Frames Version
Common v. Continental:
A Reaction to Mr. Evan Whitton's 1998 Murdoch Law School Address
Author: |
Jean-Marc Baissus LLM
Former President of Péronne Tribunal de Grande Instance, Legal consultant, Ethiopian Ministry of
Justice
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Issue: |
Volume 5, Number 4 (December 1998)
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Contents
"You know they've taken to using lawyers instead of rats for testing
purposes in scientific research ? Well, the reason is that there
are things
that even rats won't do" Robin Williams, in the film
"Peter Pan"
Introduction
-
As a student of comparative law, it is a great honor to be given the chance
of reacting to Mr. Evan Whitton's 1998 Murdoch Law School
address. The
distinguished speaker has touched on this occasion on the core question
that torments the comparativist: where is the
best system of law to be
found? More precisely, given that substantial laws tend to become more
and more uniform through the much-vaunted
"globalisation", which is the
best way to administer Justice? In this respect, with the demise of "socialist"
systems, one could
say that the comparativist's choice boils down to "common-law"
versus "civil law" procedures.
-
This reaction will not assess a certain number of issues linked to the
situation of the press versus the judiciary, however fascinating
the discussion
may be regarding the law of contempt or libel. I could playfully take Mr.
Whitton to task for omitting Theophraste
Renaudot's "La Gazette", first
published in 1631, as the real inventor of modern journalism. But I will
strive to concentrate my
commentary on the issue of procedure.
-
If I may summarize the main idea of Mr. Whitton's address, I would state
that the author considers that the Common Law system of
procedure has an
in-built flaw, where injustice and enormous costs are combined to achieve
a corrupt legal system, which nowadays
is according to him, in a "terminal"
condition.
-
Mr. Whitton's contends that this results from the perverse working of "a
tiny cartel of lawyers and amateur judges", "a score of
racist lawyers
and judges", who "corrupted the system" as from the 13th century[1].
-
I do not have the historical qualifications necessary to challenge this
allegation, and will let other, better-qualified, commentators
assess it.
What I will attempt here is a discussion on procedural matters, from the
viewpoint of a "civil law", "continental" or
"romano-germanic" lawyer.
It must be stressed that my training and experience as a French judge dictate
the comments that follow.
The reader is therefore forewarned that these
comments may be somewhat tainted by this specific standpoint.
-
Mr. Whitton believes that the English-inspired procedure is a "game", where
truth is obscured by the adversary system, where lawyers
rather than judges
are in control, and where the rules are devised to conceal evidence. He
then goes on to suggest a certain number
of remedies.
The
adversary system
-
The use of "adversary system" to define the English type of procedure is
an interesting one, because the expression most currently
employed by Common-law
lawyers to qualify their procedure, in my experience at least, is that
of "adversarial system". There is here
more than a simple terminological
variation. "Adversarial" is put forward as opposed to "inquisitorial",
the frequently used adjective
when applied to the continental-type procedures.
The implication is negative, referring to the infamous Spanish "Inquisition",
with
its record of injustice and use of torture for obtaining confessions[2].
-
It has always been a source of wonder for me that the evil deeds of a 15th
century religious judicial institution are called upon
to commit to oblivion
any procedure not in line with the Common-law one. Surely, just a moment's
reflection will lead anyone to drop
the belief that late 20th-century democracies
would tolerate a system whereby an alleged offender is left to fend off
a presumption
of guilt against an overbearing totalitarian judicial system.
To begin with, torture was used precisely because legal techniques
had
progressed to the stage where the onus of proving guilt was already on
the prosecution, rather than simply based on the outcome
of a judicial
duel. The means are inadmissible, but this does not imply that the objective
was likewise.
-
So rather than invoking the tormented soul of Torquemada, I believe one
should let religious prejudice lie in the distant past and
accept that
modern procedures are all "adversarial", in the sense that a liberal judicial
process is based on the opposition of contending
parties, be it in civil
or penal matters. The obvious consequence is that the position of the judge,
in both systems, remains that
of an independent arbitrator.
-
The antonym of "inquisitorial", if one really wishes to remain with these
somewhat outdated legal terms, should be "accusatorial".
But in fact one
would not be at pains to demonstrate that continental procedures rely heavily
on the positions developed in court
by opposing parties, whereas the "inquisitorial"
attitude of Common Law judges may be illustrated in many instances. As
far as I
know it is far from rare where a British judge puts a direct question
to counsel or even to a party, not to mention that most "inquisitorial"
of powers, in the worst sense of the term, of being allowed to "instruct"
a jury during summing up, after the defence has uttered
its last words.
For one trained in continental law, this type of "instruction" seems to
bear a great potential for jury manipulation.
I'm sure safeguards exist
and that judges are most careful not to influence juries. But the possibility
of such manipulation exists,
as witnesses the critics of the Bentley trial
judge.
-
"Adversary system" as used by Mr. Whitton seems therefore more acceptable
than "adversarial". I would nevertheless prefer to oppose
a "court-led"
procedure to a "counsel-led" one, given that these are pretty rough approximations
of complex sets of procedural rules.
"Truth-obscuring" is the qualification
used by Mr. Whitton to describe the "adversary system". As seen from the
continental side
of the Channel, one does not necessarily subscribe to
this appreciation. On the contrary, I would tend to consider that truth
can
only be obtained through the organisation of a confrontation of positions
in the legal arena. There is no better way than putting
the parties in
a position to state their argument as fully as they wish. So the essential
rule of the "game" is the same in both
common-law and civil-law procedures.
-
This brings us to Mr. Whitton's central appreciation of the passive position
of the judiciary in common law procedural systems.
The
Position of the Judiciary
-
To comment on this assertion from the continental lawyer's point of view,
I will have to distinguish between the pre-trial and trial
stages, both
in penal and civil matters [3].
The
role of the judiciary in the pre-trial stage
-
I use here the word "judiciary" rather than judges, as does Mr. Whitton.
This is due to the fact that continental procedure knows
two categories
of members of the judiciary who are not recognised as such or simply do
not exist in common law criminal procedure,
that is the prosecution service and the investigating judge. In civil cases, an interesting
institution is that of the French "juge de la mise en état",
especially in the light of the recent Woolf report.
The
prosecution service
-
In the continental perception of things, the public prosecutor acts as
the first filter against arbitrary procedures, in the interest
of civil
liberties. This certainly tends to bring him close to the judge's constitutional
standing. The public prosecutor achieves
this either through his obedience
to the principle of legality (in Germany), his clearly stated practical
independence from the executive
(Netherlands), or even because the Constitution
provides for the prosecution service to come under the general heading
of the judicial power [4].
-
Broadly speaking, the prosecution service in continental systems has a
triple role: it leads the investigation at the pre-trial stage
(barring
coercive measures that are within the ambit of the bench judges) by supervising
police work. It initiates prosecutions of
course. It also is responsible
for the execution of sentences given out by the court.
-
The continental prosecutor is not another private party, but the public
party, the advocate of the people. This entails a specific ethical
duty of acting in the interest of law and justice, and being guided
solely
by the search for truth.
-
Thus the prosecutor shares with the judge the same ethical duty of researching
all the circumstances of the offence, even when they
are in favor of the
accused. His attitude is supposed to be one of strict fairness and objectivity [5].
