Issues in Comparative Criminal Justice: Inquisitorial and Adversarial Systems

Abstract

This essay outlines how inquisitorial and adversarial systems of justice are implemented, discussing their differences and their strength and weakness. Italy was used as an example because it has been using the inquisitorial system of justice until 1988 when it changed to the adversarial system. Moreover, Italy has had many cases of injustices and organized crimes that were organized by the Mafia. This group of people alleged sovereignty over a territory by using violence and conducted many illegal activities, causing the government to intervene. Consequently, the paper established how the newly adopted law in Italy tried to win the war against the Mafia. It also considered how the European Union tried to ensure that justice prevails across nations. Finally, the paper evaluated the difference between the Australian justice system and Islamic law and how the two systems can influence each other.

Inquisitorial system

An inquisitorial system refers to the legal system of a court whereby a court or some sections of the court get actively involved in carrying out the investigations of a certain case. According to Marmo, the “[i]nquisitorial system is also employed in countries that use case law an example being the United States, in this case, it is used in summary hearing for such cases as failure to obey minor traffic rules and other minor misdemeanors”. This implies that this system is employed to determine how trials and inquiries on criminal matters can be conducted instead of either making judgment on types of crimes whereby an individual can be prosecuted or determining the sentence accompanied by the criminal suit.

Pizzi and Marafioti indicated that the “[i]nquisitorial system of justice is not normally recognized by some jurists because it is viewed like the substantive and procedural legal relations are connected and some part of the theory of justice is applied differently from other legal cultures”. Pizzi and Marafioti continue to inform that “the international tribunals like the international criminal court and Nuremberg trials have also implemented this system when trying crimes against humanity, this has been done by employing professional judges to carry out pre-trial examinations”.

Adversarial system

The adversarial system is the legal system that is dependent on a contest between advocates representing clients. This is followed by a neutral person, usually a judge or a jury, who determines the truth of the matter after a critical analysis of the contest. Jorg, Field, and Brants continue to indicate that the “adversarial system differs from the inquisitorial system which the judge or a group of judges working jointly to investigate a case and that adversarial system has been adopted by most countries which uses the common law system.”

The adversarial system of law has two sides that the criminal trial courts use to carry out their operations. Since the accused is not allowed to testify in court, the decision made by the council based on the evidence provided might be termed as the manipulation of the case by a lawyer. Consequently, there is the need for the council to have skills to evaluate the information provided by the two sides in order to deliver a fair judgment.

According to Moskovitz, “the defendant is compelled to give statements on the case even though the statements are not subject to cross-examination and the defendant must not take oaths when giving the statements”. Moskovitz also notes that “fundamental justice in the adversarial system is therefore dependent on the impartial judge offering a fair play during the court process”. The judge’s decision comes after being called upon by the council and based on the provided evidence. In the case of abuse of justice, the judge may provide a biased ruling and this replaces the rule of law with the rule of man, therefore rendering the judicial system as being corrupt.

Differences between adversarial and inquisitorial systems of justices

The adversarial system of justice is considered fair and it does not allow any chance of abuse as compared to the inquisitorial system. The adversarial system allows disputing parties to come into a platform that will enable them to solve their dispute amicably. Normally, the facts that are not contested are brought into an agreement and such facts are not handled during the trial.

Another major difference between the two systems is that the inquisitorial court system is not based on the views of the common people; therefore, it appears to be more institutionalized in the sense that the judges are the ones who carry out their independent investigations in order to derive their truth of a case. The scope of an agreement or disagreement in the inquisitorial system is identified and discussed by lawyers before it is brought to the courtroom. The lawyers in this case act as the investigative judges.

Certoma indicates that “cases in the adversarial system are resolved through a plea bargain, a system that is not common in the inquisitorial system”. Usually, most cases in this system do not undergo the trial criteria. Strick reported that “proponents of inquisitorial systems argue that the plea bargain system causes the participants within the system to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is warranted and defendants to plead guilty even when they believe that they are not”.

Certoma also asserted that “when using the inquisitorial system, the final court decision is made through a collective voting system by several professional judges and a group of people who are selected randomly from the population these individuals are called lay assessors.” In this system, neither the defendant nor the persecutor has the chance to raise an issue to the lay assessors in case of any bias when making their decisions. Certoma continues that “the voting of the judges come after the lay assessors vote the reason being that the judge does not have the chance to influence the lay assessors”. In addition, in the adversarial system, the decision to convict a criminal defendant is dependent on the judgment of the judge or a trial of judges and that the lay assessors do not exist in this system.

