Inquisitorial System Research Articles

COMPARISON OF PLEA BARGAINING IN THE UNITED STATES WITH “SPECIAL LINE” IN THE DRAFT BOOK OF CRIMINAL PROCEDURE CODE (KUHAP) IN INDONESIA

Plea Bargaining is a faster and more efficient way of resolving criminal cases, where if the Defendant has admitted guilt, the Defendant or his attorney can make an agreement with the public prosecutor regarding the form of indictment and a lighter sentence. Plea Bargaining is widely embraced by Common Law countries. However, in its development, the success of the United States in reducing the pile of cases by using Plea Bargaining has been followed by Civil Law countries such as Germany, France, Russia, Georgia, the Netherlands, Italy, Taiwan. Even in an effort to reform the criminal justice procedural law, Indonesia has also adopted the basic concept of Plea Bargaining into the Draft Criminal Procedure Code with a concept called "Special Line". However, the concept of the Special Line has many differences so that it cannot be fully equated with the Plea Bargaining adopted by the United States. This is because Indonesia adheres to an inquisitorial system, not an adversary system. For this reason, Indonesia needs to study the successes and failures of Plea Bargaining in the United States, so that the Special Line concept that is to be implemented in Indonesia is a concept that has been adapted to the conditions of the criminal justice system in Indonesia.
 Keywords: Plea Bargaining, Special Line, Guilty Confession

민사전자소송에서 리걸테크의 활용에 관한 연구

Electronic litigation is a combination of civil litigation and electronic systems. Electronic litigation consists of e-filing, e-case management, and e-court room. In Korea, electronic litigation is operated in accordance with ｢Act on the Use, etc. of Electronic Documents in Civil Litigations, etc.｣, and the proportion of electronic litigation in civil case in 2021 is 97.3%. On October 2019, the Supreme Court established a next-generation electronic litigation promotion team and aims to complete the next-generation electronic litigation system construction project in the second half of 2024.
 Meanwhile, LegalTech is a term that refers to a new legal service industry that combines legal and technology, and has recently attracted a lot of attention.
 It is difficult to accurately measure the stage of development of science and technology, but the most advanced legal technology tools at the current stage are actively used in the fields of tax law, labor law, and patent law. These legal fields have independent, bureaucratic, and technical characteristics. However, it is not limited to this, but legal technology tools are also used in ordinary daily life such as traffic accidents.
 Nevertheless, due to the technical limitations of Legal Tech, it is expected that it will be able to function as a kind of very competent lawyer rather than complete automation. Most llegal technology tools are expected to operate within the paradigm of cognitive computing defined by human-machine collaboration. The development of legal technology tools in the United States is closely related to the adversarial system of civil litigation, and the system in which the parties take the lead in collecting evidence at the stage of pre-trial discovery can be seen as the background of the competitive development of the legal technology industry.
 In civil litigation in Korea, the formation of the contents of the trial is based on adversarial system, but in terms of the progress of the lawsuit, inquisitorial system is adopted so that the court takes the initiative to lead the hearing. In other words, the use of legal technology is likely to depend on the judgment of the court and the decision of the legislator, so there will be a limit to the size of the legal technology market to grow like the United States. If there is sufficient means of collecting evidence between parties, such as discovery system in US, the legal technology industry can take a leap forward.

Indian Criminal Reformation: A critical analysis

The Criminal Justice System represents the cutting edge of governance. Towering over society, it parades an array of institutions, processes, people, and penalties to reinforce its images. This array includes policemen in uniform, constables with batons or lathis, the police station, courts, jail, bail, sentence, prisons, imprisonment, death row, the gallows, hanging and death. Each of these institutions and processes is part of the Criminal Justice System and yet partly autonomous within it. But a matter of great concern is that there arise multiple questions about whether these institutions are working/functioning properly within their ambit or not. Is there lack of implementation of provisions of criminal law by the enforcing agencies? Whether the recommendations of law commissions are adequately implemented? Whether the Malimath Committee’s Report on Criminal Law Reforms are being adequately addressed and enforced. Is adversarial system of criminal justice in India suitable in the present-day context, or it is high time to accept few principles of inquisitorial system of justice as it is prevailing in common law countries. With these few questions, in the present paper, the researchers have made an attempt to introduce our criminal justice system. The researchers further focuses on reforms recommended by the Law Commission. Finally, the researchers have suggested some important changes/modifications required in the prevailing criminal justice system in India to make it more streamlined and strengthened.1

Intime conviction’ in Germany: Conceptual Foundations, Historical Development and Current Meaning