The possibility often exists for the prosecution to summon witnesses for
the defence [6] or to appeal of
a sentence even in the interest of the accused (in France or Germany, for
instance).
-
It is widely felt in Europe that the police should not be allowed to bring
cases directly to court, but rather that some outside
legal eye should
first screen the police files. The prosecution is not deemed to be a legal
consultant to the police, such as the
English Crown Prosecution Service.
The relation is reversed: the police acts under the supervision of the
prosecutor, considered
as a judicial officer lato sensu.
-
The second characteristic which brings the continental prosecutor close
to full judicial status, is that he has a great deal of freedom
in drafting
charges against a given suspect. Even if it is a negative decision, the
choice not to press such charges is a judicial
one by nature. The prosecution
can always act on an ex officio basis, and does not have to wait
for a file to be sent by the police. This pro-active role is grounded on
the idea that the prosecution
of crime is a matter of public interest.
The search for the truth falls within the scope of the powers of initiative
of continental
prosecutors. Thus it is logical to see prosecutors entrusted
with defining and implementing a penal policy, for instance by ordering
the concentration means on the repression of certain offences.
-
In theory two systems compete regarding this specific power. The first
one is ruled by the principle of legality: where he is notified
of the
existence of a charge, the prosecutor is under the obligation to defer
the case to the court. This is the leading principle
in Germany or Italy [7].
But one has to note that a discretion is open to drop charges in the case
of petty crimes, as well as the frequent use of statutes
of limitation
to eliminate any excessive workload for the Bench.
-
The second type of prosecutorial action is led by the principle of opportunity[8].
Charges will be brought only where it is felt it is in the public interest
to do so, or taking into account to the current workload
of the Bench.
There is a risk of abuse of such prosecutorial discretion, so guidelines
are often issued by the prosecution hierarchy,
whilst a course of action
is open to the victim to initiate a private prosecution or to challenge
the dropping of charges. Of course
the scope of discretionary prosecution
is virtually reduced to nothing when one considers serious crimes.
-
Continental European practice tends therefore towards a unanimity, whereby
the prosecution service enjoys a great deal of freedom
with low- to middle-range
offences.
-
Finally, the tendency is to open the scope of possibilities for the prosecution,
so as to ensure a judicial response to petty crime.
The prosecution may
thus conclude transactions (in Belgium, Italy or the Netherlands), attempt
mediations or resort to the conditional
waiver of the case[9].
-
The continental prosecutors generally have the power to oversee the execution
of a sentence when the court has handed it out. The
idea here is that judicial
authority does not stop with the decision. It even goes to the extent in
certain countries, that specialised
penalty-enforcement judges are provided
for[10].
-
It is not considered proper for an administrative authority, such as the
British Home Secretary, to decide in what is a de facto judicial
matter, the enforcement of a criminal court's decision.
-
The actual status of the prosecutors varies of course from country to country,
from that of a civil servant, such as in Germany,
to a quasi-judicial one,
such as in Italy or France, where the word "magistrate" covers both professional
prosecutors and judges.
Moreover, in the course of a judicial career, it
is very often possible to hold successively a position in the prosecution
service
and on the bench, because there is a common constitutional statute.
-
It speaks for itself that the English system has very recently (1986) evolved
towards the creation of a permanent public prosecution,
the Crown Prosecution
Service, although currently under review for not being up to expectations [11].
Scotland has of course a body of professional prosecutors, the Procurator
Fiscal Service, who shares with their continental counterparts a duty
of fairness and a great measure of prosecutorial discretion.
The
investigating judge
-
A very typical continental institution originated with the French "juge
d'instruction". This judicial specialised function is to be found today
in Belgium, Switzerland, Luxembourg, Greece, Spain, Netherlands or Portugal
[12].
Although many details differ from country to country, a general outline
of the role of the continental investigating judge may be
attempted.
-
The basic idea is that where it comes to investigate serious or complex
offences [13], or to ordering
certain coercive measures at the pre-trial stage, the protection of the
citizen calls for the independent and impartial
eye of the bench judge.
Certainly a certain number of recent miscarriages of justice in Britain
tend to show that an exclusive competence
of the police in gathering evidence
may create serious risks for the individual [14].
I believe that the Australian Chamberlain case quoted by Mr. Whitton could
also be classified in this category. The continental
prosecutor acts as
a first filter of police procedures. But the institution of the "juge
d'instruction" brings an extra stage in the protection of civil liberties.
-
The "juge d'instruction" is emphatically not a prosecutor. He does
not decide to initiate a case, which is indeed the sole prerogative of
the public prosecution.
He is first and foremost a judge, i.e. absolutely
independent, and does not in any way have to pander to the prosecution.
He belongs
to the first-instance court bench and is assigned to this particular
position for a given time. Quite often, he will hold normal
judicial hearings
on a part-time basis, for instance in the family division.
-
The juge d'instruction's duty is to investigate "à charge
et à décharge", in other words his sole brief is to search
for the material truth both for and against the accused person. He has
full investigation
powers, even if in practice he instructs the police
in the furtherance of gathering evidence. Thus the judge may interrogate
the
suspect, hear the victim or witnesses. He orders expert opinion (see
below the comments rules of evidence). He may stage a reconstruction
of
the crime [15]. He is in fact
very often called to the scene of the crime to supervise the work of the
forensic experts from the first. He will
be present at the post-mortem
and may require specific operations from the pathologist. He therefore
generally has had specific training
in forensic science and an experience
of special technical areas, such as accountancy for the investigation of
financial offences
(see below the section on the training of the judiciary).
-
The investigating judge has sole jurisdiction to take coercive measures
during the pre-trial investigation stage. He may order detention
on remand,
restraining orders or grant bail (generally of a non-monetary nature) along
strict procedural lines. According to the
principles laid down under article
5 of the European Convention on Human Rights, freedom is the rule, and
detention pending trial
the exception. He orders seizures and searches,
prescribes phone tapping or other interception of correspondence. He does
not resort
to such "invasive" measures on a blow-by-blow basis, as would
be the case under Common Law procedure, but rather on the basis of
what
is appropriate to a case he has full knowledge of.
-
The investigating judge does not decide on the merits of the case. He is
there to ensure an in-depth assessment of the credibility
of the prosecution
case. If he is not convinced there is sufficient evidence, he has the power
to dismiss the case [16]. Where
the juge d'instruction considers that there are grounds for a trial,
he then sends the case over to the trial court, with which he has no further
contact,
and which does not have to follow his opinion.
-
The prosecution steps back and stays on the same footing as the defence
in a purely adversarial process. The investigated person
has a right to
be assisted by counsel from the outset of the investigation, and to consult
the full file of the proceedings. He may
request any particular investigation
step that he deems necessary for his defence. In this sense the accused
is offered the support
of the judge's powers to ascertain elements in his
favor.
-
Although the investigation is not held in open court and is covered by
secrecy, this is meant to enforce the presumption of innocence
and to protect
the suspect from the public eye. Furthermore, any decision taken by the
juge
d'instruction is immediately appealable by every party to the proceedings
to a higher judicial organ, generally a division of the relevant court
of appeal. Thus the prosecutor, accused or even victim keep a permanent
eye on the running of the investigation and can exercise
control on the
diligence of the judge, through their comments, applications or objections.
