Issues in Comparative Criminal Justice

Introduction

The inquisitorial legal system is best defined by comparing it to other legal systems like the adversarial or accusatorial systems as used in the US, Italy and other countries. The function of the court becomes that of a neutral referee between the prosecution and the defence. The system may be applied in combination with civil legal systems rather than case law systems, though countries using the case law may also apply the inquisitorial system for hearings involving minor offences.

In the inquisitorial system, the judge actively receives information and is principally responsible for overseeing the collection of information relating to the evidence needed to resolve the case. The judge is also actively involved in the search of evidence from the relevant sources. There is a passive attorneys’ participation in this method; they task entails proposing means of enquiry to the directing judge.In addition, they question witnesses subsequent to the judge’s questioning them. This is normally applied in the US system. Their questioning sessions are usually brief since the judge is supposed to ask all the pertinent questions. The inquisitorial system mainly applies procedure as opposed to issues of considerable law as frequently used in a majority of legal systems.

The adversarial system of law, on the other hand, is one that consists of three parties; two opposing sides and a decision maker (judge). In this kind of system, each of the opposing sides is given an opportunity to present and proof their case in a hearing. The opposing sides are also given time to question one another. Another feature of this system is that the accused is not under any obligation to give evidence or whether to be questioned by the prosecutor. However, in the event that he/she opts to testify, the cross-extermination becomes compulsory and could land him/her behind bars.

Judges in this system are supposed to be neutral and ensure the application of justice during the legal process. Evidences submitted are usually cross-checked by the Judge, although this is not a necessity in most cases, unless required. This decision is also based upon objections by the opposing sides and whether adoption of such evidence may result to issues of prejudice to one party. The rules of evidence gives the judge more control of the case since he may choose to omit evidence that he believes is not reliable or may not be useful to the case at hand.

Thesis

The objective of the paper is to make a comparison between the inquisitorial and the adversarial legal systems and look into the changes introduced to the inquisitorial criminal justice system in Italy and how this has affected the fight against Mafia.

Discussion

Differences between the Legal Systems

Differences between the two legal systems stem from the way cases are reviewed. One of the most fundamental differences between the two systems occurs when the accused confesses to the offense. If such happens in the adversarial system, the accused is given a direct sentence, albeit more information is required to guard against falsehood. This is not the case in an inquisitorial system; confessions by the accused merely form part of the evidence and the case goes on through all the legal processes. The confession is later presented as evidence to the case. This allows the accused to enter into a plea bargain for the adversarial system; but is not the case in an inquisitorial system. The option of entering a plea more often than not leads to failure and this can lead to injustice, especially in situations where the accused does not have a skilful attorney. Plea bargaining also causes the parties in a court process to act in contravention of the justice system. An example of such an action occurs when prosecutors bring more charges than is warranted; the defendants may also plead guilty when in real sense they are innocent.

In addition, these systems differ in the way they apply rules of evidences. Adversarial systems place much more strict rules on hearsay or rumours, though lower courts are permitted to allow flexibility in the application of the rules of evidence. Flexibility is also allowed in small claims cases where the opposing sides have no representation by lawyers, in this case, the judge acts as the interrogator to ensure protection of children’s interests rather than an impartial arbiter of justice. Rules on evidence relating to inquisitorial systems are less strict. The examining judge questions witnesses and gets information out of the suspects; he also uses all avenues to collect evidence about the case. The aim of collecting this evidence is not to incriminate the accused, but rather to gather facts to be used in the court processes. The strict rules on adversarial systems have been attacked for limiting the power of the judges since the decision of accepting of rejecting evidence submitted can only be made once the judge is called upon by the counsel.

In an inquisitorial process, the judge has the capacity to lead the questioning of witnesses and this lowers the level of contest between the two opposing sides. Once the judge has examined the suspects and the witnesses, they are in a better position to find the underlying cause of the truth regarding the case in point. The system assumes that the defendant is guilty unless proven otherwise and this is why the judge goes through such lengths collecting evidence.

The adversarial process, on the hand, seeks out the truth by pitting the two disputing sides against each other thereby placing the spotlight on the lawyers and therefore causes diversion from the pursuit of the truth. This system assumes that the defendant is innocent until proven guilty; the judge remains impartial during the whole process as the parties present their evidences and cross-examine the witnesses present. The final judgment is based not on the truth, but on who won the ‘court battle’. One disadvantage of allowing the lawyer to collect evidence in the courtroom is that he may ask questions that are not allowed and may lead to judicial bias. This can however be eliminated by having a jury preside over a trial rather than a single judge.

