Inquisitorial system

This article is about the inquisitorial system. 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 judge's role is that of an impartial referee (except for questions of law) and the prosecution (or plaintiff in civil cases) and defendant plead their case before a jury who determines the facts of the case; though in some adversarial systems it is the judge who is both the trier of fact and law. 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 appearing before her. The rules of admissibility of evidence may also allow the judge to act more like an enquirer than an impartial arbiter of justice.

The inquisitorial system applies to questions of procedure as opposed to questions of substantial law and 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.

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

Criminal justice

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 specially trained judge who conducts the investigations, in the case of severe crimes or complex enquiries. The judge hears witnesses and suspects, orders searchers and delivers warrants. 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 decision before the court of appeal.

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 are adversarial, opposing 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.

Administrative justice

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 as opposed to in open court, and the parties are not even required to attend the court appearance. This reflects the fact that administrative lawsuits are for the most part about matters of formal procedure and technicalities.

History

Until 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 innoncent. 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.

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, two of the traditional means that courts operating under the adversarial system could use to determine the guilt or innocence of the accused. As a result, in continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated.

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 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 adverarial proceeding, has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as 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.

Myths

A commonly held myth is that inquisitorial systems do not allow for the presumption of innocence. This myth comes in large part because in civil law nations, an investigating magistrate supervises police investigations. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in certain common law nations. In addition, there is some confusion in that, unlike common law nations, most civil law systems have no concept of a guilty plea. A criminal defendant who confesses, has his confession entered into evidence and the trial continues as usual.

In addition, contrary to myth, modern inquisitorial systems also separate the role of the prosecutor and judge in criminal cases and provide a criminal defendant a right to a defense and a right to counsel.

Footnote

See: Code of Penal Procedure, Article L81 (in French).