The paper analyses the concept of «intime conviction» from the perspective of the German reformed inquisitorial criminal procedure. It starts off with the discussion of the foundations of the concept and explains how it – in essence, a flexible method to assess the available evidence – is integrated in the larger topic of the law of evidence, especially its production and evaluation (infra 1.). One key issue in this regard is how much freedom is given to the adjudicator to carry out the evidentiary evaluation and how this freedom relates to the applicable standard of proof (Beweismaßstab, estándar probatorio), being «beyond any reasonable doubt» (BARD) the most popular one. At any rate, in a (reformed) inquisitorial system all persons involved in the evidentiary process should be guided by the search for truth. To fully understand «intime conviction» and how it operates in the reformed inquisitorial procedure it is necessary to take a look at the historical development and the different factors influencing this development (2.). Here again the importance of the fact-finding authority (professional judges vs. laypersons, especially jury) comes to light and its dependence or at least relationship with the system of evidentiary evaluation. It will be seen that while the current system is based on the historical precedents the historical development has not been linear. This current system is then analysed in the following section (3.). It will be shown that it moves somewhere between the former system of legal proof and free evaluation. An expansive appeals jurisprudence has increasingly turned the «free conviction» into a sort of «conviction raisonnée», the lack of remaining (reasonable) doubts as a basis for a conviction makes clear that it is the BARD standard which effectively informs the intime conviction method in substantive terms. The paper closes with some further considerations on the justification of the (high) standard and the (formally not necessary) proof of defences (4.).

Promoting the defence´s role in the preliminary investigation, a challenge in maghrebian criminal proceedings

Maghrebian criminal procedures have long been based on a theory inherited from French legislation, based on the relationship between the effectiveness of police investigations and the weakening of the role of the lawyer, relying on the principles of the inquisitorial system, in particular the principle of secrecy that governs the entire preliminary phase of the trial. Through this article, the authors attempt to refute the latter theory, proving that any strengthening of the role of the lawyer during the preliminary investigation constitutes a deterrent and protection of the authorities against allegations of torture and ill-treatment, and a decisive means to guarantee the protection of the rights of the accused, and therefore, a contribution to the consecration of the efficiency of the investigations and the procedural fairness.

Deterrence, settlement, and litigation under adversarial versus inquisitorial systems

In this paper, we compare deterrence, settlement, and litigation spending under adversarial and inquisitorial systems. We present a basic litigation model with three sequential stages—care, settlement, litigation—and we test the predictions on experimental data. In line with our theoretical expectations, we find that, compared with the adversarial system, the inquisitorial system is associated with lower litigation spending, lower rates of cases settled, and tends to strengthen deterrence.

CRIMINAL LAW REFORMS IN INDIA: A STUDY ON PAST, PRESENT AND FUTURE

The Criminal Justice System represents the cutting edge of governance. Towering over society, it parades an array of institutions, processes, people, and penalties to reinforce its images. This array includes policemen in uniform, constables with batons or lathis, the police station, courts, jail, bail, sentence, prisons, imprisonment, death row, the gallows, hanging and death. Each of these institutions and processes is part of the Criminal Justice System and yet partly autonomous within it. But a matter of great concern is that there arise multiple questions about whether these institutions are working/functioning properly within their ambit or not. Is there lack of implementation of provisions of criminal law by the enforcing agencies? Whether the recommendations of law commissions are adequately implemented? Whether the Malimath Committee’s Report on Criminal Law Reforms are being adequately addressed and enforced. Is adversarial system of criminal justice in India suitable in the present-day context, or it is high time to accept few principles of inquisitorial system of justice as it is prevailing in common law countries. With these few questions, in the present paper, the researchers have made an attempt to introduce our criminal justice system. The researchers further focuses on reforms recommended by the Law Commission. Finally, the researchers have suggested some important changes/modifications required in the prevailing criminal justice system in India to make it more streamlined and strengthened. Key Words: Criminal Justice System, Adversarial, Inquisitorial, Malimath Committee, Law Commission, Human Rights, Courts, Police, Bail etc.