Criminal Justice in Italy

The Italian judicial system’s use of inquisitorial legal system dates back to early 1930s; the system emphasized on pre-trial phase and almost brought to an end to the participation of defence counsel4. Once the Fascist regime was ousted from power, a government commission was formed to reform the Criminal code and this was completed in 1955, amending more than 200 parts of the Code in order to ensure full recognition of the defendant’s right to representation and defence. Further changes were made aimed at placing focus on the protection of civil rights of suspects during criminal proceedings. Apart from legislative reforms, the idea of writing a new Code that would be a representation of the Italian democracy had developed from 1963; however, the new acts could not be applied due to the rise of terrorism activities by the Mafia which created an emergency situation. This led to the implementation of a new and more protectionist criminal law model. Finally, on October 34, 1988 Proxy Law No. 81 was implemented and the current Criminal Procedure Code was entrenched into the constitution.

Over the recent years, important amendments have been done to the Criminal Code. The most important being those related to mafia-like organizations to which a definite incriminating law has been enacted (Law 646 of 1982), offences against public administration (modified by Law 86 of 1990), offences related to money laundering and laundering of crime earnings (by Law 328 of 1993) as well as those related to sexual violence (Law 66 of 1996). Most of the amendments were created due to the statements given during the pre-trial stage in order to deal with the emergence of crime related to the mafia phenomenon. The amendments also brought into force specialised police forces to handle specific types of crimes, these included the Direzione Investigativa Antimafia (D.I.A. – Antimafia Investigations Directorate) and the Excise Police.

This new Criminal Code was quite unique from the previous one. It discarded the inquisitorial system and adopted the accusatorial model that used the trial hearings as the central source of obtaining evidence and eliminated the pre-trial investigations by the judicial system. In this new model, the investigative judge was replaced by the judge for preliminary investigations and had the task of ensuring that work undertaken by the public prosecutor was in accordance with the law and guaranteed the rights of the defendant.

The Criminal justice system created during the amendments done in 1988 has undergone many changes since its enactment, especially during the 1990s. Several decisions within the code have been amended; these include decision No. 24 of 1992 which the Constitutional court declared was inconsistent with the constitution since it forbade the police from testifying on declarations made to them by the witnesses. Other decisions that have been amended by the Constitutional court include decision No. 255 and Article 500, paragraph 3.

The basic act in the field of criminal law in Italian Criminal Justice System is Criminal Code of 1930. It has since been amended numerous times; the first one in 1975 widened the possibilities of imposing probation, the second amendment done in 1981 decriminalized petty offences, and a final one in 1984 changed the conditions of pre-trial custody and the competence of judges of first instance and appeal.

The Italian Judicial System

The Italian judicial system is autonomous; it is not regulated by the Criminal Procedure Code but by specially enacted laws. Apart from the principles put down in Articles 101-110 of the constitution, the Royal Decree 12 of 1941 governs the judicial system, though this has also been amended numerous times, the most recent one being the institution of the single judge in 1998. The Royal Decree 511 of 1946 ensures that judges are independent and neutral in their judgments, while Law 195 of 1958 regulates the self-governing body of judges and prosecutors.

The Criminal procedure starts when a crime is reported and ends when a decision is made by the court. The process is divided into two phases; the investigative phase and the trial. Investigations begin when an offence is reported to a public prosecutor. The public prosecutor and the judicial police are not just passive law agents, they can actually proceed to the crime scene and discover whatever happened and this is in accordance with Article 330 of the Criminal Procedure Code. Evidence collected before the start of a court hearing cannot be presented in court since evidence is collected during the hearing; exceptions however exist in the application of this principle.

The Background of Mafia in Italy

The Mafia, also known as the Sicilian Mafia is a criminal organization that surfaced in the mid 19th century in Sicily as it underwent a transition from feudalism to capitalism. Two kingdoms governed Sicily but these were not effective and could not enforce peace and order in the island, this led to the sprouting up of many criminal groups that used violence to settle scores against each other. There were reports of a “sect of thieves” operating across Sicily during the early 1860s, the “sect” used special symbols for identifying each other and were protected by political regimes in many areas. They had a code of loyalty and never interacted with the police and mostly made up of rural folks, including plantation guards and smugglers. Most of their activities concentrated on the profitable citrus export business around Palermo, they disrupted this industry to either extort money from the farmers or purchase the produce at lower prices. This went on unaffected and the group even appeared to have friends in the police and the government of Sicily. Numerous crackdowns were carried out under the government’s order but many of these failed due to the connections that the group had with the police. Mafiosi, as they are called, interfered with the local elections, forcing voters into electing a candidate of their choice and used their political connections to evade arrest and persecute their rivals. By 1898, there were eight Mafia clans operating in villages around the city, engaging in murder, ransom, kidnappings and bullied witnesses.

The most notable crack on them was done by the then Prime minister Benito Mussolini in 1920s. Thousands of perceived members of the Mafia were rounded up during crackdowns in the island with more than 1,200 found guilty and locked up while others were internally deported without trial. The campaign ended in 1929, and although the Mafia was not totally eliminated, the drive was very successful in crushing the group and many of them fled to the US where they would later become Mafia bosses.

In 1943, almost half a million Allied troops entered Sicily during the World War 2; this led to a lot of confusion and upheaval. Consequently, a majority of the prisoners managed to escape. Once again, cases of banditry were on the rise once again. The troops replaced the city’s leaders with their own and most of these turned out to be Mafiosi. This period saw a shift in the operations of the Mafia as they ventured into the urban areas where they bought huge chunks of land. The Mafiosi had occupied several positions in the building industry when the war ended.

