Structure and Fundamental Principles of Modern Criminal Procedure

Aderajew Teklu and Kedir Mohammed Mar 18 2012


The Status of the Public Prosecutor

The crown prosecution service in England and Wales is comparatively new and its status is comparatively lowly. It has no power to direct the police during the investigation, and for the first fifteen years of its existence-until 2000-crown prosecutors did not even have the right to appear in the crown court to present the case against defendants accused of serious offences. Crown prosecutors are, in law, civil servants, and enjoy no particular immunity or security of tenure.

In continental Europe (as in Scotland) the public prosecutor is a long-established office, the status of which is considerably higher. The public prosecutor has, in principle at least, the right to give the police directions when offences are being investigated and it is he, not they, who decide if someone shall be prosecuted. Public prosecutors routinely appear before the courts to prosecute, and for them to engage a barrister for this task would be unthinkable. In three of the countries in this study- France, Belgium and Italy- public prosecutors enjoy what is called in French le statut de magistrate, which means that for a number of legal purposes they are equated with judges. In France, Italy and Belgium it is customary to refer to both judges and prosecutors to gather as a single group: la magistrature in France and Belgium, in Italy-public prosecutors enjoy what is called in French le statut de magistrate, which means that for a number of legal purposes they are equated with judges. In France, Italy and Belgium it is customary to refer to both judges and prosecutors together as a single group: la magistrature in France and Belgium, in Italy la magistratura . in all three countries both groups are initially recruited and trained together- in France, at a special ‘judges-school’, the Ecolenationale de la magistrature…

To many English lawyers this looks alarming, because of the risk that there will be too much professional solidarity between judges and prosecutors. These fears are sometimes expressed by critics on the continent as well. However, on the credit side, giving prosecutors le statut do magistrate is thought to help ensure the recruitment of suitable people and to maintain high professional standards and a degree of detachment and impartiality in carrying out the task of prosecuting. the high status of prosecutors in Italy is certainly part of what made it possible to abolish the Italian equivalent of the juge d’instruction and to transfer to the public prosecutor a large part of the corresponding responsibilities and it is also something that makes it politically possible for various people seriously to advocate the same type of reform in France.

The Status and Organization of the Police

In the four continental countries in this study, police forces are differently organized than they are in England, and in several ways their status is different. In England and Wales there are at present forty-three different police forces, all organized and administrated locally. In continental Europe, by contrast, the trend is to organize police forces on a national basis. That said, however, a balance of power is usually maintained in various ways. In France there are two national forces that operate in parallel-the police nationale under the direction of the home office, and the gendarmerie that exists under the wing of the Ministry of Defense and these two main organizations are supplemented by a number of local police forces in the bigger towns. A broadly similar arrangement exists in Italy; in Germany, by contrast, police forces are organized by the different Lander. As regards the status of the police, one difference is that when investigating crimes they operate (at least in theory) under the direction of the public prosecutor. A second difference is that, unlike in England where broadly speaking all police officers have similar powers, the various coercive powers that exist to enable continental policeman to investigate crimes are usually the monopoly of a restricted group within the police who are known in French as la police judiciaire. (this term was difficult to translate in to English, and in what follows la police judiciaire has usually been quietly turned in to ‘the police’.)

The Status, Recruitment and Training of Judges

In England and Wales, as in the rest of the common law world, professional judges are recruited from the ranks of successful legal practitioners (and predominantly from the bar). The consequence is a professional judiciary that is predominantly male and universally middle-aged. In the other countries in this study, as in Europe generally, there is a career judiciary. Those who wish to become judges apply to do so at the end of their law studies at university, and, like those who in England wish to join the civil service, make a formal application, which leads to their sitting an examination, on the basis of which they are selected or rejected. A period of training follows, which in France even takes place at a special residential college, the Ecole nationale de la magistrature. The continental judge then starts in a lowly post, from which he or she hopes to move upwards by a series of regular promotions. One consequence of this is that the continental judiciary is, on average, very much younger than the judiciary in England and Wales. In Germany, for example, you will meet the jurist ‘who enters the judicial profession while still in his twenties and whose first working day might require putting in to prison a defendant who is old enough to be his grandfather.

The different method of recruitment leads to other subtle differences, too. One of these is the different relationship that exists between Bench and Bar. On the whole, English barristers and English judges get on well together, and barristers usually treat the professional Bench with respect-which is not always the case in continental Europe. This sometimes leads continental observes (or at least those whose source of information is Bar) to form a very favorable view about the standing and quality of the English judiciary. But here there is another paradox. The English method of recruiting judges from the ranks of successful middle-aged practitioners is, of course, extremely expensive, and it is probably true that this costly system is only tolerated in England and Wales because (in sharp contrast to the situation in continental Europe) over 90 per cent of all criminal cases are tried by lay magistrates, who give their services free and who have formal legal training.