수사와 기소 분리론의 비판적 검토

Investigation should not have any meaning on its own, apart from the prosecuting authority’s decision. This is because these judgments can not be properly made unless the legal and normative viewpoints of the prosecuting authority are applied. There is no purpose of investigation itself, and there should not be because there is no reasonable grounds in terms of protecting constitutional rights and human rights that the independence of the investigative authority should be guaranteed. Therefore, if the purpose of the investigation is to evaluate the possibility of proving guilt and to decide whether to initiate a prosecution, and the validity of the decision is ultimately evaluated by the court's decision or judgment through the trial process. the authority and responsibility of the investigation should belong to the prosecuting authority according to the principle of purposiveness and the principle of professionalism. If the organizational structure and authority are set so that the incentives and decision-making of the members in the organization are contradictory to each other in the areas with the same purpose and function, serious disharmony and burden will occur within the system. Whether the legal nature of the investigation of a specific case is judicial or administrative depends on the philosophical and institutional perspectives with which how important and realistically achievable the culture of the relevant legal system regards the fairness of the investigation procedure. The ideal investigative agency for which our Constitution and the Criminal Procedure Act aims should only discover the actual truth and implement judicial justice, while maintaining objectivity and neutrality in criminal procedures. Investigation should not be used to achieve administrative purposes, but are aimed only at finding the truth and the judicial justice. To achieve this, the investigation should not be part of the administration, but should be part of a judicial or quasi-judicial power independent of the administration in our criminal legal system. If real-world prosecutors fail to realize quasi-judicial independence in spite of these legal ideals and institutions for achieving them, a device that can guarantee independence and objectivity of them should be developed in order to properly implement this ideals. The investigative authority should not be monopolized by administrative agencies that are bound by the principles of administrative authority and purposiveness. Most of the existing problems raised with respect to the prosecutor's concentration of power should have been addressed with the standpoint of strengthening the independence and neutrality of the prosecution service and refraining from unnecessary direct investigations, thereby solidifying their identity as a quasi-judicial institution. In addition, it should have been approached by strengthening the objective measures of checks and independent inspection procedure in the decision-making process of the prosecution service regarding investigations and prosecutions. Separating investigation and prosecution and weakening the prosecuting authority's command and control against the investigation agencies should not have been considered in the first place. The system as a whole has made it easier for front-line investigative agencies to abuse their investigative powers with this new approaches. This accumulates burdens on the criminal system that can not be sustainable in the mid- to long-term and could disrupt our criminal justice system which maintains the fundamental characteristics of the continental inquisitorial system so that the prosecution guarantees the completeness of the investigation in an objective and neutral position,

O PACOTE ANTICRIME E A ATUAÇÃO JUDICIAL EX OFFICIO NO PROCESSO PENAL BRASILEIRO.

The Code of Criminal Procedure of 1941 was based, in its birth, on authoritarian bases, which culminated in enshrining the inquisitorial system of criminal prosecution. However, the Codex provisions undergo an exponential re-reading in the light of Neoconstitutionalism and the 1988 Constitution, which established important principles to criminal procedural system and, above all, the principle of human dignity. Therefore, doctrine and jurisprudence turned to understand that the persecutory system adopted became the accusatory, with mitigations. However, there is still an old discussion about the possibility of ex officio intervention by the judge in the phases of probative instruction, especially with the advent of Law 11.690/2008, which reaffirmed the possibility of producing official evidence by the judge, with a focus on the search for real truth. In fact, it must be assumed that absolute truth is something unattainable, and all procedural truth is, first of all, relative. Thus, the parties (prosecution and defense) must comply with their burden of proof, while the judge must, as a rule, assess the evidence based on the principle of motivated free conviction. Despite this, there are provisions in the criminal procedural text that allow a certain probative initiative by the judge. In that regard, Law 13.694/2019, which became known as the Anticrime Package, brought significant changes to the Code of Criminal Procedure, most of which seem to try to stop the judge's proactive performance, especially in the context of “lato sensu” precautionary measures. However, the new legislation opened up a new scope for official action by the judge, expressly expressing the possibility that the magistrate can again decree preventive detention or preventive precautionary measures. The provision is presumed to be constitutional, until stated otherwise, and therefore appears to be in line with the accusatory system with mitigations, especially since this action would not be exactly ex officio, but backed by a previous application. Adequate jurisdictional protection and the guarantee of fundamental rights and guarantees enshrined in the 1988 Magna Carta must always be respected.

Psychology of eyewitness testimony in Germany in the 20th century.

The history of the psychology of eyewitness testimony cannot be adequately understood without taking the respective legal systems, that is inquisitorial versus adversarial system, into account. Across all periods, questions regarding the accuracy of testimony, its suggestibility, and intentional distortions in false accusations become apparent. We describe the history of the experimental psychology of testimony in Germany from the beginning of the 20th century until the time after the second world war. Louis William Stern and Otto Lipmann conceived and established a broad conception of Aussagepsychologie (psychology of report), attracting the collaboration of lawyers, pedagogues, and scholars from other disciplines to conduct laboratory and staged event experiments. They were successful in institutionalizing psychology and law by organizing interdisciplinary conferences, founding a journal, and testifying as experts in court. When appearing as experts, they encountered strong rivalry from psychiatrists. We also sketch some of the problems psychologists in Germany faced during the second world war. In our discussion, we stress the importance of legal, contextual, and sociocultural factors affecting both research outcomes and expert testimony, which appear to be parallel to present-day concerns. (PsycInfo Database Record (c) 2022 APA, all rights reserved).