-
Stated in these terms, I believe the juge d'instruction is quite
close to what a common law committal hearing achieves. His role is much
more akin to that of a grand jury in a preliminary
enquiry procedure. One
could even claim that the slight on the presumption of innocence is lesser
when made by a juge d'instruction than when it results of a committal
by 12 jurors "good and true".
-
Now, to be honest, the institution is criticised and has been dropped by
certain countries that formerly had it, such as Germany
or Italy. But as
far as I know, in Germany the investigative powers are referred back to
the prosecution, which is not necessarily
a progress for civil liberties.
In Italy, the giudice per l'indagine preliminare -despite the proclaimed
accusatorial nature of the recent procedural reform - seems to retain many
of the characteristics of the
juge d'instruction (but that would
also call for more developed analysis). In France today, the debate is
centered on the fact that the juge d'instruction has the power to
order remand, and that he may therefore tend to abuse such power to extort
confessions. The reform currently under
discussion would simply do away
with this power, transferring it to a juge des libertés,
very much on the Swiss model. The result would be to retain the institution,
but to create a further judicial safeguard by devolving
major coercive
measures to another bench judge. The difficulty then would be the risk
of slowing down proceedings and taxing even
more the limited manpower of
the courts.
The
French "juge de la mise en état"
-
The French civil procedure code defines [17]
the role of the "juge de la mise en état" or "JME", literally
the "judge for the ready-making". Just as the "juge d'instruction"
will supervise pre-trial issues in a complex penal case, the "JME" will
supervise the "loyalty of proceedings, and specially the
timely exchange
of briefs and evidence (art. 763 NCPC).
-
The "JME" enjoys almost identical prerogatives to those of an English district
judge or High Court Master issuing directions. He
will set down a schedule
for exchange of argument, supervise discovery, and determine the date of
the trial. But what is interesting
in relation to the search for the truth,
is that the "JME" may also put questions to counsel, hear parties or witnesses
himself (in
an adversarial in camera hearing), encourage parties to answer
to points of law which seem to have been omitted in the debate, and
generally
put any question as to facts or law where he considers it necessary for
the solution of the case. He may ask for all evidence
to be submitted to
him for perusal before the trial hearing. He may finally draft a report
on the case for the collegial bench, stating
his opinion. This report,
which is of course communicated in advance to the parties, will usually
serve to clarify issues and center
the debate on the relevant points.
-
The "juge de la mise en état" enjoys further something akin
to an English judge's prerogatives to grant interlocutory injunctions (somewhat
along the American Cyanamid guidelines or the equivalent of Mareva
injunctions), but on a very extensive basis. Any interlocutory decision
is possible, where
it has a bearing on the case. He may for instance order
any provisional or restraining measure, decide on procedural objections
or
nullities, grant ad litem payments, order a provisional payment where
the plaintiff's claim appears to be not seriously defensible,
initiate,
even of his own motion, any investigation measure (mainly court-appointed
expert opinion; see below, evidence at trial
stage), or order payments
of costs. He is the judge responsible for selecting the procedural track
the file will follow, which will
be either immediate trial or extensive
pre-trial procedure. His are very extensive powers, designed to eliminate
as many issues as
possible at earliest stage of civil proceedings, and
failing which, to prepare the best possible "dossier" for the trial court.
It
is most interesting to note the similarities which appear from the reading
of the proposals laid out in the recent Woolf report [18],
specially in the suggestion leading to the setting up of different speed
procedural "tracks".
-
To sum up the previous points, one can enlarge on Mr. Whitton's comment,
to say that the search for material truth is indeed central
to continental
procedure. It is so much so that it has led to the setting up of specific
pre-trial institutions precisely tailored
to this end.
The
judiciary at the trial stage
-
The common-law model of trial procedure is for the parties to lead the
proceedings whilst the judge sits as a silent referee, with
an intervention
limited to settling procedural objections, and a few cautious questions.
The continental systems are in their great
majority based on a different
principle: that of the search for the material truth entrusted to a presiding
judge.
-
The trial judge has the duty to search for true facts (Denmark), for material
truth (Greece), he follows the "principle of instruction"
(Netherlands
and Portugal). This duty entails a far more pro-active role.
-
The typical process of a continental criminal trial is the following.
-
Preliminary procedural objections are settled first. The indictment is
then read out to the accused. In Belgium, France or the Netherlands,
the
presiding judge summarizes the contents of the pre-trial "dossier" for
the benefit of all parties, supporting this summary by
direct questions
to the accused. Then the other sources of evidence (witnesses, expert opinion)
are examined. In other systems, the
order is reversed, where evidence is
taken first and the accused is then asked to state his position.
But continental procedure generally allows the prosecution, defendant
and victim to intervene at any moment to ask further questions
or correct
any omission or misguided comment from the bench. Witnesses, if any, are
required to state freely what they wish to declare
and are then asked questions
in turn by the bench, prosecution, defence and plaintiff.
-
After evidence has been presented and discussed in this way, a precise
order is followed for the final statements. From there on
the judge remains
mum. The victim starts by addressing the issue of civil compensation claimed
(see below). The prosecution develops
the penal side of the argument, and
closes its statement with a suggestion for the appropriate penalty to be
inflicted. The defendant's
counsel is always the last to speak, having
thus heard all the evidence and arguments presented against his client
and being in a
position to answer fully. Even in the presence of a jury,
it would be a gross and intolerable violation for any person present, including
the bench, to speak up after defence counsel. Continental procedure does
not allow for "summing up", even in the presence of a jury.
-
The judges generally conduct the trial. This means that questions are put
by the presiding judge, acting on his duty to find the
material truth,
if necessary ex officio. This is the inquisitorial side of the continental
trial. Questions may be "leading" in the
English sense of the word, because
they are put by the impartial judge who wishes to hear repeat orally what
is already in the written
dossier (Netherlands, France, Belgium), or simply
by the prosecution (Italy). There is no cross-examination as such, put
parties
are of course always at liberty to put any question or make submissions
to the court, which is the essence of adversary proceedings.
Interrogation must be fair, complete and impartial. The judge "polices"
the hearing. He will specially take care to formulate his
questions in
an objective, impartial manner, as he is specifically trained to do. If
he oversteps this rule, the aggrieved party
will not hesitate to correct
him. If the judge deems the evidence insufficient, it is perfectly possible
for him to ask parties to
produce additional evidence, order a further
investigation before resuming the trial, or even collect evidence ex officio.
Where
cross-examination is allowed, the judge will specially be careful
to prevent any hectoring of witnesses The continental trial is
therefore
certainly judge-led.
-
On the contrary, such interrogation in an accusatorial process is geared
towards obtaining a given result from a witness, or conversely,
from blocking
or destroying an opponent's witness statement. Parties cannot be relied
upon, in the continental view of things, to
have an impartial approach
of a witness's testimony. It is a source of doubtful admiration to see
how much common-law lawyers' believe
in their ability to "test" the credibility
of a witness. One wonders if the purely accusatorial process is not relying
too much on
a subjective appreciation of the outward attitude of the witness.
A hardened criminal may be telling the truth where the honest witness
has
a faulty memory but a great force of conviction.
-
The Italian exception has to be mentioned. Since the 1988 reform of criminal
procedure, the judge remains passive whilst parties
examine and cross-examine,
more or less along accusatorial lines. But the scope of this exception
is limited because the great majority
of cases avoid de facto the
accusatorial procedure.
