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6.7. Conclusions: ways of resolving the differences between the Anglo-Saxon and continental systems of proof

6.7. Conclusions: ways of resolving the differences between the Anglo-Saxon and continental systems of proof

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According to Károly Bárd, “from here in Europe, we understandably tend to notice how our system is moving towards Anglo-Saxon procedural law. However, it is also important to see that the other side also demonstrates a willingness to shift towards our system. This is clearly indicated by the growing number of possibilities for reviewing and quashing the verdict of the all-powerful jury when the opinion of the judges leads to a result unacceptable to the law.”1

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Differences in legal procedures are due to differences in public objectives. On one side – in the Anglo-Saxon or accusatorial system – we are confronted with the idea of the “non-interfering state”, whose aim is merely to provide the (legal) framework and procedural conditions within which citizens can achieve the legal effects they wish. The regulatory system in such countries is therefore responsible for only two things: protecting the general system of values and providing a forum for disputes that citizens cannot settle between themselves. According to the author, law in these states is typically made up of treaties and agreements, because it grants autonomy to citizens whenever possible.2

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The other side – the continental or inquisitorial type system – is characterised by the model of the interventionist state, whose identity is based on the origin of the legal state, or on the view that law is essentially an expression of the political will of the state. Litigation is therefore the means of implementing the latter, and the investigative criminal procedure is the most reliable basis for achieving this.3

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The following question presents itself: which is the better system of proof and what are the criteria for evaluation? If we consider the quality of decision making, we must highlight the advantages of the inquisitorial form of procedure, since the courts – as a rule – receive more precise facts and a greater number of evidence, which are revealed by the authorities. It is no coincidence that in states such as Germany or Italy, the principle of ex officio jurisdiction still prevails, according to which the investigating authorities are obliged to prosecute in all cases – without any discretion4 – for offences for which the necessary evidence is available.5 In comparison, simplified procedures based on the Anglo-Saxon tradition are often problematic – in particular, plea bargaining – as they do not reflect any form of truth-seeking and therefore increase the chances that even innocent defendants will confess to acts they did not actually commit (in order to avoid an unpredictable jury trial).6

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However, efforts to simplify procedures are now very popular in most European countries. Legislators no longer make the application of these schemes dependent on the complexity of the cases, since their primary objective is – almost exclusively – to reduce the burden on the judiciary. This, however, inevitably reduces the prominent role of evidence in the hierarchy of procedural acts, which is likely to undermine the authority and quality of judicial work in the coming decades. It would also be wrong to claim that these constructions are in the interest of the accused: the substantive search for truth leads to a higher burden of proof in proceedings and thus to a higher probability of finding the true facts and thus of obtaining better quality judgments. Procedural guarantees can also be more fully developed in the context of ordinary proceedings, since all procedural actors are present together in the trial as the main arena of proof, and thus the control of procedural fairness is more effectively achieved.

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However, according to Fantoly, it is pointless to think about “gateways” between the two systems, as they do not serve the same purpose. According to the author, “what we can do is rather to try to incorporate into procedural law the instruments aimed at improving the efficiency of criminal proceedings, adapted to each national specificity.”7

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The continental and Anglo-Saxon systems are no longer the only option in the positions of legal scholars. However, I certainly support the idea that procedural law would divide the trial system accordingly:

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  1. in the first stage, the establishment of the facts and guilt would be carried out within the existing formal (law enforcement) framework;
  2. in the second stage, however, the substantive decision-making would take place in an informal, out-of-court procedure, with the involvement of representatives of legal and other social sciences.
 

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Károly Bárd also points out that the Anglo-Saxon procedural order is moving away from the accusatorial features, while in the countries following the continental legal order the inquisitorial elements are weakening.8 In England, the cross-examination system is now more limited and the principle of literalism has been relaxed. The author also points out, with reference to Spencer, that this process has in fact been underway since the 19th century, with the private nature of proceedings weakening and the predominance of documentary evidence in a large proportion of cases due to the use of summary trials. 9

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According to the author, the differences between the continental (European) and the Anglo-Saxon systems have long been attempted to be defined on the basis of the intrinsic characteristics of the procedure, first and foremost by describing the position of the parties to the litigation and the related characteristics of the process of cognition in the litigation. “In recent decades, however, a trend has emerged which seeks to shed light on the differences between the two systems on the basis of ‘external’ criteria outside procedural law.”10

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According to Erdei, the continental (mixed) system is increasingly moving towards “procedural fairness” and is giving way to expectations of knowing material truth.11 Let us also not forget that continental legal theory since Beccaria has regarded procedural guarantees as one of the most important limits to the state’s criminal power,12 and the requirement of due process has now been formulated as a basic requirement in fundamental international documents such as the Universal Declaration of Human Rights, the UN International Covenant on Civil and Political Rights, or the European Convention on Human Rights. However,

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  1. the practice of the International Criminal Court (ICC) has generally been characterised by a mix of the specificities of different procedural systems; 13
  2. the Court of Justice is increasingly judging on the basis of the “fair trial” criteria typical of the Anglo-Saxon system;
  3. on the basis of the principle of mutual recognition as set out in the Tampere Five-Year Programme,14 there is also a common understanding among EU Member States on the minimum standards of procedural guarantees, as confirmed by the following documents:
    • Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings;
    • Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings;
    • Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime and replacing Council Framework Decision 2001/220/JHA;
    • Directive 2013/45/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in proceedings relating to a European Arrest Warrant, on the right to information of third parties at the time of deprivation of liberty and on the right to communicate with third parties and consular authorities during deprivation of liberty.15
1 K. Bárd (1998) ibid. 122.
2 H. F. M. Crombag: Adversarial or Inquisitorial: Do We Have a Choice? In Adversial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems, Perspectives in Law and Psichology, Volume 17, 24–25. i. In Zsanett Fantoly (2009) ibid. 35.
3 Mirjan R. Damaska, M. R.: The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, New Haven, CT, Yale University Press, 1986, in Fantoly (2009) ibid. 35.
4 See also England, Wales, France and Belgium. In Fantoly (2009) ibid. 35.
5 Although it is now possible in these systems for the prosecutor to “drop” certain cases, mainly on the grounds of overload. Fantoly (2009) ibid., p. 35.
6 Fantoly (2009) ibid. 35.
7 Fantoly (2009) ibid. 36.
8 K. Bárd: Approximation of procedural systems ibid. 27.
9 In Delmas-Marty, Mireille – Spencer, John R. (eds.): European Criminal Procedures. Cambridge, Cambridge University Press, 2002. 14–18. In K. Bárd (2014) ibid. 27.
10 According to the author, the differences “are best captured by the relationship of a given system to the outside world, to other systems. For the European judiciary, this means that, as a reflection of the European conception of the organisation of the state, the judiciary is a self-contained entity, fulfilling a single function, isolated from other systems. The European conception of state organisation does not tolerate overlapping competences, competing competences, rival powers and functions.” In K. Bárd (1998) ibid. 121–122.
11 Erdei (2011) ibid. 29–32.
12 Cesaria Beccaria: Bűntett és büntetés. [Crime and punishment.] Budapest, Akadémiai, 1967. In P. Bárd (2014) ibid. 41.
13 Cassese, Antonio: International Criminal Law. Oxford, Oxford University Press, 2008. 365–388.
14 Council of the European Union, Presidency Conclusions, Tampere European Council, 15–16 October 1999 In: P. Bárd (2014) ibid. 42.
15 P. Bárd (2014) ibid. 42.
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