Comparative Approaches to Criminal Procedure

2019 ◽  
pp. 66-88
Author(s):  
Eliabetta Grande
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
Jury Trial ◽  
Public Prosecutor ◽  
Revolutionary Change ◽  
Criminal Process ◽  
The Public ◽  
Adversarial Model

This chapter discusses comparative approaches to criminal procedure, focusing on transplants, translations, and adversarial-model reforms in European criminal process. In particular, it examines the idea of “Americanization/adversarialization” of European criminal procedures—that is, the possible convergence between American common law and European civil law criminal procedure systems toward a common adversary core structure. The chapter also considers the implications of transplanting some American adversarial features into the non-adversary European soil, such as pretrial investigations conducted by the police and the public prosecutor in lieu of the investigating judge typical of the civilian tradition; exclusionary rules; cross-examination; and jury trial. It compares the so-called tango justice with rumba justice and analyzes the “revolutionary change of procedure” with respect to cross-examination of witnesses, jury trial in Spain, and plea bargaining in Europe.

The Oxford Handbook of Criminal Process

2019 ◽  
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
European Convention ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
European Court

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

Prevention of crime, tort and epidemy: The use of criminal procedure for preventive purposes in Poland during Covid-19

2021 ◽  
pp. 174889582110567
Author(s):  
Arkadiusz Lach
Keyword(s):  
Preventive Measures ◽  
Civil Law ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
Criminal Process ◽  
Illegal Activity ◽  
The Public ◽  
Polish Code ◽  
Prevention Of Crime

Criminal procedure is increasingly becoming an important instrument of prevention. This is a globally observed tendency, and Poland is not an exception. There are several regulations in the Polish Code of Criminal Procedure that allow the preventive use of coercive measures. In 2020, a new and controversial regulation was introduced, authorising the public prosecutor or court to prohibit the publication of content interfering with the legally protected goods of the victim. The author criticises the new preventive measure as duplicating civil law injunctions and expresses the opinion that, in criminal procedure, preventive measures should be used to prevent crime, not every illegal activity. In addition, the article describes the criminal procedure for isolating persons obliged to quarantine themselves because they have tested positive for Covid-19 or had contact with infected persons. This raises the question of the limits of the preventive function of provisional arrest and possible abuse of the criminal process using it for aims unrelated to the traditional goal of the criminal process: determining the question of guilt of the accused.

The Place of the Prosecutor in Common Law and Civil Law Jurisdictions

2019 ◽  
pp. 138-163
Author(s):  
Katalin Ligeti
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Executive Power ◽  
Public Prosecutor ◽  
Prosecutorial Discretion ◽  
The Public ◽  
European Public ◽  
Institutional Positioning ◽  
Centralization And Decentralization

This chapter focuses on the place of the public prosecutor in common law and civil law jurisdictions. It first describes the institutional positioning of public prosecutors, particularly vis-à-vis the executive power, before discussing their role and powers in regard to the pretrial phase. It then considers the increasing tendency to entrust the public prosecutor with quasi-judicial sanctioning powers in the context of out-of-court procedures (“prosecutorial adjudication”). It also examines the role of specialized law enforcement authorities in the exercise of investigative and prosecutorial functions, coercive measures and the need for judicial authorization, and prosecutorial discretion and alternatives to trial proceedings. Finally, it explains how independence, centralization and decentralization, legality and opportunity of prosecution, and the alternatives to trial proceedings have been translated to the supranational design of the European Public Prosecutor’s Office (EPPO).

scholarly journals REKONSEPTUALISASI JALUR KHUSUS DALAM RANCANGAN KUHAP SEBAGAI BENTUK REFORMASI SISTEM PERADILAN PIDANA INDONESIA

Arena Hukum ◽  
2021 ◽  
Vol 14 (1) ◽  
pp. 193-209
Author(s):  
Ladito Bagaskoro ◽  
Keyword(s):  
United States ◽  
Criminal Procedure ◽  
Plea Bargaining ◽  
The United States ◽  
Public Prosecutor ◽  
The Public ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Adviser ◽  
Case Files