Rivalry between the Mafia groups, known as clans, saw them engage in a war in 1962 after a heroin shipment went missing, the war led to death of non-Mafiosi who were caught in the crossfire. The rivalry between the clans spread outside Sicily and this prompted a national crackdown leading to the arrest of almost 2,000 suspects in 1968. A second Mafia war occurred in 1981leading to the deaths of hundreds of enemy Mafiosi and their relatives. Police officers and journalists who crossed the Mafia’s line were also murdered.

The late 1980s and early 1990s saw many defections from the group and this led to the arrest of the leaders and a subsequent mass trial, known as the Maxi Trial, which lasted from 1986 to December 1987. Out of the 474 Mafiosi put on trial, 342 were found guilty and imprisoned. The Mafia’s revenge was so violent; they went on a rampage killing defectors and their families, anti-mafia protesters and magistrates handling the mafia trials, they also murdered prominent people and state officials. This led a massive government crackdown that led to the arrest of Salvatore Lima, labelled the “boss of bosses”. His arrest led to more defections. The group got a new leader in Bernardo Provenzano who stopped their policy of killing defectors and political opponents. He was also arrested in 2006 and imprisoned for life.

Modern Mafia in Italy

The arrested bosses have been excommunicated from the external world, limiting their ability to run their group from behind bars. Currently the cases relating to the Mafias are much fewer and isolated, although they are believed to be in control of over 80% of cocaine imports in Europe.

Statistics on Crime Numbers

The amendments undertaken to the criminal law over the years from 1930 have had mixed results in the fight against the Mafia and other crimes. Cases of voluntary manslaughter fell from 2,127 in 1930 to 1,427 in 1939 i.e. from 5.2 offences for each 100,000 citizens to 3.2, once the World War was over, the rates again increased to 5.1 per 100,000 citizens, decreasing once again in 1970 to 2.5. The number rose from that year on and reached 3.6 in 1980 and 5.3 in 1990. The figure was fairly constant during this period and was 5.1 in 1996.

Looking at the number of persons convicted of various offences, 959 persons in 1930, 540 in 1950, 304 in 1970, 494 in 1980, 473 in 1990 and 593 in 1996. This shows a sharp drop in the number of persons convicted for indictable offences since there was a population rise but the figures remained fairly constant from 1950 onwards.

194,074 crime cases were reported in 1930, this is equivalent to 475 cases per 100,000 inhabitants, and the figure rose to 523.3 in 1939, 594.7 in 1950, 605.3 in 1960, 1,014.8 in 1970, 2,346.7 in 1980 and 2,385 in 1990 and the figure further rose to 3,116.8 in 1996. The reported cases of theft is seen to be unmatched by the number of convictions, this reveals a shortcoming in the judicial systems before the amendments were carried out in 1988. A similar scenario is seen regarding property crimes and other crimes which harm or threaten the life of an individual. A figure of 6.1 per 100,000 citizens was recorded in 1930, 7.6 in 1950, 6 in 1960, and 5.9 in 1970. A significant increase occurred over the 5 year duration as it rose to 20.6 in 1975 and 43.2 in 1980. 1990 saw the value rise to 106.3 and 99.7 in 1996. A rise in the number of reported thefts is characterised by a decrease in the number of convictions.

Conclusion

A comparison between the inquisitorial and adversarial systems indicates that each system has its own shortcomings. The inquisitorial system had been used in Italy since the 1930s but had to be amended to a hybrid of both legal systems. The amendments done to the criminal laws and the subsequent adoption of the accusatorial system have led to a reduction in crimes committed by organized groups and individuals. The accusatorial system is much better than the other two in that it takes into consideration the rights of a defendant in the application of justice. It pays more attention to the judicial and prosecutorial powers of the judge; in addition, the judge takes charge of the collection of evidence and also makes the final decision on the evidence to be admitted. There are no rules on the exclusion of hearsay. Elements of the system such as the principle on hearsay should be corrected to reduce instances of injustices. The possibility of using this system in jury systems should also be considered.

The accusatorial model introduced to the criminal system in Italy led to a faster conclusion of court hearings. The justice system was also more efficient due to the abolition of the investigating magistrate, this can be seen from the crime statistics collected from 1930 to 1996 shown above. We see cases of manslaughter rising steadily from the 1930s and was 3.6 in 100,000 citizens in 1980 but had shot to 5.3 in 1990. The criminal system had just been amended and we see this system bringing the figure to a constant and were 5.1 in 1996. Persons convicted of various offences also fell from 959 in the 1930s, 473 in 1990 and 593 in 1996. This is despite the fact that there has been a steady population rise. We also see that under the inquisitorial system used earlier, the number of reported crimes was not proportional to the number convicted; this persists even after amending the criminal laws. This reveals a weakness of the system.

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