Legal Status of the Victim

In English law, the person claiming to be the victim of the offence has no special status in the criminal proceedings brought in relation to it. Like any other citizen, he has the right to bring a private prosecution. He has no right to any kind of help from the state if he decides to do this, however-and a private prosecution is fraught with a number of serious hazards…the risk of having to pay the successful defendant’s costs if the proceedings result in an acquittal. If the police and the Crown Prosecution Service decide to bring proceedings, the victim has no legal right to join in. He has no legal means of making sure that the court hears his side of the story, and no right to ask the court to order the convicted defendant to pay compensation (although the court does indeed have power to make a compensation order).

In the other systems in this study, the defendant has (at least in theory) considerably greater rights. In France and in Belgium the victim can make himself a partie civile, and as such either institute proceedings or make himself a party to them if the public prosecutor has started them already. In Italy and Germany the victim has second of these rights, but not the first…

Although the position of the victim is theoretically stronger on the continent than in England, it is debatable question how much (if at all) the victim is really better off. Compensation orders are a case in point. In England the victim has no right to ask the court for one, and unlike in continental Europe the sums so awarded are usually small because they are always geared to the defendant’s ability to pay. On the other hand, where a French or Belgian court awards a partie civile damages against the defendant, it is the partie civile who then has the thankless task of trying to make the convicted defendant pay; whereas in England, compensation orders are enforced automatically by the same court machinery as is used to make the defendant pay his fines.

The Fundamental Principles of Procedure (England)

English law has traditionally been rather short on public pronouncements about the fundamental principles of criminal procedure, whether in statutes, case law or books. However, from two of the ancient Acts of parliament that are regarded as having ‘constitutional status’ certain basic principles are usually derived. The first of these is Magna Carta 1215, clause 29, which is as follows:

No freeman shall to be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, unless by the lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

From an early date, this provision has been taken-rightly-as establishing the principle of legality: the notion that citizens are only to be punished to the extent and in the ways that the law allows, and in accordance with due process of law.

This clause also had an important influence on the development of habeas corpus, the procedure under which any person physically detained is entitled to have the legality of his detention examined by a judge. Historically, the main importance of habeas corpus was that it became the vehicle for challenging the arbitrary imprisonment of the king’s potential opponents. Within criminal procedure, it also served an important function at one time as the mechanism by which defendants in ordinary cases could challenge the refusal by the justices of the peace to grant them bail, and excessive periods of pre-trial detention although such challenges are now made by using different legal machinery, and in modern books on English criminal procedure habeas corpus hardly gets a mention.

From clause 29 of Magna Carta it is also possible to derive the principle that cases must be tried within a reasonable time-although the only defendant who has tried to invoke it in this sense in modern times was unsuccessful.

It is widely believed that clause 29 contains a guarantee of trial by jury. Although a string of legal writers have said this, it cannot possibly have been the original intention of the provision, because when Magna Carts was drafted in 1215 trial by jury in criminal cases had not yet come into existence. Furthermore, even if the phrase ‘judgment of his peers’ does refer to jury trial, it gives no absolute guarantee, because what the clause requires is ‘judgment of his peer or the law of the land’. And, of course, clause 29 has not prevented parliament in the past from enacting statutes that limit jury trial.

The other ‘constitutional’ status in this area is the Bill of the Rights Act 1688, a clause of which provides ‘that excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishment inflicted’. This was passed in reaction to the very server penalties (including mutilations) which the courts had earlier imposed in potential cases. It is possible to read within this provision the germ of a more general notion of proportionality, at least as regards the sentence.

Until the Human Rights Act 1998, for other ‘fundamental principles’ of criminal procedure it was necessary to look at case law: among the basic principles that could be found spelt out there were the presumption of innocence, the principle that trials must take in public, the principle that in contested trials the evidence of key witness must be given orally, the principle that the defendant has the right to challenge the prosecution witnesses by means of cross-examination, and the principle that English criminal procedure is ‘accusatorial’ in the sense that the calling and examination of witnesses at trial is a matter for prosecution and defence, and not the judge.

But now that the Human Rights Act has incorporated the European Convection into UK law, the search for fundamental principles normally takes place within the framework of the Convention. Recent as it is, the impact of this Act on English criminal procedure is already evident. Thus in one recent case, it led the House of Lords to put a narrow construction on a provision of an Act of parliament, which, if interpreted literally, would have reversed the burden of proof in drugs cases. In another case it affirmed the defendant’s right to a ‘fair trial’ under Article 6 of the Convention by restrictively construing a recent Act which, in the interests of victims, sought to limit the questions that defendants could ask complaints during cross-examination in sex cases.

Fundamental Principles of Procedure (France)

The fundamental principles of procedure are mainly principles that presently have constitutional value. Given their heterogeneity which reflects the values in the constitutional source one should distinguish between non-specific principles which may be invoked in the field of criminal law and specific principles that are peculiar to criminal law or to criminal procedure.