Strengths and weaknesses of the inquisitorial system

A judge in the inquisitorial system is able to reduce the level of a contest between the parties in conflict. The major concern with this process is the examination of a case by a party of professional judges who lead the inquiry and determine the matter of the case; this is likely to reduce the level of intimidation and threats on a single judge who is supposed to lead the case like in the cases of the adversarial process.

Another distinctive advantage of the inquisitorial process over the adversarial one is that the inquisitorial trial takes a shorter duration as compared to the adversarial trial. In support of this, Harding argued that “another strength of the inquisitorial system over the adversarial system is that as a consequence of the judicial inquiry and the possibility for judicial proceedings to be canceled on evidential or procedural grounds during the initial phase, cases in which procedure is suspect or the evidence is weak tend not to proceed to the stage of trial”. Therefore, the bargaining employed in the adversarial trial is highly minimized.

Strengths and weaknesses of the adversarial system

According to Strick, “the major strength in this system is that this process tends to generate rationality, knowledge, and impartiality of related facts”. Continuous use of these values ensures that the final decision is reached in a manner that is morally acceptable. This is possible because the involvement of the disputing parties in the court proceeding ensures that there will be a democratic way of the parties expressing their views.

Changes introduced to the inquisitorial criminal justice system in Italy

The shift from the inquisitorial system of justice to the adversarial process of justice in Italy took place in 1988. This innovation of the new legislation took place in order to admit the evidence because as a rule, the inquisitorial system required the involvement of a judge to act as a third party and a representative of the public during the trial. Moreover, the inquisitorial system required cross-examination of the witnesses and any other proof that might be presented in the courtroom.

The inquisitorial system in Italy provided the opportunity to present evidence during the trial as well as the evidence that was found during the case’s preliminary examination. Kangaspunta et al. also noted that “the investigating-judge was concerned in collecting the criminal evidence and also the judge examined the witnesses”. This was later followed by the high judge examining the witnesses during the trial. The major characteristic of this newly written law in Italy was that it had the obligatoriness of panel action as opposed to the agro-American adversarial system.

This distinct character of the new law in Italy is sanctioned by the constitution. This provision allows the public prosecutor to carry out an investigation of crime. If the prosecutor provides the relevant evidence about the crime, action on the alleged culprit should take place immediately. Moskovitz added that “[t]he Italian Prosecutor is therefore without discretionary power to withhold prosecution. Prosecution is not simply a right, but a duty of the Italian Public Prosecutor”.

However, there are specific crimes whose prosecutions take place under some specified conditions, implying that no panel action can be taken until particular requirements are fulfilled. According to Moskovitz, “examples of cases which are prosecutable include; forcible rape and minor injuries to persons and this prosecution can only take place when the offended person requests the prosecutor to take action against the alleged offender”.

This new law operates differently; torture is prohibited, although there were incidences of torture by the police in 2001 when they abused detainees. Reports by Amnesty International in 2001 indicated the use of excessive force against detainees in connection with the criminal offenses and that mistreatment occurred in the first 24 hours in custody.

History of the Mafia in Italy

The Mafia, also known as Cosa Nostra, refers to a Sicilian criminal society that most likely started in the late nineteenth century. It was the first organized form of criminal society to be established in Italy. Battilana defined the Mafia as “a loose association of criminal groups that share a common organizational structure and code of conduct”. Moreover, according to Dickie, “each group of criminals which is referred to as, clan, family, cosca or association alleged to have sovereignty over a certain territory in which it operates, usually a village, part of a city or a town and that these groups of criminal emerged in the United States in the nineteenth century after Italians emigration waves from the United States, Australia, and Canada”.

The Mafia’s early activity in the Palermo province was the export of citrus fruit, which was possible because the region had a fragile market. In the 1870s, a citrus plantation owner named Galati was the first to be attacked by the Mafia after firing his warden for stealing coal. The Mafia responded by killing the other two wardens who were employed later. The village had several murders each year that were not even investigated by the police. This was followed by the police ordering crackdowns and deporting most of the members of the Mafia. However, the crackdown failed to work as a result of political corruption by the powerful Mafia. The Mafia took control of the electoral system by bullying the voters who did not vote for their favored candidate, implying that only a few of the Sicilian people voted.