-
The above comments are essentially dictated by an analysis of criminal
procedure, which is deemed to be the most characteristic of
the continental
"inquisitorial" or judge-led system. Civil trials are less open to a confrontation
between systems, because the parties
do take a greater part in the actual
presentation of the case. It can nevertheless be taken to certain extremes,
such as in France,
where, because of the extent of the pre-trial work of
the "juge de la mise en état", it could be claimed that civil
trials have almost disappeared. Evidence and pleadings are all reduced
in writing and the actual
hearing is limited to each party's counsel making
a summarized presentation of what the judge will find in the respective
files.
-
Does the continental system work? In other words, does the pro-active work
of the trial judge reveal the truth in each case, and
do the parties get
a fair hearing? This calls for a study of the rules of evidence, which
is a major point in Mr. Whitton's criticisms.
The
Rules Governing Evidence
-
Here I will start again on the basis of common-law rules governing evidence.
I believe that one may claim that these rules are essentially
of an exclusionary
nature. This is the central contention of Mr. Whitton, who seems to consider
such exclusions as abusive, especially
where it comes to the jury. But
this is the essence of an accusatorial, or party-led procedure: the parties
are the masters of the
limits they choose to set to the freedom of the
judge. The judge is impartial, but within given boundaries.
-
Juries in the sense of a panel of lay judges entitled to decide alone on
a given issue do not exist in continental procedures. They
are totally
absent in civil proceedings. They are unknown in the criminal procedure
of Luxembourg, Netherlands or Spain. Where lay
judges are involved, it
is always in the capacity of assessors of the professional judges, and
therefore they cannot be denied any
access to information. In fact there
is a frequent tendency to be critical towards such non-professional participation,
because of
the lack of technical skills and the risk of emotional reactions.
This is compounded by the fact that lay judges do not give reasons
for
their decisions, which is also a remark that may be directed at common-law
juries.
-
This being said, the consideration of the rules governing evidence can
be observed under four headings: the gathering of evidence,
the weighing
of evidence and the two special topics of expert opinion and the intervention
of the victim in the criminal trial. This
will lead to a few cursory remarks
regarding evidence in civil cases.
The
gathering of evidence
-
Of course the core of continental criminal proceedings rests on the presumption
of innocence and therefore imposes the onus of proof
of guilt on the prosecution.
This central rule has to be stressed in view of the surprisingly frequent
misconception in Common Law
countries that the "Napoleonic" codes burden
the accused with the demonstration of his innocence, toiling as he is supposed
to be
under a presumption of guilt.
-
The presumption of innocence predates the French Revolution and has been
constitutionally affirmed by the 1789 French bill of rights
[19].
Today, the presumption is universal and moreover enforced by art. 6-2 of
the European Declaration of Human Rights, which is enforceable
over the
jurisdiction of national courts.
-
In contrast to civil law (see below), the continental penal law of evidence
is not regulated in penal matters. There are no special
rules on the way
evidence may be collected or what should qualify as evidence in court [20].
It is a logical consequence of the duty to search for the material truth
handed over to a qualified and impartial judge. In penal
matters the facts
may be proven in any way, and the judge accepts any element provided it
has been lawfully obtained and the accused
has had an opportunity to discuss
it in court. Hearsay is not as such deemed inadmissible.
-
In France, Netherlands and Belgium, for instance, every scrap of evidence
has to be put down in writing, thus building up the "dossier".
This dossier
is entirely disclosed to the defence before the hearing. The result is
that the actual trial is much speedier, and only
based on the evidence
considered as relevant by the court and contending parties.
-
The problem of unlawful evidence only arises where it is likely to be detrimental
to the accused. In continental law, unlawful evidence
is that gathered
by violating the law, e.g. through provocation, violence, violation of
privilege against self-incrimination. In
France or Germany, if the means
of evidence are not restricted, very strict conditions are laid for the
search and administration
of proof. For instance, incriminating evidence
found during an irregular search of private premises is inadmissible. Generally
speaking,
continental procedure prohibits all directly coercive measures
to obtain evidence, as well as the use of agents provocateurs, the
resort
to lie detectors or narco-analysis (contrary to U.S. investigation practices).
On the other hand it seems, at least in English
case law, that evidence
is excluded if unreliable, but not necessarily for the simple reason that
it may have been collected unlawfully.
This is apparently at the discretion
of the court, which is not supposed to err towards the supervision of police
activities. In
other words continental courts generally apply what the
United States procedure calls the fruit of the poisoned tree doctrine.
-
The presumption of innocence is enlarged by a general right to silence,
even if Mr. Whitton contends that this protects only the
guilty, and the
correlated privilege against self-incrimination.
-
But the continental approach to these rights of the accused is maybe more
cynical or realistic, according to the moral standpoint
adopted, and sometimes
goes very far. As a rule the accused does not commit an offence as such
if he lies in the action of defending
himself.
-
Especially he is not required to swear an oath when testifying[21].
It is a privilege for the defendant to use every means at his disposal,
barring actual complicity of the defence counsel. The idea
is that the
judge has never any guarantee that he is being told the truth, but has
to trust his wits and the hard evidence which
the prosecution is supposed
to be able to bring. Witnesses are not "tested" for "credibility", but
simply heard. Of course, false
testimony, if demonstrated, is an offence,
whilst, if the accused is caught out lying, he has to expect an increased
severity of
the sentence. Experience shows on the whole that this more
"relaxed" approach to the truthfulness expected of private parties and
their private counsel does not result in a lesser number of convictions.
Continental judicial philosophy is maybe simply more tolerant
of human
frailty.
The
weighing of evidence
-
When it comes to weighing the evidence gathered, it could be said that
Common Law criminal procedure boils down to testing admissible
evidence
rather than actually searching for the truth.
-
The governing principle in continental European systems is that of "immediacy"[22].
The idea is that the judge may only rely on evidence that has been orally
debated in court during the course of the trial. This
ensures that the
"rights of the defence" are not impaired by having the case decided on
an element that has not been subjected to
an adversarial debate.
-
In Italy or Greece, no information for the pre-trial dossier may be used
in court. In France, the dossier is greatly used to accelerate
the procedure,
and there are three categories of police records. Some records are almost
completely binding when there are deemed
to reflect the truth until proven
as forgeries [23], others are
proof until proof of the contrary is brought[24].
In fact these exceptions are limited to the demonstration of petty offences
and are somewhat similar to policemen's testimonies
under oath. The majority
of police records only serve as information, which is not binding on the
court [25]. Whatever their nature,
the defence has a fundamental right to challenge their validity and contents.
Elsewhere, even with the principle
of immediacy, the judge may to a certain
extent rely on pre-trial written evidence, on condition it always is subjected
to an adversarial
debate.
-
In Italy, the principle of immediacy has been enforced to a degree that
the procedure is deemed quasi-accusatorial. The 1988 procedural
reform
prohibits the trial judge from knowing any evidence gathered from the prosecution
pre-trial investigation. But exceptions
to this accusatorial principle
are numerous. Any element of evidence that cannot be repeated at trial
may be obtained from the judge
for preliminary investigations and be submitted
to the trial judge. Most of all, the cumulative effect of the accusatorial
rules
would make the whole system unmanageable. So, in some 80 % of criminal
cases, the law encourages the accused to accept summary judgment,
"pattegiamento"
an agreement between prosecution and defence on the penalty to be inflicted,
or the penal order, all of which are procedures which
circumvent the accusatorial
rules. There is a compensation, whereby the accused sees his sentence reduced
by one-third to two-thirds
and avoids certain civil and administrative
consequences of the conviction.