The non-specific principles are more numerous: equality in the eyes of the law (… article 2 Constitution); judicial guarantee of individual liberty (article 66, Constitution); security of persons and property… the dignity of the person (preamble to the constitution of 1946); protection of legal rights and of the separation of powers…, the consequence being the right to appeal before the courts of law.

In criminal law, there is also the non-retroactivity of laws…; the principle that punishments should only be imposed where new laws softening the harshness of a rule, and proportionality); the individual nature of penalties…; in criminal procedure, the presumption of innocence…; the right of defence, and its corollary, the adversarial principle…

In 1989 the Commission justice penal et droits de l’homme proposed that a list of basic principles should be placed at the head of a new code of criminal procedure. Although not accepted at the time, the reform of criminal procedure in 2000 added a preliminary article to the beginning of the code de procedure penale, setting out guiding principles:

I - Criminal procedure should be fair and adversarial [contradictoire] and preserve a balance between the rights of the parties. It should guarantee a separation between those authorities responsible for prosecuting and those responsible for judging. Persons who find themselves in a similar situation and prosecuted for the same offences should be judged according to the same rules.

II- The judicial authority ensures that victims are informed and that their rights are respected throughout any criminal process.

III- Every person suspected or prosecuted is presumed innocent as long as guilt has not been established. Attacks on his presumption of innocence are proscribed, compensated and punished in the circumstances laid down by statute. He has the right to be informed of changes brought against him and to be legally defended. The coercive measures to which such a person may be subjected are taken by or under the effective control of judicial authority. They should be strictly limited to what is necessary for the process, proportionate to the gravity of the offence charged and not such as to infringe human dignity. The accusation to which such a person is subjected should be brought to fine judgment within a reasonable time. Every convicted person has the right to have his conviction examined by a second tribunal.

The Fundamental Principles of Procedure (Germany)

The constitutional norms are imposed on the three branches of government, which are bound by the principle of legality (Gesetzlichkeitsprinzip: article 20, para3, GG).

The Grundgesetz specifies in its First Title, concerning fundamental rights (die Grundrechhte), various principles relating to the respect and protection of human rights. They are all derived from the principle of the inviolability of human dignity (article 1, GG) and are directed towards respect for the liberty (article 2, GG) and equality of persons (article 3, GG). These civil liberties, in the sense of the French Declaration des droits de l’homme et du citoyen of 789, are designed to protect the individual from the State and are therefore binding on all the organs of the State endowed with any portion of sovereignty. The articles following this set out various general rights, but few govern criminal procedure. Attention can nevertheless be drawn to the principles of inviolability of privacy of correspondence (article 10, GG), the inviolability of the home (article 3, GG, regulating searches) or even the restriction of the examination of nationals (article 16, Para. 2 GG).

Furthermore, the Grundgesetz contains certain rules in Title IX concerning judicial organization, which are fundamental rights of a legal character (Justizgrundrechte or grundrechtsgleiche Rechte), such as the principle of the legitimate judge (Grundsatz des gesetzlichen Richters (article 1101, GG)), the right to a hearing by a judge (article 03, Para. 1, GG; Recht auf rechtliches Gehor), legality (non-retroactivity of offences and principle of clarity and definiteness of a law constituting an offence (article 103, Para. 2, GG: Ruckwirkungsverbot and Bestimmtheitsgebot))… and the necessity of the intervention of a judge for all measures that restrict individual liberty (article 104, GG). In addition there is the prohibition of the death penalty (article 102, GG).

More generally, the law must be in accordance with the principles of a ‘republican, democratic and social’ State where the rule of law prevails (article 28, GG). From this statement constitutional case law derives, for example, the presumption of innocence (Unschuldsevermutung), which makes it obligatory for the public prosecutor to investigate a case and search for evidence of innocence as well as guilt… that remand in custody must only be used where necessary.

Relevant Laws

Art 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, UDHR

Art 2, 4, 6, 9, 10, 11, 14, 15, 17, ICCPR

Art 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 37, FDRE Constitution

Art, 2, 4, CC

Office of the Central Attorney General of the Transitional Government of Ethiopia Establishment Proclamation No. 39/1993

Definition of Powers and Duties of the Central and Regional Organs of the Transitional Government of Ethiopia Proclamation No. 41/1993

Definition of Powers and Duties of the Central and Regional Organs of the Transitional Government of Ethiopia (Amendment) Proclamation No. 73/1993 Attorneys Proclamation No. 74/1993

The Federal Courts Proclamation No. 25/1996 (as amended)

The Re-Establishment and Modernization of Customs Authority Proclamation No. 60/97 (as amended)

The Federal Police Commission Proclamation No. 313/2003

The Federal Prisons Commission Establishment Proclamation No. 365/2003

Revised Federal Ethics and Anti-Corruption Commission Establishment Proclamation No. 433/2005

Definition of Powers and Duties of the Executive Organs of the FDRE Proclamation No. 471/2005

Ethiopian Revenues and Customs Authority Establishment Proclamation No. 587/2008

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