The Sicilian Mafia was involved in several criminal acts in western Sicily through protection rackets; close to eighty percent of the Sicilian businesses paid the Mafia a protection fee against theft. The Mafia also took control over business transactions, especially in parties that traded on the black market, using violence to ensure that no party lied to the other.

Effects of the Adversarial System

The change from the inquisitorial to the adversarial system of justice in Italy played a major role in the fight against the Mafia. Kangaspunta elaborated this by saying “greater emphasis was given to statements made during the pre-trial phase in order to deal with the emergency crime situation caused by the worsening of the mafia phenomenon and organized crime in general”. One change that the constitutional court introduced was the removal of article 500, paragraph 7 of the criminal procedure code because it did not consider the court files that provided evidence from witnesses to the prosecutor during trials. This led to the introduction of a new law, No. 356 of 1992 that considered the evidence by the witnesses as being important to the court.

Another important change to the new law was the institution of a single judge through law decree No. 51 of 1998 to handle cases. This happened by merging the minor judges and the tribunal which existed in the inquisitorial system. This enabled a single judge to handle criminal cases with the Mafia and make a verdict as stipulated by the new law; this differs from the inquisitorial system whereby the minor judge had to submit the cases to the tribunal or the upper court.

Article thirty of the new law in Italy provides the court prosecutor the authority to carry out its own investigation together with the judicial police, without necessarily receiving authority from a third party like the judge. When the prosecutor receives enough information about criminal activities of the Mafia, he/she can investigate them within a specified time limit of six months and if the identified individual is found guilty of an offense, the prosecutor can take immediate action on the offender. This differs from the inquisitorial system whereby the investigating judge was replaced by a judge who controls the work of the prosecutor. The results of these changes were the reduction in the number of crimes. Interpol data found that between 1995 and 2000, the murder rates decreased from 1.77% to 1.29%, and the rate of car robbery and hijacking decreased by 20.8%.

How the European Union facilitates or obstructs criminal justice collaboration

According to the European Union, the issue of transitional-organized crimes is a phenomenon of global concern and therefore requires practical action to be taken at the local, regional and international levels. According to Perrodet and Ricci, “[i]t undermines democracy and the enjoyment of human rights, hinders legitimate economic activities and obstructs the development of sustainable, stable and safe societies”. The European Union is dedicated to ensuring that all people are free from impunity and any other forms of crimes that are perpetrated by organized groups. The EU offers technical support to the United Nations crime prevention and Criminal Justice Program in order to achieve its mission.

Many countries have ratified the United Nations Convention against Transnational Organized Crime and are signatories to many other treaties. The effective implementation of this treaty grew after the fourth conference of the member states that was held in Vienna in October 2008. The conference provided the basis for review of the mechanisms that would be employed to enhance international cooperation to provide legal and technical assistance to help combat the acts of organized crimes. Through the international criminal court at The Hague, the EU is able to support the police and the judicial systems of the member countries to fight organized crimes. Harding stated that “[t]he adoption of the Stockholm Programme will provide a new framework for Justice and Home Affairs, covering civil protection, police and customs cooperation, judicial cooperation in civil and criminal matters, asylum, migration, and visa and border control for the next five years”.

According to the chairperson of the EU, human trafficking is considered the worst crime that the EU is facing today. The European Union wishes to eradicate this kind of human slavery and protect its people fully. Jorg, Field, and Brants assert that “through the revised council framework decision, the EU proposes to develop an integrated strategy to combat human trafficking and this will comprise of prosecution, prevention, punishment and protection of the victims and the European Union is dedicated to fighting terrorism globally”.

The EU promotes governments in their efforts to protect citizens against any form of terrorism. The EU has the UN Global Counter-Terrorism Strategy which it implements to combat terrorism.

Differences between the Criminal Law and Court Procedures of the Islamic Criminal Law and the Australian Criminal Justice System

There is a great difference between the laws of these two systems, and what is considered by the Australians as Islamic religion differs in the sense that it acts as a system of government. According to Glendon and Carozza, “Muslims are supposed to live by the laws of the non-Muslims when they are in non-Muslim nations but non-Muslims cannot live according to the laws of the Muslims”. This is a form of hostility towards one system of the law by undermining it. In addition, the law prohibits Muslims from voting; therefore victory by non-Muslims in an election is considered as won by force. The majority of Muslims in the world share the same values.

