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- This article is about the inquisitorial system for organizing court proceedings. This is not to be confused with the system of religious courts established by the Roman Catholic Church for the prosecution of heresy. For this see: Inquisition.
An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties.
The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantial law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in many, but not all civil legal systems. However, some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.
It is important to note that even in adversarial proceedings in some jurisdictions the judge may participate in the fact finding inquiry by questioning witnesses. The rules of admissibility of evidence may also allow the judge to act more like an enquirer than an arbiter of justice.
International tribunals intended to try crimes against humanity, such as the Nuremberg Trials and the International Criminal Court, have used the inquisitiorial system rather than the adversarial system.
Modern usage in France and other civil-law countries
The main feature of the inquisitorial system in France (and other countries functioning along the same lines) in criminal justice is the function of the juge d'instruction often translated as investigating magistrate. The juge d'instruction is a judge (who, like all French judges, has had specific legal training) who conducts the investigations in the case of severe crimes or complex enquiries. He or she is independent from the political power as well as the prosecution.
The judge hears witnesses and suspects and orders searches or other investigations. The goal of the juge d'instruction is not the prosecution of a certain person, but the finding of truth, and as such his duty is to look both for incriminating and exculpating evidence1. Both the prosecution and the defense may request actions from the judge, and may appeal the judge's decisions before the court of appeal.
While in the past, the juge d'instruction could order remand (that is, imprisonment pending trial) for defendants in cases that he supervised — this power being subject to appeal —, this is no longer the case nowadays. Other judges have to approve any remand decision.
If the juge d'instruction decides there is a valid case against a certain suspect, he defers the suspect to a tribunal or court, where the proceedings oppose the prosecution and the defense. The juge d'instruction does not sit in the court that tries the case and is in fact prohibited from sitting on future cases involving the same defendant. The case is tried before the court in a manner similar to that of adversarial courts: the prosecution (and, possibly, the plaintiff "civil parties") generally ask for the conviction of the criminals, the defense counsels fight their claims, and the judge or jury draw their conclusions from the evidence shown.
Juges d'instructions are used only for the most severe crimes (murder, rape, etc.), and for moderately serious crimes (embezzlement, misuse of public funds, corruption, etc.) when the case has a certain complexity.
Due to the judicial enquiry and the possibility for defendants to have judicial proceedings cancelled on procedural grounds during the initial phase, cases where the evidence is weak tend not to reach the trial stage. Conversely, France, until recently, did not have a notion of guilty plea and plea bargaining, and now only has it for proposed sentences less than one year in jail; thus very strong cases for the prosecution are tried in court, whereas, in countries such as the United States, they would be settled by plea bargain.
In administrative courts such as the Conseil d'État at litigation, the proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing; the plaintiff writes the court, which asks explanations from the concerned administration or public service, which answers; the court may then ask further detail from the plaintiff, etc. When the case is sufficiently complete, the lawsuit opens in court; however, the parties are not even required to attend the court appearance. This method reflects the fact that administrative lawsuits are for the most part about matters of formal procedure and technicalities.
Until the Medieval inquisition in the 12th century, the legal systems used in medieval Europe generally relied on the adversarial system to determine who could be tried for a crime and whether they were guilty or innocent. Under this system, unless a person were caught in the act of committing a crime, they could not be tried for a crime until they had been formally accused, either by the voluntary accusations of a sufficient number of witnesses or by an inquest (an early form of grand jury) convened specifically for that purpose. A weakness of this system was that because it relied on the voluntary accusations of witnesses, and because the penalties for making a false accusation were severe, would-be witnesses could be hesitant to actually make their accusations to the court, for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as ordeal or combat were accepted, though it is generally agreed nowadays that these procedures are not acceptable ways of finding truth or settling a dispute.
Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure) an ecclestiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative, and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person could then be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated. In France, the parlements — lay courts — employed inquisitorial proceedings.
In England, however, King Henry II had established separate secular courts during the 1160s. While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional system, the secular common law courts continued to operate under the adversarial system. The adversarial principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."
In the development of modern legal institutions which occurred in the 19th century, for the most part, most jurisdictions did not only codify their private law and criminal law, but the rules of civil procedure were reviewed and codified as well. It was through this movement that the role of an inquisitorial system became enshrined in most European civilian legal systems. However, there exist significant differences of operating methods and procedures between 18th century ancien régime courts and 19th century courts; in particular, limits on the powers of investigators were typically added, as well as increased rights of the defense.
It would be too much of a generalization to state that the civil law is purely inquisitorial and the common law adverarial, indeed the ancient Roman custom of arbitration was the earliest form of adversarial proceeding, has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland, Quebec and Louisiana, while the substantial law is civilian in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system.
Inquisitorial tribunals in common law countries
Administrative proceedings in many common law jurisdictions may be similar to their civil law counterparts and be conducted on a more inquisitorial model. A good example are the many administrative boards such as the New York City Traffic Violations Bureau : a minor tribunal that deals with traffic infractions where the adjudicator also functions as the prosecutor and questions the witnesses; he or she also renders judgment and sets the fine to be paid.
These types of tribunals or boards can be found in most modern democracies. They function as an expedited form of justice where the state agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary findings through a simplified form of procedure that grants some basic amount of due process or fundamental justice in which the accused party has an opportunity (sometimes futile) to place his or her objections on the record.
- French Code of Penal Procedure (Code de procédure pénale)
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