Decision-making in an inquisitorial system: Lessons from Brazil

AbstractThis paper seeks to understand how decision-making works at the first appearance hearings (Custody Hearings) in Brazil, an initiative that intends to make the Brazilian criminal justice system more accusatorial. We used primary data gathered in the hearings between April and December 2018 in nine Brazilian states. Binary logistic regression models were applied to identify the variables that affect the odds ratios of pretrial detention. Results indicated a high level of homology between the prosecutors' requests and the judges' decisions, even when controlling for the characteristics of offense and offender, which precludes any direct openness to the defense. Decision-making in the Custody Hearing reinforces the inquisitorial characteristics and the institutional features of the Brazilian Criminal Justice System, suggesting that the reforms carried out over the last years were not able to change how actors operate on a daily basis.

Https://habibiaislamicus.com/index.php/hirj/article/view/258

With the advance discourse over the adjudication that has taken place in contradiction of the key dominant of the western model of the adversarial trial in term of the common law and the inquisitorial trial in regards to the Civil Law. The primary characteristic of the inquisitorial system is regarded with the judge who is having the overarching part in the adjudicating process whereas the distinctive characteristic of the adversarial system is that is termed with the partisan-centric. In contrast to the models of the Islam and the adjudication mode that are fitted varies over the opinions. Various scholars comparatively integrate such with the adversarial models while some of the scholars perceive it similar to the inquisitorial models that are having the similar characteristics. In this article the qualitative approach is adopted by conducting critical research on some significant work of famous scholars moreover this article highlights the Shariah law with distinctive features of adversarial system and inquisitorial system.

Реформа испанского суда присяжных

The article discusses the reform of the Spanish jury court in 1995, based on the provisions of the classical jury court of the Anglo-Saxon legal family. The author uses a comparative legal method to identify the features of the adversarial and inquisitorial systems of law, allowing to distinguish between the main models of the criminal process. Comparing the essence of the American jury trial as a representative of the Anglo-Saxon system with its Spanish counterpart, the author comes to the conclusion that the reform didn’t lead to drastic changes, but it only strengthened the investigative nature of the process.

Victim’s Participation in Adversary Procedure of the Russian Federation’s Criminal Procedure Code and Lessons for Vietnam

Abstract Some countries that mainly follow the inquisitorial system, such as Russia, France, and Vietnam, tend to absorb some features of the adversarial system. Using the Russian Federation as an example, this article raises questions including: How will the acquisition of adversarial elements affect the position, role, rights and obligations of the victim? Is the victim an independent party to participate in the adversary procedure? Do the adversarial activities of the victim and the other subjects exist at the pre-trial stages? In Vietnam, with the limitation of the victim to participate actively in the adversary procedure, it will be difficult for the victim to protect his or her legitimate rights and interests in the criminal proceedings. He/ she participates in the proceedings passively with the same role as witnesses. This article explores the role and position of the victim in the adversary procedure of the Russian Federation. While analyzing the rights and obligations of the victim in the adversary procedure, we found that the victim in the Criminal Procedure Code of the Russian Federation is eligible to participate in the adversary procedure as an independent party. The article discusses the significance of this study and proposes approaches to improve the victim’s participation in adversary procedure in Vietnam’s criminal justice system.

The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence in the Trials

The primary concern of justice department law enforcement as the arms of the criminal justice system is the rapid discovery of the crime. This article seeks to investigate the attitude of Iran's criminal policy or, more specifically, Iran's criminal policy towards the observance of the right to remain silent in trials. In line with this, the problem of the study translates into the question: what are the results of the observance of the right to silence of the accused in the different stages of the criminal process? Utilizing the documentary investigation method, issues related to the right of the accused to remain silent in Iran's criminal proceedings at the stage of discovery of the crime, the initial investigation stage, and the trial stage in Iran's laws on criminal procedures were investigated seminally. Among the main conclusions is that Iran's trial system, which was in line with the inquisitorial trial system, changed its procedures with the passage of the law on criminal trial procedures in 2013 and was influenced by the effect of international human rights regulations.