The cessation of religious inquiry during the nineteenth century gave way for Islamic law to be influenced by the Australian justice system. The Islamic followers are expected to make a contribution to any society that they go to. Islamic leaders have also agreed on a bureaucratic or clerical hierarchical organization that has facilitated much change to their justice system. The Muslims in the Middle East in recent years have also recognized the need for interference with terror and are recognizing western values.

According to Pakes, “the Muslim values, the justice system of Australia is considered inferior because the non-Muslims are in most cases dishonest to the law and that the Islamic etiquette is observed by a Muslim to extend to another Muslim and make excuses on behalf and also conceal other Muslim’s fault”. Muslims argue that whoever conceals something on behalf of another person, Allah will aid a servant. This is different from the Australian justice system because a victim cannot be represented by another person in the court; one carries his/her burden.

The European Union court of human rights instituted the Sharia law, which made a consideration that when there was a need for change in legislations or the constitutional or legal structure of a state, the political parties will continue to enjoy certain provisions. Pakes also asserted that “the conditions set were that the proposed change needed to be compatible with the democratic principles and that these conditions have led to leaders of political parties inciting people or facilitating violence that can not be prevented by the convention on the sanctions imposed to them”. According to Sharia law, any sanction that was imposed on an individual would receive considerable action from the judge. The judge in a Sharia system is therefore supposed to observe rules and some evidence based on the EU convention, although leaders of the Refah Partisi had wished to establish a legal system based on the Muslim religious beliefs.

References

Amodio, E and Selvaggi, E, ‘An Accusatorial System in a Civil Law Country: the 1988 Italian Code of Criminal Procedure’ (1989) 62 Temple Law Review 1211-24.

Battilana, S, ‘Fighting Mafia Today: cultural education’ (2003) in Why Did the Mafia Emerge in Italy? An institutional answer.

Certoma, G L, The Italian Legal System (1985).

Delmas Marty, M and Spencer, J R, The Italian System, 2007.

Fassler, L, ‘The Italian Penal Procedure Code: an Adversarial System of Criminal Procedure in Continental Europe’ (1991) 29 Columbia Journal of Transnational Law 245-78.

Glendon, M A and Carozza, P G, Comparative Legal Traditions (2008).

Harding, C, Criminal Justice in Europe: A Comparative Study (2005).

Harding, C et al, The Italian Legal System (2006).

Jorg, N, Field, S and Brants, C, ‘Are Inquisitorial and Adversarial Systems Converging?’ (1995) 2 A journal of Comparative Study 11, 23-37.

Kangaspunta, K. et al, ‘Italy’ , in Profiles of Criminal Justice Systems in Europe and North America 1990- 1994 (1999).

Marmo, M, ‘Cross-fertilisation between civil law countries and common law countries and the importance of judicial dialogue in criminal proceedings’ (2006) 16 Journal of Judicial Administration 2, 106.

Marmo, M, The Empowering of the Italian Judiciary: the Shift Towards Activism. (2007) 31 International Journal of Comparative and Applied Criminal Justice 1, 101.

Moskovitz, M, The O.J. Inquisition: A United States Encounter with Continental Criminal Justice. (1995) Vanderbilt Journal of Transnational Law 28.

Pakes, F, Comparative Criminal Justice (2003).

Paoli, L, Mafia Brotherhoods, Organized Crime, Italian Style (2003).

Perrodet, A and Ricci, E, The Italian System. European Criminal (2002).

Pizzi, W and Marafioti, L, ‘The New Italian Code of Criminal Procedure: the Difficulties of Building an Adversarial Trial System on a Civil Law Foundation’ (1992) 17 The Yale Journal of International Law 1, 1-40.

Strick, A, Injustice for All (2007).

Sward, E, Values, Ideology, and the Evolution of the Adversary System (1989) Journal of Indiana Law, 3; (12), 114-9.

Zander, M, From Inquisitorial to Adversarial – the Italian Experiment. (1991) 6 New Law Journal 3, 678-9.