-
The second general principle found all over the European continent is that
of the free evaluation of evidence, as a corollary for
the search of material
truth. In deciding on the merits the judge only relies on his "intimate
conviction" [26]
-
The same measure of "intimate conviction" is to be found in art. 177 of
the Greek C.P.P., art. 741 of the Spanish and art. 127 of
the Dutch C.P.P..
-
For instance, a confession is a means of evidence similar in weight to
another. It does not dispense the prosecution from the burden
of proving
the offence, just as it is not binding on the judge. Thus there is no "plea"
of guilty or not guilty in continental criminal
procedure, nor any consequence
thereof on the rest of the proceedings. Generally speaking there is no
room for plea-bargaining in
the American sense [27].
In fact the Dutch code expressly prohibits to convict the accused on the
sole basis of a confession. One may compare here with the
requirement for
corroboration set out in Scottish criminal procedure.
-
Finally, the freedom of the continental judge in weighing the evidence
brought to him in open court is balanced by the fact that
all his decisions
have to be reasoned and lead to a written judgment. The judge has to indicate
which fact was satisfactorily proven.
He cannot simply enumerate the elements
that have convinced him, but he must also discuss the probative value of
each of them. By
contrast, a common-law jury will not be asked to give
reasons for its verdict, and the judge will relatively rarely write out
reasons
for his decision, even if he states them before sentencing. The
continental rule that judgments are reasoned opens a check by the
appellate
court. Evidence cannot be treated arbitrarily, and may not reveal internal
contradiction in the reasoning. Reasoning means
that the defence knows
exactly on what grounds the decision was taken. Virtually no limits are
put on the right to appeal.
Expert opinion
-
To the continental lawyer a situation such as the Chamberlain case, quoted
by Mr. Whitton, is largely due to the defects of expert
opinion. Courts
are always open to the risk of being misled by an expert's opinion, whose
competence is difficult to challenge by
the layman. In common-law practice,
experts are party-appointed, following the logic of an accusatorial procedure.
The prosecution
expert sees his conclusions cross-examined on the basis
of the defence's expert.
-
In continental procedure, experts are court-appointed. They share the same
duty of impartiality as the judge. Their findings are
for the court and
not dictated by the wish to support one party's position. The reputation
of an expert is not based on the number
of cases he has helped "win". And
certainly, it would be a disciplinary misconduct if he were to behave in
a partial manner [28]. Experts
are not encouraged to make a given finding but are selected on their reliability,
i.e. their acceptance as competent and
independent professionals by all
opposing parties. Specially, it cannot be said that the prosecution has
an undue advantage when
confronted with an indigent party.
-
An added advantage is that the cost of expert opinion is much less in continental
procedure [29]. They are paid
out of State funds, which are usually not very generous, or, in civil cases,
by the losing party. But their remuneration
is under the court's supervision,
which ensures they remain reasonable. In fact, experts are often encouraged
not to make their major
source of income from testifying in court, to preserve
their independence and check their proficiency through successful private
practice. One of the major advantages continental experts derive from their
judicial work is to be able to publicize the tag "court-appointed
expert"
in their private practice. Private clients have a measure of quality assurance,
whilst the courts hold on to a useful stick
to keep experts in line.
-
Where a party is not satisfied with the expert's opinion, it is always
free to criticize it, eventually by producing another expert
opinion, and
the court may resort to appointing a second official expert, or even several.
The
intervention of the victim in the criminal trial
-
Whereas the victim has no legal standing in English or Irish criminal proceedings,
other than that of a prosecution witness, the
German "Nebenklaeger", the
Belgian, French, or Greek "partie civile", the Italian "parte civile",
the Dutch "civiele partij", the
Portuguese "assistente" [30]
are also parties to the criminal trial. This reflects both on the position
of the prosecution which does not have to act in the defence
of a private
interest, but rather to defend the public peace troubled by the offence
and act as a legal adviser to the court [31],
and on that of the judge truly confronted with two private parties, the
offender and his victim.
-
In this sense, continental procedure could indeed be said to be more adversarial
in nature than the Common law one. The presence
of the victim also allows
to deal with the issue of civil compensation at the same hearing, thus
accelerating judicial process in
the interest of the aggrieved party. The
principle is that of the identity of the penal and civil faults (see below
comments on the
rules of evidence in civil cases) which explain why continental
lawyers have some difficulty in understanding the apparent discrepancy
between the acquittal of O.J. Simpson and his being sentenced to pay civil
damages by reason of an act he is not supposed to have
committed. Or, to
quote a recent British case, they experience a certain difficulty seeing
the family of Joan Francisco be awarded
damages from a person against whom
the prosecution service itself considers there is currently insufficient
evidence for a charge
of murder [32].
-
The objection here is that the presence of the victim's civil action will
create prejudice in the mind of the judge or jury against
the accused,
there being a sort of collusion against him made of the prosecution and
victim. To which one may answer that
-
there is no reason to hold back the whole truth of the case by showing
the jury the extent of the damage inflicted upon the victim,
-
the victim is very often brought to testify anyhow and the prosecution
has a duty to establish the extent of the damage, and
-
the plaintiff may not intervene in the determination of the penal sanction
but stays within the boundaries of the civil action.
The advantages are immense in terms of costs and time wasted for all involved,
as well as for the guarantee to avoid any inconsistency
of decision.
Evidence
in civil cases
-
The variability of standard of proof in the common law system is well know.
But one could label the penal "beyond reasonable doubt"
the 100 % conviction
rule, whilst the civil "balance of probabilities" would be the 51 % conviction
rule. Hence the discrepancies
stated above.
-
On the other hand, the standard of proof required in civil and penal law
in France is the same: the judge has to be convinced, without
a shadow
of a doubt, of a person's fault, be it penal or civil. In other words,
there is in French law a direct relationship between
the civil tort and
the penal fault. The outcome is that where a civil and a penal action are
concurrently pending, the civil case
is stayed until the penal decision
is taken. To avoid any delay for victims, they are given the possibility
of joining their civil
action to the criminal proceedings, which they do
in the immense majority of cases. They enjoy the added advantage of seeing
the
prosecution doing the hard work of establishing proof of guilt - and
footing the costs.
-
There are extensive rules governing the gathering and weighing of evidence
in civil cases, which would be far too long to expose
here. I will simply
refer the reader back to the role of the French "juge de la mise en
état" or to what has been said in respect of expert opinion,
to support the idea that a civil trial is based on a strictly adversarial
procedure. The emphasis is maybe stronger than in Common Law trials on
the written evidence and the rules governing its admissibility.
-
A striking difference between French and British civil proceedings is that
the great majority of the former end in a written and
reasoned judgment,
whereas the latter experience a considerable rate of pre-trial settlements.
The suspicion here, fuelled by the
reading of Lord Woolf's report, is that
a great number of settlements in England are due simply to the cost of
proceedings (see following
section).