An Introduction to civil procedure code of Vietnam

Korea is in a strategic partnership with Vietnam, which has transitioned to a market economy system. Since 2014, Korea has ranked the first in Vietnam s foreign direct investment(FDI). It is known that North Korea is also considering introducing a Vietnamese market economy system. In this regard, research on the Civil Procedure Code(hereinafter referred to as ‘CPC’) of Vietnam is necessary. The characteristics of the CPC of Vietnam 2015 are as follows. ① the two-level adjudication regime with four tier court and the review on judgments/decisions which are legally effective, ② inspection and supervision of trial by prosecution service, ③ participation of People’s Jurors in adjudication of civil lawsuits, ④ inquisitorial system with elements of adversary system, ⑤ management of the trial system by the legal documents guiding the implementation of law and “answer” and ⑥ the persons with related interests and obligations are included in the concept of the involved parties. The CPC of Vietnam 2015 is based on the trial system of socialist country like USSR and China and was strongly influenced by the CPC of France.

Reconsideration of the Role of Prosecutors in the Chinese Plea Bargaining System: A Comparative Perspective

A plea bargaining system was introduced into Chinese Criminal Procedure Law in 2018 and became a basic principle of Chinese Criminal Procedure. This plea bargaining system embodies characteristics of both adversary and inquisitorial models. Chinese prosecutors are granted with a leading role in this plea bargaining system, as in the U.S., and can decide which cases are suitable for plea bargaining, which type of process can be applied, and give recommendations as to the sentencing, which judges shall in principle follow. To transplant such an arrangement from the U.S. model into an inquisitorial system, however, causes various problems. Fairness and justice cannot be entirely guaranteed under the wide-ranging practice of plea bargaining; the function of trials is derogated and undermined; and the decision-making process on core issues is moved forwards to the pre-trial period. Moreover, the procedural rights of defendants are more at risk when prosecutors dominate plea bargaining without any supervision from outside. With a brief introduction of an inquisitorial model based on the German plea bargaining system, the role of Chinese prosecutors in plea bargaining is urged to be reconsidered and their authority should be restricted in order to ensure that judges are guaranteed the judicial power to make final decisions.

Deterrence, Settlement, and Litigation Under Adversarial Versus Inquisitorial Systems

Deterrence, Settlement, and Litigation Under Adversarial Versus Inquisitorial Systems

Adversariality, Plea Bargaining, and Prison Population Growth: Evidence from a Natural Experiment

During the two decades after the end of the Cold War, the U.S. promoted Latin America's deepest criminal justice transformation. By the end of 2010, approximately 70% of Latin American countries had abandoned their inquisitorial system and adopted the U.S. model. In the mass- incarceration era, the U.S. expanded its adversarial model without considering the consequences in foreign penitentiary systems. Despite a large body of literature documenting the scale of imprisonment in the U.S. and its effects on inequality outcomes, we know relatively little about the U.S. impact in Latin American prisons. After the reform took place, almost every country that introduced it experienced an acceleration in incarceration rates. Almost three decades after this transformation, Latin America lives one of its majors' prison crisis, while the effect of adversariality remains empirically unexplored. In this project, I seek to advance the literature on mass-incarceration studying the consequences of the U.S. transnational agenda in one key jurisdiction -Colombia. Mainly, I will explore the effects of adversariality and introducing controversial institutions like plea bargaining into the Latin American context. To carry out this analysis, I exploit the Colombian quasi-experimental case showing that the U.S. model caused an increase of 18%-30% in Colombian incarceration rates.

The Unintended Consequences of the U.S. Adversarial Model in Latin American Crime

During the 1990s, Latin America experienced a criminal procedural revolution (LACPR) when approximately 70% of its countries abandoned their inquisitorial system and adopted the U.S. adversarial model. Followed the LACPR, the region experienced a dramatic increase in crime, consolidating it as one of the most violent areas in the world. Despite previous empirical evidence indicating that procedural law affects criminal behavior, the effects of the LACPR continue highly unexplored. In this paper, we use the Latin American case to evaluate the impact of an adversarial reform on crime rates. Exploiting the quasi-experimental implementation in one key country— Colombia—we use an event study approach combined with a difference-in-difference with variation in treatment timing to estimate the reform’s consequences on criminal activity. Despite the opposite incentives the reform created, we find an increase associated with the procedural transformation in overall crime rates (22%), violent crime (15%), and property crime (8%). However, we observe a dramatic decrease in drug offenses associated with lower arrest rates. Our findings contribute to the literature on Latin American crime and the link between procedural law and criminal behavior.