''
Judiciaries
Legal history
Legal systems
Tribunals of the Catholic Church