Abstract The significant increase in the pile of case files between 2016 and 2019 led to the need for concepts or methods that can create judicial efficiency. In the spirit of reforming the Criminal Procedure Code, the drafting team of the Criminal Procedure Code tries to include procedures aimed at shortening and expediting procedural procedures through the existence of a special pathway in Indonesian criminal procedural law in the future, which is inspired by the concept of plea-bargaining in the United States and Britain. This normative research uses conceptual and comparative law. The result shows that a special line was given to the defendant who admitted to the criminal act charged making the trial hearing shorter. Second, there are several fundamental differences between the special lines in the Draft Criminal Procedure Code and plea bargaining in the United States, especially in the agreement between the defendant or legal adviser and the public prosecutor, the process for confessing the accused, the criminal acts included, and the position of the judge in their respective processes.

scholarly journals Judicial Resources and the Public Trust Doctrine: A Powerful Tool of Environmental Protection?

2018 ◽  
Vol 7 (3) ◽  
pp. 469-489 ◽  
Author(s):  
Anne Richardson Oakes
Keyword(s):  
Environmental Protection ◽  
Common Law ◽  
Civil Law ◽  
Public Trust ◽  
Federal Courts ◽  
Environmental Discourse ◽  
Supreme Court Justice ◽  
The Public ◽  
Public Trust Doctrine ◽  
Legal Frameworks

AbstractUnited Kingdom Supreme Court Justice Robert Carnwath has urged the judiciary to develop ‘common laws of the environment’, which can operate within different legal frameworks, tailored where necessary towards specific constitutions or statutory codes. One such mechanism with the potential for repositioning environmental discourse in both common law and civil law jurisdictions is the doctrine of the public trust. Basing their arguments upon a heritage of civil law and common law, supporters of the public trust doctrine are currently testing its scope in United States federal courts via groundbreaking litigation aimed at forcing the federal government to uphold its duty to protect the atmosphere. This article considers whether common law judicial resourcefulness can transform a transatlantic hybrid of uncertain parentage into a powerful tool of environmental protection.

“Visible” and “Invisible” Victims in the Criminal Justice System

2021 ◽  
pp. 1-23
Author(s):  
Armando Saponaro
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Common Law ◽  
The United States ◽  
Public Prosecutor ◽  
Law System ◽  
The Public ◽  
The United Kingdom ◽  
Victim Impact Statement

This chapter outlines the “conflict” and “peace-keeping” victim-oriented justice paradigms. The latter empowers the victims of crime, putting them at the center of an encounter and using interindividual mediation or collective circles to address conflict resolution. Two models are critically discussed in the conflict victim-oriented justice paradigm. The European continental “visible victim” model structures the role of the victim as a full-fledged processual party together with the public prosecutor and offender. In this model, the victim has the same rights and powers of the defendant. The “invisible victim” common law model views the victim as a trial witness, participating, for example, through a victim impact statement (in the United States) or victim personal statement (in the United Kingdom) at the sentencing stage. The visible victim conflict paradigm model enhances a victim's role and involvement in the criminal justice system, offering a solution to existing controversial and critical common law system issues.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

Tempered Adversariality: The Judicial Role and Trial Theory in the International Criminal Tribunals

2004 ◽  
Vol 17 (4) ◽  
pp. 767-814 ◽  
Author(s):  
PETER CARMICHAEL KEEN
Keyword(s):  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
International Criminal Tribunals ◽  
Judicial Role

International criminal procedure (ICP) has fluctuated uncertainly between common- and civil-law procedural principles. Consensus on the principles underlying ICP is needed to ensure consistent standards of justice. The article begins by comparing criminal procedure in common- and civil-law systems, and describes the theories underlying the trial and judicial role in these systems. It then compares ICP to civil- and common-law criminal procedure. This comparison establishes the scope of judicial powers that can be exercised by international criminal judges. These powers differ from those exercised by both common- and civil-law judges. The article concludes by arguing that ICP is based on a new theory of the trial: the theory of ‘tempered adversariality’.

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