1. Cje Karolina Kremens, LL.M., Ph.D. Wojciech Jasiński, Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal Law I

2. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE OVERVIEW no good knowledge of contemporary criminal procedure without knowledge of its history three types of development of criminal process 1.accusatorial form 2.inquisitorial form 3.mixed form

3. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE 1. ACCUSATORIAL FORM - OVERVIEW dominant role of accusation (the commencment of criminal process depend on the accusation of interested person) historically – victim currently – prosecutor (trial) and victim (pre- trial) adversariality – recommends conducting trial in a form of argue between parties to the criminal process public proceedings direct and oral presentation of evidence

4. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE 2. INQUISITORIAL FORM – OVERVIEW keeping all functions during the proceedings in one hand: accusing defending judging (giving verdict and sentence) limitted role of the parties (no adversariality) no public proceedings rulling based on documents (limitted orality)

5. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE 3. MIXED FORM - OVERVIEW pretrial proceedings inquisitorial trial proceedings are adversarial currently most countries have mixed or accusatorial procedure adoption of an accusatorial or mixed model is NEVER a guarantee in achieving neither TRUTH nor JUST/FAIR process

6. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Babylon Code of Hammurabi – around 1750 BC – ancient Iraq, Mesopotamia – 282 laws in the Code – Hammurabi – the Sixth Babylonian king – the most reknowned expressions from the code – LEX TALIONIS – an eye for an eye, a tooth for a tooth – scaled punishments depending on social status

7. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Babylon – knowledge of the code from clay tablets – the courts proceedings were published on them – features of criminal process: accusatorial procedure legality principle (the harm couldn’t be forgiven and could not terminate process) public proceedings witnesses, documents the credibility of a witness veryfied with oath or ordeal (witch craft, adultery by wife) notion of legal validity – judgment cannot be appealed

8. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Greece – criminal trial only for freeman slaves couldn’t accuse and could be accused only by its owner approval (rarely) distinct penalties for free (fines) and for slaves (deah penalty, corporal punishment) – wide variety of courts varied upon procedure – defendant – crime judges usually unpaid

9. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Greece – accusatorial procedure public complaints ( grafé ) – everyone could lodge a complaint private complaints ( biké ) – only victim could lodge a complaint distinct penalties for free (fines) and for slaves (deah penalty, corporal punishment) – investigation gathering evidence by archont sometimes heliai court or Areopag (severe crime)

10. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Greece – public and oral hearing many trials involved rites (defendant testifying from the boat when trial took place at the sea shore) trials before Areopag – only by night trials before heliai courts – only until sunset – free evaluation of evidence admiting guilt was ending case children and women not eligible to become wtnesses slaves testifed only through tortures

11. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Greece – adversarial trial court hearing cases presented by the parties no cross-examination – no defence against wrong accusations ostracism – form of social rejection no evidence needed in case of suspicion that the person was dangerous to public public decision made through voting on ostracons (broken pottery) used as a voting tokens

12. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome – general issues similar to Greek law – slaves were considered the objectss not subjects of the law became basis for many systems of law particularly important in the field of private law Roman law – an important course in the curriculum of European law schools two periods: classical Roman law – 27 BC – AD 284 post-classical Roman law – AD 284- AD 565

13. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome classical Roman law – distinct types of crimes public crimes ( crimina publica ) private crimes ( crimina privata ) – judging in hands of many distinct types of judges – two stages of criminal proceedings: procedure in iure procedure in iudicio

14. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome classical Roman law – procedure in iure before preator first decision on whether the case is even admissible to be heard on trial interrogation of defendant at this stage if defendant pleaded guilty and confessed the preator was closing the case and imposing penalty if confession wasn’t obtained the case was being moved to the trial

15. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome classical Roman law – procedure in iudicio trial in a form as is understood today praetor controlled the course of events in a presence of judges ( quaestionis ) parties were presenting evidence before the court that didn’t interfere with evidentiary proceedings the judgment was given by quaestionis without any impact of praetor

16. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome classical Roman law – procedure in iudicio voting over final decision on a stone boards some of them survived up to these days accepted choices: not guilty (A – absolvo ), guilty (C – condemno ), witholding from making decision (NL – non liquet ) letters provided on stone boards majority of NL resulted in renewal of a trial

17. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome classical Roman law – procedure in iudicio trial open to public accusatorial adversarial appeals available for decisions not coming from the quaestionis free evaluation of evidence but torturing slaves was considered a legitimate form of interrogation

18. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome post-classical Roman law – changes were the result of exacerbation of social and political relations – new approach: ceasar is the root of justice and grace so it is caesar that will prosecute the case as a representative of the whole nation – abandonment of quaestionis the enlargment of the Roman Empire made quaestionis impossible to give judgments in each case outside of Rome therefore the caesar’s magistrate started judging: praefectus praetorio and praefectus urbi

19. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome post-classical Roman law – the category of public crimes expanded – new mode for criminal proceedings: inquisitorial procedure trial not open to public no accusatorial principle - the magistrate may initiate proceedings through his own decission parties are becoming less important the magistrate conducts the presentation of evidence by himself

20. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Criminal process in Ancient Rome post-classical Roman law – tortures not only for slaves to obtainconfessions confessions and documents becoming most important evidence – appeals becoming more accessible and more important

21. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Early Germanic criminal process – roots in customary Teutonic law – the trial as an alternative way of punishing the perpetrator - vendetta considered a legitimate form of executing justice by victim with a help from his own family – no distinction between civil and criminal law – accusatorial proceedings – oral procedure – public proceedings

22. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Early Germanic criminal process – participation of layman in criminal proceedings rachimburgs (lay participants) proposing the final decision to all gathered free man the silent decision of free man listening to a case was binding 7 rachimburgs chosen by a judge for each case later jurors for life (scabini) – burden of proof on defendant – evidence – oath, ordeal, judicial duel – appeals unknown

23. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process – some crimes (adultery, sacrilige, heres were under the jurisdiction of ecclesastic church regardles the defendant (priest, secular person) – much more clear and logical in construction than the old German law – very fast proceedings – the reason why Canonic law became extremely popular and important – Canonic law thaught as a subject at the universities – two stages of development of Canonic law: before and after 1215 – Fourth Council of Lateran

24. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process – before 1215 no ordeals acceptable allowance for evidence public and accusatorial some inquisitorial featrues – trials in cases of heres were initiated by bishop’s courts – after 1215 three forms of criminal proceedings 1.per accusationem 2.per inquisitionem 3.per denuntiationem

25. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process – after 1215 1.per inquisitionem – initiated by the court when it come to his attention that the crime has been committed – the court responsible for judging, accusing, defending at the same time – no right to defend himself for accused – secret proceedings with no external control – confessions treated as an ultimate evidence – growing importance of tortures – legal theory of evidence

26. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process – after 1215 2.per accusationem – traditional accusatorial trials 3.per denuntiationem – initiated by one person (denuntiatio) – but the informant took no part in proceedings – after initiation of proceedings the inquisitorial proceedings begun

27. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process ROMAN INQUISITION – Supreme Sacred Congregation of the Roman and Universal Inquisition (Holy Office) – system of tribunals developde by the Holy See of the Roman Catholic Church during the second half of the 16th century – responsible for prosecuting individuals accused of a wide array of crimes relating to religious doctrine or alternate religious doctrine

28. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process SPANISH INQUISITION – Tribunal of the Holy Office of the Inquisition in Spain ( Tribunal del Santo Oficio de la Inquisicion ) – 12-15th century – Dominican Tomas de Torquemada – the Grand Inquisitor; symbol of cruelty and fanatics – secular courts have started overtaking the inquisitorial procedure (e.g. Spanish Code of Six Parts) – tortures, lifted right to defence – abandonment of procedure in 19th century

29. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Canonic criminal process SPANISH INQUISITION – features – defendant after arrest dissapearing in unknown place – charges known only to judges - inquisitors the access to defence lawyer was possible but only from the list presented to the defendant by inquistors – there was usually no contact between the defendant and defence lawyer to prepare for the trial discrepencies in witness’ testimony usually turning against the defendant generating new charges – presumption of guilt – tortures until defendant confessed (or die) – the inquistors had interest in finding defendant guilty his money were inherited by the Holy Office and State

30. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process CONSTITUTIO CRIMINALIS CAROLINA – 1532 – adoption of Constitutio Criminalis Carolina famous criminal codification of cesar Charles V the beginning of inquisitorial process in Germany – but even earlier laws of Lands (Landrechts) abandonment of procedure in 19th century were inquisitorial (laws of 1507, 1516) – influence of Roman Law

31. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process CONSTITUTIO CRIMINALIS CAROLINA – reasons for the impact of CCC 1) the universal law for the most of Reich (and Europe) broad territorial impact – Germany, Czech Republic, Austria, Hungary, Slovakia, North Italy, Croatia, Switzerland; some influence on France and Scandinavia did not derrogate the existing Lands laws! contained salvatorius clause providing that all old laws and customs are to be obeyed in the course of time the laws were pushed away

32. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process CONSTITUTIO CRIMINALIS CAROLINA – reasons for the impact of CCC 2) total departure from irrational evidence (ordeals) strict evaluation of new evidence but confession still considered as the evidence of highest probative value (witness testimony – subsidiary evidence) example of rules: direct testimonies of two witnesses were legitimate evidence that allowed for conviction hearsay admissible but 4 witnesses necessary

33. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process CONSTITUTIO CRIMINALIS CAROLINA – reasons for the impact of CCC 2) total departure from irrational evidence (ordeals) asking suggestive questions not allowed testimonies given under oath tortures allowed when accused was not confessing and circumstantial evidence was reliable confessions made during tortures inadmissible – only those subsequent to tortures accepted practice was much cruel

34. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process CONSTITUTIO CRIMINALIS CAROLINA – reasons for the impact of CCC 3) prevailing inquisitorial form of proceedings the CCC provided for two forms of criminal proceedings: adversarial and inquisitorial with the second prevailing 4) no appellate procedure the law was provided as universal for all lands and territories and therefore no body was able to hear appeals from cases

35. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process elements of German procedure based on CCC enormous impact on the shape of law had Leipzig judge Benedict Carpzov author of many legal treatise Practica nova imperialis saxonicae rerum criminalium (1635) became even more important than CCC provided the detailed law of evidence

36. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process elements of German procedure necessity to establish commitment of crime ( corpus delicti ) and if not, further circumstantial evidence ( indicia ) was used division of the process into two stages: general inquisition ( inquisitio generalis ) – establishment whether the crime has been committed; only real evidence special inquisition ( inquisitio specialis ) – directing proceedings against the person; testimonies acceptable

37. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process elements of German procedure witness testimonies: under oath question asked in a written form answers given orally and recorded in writtten form tortures – mainly reserved for accused no presumption of evidence legal evaluation of evidence e.g. testimonies of 2 women had the same probative value as testimonies of one thrustworthy man

38. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process elements of German procedure categories of judgment: 1.acquital rare 2.conviction when confessionwere made or two thrustworthy men testified so 3.absolutio ab instantia no full evidence available (one indirect witness) the accused realesed but subject for future trial if evidence is established 4.judgment of suspicion court having no evidence convicts anyway but for lower penalty

39. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE German Inquisitorial Process elements of German procedure judging: if judge is not sure he could contact for advise the closest faculty of law since 1597 judgments were given solely by jurists not judges right to defence: limitted especially in special inquisition secret proceedings but allowance of some defence witnesses tortures: only in capital punishment cases question whether defendant will confess demonstrating tools – growing cruelty

40. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French Inquisitorial Process centralization (unlike in Germany) to strenghten King’s absolutism criminal procedure developed slowly through King’s decisions – Ordonnance Criminelle (1347, 1498, 1539) most significant: 1670 Ordonnance Criminelle of Louis XIV features of criminal procedure after 1670: two forms of proceedings, but the adversarial form quickly dissapeared the court opens process on his own motion or triggered by individual

41. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French Inquisitorial Process elements of criminal process after 1670 two phases: investigation and trial investigation: conducted by the investigative judge in a form of general and special inquisition carefully recorded testimonies of accused and witnesses trial: the judge (other than investigative judge!) getting acquainted with the dossier (materials gathered during investigation) gives a judgment

42. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French Inquisitorial Process elements of criminal process after 1670 legal (formal) evaluation of evidence prosecution originally protecting financial interests of the King later protecting public order the decision to charge was in hands of investigative judge not prosecutor’s gathering evidence through public proclamations pronounced in churces formulated in a way that suggested the perpetrator asking all to give information on the case

43. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French Inquisitorial Process elements of criminal process after 1670 presumption in favour of arrest but obligation to interrogate the accused 24hours after deprived from liberty tortures carefully regulated introductory – prior to conviction preliminary – after conviction to force convicted to reveal his coofenders right to appeal from any decision way of controlling courts direct impact of the King on criminal procedure decision’s of the king to annull the conviction, dismissal of case in a self-defence murder case etc.

44. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French Inquisitorial Process diminishing importance of Ordonnance Criminelle 1670 (as well as Constitutio Criminalis Carolina) due to the legal treatise written by jurists

45. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process diversity in criminal procedures of Great Britain Scotland – since 1707 when England and Scotland became union, the courts and law were to remain separate North Ireland similarly enormous impact of English legal system throught the world due to colonialism

46. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process departuring point for English criminal procedure – 1215 Magna Charta Libertatum rule that each free person will be judged by the peers (people equal to the defendant) law in opposition to growing powers of the English King a trend in English jurisdiction that become typical for English criminal procedure and totally original as for Continental Europe

47. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process jury (the layman in the criminal process) judge or tribunal one professional judge or several justices of peace led by the professional lawyer (in quarter sessions) leading the case deciding on penalty grand jury 23 jurors – non lawyers, unpaid confirming indictment moving case to petty jury abandoned in 1933 (justices of peace)

48. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process jury petty jury 12 jurors deciding on a guilt of accused initially they were witnesses to the case and were sworn to conduct their duty as well as compelled to participate in proceedings getting acquainted with evidence presented by parties until recently had to decide unanimously

49. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process justices of peace currently called lay magistrates historically: wealthy man (abandoned in 1909), non- legally educated, forced to ensure the order on a certain area where they lived as a consequence they have incorporated the power to resolve the most simple cases involving ‘breaking of peace’ – mostly civil and administrative cases becoming more powerful and controversial

50. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process justices of peace (continued) in 18th-19th century due to many misconducts the institution became much more democratic reasoning for not abandoning the institution: to bring common sense and life experience into application of law – it would balance tha lack of legal knowledge currently the clerk of the court, with legal training takes part in the proceedings to help decide on a case

51. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process Court of Star Chamber infamous inquisitorial institution of common law system under the rulling of Henry VII and Henry VIII only for serious crimes (fraud, defamtion, threat to the state safety) secret proceedings without a jury and tortures the tool used against king’s opposition turned down in 1641

52. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process Habeas Corpus Act 1679 writ of habeas – you may have the body writ (court order) that requires a person under arrest to be brought before a judge or into court ensures that a prisoner (detainee) can be released from unlwaful (lacking cause of evidence) detention checking validity of the detention by impartial judge now adopted by many jurisdictions – e.g. Charter of Rights and Freedoms section 10 (Canada)

53. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE Originis of English Criminal Process Bill of Rights 1690 and following laws 1701-1933 abolition of torture right to defence (previously limitted in case of high treason – no presence of the defence lawyer during interrogation) right to appeal abolition of grand jury

54. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process origins of changes in law open critique of inquisitorial system in 18th century previously only some features were criticized (tortures, trials for cases involving witchcraft) Montesquieu 1784 – The Spirit of the Laws (L’Esprit des Lois) critique of French judicial system the acceptance of English system that already have abolished tortures

55. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process French Revolution outcome 1789 Laws abolition of torture public trials allowing defence lawyers to take part in early stage of the proceedings 1791 Laws adoption of jury trials abolition of legal theory of evidence

56. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process French Revolution outcome 1791 Criminal Codes complex regulation of criminal procedure first signs of investigative judge – conducting investigation accusing jury ( jury d’accusation ) – deciding on prosecution prosecutor – prosecuting the case judging jury ( jury de jugement ) – deciding on a guilt

57. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process Napoleon Code 1808 – Code d’Instruction Criminelle one of the most important acts in legal procedure enforced in 1811 following 1810 criminal code and law of courts division of crimes: felonies (crimes against nature) misdemeanors minor offences (crimes against public order) distinct procedure for distinct type of crimes

58. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process Napoleon Code 1808 – Code d’Instruction Criminelle minor offences and misdemeanors private investigation conducted by investigative judge no presence of defence indictment drafted by the prosecutor on materials prepared by investigative judge confirmation of indictment by a Chamber public, oral, adversarial trial with jury the judge dominated over trial proceedings as only allowed to ask questions directly

59. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process Napoleon Code 1808 – Code d’Instruction Criminelle felonies investigation looks similar trial before the Cour d’Assises 3 professional judges and 12 jurors jurors did not decide on a guilt but whether facts took place majority decision judges – deciding on a guilt no rules for decision making for jurors – the only factor is an inner conviction, no evidence rules

60. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process Napoleon Code 1808 – Code d’Instruction Criminelle appeals errors of fact and errors of law types of decision: convict, acquit, change the penalty cassation Cour de Cassation only errors of law from appealed decisions or decisions made by the Cour d’Assises

61. Lecture IV HISTORY OF CRIMINAL LAW AND PROCEDURE French post-revolution process Reception of a French Code countries remaining under French jurisdiction (Luxembourg, Geneva canton) French colonies Countries influenced by the Code Belgium (1831) and Monaco (1873) gradual influence of the code Russia (1864) Poland (1875) Spain (1882) Norway (1887)