-
To close this section by coming back to Mr. Whitton's suggestion that "we
abolish the rules for concealing relevant evidence", I
would assert that
civil law procedural systems do have a law of evidence. It addresses the
subject matter from a different angle
to that of common law proceedings,
but it also practices the right to silence, the exclusion of evidence and
therefore also pens
the possibility for manipulation of evidence by lawyers.
But it is true that the investigative duty the continental judge is held
to discharge limits the extent of the risk, and that there is no limit
on what he may hear, even if he later discards irregular evidence.
Remedies
For a Faulty System
-
The image of the common-law judge inspires great respect in their continental
counterparts, in terms of competence and experience.
But one feels that
a truly accusatorial procedure is too "luxurious" and costly to be offered
to everyone. The great majority (some
90 % apparently) of English criminal
cases are dealt with by magistrates using summary procedures and guilty
pleas. In other words,
the brunt of criminal justice is handed out by untrained
judges without the benefit of full judicial process, and relies massively
on confession rather than demonstration of guilt. Where the accusatorial
procedure was explicitly chosen on the continent, such in
Italy from 1988,
facts show that the volume of cases (80 %) is dealt with by other means,
leaving very much in doubt the radical
affirmations as to the dominant
feature of the system. On the other hand, the title of Lord Woolf's report
"Access to justice" [33] clearly
rests on the fact that a great proportion of the British public is denied
access to civil courts because of the sheer cost
of proceedings.
-
Mr. Whitton suggest a list of remedies. I have tried to comment on the
issues of the search for truth and the rules governing collection
and use
of evidence. Two other questions remain to be addressed, that of training
professional judges and of the cost of judicial
proceedings.
The
training of judges
-
A major remedy set forth by Mr. Whitton to the ills he describes is that
"judges should be trained as judges from the beginning".
-
European professional judges are generally selected on the basis of a competitive
examination testing their technical ability, and
they are appointed by
the Government after a variety of processes involving more often than not
an opinion by a organ representing
the judiciary. Space prevents the presentation
of a comparative study here [34],
but the French example can be considered as one of the most telling in
continental Europe.
-
French judges (and prosecutors) are recruited by means of a competitive
examination open to holders of an LL.M diploma. In fact more
than half
of the candidates hold a higher qualification at law. Selection is severe,
some 2.500 candidates compete yearly for some
150 postings. The majority
are university graduates, but around a third come from the civil service
or private practice.
-
Upon being selected, the candidates become trainee judges [35],
and are trained both in theory and practice for a period of some three
years by the Ecole Nationale de la Magistrature [36]
and in the various courts. I may personally testify to the fact that the
training is of a high intensity, and carefully prepares
the future judges
for their first appointment. The training covers law and procedure, but
also sociological, philosophical and social
aspects of contemporary society.
For instance, trainees are taught interviewing skills or given a good grounding
in forensics. The
"auditeurs de justice" also take the position of a trainee
barrister for a minimum of two months, to get a taste of how things look
from the other side of the bar. They spend more than half their time in
practical positions, under the personal supervision of an
acting judge.
-
It is therefore felt as somewhat abrupt to dismiss the end product of such
an intensive selection and training as "naive" or "inexperienced"
on the
sole consideration of the physical age. It is true that on average, a French
judge assumes his first job before he has turned
thirty. But he also has
an average of eight higher education years behind his belt before he is
let loose on the unsuspecting public,
of which some 12 months is practical
training in general judicial skills and 6 months in the specialised area
he is appointed to.
Furthermore, the first positions held are of course
first-instance ones, and all his decisions are made under the watchful
eye of
the appellate court. One has to add that judicial statutes impose
a minimum of one week in-service training a year (in fact generally
extended
to two weeks). The result is a highly qualified professional, whose initial
training lasts at least as long as that of a
GP
-
On the whole, the system works satisfactorily. Experience is gained over
the years, specially as the career system allows and even
encourages geographical
and professional mobility. After a few years practice, judges are more
and more frequently offered the possibility
of being temporarily seconded
as legal advisers to various public institutions or administrations, or
to serve abroad with the French
cooperation service. The idea is to enlarge
the experience of the judiciary as a whole to keep it in touch with the
evolution of
contemporary society. The receiving institutions benefit from
the legal skills of the judges and get to know better judicial values.
-
By the time the French judge reaches the age of forty he has some 15 years
experience of judicial functions, and still faces some
25 years in the
judiciary. This is the age when judges in the common-law system are appointed
to their first judicial positions.
They enjoy the benefit of experience
of course, but often in a specialised area, which was that of their practice,
whereas they may
be asked to judge in a very different one. Furthermore,
training facilities seem only comparatively recently to have been set up,
and certainly do not yet last the number of years afforded under the French
system.
-
The result is that the French public has available a judicial corps that
combines qualifications with a good cross-section of the
various stages
of life and social origins. Difficulties arise of course to ensure the
combination of independence and a judicial
career. Many efforts have been
done and are still under way, but it is my contention that the situation
is at the very least acceptable.
Conversely, one will note the recent decision
by the current Lord Chancellor to clarify the selection rules of English
judges. It
is furthermore arguable that a de facto "career" does
exist for common-law judges, be it through appointment or election.
The
cost of proceedings
-
When it comes to the cost of proceedings, for instance upon reading the
examples given by Mr. Whitton, it can be safely said that
continental procedure
systems are much cheaper than common-law ones [37].
A telling indication is the fact that jokes on continental lawyers often
turn around their alleged untruthfulness, whereas British
advocates are
derided for their financial appetites.
-
A fundamental yardstick for measuring the effectiveness of a given justice
is indeed its accessibility in terms of costs. Here one
has to stress objectively
the considerable expense incurred by litigants in common-law procedures.
The question is therefore whether
the expenditure is commensurate to the
service provided. And the answer, as stated by Mr. Whitton, is most probably
no. The bottom
line is that in continental Europe, the decision to go to
court, although not cheap, will never be ruinous. In fact, my opinion is
that many problems of case overload are generated in fact by the accessibility
of courts.
-
Does the common-law accusatorial procedure at least justify its cost by
giving better justice ? Here again, the answer seems negative.
Consider
for instance the very worrying recent report made by Amnesty International
on the situation of Human Rights in the United
States [38],
or the number of applications made to the recently instated body in charge
of investigating alleged miscarriages of justice in Britain.
Again, one
could quote the very extensive criticisms made by the Woolf or Glidewell
reports [39].
-
I find extremely interesting the fact that "The Global 50", a survey of
the 50 largest law firms in the world, ranked by size, lists
30 American
firms, 14 British, 3 Australian, and 1 Canadian, whilst the continental-law
firms are reduced to two, one Spanish (33rd
position) and one Belgo-Dutch
firm (43rd position). The lowest yearly income per lawyer (not per partner)
is US$210,000 [40].
-
By comparison, the average net income of a reasonably successful French
lawyer is approximately US$ 90,000, whereas one fifth of
the Parisian firms
are currently on the verge of bankruptcy.
-
So, whereas I would concur with Mr. Whitton that common-law proceedings
generate excessive costs, I would also suggest that French
lawyers are
inadequately paid for their services. The result is "corner-cutting" work
and an ever increasing volume of litigation
"flogged to death", whilst
the competition becomes more and more a cutthroat one. Certainly counseling
is not as widely practised
as it should be, nor early settlements. In other
words, neither system seems really satisfactory. Ideally one would like
to see British
rates of settlement at French prices!
