Unlike an Inquisitorial Legal System

Unlike an Inquisitorial Legal System

The role of prosecutors may vary depending on the legal tradition of a given country. Two types of legal traditions dominate the type of investigation and jurisprudence in the world: adversarial and inquisitorial legal systems. Common law countries use an adversarial system to establish the facts in the decision-making process. The prosecution and the defence compete with each other, and the judge serves as an arbiter to ensure fairness to the accused and to ensure that the legal rules of criminal procedure are followed. The adversarial system assumes that the best way to get to the truth about a case is through a competitive procedure to accurately determine the facts and the application of the law. As a result, in parts of continental Europe, ecclesiastical tribunals, operating under the procedure of the Inquisition, became the dominant method by which disputes were settled. In France, parliaments – lay courts – also engaged in inquisitorial proceedings. [4] Some administrative procedures in some common law countries in the United States may be similar to their civilian counterparts, but are conducted under a more inquisitorial model. For example, courts dealing with minor traffic violations of the New York City Traffic Violations Bureau are before an adjudicator who also acts as a prosecutor. They question witnesses before sentencing and imposing fines. Because of the potential for negative connotations associated with the term “inquisitorial system”, this type of system can also be referred to as a “non-adversarial system”. In an adversarial system, as is customary in U.S.

courts to decide important civil and criminal cases, two representatives argue on the merits of the case. Lawyers represent one of the parties involved in the case, and the judge, representing the courts, is primarily used to ensure that the laws are properly adhered to in court. Unlike an inquisitorial system, the primary task of the judge is to ensure that guidelines and laws relating to procedural practice are properly followed. The inquisitorial system is associated with civil law legal systems and has existed for many centuries. It is characterized by thorough preliminary investigations and interrogations, with the aim of avoiding bringing an innocent person to justice. The inquisitorial trial can be described as an official investigation to uncover the truth, while the adversarial system uses a competitive process between the prosecution and defense to establish the facts. The inquisitorial process gives more power to the supervising judge, whereas in the adversarial system, the judge serves more as an arbiter between prosecution and defence claims (Dammer & Albanese, 2014; Reichel, 2017). The inquisitorial system applies to matters of criminal procedure at trial and not to substantive law; That is, it determines how criminal investigations and trials are conducted, not the type of crimes for which a person can be prosecuted or the penalties they entail. It is more likely to be used in some civil justice systems. However, some jurists do not recognize this dichotomy and consider substantive legal procedures and relationships to be interconnected and part of a theory of justice applied differently in different legal cultures. An inquisitorial system is a legal system in which the court or part of the court actively participates in the investigation of the facts. This differs from an adversarial system in which the role of the court is primarily that of an impartial arbiter between the prosecution and the defence.

Inquisitorial systems are mainly used in countries with civil legal systems such as France and Italy or legal systems based on Islamic law, such as Saudi Arabia[1], rather than in common law systems. It is the predominant legal system in continental Europe, Latin America, African countries not previously under British rule, East Asia (except Hong Kong), Indochina, Thailand, the Philippines and Indonesia. Most countries with an inquisitorial system also have some form of civil code as their main source of law. It is too general to say that civil law is purely inquisitorial and that common law is adversarial. The ancient Roman custom of arbitration has now been adapted to an inquisitorial form in many common law jurisdictions. In some mixed civil law systems, such as those in Scotland, Quebec and Louisiana, although substantive law is civil and developmental in nature, the procedural rules that have developed over the last hundred years are based on the English adversarial system. In this type of system, on the other hand, the judge or another representative of the court plays a more active role in a procedure. It can directly interview suspects and witnesses and serves not only to ensure proper compliance with judicial procedure, but is also part of the procedure. This type of system can often be observed in military courts or multinational trials against persons accused of crimes against humanity or war crimes. An inquisitorial system can also be used for summary hearings for minor offences and misdemeanours in order to speed up the proceedings. In an adversarial system, judges focus on matters of law and procedure and act as arbiters in the competition between the defence and the prosecution.

Juries decide facts and sometimes legal issues. Neither judges nor juries can open an investigation, and judges rarely ask questions of witnesses directly during the trial. In some jurisdictions in the United States, it is common for jurors to submit issues to the court that they believe have not been resolved in direct examination or cross-examination. Once witness statements and other evidence have been presented and summarized into arguments, the jury will reach a verdict (truthful verbatim testimony) and, in some jurisdictions, the reasoning for the verdict; However, jury discussions may only be made public in exceptional circumstances. In England, however, King Henry II had established separate secular courts in the 1160s. While the ecclesiastical courts of England, like those of the continent, adopted the system of the Inquisition, the secular common law courts continued to operate under the adversarial system. The adversarial principle that a person cannot be brought to justice until formally charged continues to apply to most criminal cases. In 1215, this principle is enshrined in Article 38 of the Magna Carta: “No judicial officer for the future may, on his own unfounded complaint, submit anyone to his law without calling credible witnesses for this purpose.” The modern use of this system often dates back to the legal practice of medieval Europe. Before the Inquisitions of the Catholic Church in the 12th and 13th centuries, most legal issues were settled by the courts using contradictory methods. However, these methods differed considerably from those found in modern courts, with practices such as the use of “trial by combat” to resolve disputes.

However, the Inquisition introduced the Inquisition system because ecclesiastical courts were created to summon witnesses and hear testimony without prior prosecution by others. These courts were also allowed to rule on those they had accused of heresy and to establish a system in which the court itself acted as both prosecutor and judge. In administrative courts such as the Council of State, judicial proceedings are much more inquisitorial. Most of the procedure is done in writing; the applicant writes to the Tribunal requesting explanations from the administration or public service concerned; If the court receives a response, it can then ask the plaintiff for more details, etc. When the case is sufficiently closed, the dispute begins in court; However, the parties are not obliged to attend the hearing. This method reflects the fact that administrative measures are mostly formal and formal. Until the development of the medieval Catholic Inquisition in the 12th century, the legal systems used in medieval Europe generally relied on the adversarial system to determine whether someone should be brought to justice and whether a person was guilty or innocent. Under this system, persons who were not caught red-handed could be brought to trial until they were formally charged by their victim, a sufficient number of witnesses were voluntarily brought against them, or an investigation (an early form of grand jury) was convened specifically for that purpose. A weakness of this system was that victims and potential witnesses might be reluctant to lay charges in court because it relied on the voluntary accusations of witnesses and because the penalties for a false accusation were severe, for fear of becoming entangled.

Due to the difficulties in deciding cases, procedures such as court proceedings or fighting were accepted. Common law countries, including the United States, may use an inquisitorial system for summary hearings for misdemeanours or offences, such as minor traffic offences. The distinction between an adversarial system and an inquisitorial system has nothing theoretically to do with the distinction between a civil law system and a common law system. Some jurists consider the inquisitorial to be misleading and prefer the word non-adversarial. [2] The function is often delegated to the prosecutor`s office, as in China, Japan and Germany. The first territory to fully adopt the Inquisition system was the Holy Roman Empire. The new German legal procedure was introduced as part of the Worms Reformation of 1498, and the Constitutio Criminalis Bambergensis of 1507. The adoption of the Constitutio Criminalis Carolina (Charles V`s embarrassing court code) in 1532 made the inquisition procedure an empirical law.

It was not until Napoleon introduced the Code of Criminal Procedure (French Code of Criminal Procedure) on 16 November 1808 that the classic procedures of the Inquisition ended in all German territories.

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