Principles of Criminal Procedure in Common Law and Civil Law Systems

Timetable

Fridays 10.00-12.00

Module aim (aims)

This course is designed to acquaint international students with information on the principles and rules of criminal procedure in inquisitorial and adversarial models. Emphasis is placed on analysing the features of common law and civil law theoretical models and relevant practices. This course is based on the theoretical conceptions of rules and principles by R. Alexy and the Theoreticians of the Poznan School of Jurisprudence.

Pre-requisites in terms of knowledge, skills and social competences (where relevant)

Basic knowledge about the jurisprudential notion of legal principles. 

Syllabus

1) Distinction between Rules and Principles from the theoretical point of view

 

2) Principles of criminal procedure as a legal norm. Considerations related to the principles of penal course are based primarily on the findings of the Poznań-Szczecin school of jurisprudence, which distinguishes between the descriptive and direct approaches to the rule of law, the latter being clearly competitive in terms of principles and rules, according to Robert Alexy. Legal principles were defined against the background of normative structures. The criteria for distinguishing a norm-norm have been accepted as the basis for the discussion. Rules are only concrete.

 

3) Verification of process rules from hypotheses to discuss:• The "descriptive" description of procedural rules does not coincide directly with the directive; at the level of the interpretation process,• The individual rules of the criminal process are not always expressed in a single standard of conduct, sometimes combining several standards with different application and different scope of regulation,• When using the rules of the reverse vector rules, it is necessary to use the instrument derived from R. Alexy's concept, weighing procedures,• As a rule-of-law, to define the procedural principle, it is necessary to indicate in each case its scope (the addressee of the standard, the circumstances in which it is updated, also the temporal aspect) and the scope of the regulation (behaviour / prohibited behaviour).• Sometimes, based on norms, when the principle assumes the form of a norm of competence, the rules of construction considered under this norm's predecessor indicate the authorisation to perform a specific conventional operation.

 

4) Description of the core features of inquisitorial and adversarial models juxtaposed with the common law and civil law systems. Two approaches: a model based on the 'common denominator element' and an "idea-type" formula.

 

4) Analysis of the selected principles of criminal proceedings: a) principle of legality, and b) principle of adversariality and inquisitoriality. Sketching Theoretical legal aspects of the relationship between the principles of legality and adversariality also exemplifies these principles' descriptive and direct representations. The relations between the principles of legality and adversariality were examined in terms of their directives (as rules of conduct); they differ in pre-trial and jurisdictional terms. Using logic analysis instruments, it was found that their relationship at the jurisdictional stage was most relevant to the framework of cross-referencing the scope of those principles, which could be defined by objects denounced by the principle of legality and these which are not manifestations of the principle of adversarial and objects denounced by the principle of adversarial. These are not denoted by the principle of legality and are common objects. The given relationships are closely related to the context of the functioning of other process rules, such as the principle of truth. This study indicated that the distinction between descriptive and directive interpretation of the principle of legalism allows us to comment on a doctrinal dispute concerning the subjective scope of this principle. c) Principle of material truth and directive of correct punishment. An analysis from the perspective of the function of criminal law is a recurring character on the canvas of reflections resulting from the reading of monographs in which the principle of material truth was first and foremost addressed to consensual procedural institutions, highlighting the close link between the principle of truth and the directive of proper punishment (i.e. Article 2 § 1 point 1 of the Polish Code of Criminal Procedure according to the perpetrator of a criminal offence shall be detected and called to penal responsibility, and that no innocent person shall be so-called). The normative contexts of the concept of truth (norm-norm) were considered. It was considered that the correct solution adopted by the legislator of the directive would determine the binding formula of the truth principle by specifying an epistemological variant of cognition in criminal proceedings.d) Principle of proceeding ex officio. The agencies conducting the trial shall conduct proceedings and undertake actions, unless the law makes them provisional, upon a motion from a specified person, institution, or agency, or upon the authority's permission. e) Right to defence. The accused shall have the right to conduct his defence or to avail himself of the aid of defence counsel; the accused should be advised of this right. f) Presumption of innocence. The accused shall be presumed innocent until his guilt has been proven. Unresolvable doubts shall not be resolved to the prejudice of the accused. g) Principles connected with the "formal aspect" of judicial hearing h) Principles connected with the law of evidence i) Principle of loyalty. Suppose the agency conducting the proceedings is under an obligation to advise the parties to the proceedings of their rights and duties and fails to do so or misinstructs them. In that case, this shall not result in any adverse consequences during the trial to the participant of the proceedings or other persons concerned.

 

5 Study on selected practical approaches based on European courts and tribunals and US courts.

Reading list

A-learning course. Selected papers were indicated during the course. Jurisprudence of European Courts: the CJEU, the ECtHR and the jurisprudence of the USA Supreme Court