Conclusion
-
In the absence of reliable, comparable statistical data I will not venture
to give an opinion on Mr. Whitton's claims that continental
systems "put
away 90 per cent of known serious criminals" or that "80 per cent of known
serious criminals get off, but one per cent
of prisoners are innocent"
in the English system. I will simply note that murder rates (the type of
offence where the proportion
of unsolved cases is probably the lowest)
are equivalent throughout Western Europe, or that the rate of imprisonment
hovers everywhere
around 90 detainees per 100,000 population [41].
-
The European Court for Human Rights, which devotes a lot of its caseload
to criminal procedure on the basis of article 6 of the European
Convention
on Human Rights, has never expressed a preference for the "accusatorial"
nor for the "inquisitorial" system, but its rulings
are used to improve
both of them. Another interesting international forum to test the relative
strengths and weaknesses of common-law
versus continental procedures, is
the current evolution of procedures used by the international tribunal
for crimes committed in
ex-Yugoslavia [42].
-
My position as an outsider certainly disqualifies me in respect of Mr.
Whitton's assertion that "the condition of the English system
is terminal".
I believe there are fantastic energies and competencies available to improve
things. And it would just as certainly
be very presumptuous of me to claim
that the continental "inquisitorial" procedural system is the best. As
one interested in comparative
law, my conclusion is that each system should
be scrutinised for its best performance and see its flaws improved by drawing
inspiration
from foreign experiences. But I will at last rest my case by
asserting that the legal tradition I belong to has indeed something
to
say for itself, and even something to offer.
-
My final quote will be drawn from an article by HC Gutteridge, " The comparative
aspects of legal terminology":
"The isolation of legal thought in national watertight compartments
has always seemed to me to be one of the factors which is most
prolific
in producing that frame of mind which leads to a spirit of national egotism.
We have much to learn from one another in legal
as well as other departments
of human activities, and it is, in a sense, a reproach to the lawyers of
all nations that they have
been unable, up to the present, to arrive at
the free interchange of knowledge and ideas which has been attained in
other branches
of learning"[43]
Notes
[1] I have been at pains to find
which event Mr. Whitton refers to when he contends "that the fork in the
road between the European system
and the English system" was arrived at
in November 1215. Is he considering the fourth Lateran council that prohibited
trial by ordeal
and thus opened the way to a modern investigative style
of criminal procedure ?
[2] To note that there were two
Inquisitions, the Papal one (today the Congregation for the doctrine
of the faith), and the Spanish one. The former, created in 1233 to
combat the heresy of the Albigenses, did indeed torture occasionally but
otherwise
can be considered, all things being equal, as a "progressive"
criminal procedure instrument. The latter, established two and half
centuries
later, was essentially a political instrument in the hands of Spanish kings,
and notoriously much harsher than its papal
equivalent.
[3] I will henceforth use "civil"
in the strict sense of the word, that of a dispute between private parties,
as opposed to "administrative"
or "public law" disputes for which continental
countries often have specific courts or tribunals.
[4] Art. 87 of the Greek Constitution,
106 of the Italian Constitution, art. 63 of the French Constitution, art.
221 of the Portuguese Constitution, art. 124 of the Spanish Constitution,
Dutch act on the organisation of the judiciary.
[5] The Danish Objektivitetsprincippet,
art. 160 II of the German Strafprozessordnung, art. 239 of the Greek
C.P.P., art. 358 of the Italian C.P.P., art. 53 of the Portuguese CPP,
art. 124 of the Spanish Constitution.
[6] Art. 327 Greek C.P.P.
[7] Art. 153 & ff. German StPO,
art. 43 of the Greek C.P.P., art. 112 of the Italian Constitution, art.
283 of the Portuguese CPP, art. 105 of the Spanish Ley de Enjuiciamento
Criminal. The German prosecutor is not bound by the principle of legality
where it comes to juveniles (art. 45, 47 Jugendgerichtsgesetz).
[8] Tiltaleundledelse (s.
722 of the Danish administration of justice act), Dutch oportuniteitsbeginsel
(art. 167 of the C.P.P.), the French classement sans suite (art.
41 C.P.P.), but also in Belgium or Luxembourg, art. 280 of the Portuguese
C.P.P. for petty crimes.
[9] See for an interesting illustration
of a conditional waiver the French injonction thérapeutique
(art. L. 628-1, and L. 355-14 and following of the public health code),
where the prosecution has a discretion to drop charges of
drug abuse on
condition the offender undertakes medical and psychological treatment.
[10] For instance the French "juge
d'application des peines" (art. 709-1, 722 C.P.P.).
[11] See the recent report by Sir
Iain Glidewell, and the press' comments about the replacement of Dame Barbara
Mills.
[12] The French, Belgian or Luxembourg
"juge d'instruction", the Spanish "juez de instruccion",
the Portuguese "juiz de instruçao", the Dutch "rechter-commissaris"
..., and to a certain extent, the Italian "giudice per le indagine preliminari".
[13] On average, in 10 % of cases.
The remaining proportion are the cases brought directly to court by the
prosecution, along the lines
of one procedure or the other. See for a complete
illustration of the procedural rules applicable articles 79 & ff. of
the French
C.P.P.
[14] See for instance since 1989
the cases of the "Guilford Four", the "Birmingham Six", the Blakelock appeal,
the releases of Judith
Ward, of Stefan Kiszko, of the "Maguire Seven",
quoted in In the Name of the Law - The Collapse of Criminal Justice,
by David Rose, Jonathan Cape ed., 1996, or the very recent Patrick Nicholls
case.
[15] See a very recent illustration
in an article published in the Belgian newspaper Le Soir, December
1st, 1998 edition. A Belgian juge d'instruction had a body dissolved
in a bath of a household brand of detergent, named "Cleanest", to reconstruct
the alleged disappearance of a
victim where to persons accused of the murder
are dissenting. The experiment confirmed that this product was indeed capable
of disposing
of a victim's body.
[16] On average, a French juge
d'instruction thus closes some 20 % of his cases by an ordonnance
de non-lieu (9,114 out of 44,485 cases for 1996 - Les chiffres clés
de la Justice, French Ministry of Justice, 1997). This is to be compared
with an average of 4 % of cases thrown out during committal proceedings
in the United States, or the 14,800 Crown Court acquittal verdicts in 1993,
against 87,000 committals, i.e. 17 % (as quoted by David
Rose, see above).
[17] Art. 763 and ff. of the Nouveau
Code de Procédure Civile.
[18] Access to Justice,
Final report by the Right Honorable the Lord Woolf, Master of the Rolls,
July 1996, HMSO.
[19] Article 9 of the 1789 "Déclaration
des droits de l'Homme et du Citoyen". For a further illustration of
this ancient right, see the film "Le retour de Martin Guerre" a
romanticised version of a 1559 criminal case, which nevertheless shows
an investigating judge already at work.
[20] See art. 261 of the German
StPO.
[21] In France, Belgium, Denmark
(art. 159 CPP), Germany (art 136-1 and 243-4 StPO).
[22] In Belgium, Netherlands, Denmark,
Spain, in Germany the "Unmittelbarkeitsprinzip"
[23] "procès-verbal faisant
foi jusqu'à inscription de faux", e.g. art 336 of the Code des
douanes.
[24] "procès-verbal faisant
foi jusqu'à preuve contraire", e.g. art. 537 French C.P.P.
[25] "procès-verbal ne valant
qu'à titre d'information". Similar rules are found in Belgian procedure
(art. 163, 195 et
211 Belgian C.P.P.).
[26] Art. 896 of the Danish C.P.P.,
the German "Richterliche Ueberzeugung", "intime conviction"
of art. 342 Belgian C.P.P., art. 427, 536 and 353 French C.P.P., the latter
states specially in the latter article for the assizes
court: "the law
does not ask judges for an explanation of the means by which they are convinced,
it does not set any particular rules by which
they must assess the fullness
and adequacy of the evidence; it stipulates that they must search their
conscience in good faith and
silently and thoughtfully ask themselves what
.impression the evidence given against the accused and the defence's arguments
have
made upon them. The law asks them only one question which sums up
all of their duties 'Are you personally convinced'. But other courts
must give reasons for their decision.
[27] There is nevertheless an interesting
quasi -exception with the Italian pattegiamento, already mentioned.
It is probably not a coincidence that this exception stems from the most
"accusatorial" of continental procedures.
However, the absence of plea
bargaining stricto sensu does not preclude the prosecution and defence
from concluding certain procedural arrangements in many systems. But these
arrangements
remain alien to the Bench.
[28] Here J. Grisham's novel The
Runaway Jury makes compelling reading. It purports to demonstrate,
in a civil liability case initiated against tobacco-producing companies,
that
American experts are recruited for their ability to sing to the tune
of the person who hires them, hence the nickname "saxophones".
[29] As an illustration, a court-appointed
medical expert in a standard case of claim for damages after a car-accident
will be paid around
2.000 FF (approx. 570 Australian $), a land surveyor's
investigation will be valued at around 10.000 FF ( approx. 2.850 Australian
$), on a going rate of around 400 FF. an hour.
[30] Nebenklaeger: see section
395 & ff. of the German Strafprozessordnung, art. 2 of the French
penal procedure code, art. 91 of the Greek penal procedure code, art. 69
Portuguese C.P.P.
[31] Which also explains that the
prosecution service also has its word to say in a certain number of civil
procedures which are considered
as having a public interest. This happens
in suits governing civil status (paternity, guardianship cases), but also
in certain commercial
cases (bankruptcies for instance).
[32] See the Crown Prosecution
Service Internet site, "standards of proof in the case of Joan Francisco",
27th June 1998.
[33] See above footnote no. 17
[34] See nevertheless the most
interesting constitutional reform (art. 151 of the Constitution) under
way in Belgium (Internet site: http://www.just.fgov.be/cgi/article.pl)
regarding the appointment of the judges, in the wake of the pedophile scandal
involving Marc Dutroux.
[35] "Auditeur de justice"
[36]
Ecole Nationale de la Magistrature |
E.N.M. - Département international |
9, rue Joffre |
8, rue Chanoinesse |
33080 Bordeaux |
75004 Paris |
France |
France |
Tel. (00.33) 5.56.00.10.10 |
(00.33) 1.44.41.88.20 |
Fax. (00.33) 5.56.00.10.99 |
(00.33) 1.44.41.88.21 |
E-mail: initiale@enm-magistrature.fr |
continue@enm-magistrature.fr |
or secgen@enm-magistrature.fr |
internal@enm-magistrature.fr |
[37] As a basis of comparison,
the following example can be used to illustrate the compulsory schedule
for costs used by German private
practitioners, for a 30,000 D.M. claim,
the lawyer's expenses will be 3,315 D.M. (Prozessgebuehr, Verhandlungsgebuehr
and Beweisgebuehr)
plus 1,425 D.M. for court fees, plus 16 % V.A.T. For
the same claim, appeal costs will be fixed at 6, 447 D.M. plus V.A.T. (the
German
Deutshe Mark is roughly equivalent in value to the Australian Dollar).
One can also quote the tentative schedule offered in 1989 in a big French
town (in "Illégalité du bareme des avocats",
Gazette du Palais
nr 134, p. 15, 14.05.97). It is a little ancient (French lawyers are very
cagey about their fees), but the low
rate of inflation and the serious
economic competition going on between advocates have not dramatically increased
these amounts (on
the basis of Austr. $ 1 = 5,70 FF. approx.)
1. Fixed costs:
- opening of a file 500 F
- per letter 22 F
- photocopies, p/ sheet 3 F
- telephone: postal tariff |
2. Diligences:
- oral consultation 350 F
- research and copy of a police proceedings 300 F
- filing of appeal 400 F |
3. Court of appeal:
- civil, commercial or social division 4.500 F
- penal division 3.000 F
- summary judgment ("référé") 2.200 F
- interlocutory work:
* interim payment 3.000 F
* other applic. 2.000 F |
4. First instance civil court:
- trial (this includes any amount of interlocutory work) 4.000 F
- commercial property 4.000 F
... / ... |
5. Juveniles’ court:
- in camera hearing 1.800 F
- trial 2.500 F
- trial (acting for victim’s compensation claim) 3.000 F |
6. Miscellaneous:
- attachment of salary1.000F
- payment order 1.000 F
- investigating judge 1.800 F
- meeting with expert1.800F
- travel expenses, per kilometre 2 F |
Considering this information, it is understandable that French judges
are not required to assess costs in their decisions, because
people who
are over the legal aid limit (currently 4,500 F for total aid, and 7,000
F for partial aid, for one person without family
charges), will not ruin
themselves litigating, even if expenses are by no mean cheap.
[38] "Rights for All", an Amnesty
International report on the situation of Human Rights in the United States
of America, October 1998,
accessible on Amnesty's Internet site.
[39] "The defects I identified
in our present system were that it is too expensive in that the costs often
exceed the value of the claim;
too slow in bringing cases to a conclusion
and too unequal; there is a lack of equality between the powerful, wealthy
litigant and
the under-resourced litigant. It is too uncertain: the difficulty
of forecasting what litigation will cost and how long it will last
induces
the fear of the unknown; and it is incomprehensible to many litigants.
Above all it is too fragmented in the way it is organised
since there is
no-one with a clear overall responsibility for the administration of civil
justice; and too adversarial as cases are
run by the parties, not by the
courts, and the rules of court, all too often, are ignored by the parties
and not enforced by the
court" page 2, Access to Justice, Final
report by the Right Honorable the Lord Woolf, Master of the Rolls, July
1996, HMSO.
"Our assessment of the Crown Prosecution Service is that is has the
potential to become a lively, successful and esteemed part of
the criminal
justice system, but that, sadly, none of these objectives applied to the
service as a whole at present" Sir Iain Glidewell, as quoted by a BBC
report.
[40] See on Internet the ranking
of the 50 largest law firms in the world, ranked by size, on: http://www.ljx.com/newswire/stories/chart/lawyers50.html
and by revenue on
http://www.ljx.com/newswire/stories/chart/revenue50.html.
[41] But U.S. detention rates are
around 680 inmates for 100,000 population (see the Amnesty International
report quoted above).
[42] See the amended rules governing
the prosecutor's powers (section 6 - rules 37 & ff.)
[43] Tulane Law Review,
12 (1938), 401-11 (p. 410), as quoted by Martin Weston, in An English
Reader's Guide to the French Legal System, Berg ed., ISBN 0-85496-642-0,
1991, p. 143.
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