Criminal Investigation and Models of Litigation

The body of law that was indigenous to Ethiopia and that marked a significant development in the last decades of this century was the regime of law known in modern legal science as civil and criminal procedure laws. It had been transmitted from generation to generation by oral tradition.

Before the Italian occupation in 1936, it was the procedural law that was comparatively well developed and that had attained a high degree of excellence. It was also the same law that was more popular among the people than the substantive law, a fact that tends to show how much the people of Ethiopia give due respect and importance to the proper administration of justice. Judges and all other persons engaged in the administration of justice were respected and honoured. They were expected to live up to the then standard of justice and aspire to the attainment of this lofty goal.

This procedural law included the law of evidence, which incorporated techniques of investigation and highly sophisticated interrogation and cross-examination procedures, methods of interpretation of law and framing of issues, including principal and side issues (obiter dictum). All these fell under the administration of justice process of Ethiopia.

Criminal investigation devices

In criminal cases, court proceedings were often preceded by the investigation of the commission of the alleged crime.

There were three types of devices of crime investigation or detection under the old procedural law of Ethiopia. These were known as leba shay, afarsata, and the investigations undertaken by the “market guards” (arada zabagna) and secret guards (mist’ir zabagna).

(i) The Leba Shay: device for detecting criminals (c. 1900-1922)

Leba Shay was a method employed to identify a thief by using a young boy who had not attained the age of puberty. He was made to drink a beverage made of a certain herb. One end of a strip of a cloth would be tied around the waist of the boy and the chief of leba shay would follow the intoxicated boy wherever he went by holding the other end. Since it was believed that water would neutralize the effect that the herb would have no the boy, great care was taken to keep him away from it. In the house where he collapsed, he would again be made to drink the beverage so that he could identify the particular individual from among the inhabitants of the house. The boy would push aside any one he meets entering the house of the suspected culprit. Any person on whom he laid his hand would be taken as a suspect and brought before a court of law. At some stage of its development, supplying information to the boy was made a part of the practice. This brought more harm than the service it rendered, for it could easily be manipulated to serve individual interests.

During the reign Empress Zewditu (r. 1916-1930) an investigation for a thief who had stolen a garment from the palace was conducted by leba shay. The chief of leba shay hinted to the intoxicated boy to indicate someone as the person who had stolen the garment. The person thus picked was a well-known personality among the imperial courtiers but he was not on good terms with the chief of leba shay. This incident triggered a lot of controversy among the imperial courtiers, particularly when it was later discovered that the garment had been found after it was offered for sale at the market and that it had been stolen by a maid of the palace. Blaten Geta Mathteme-Sellassie recounted that this particular incident revealed the disadvantages of the institution, as a result of which Empress Zewditu abolished leba shay as a technique of criminal investigation.

Indeed leba shay is not by any standard a modern method of criminal investigation. Nonetheless, in the absence of such modern institutions as a police force and crime investigation, the institution of leba shay must, at the time, have served as a psychological deterrent in the minds of potentially dangerous people.

(ii) the Afarsata: gathering to screen criminals (c.1900-1960)

The afarsata was a device by which all male members of a community would assemble to identify an offender.

Whenever a person or a group of persons reported to the local chief or other official that cattle had been stolen, that they had been robbed or that one of their relatives had been murdered, the local chief ( chiqa shum ) or the village shum (dug) would call on all male members of the community in that locality to assemble in assemble in a  fixed place on a given date. In the assembly, the elders would call upon each person to tell whom he suspected. Every person would declare the identity of the person he suspected or what had been told to him by the “singing bird”. The person who would testify as to the identity of the criminal under oath was kept secret and referred to as “bird”. The person thus identified as the offender would be prosecuted and convicted before a court without having the chance to confront the witnesses for the prosecution.

In what is now the Gonder region, the person who said that he saw the commission of the crime was known as a “bird” (wof), while the one who testified as having heard it from another person was referred to as a “stone” (dingay). A prosecution would take place against the person who was identified as the offender by the testimony of the “bird” or the “stone”. It was an established practice not to allow anybody to go home until the identity of the criminal was established. As a result, a great deal of harm was done to innocent people. The following comment given by an elderly person on this institution leads to the same conclusion.

In a certain place, there were three well-known thieves who brought about untold harm to the people of the community. Their names were Lemma, Bitwe and Jenber. They lived in the community pretending to be law-abiding citizens. The people tolerated them quite a long time for fear of vengeance. However, in one of the public meetings, a certain witty man declared that in out community, the thief is flourishing (lemma), he better stop it (bitew yettew), if he does not, are we supposed to be kept on jammed in such a meeting every day (jenber bessereqe qutter).

Thus the witty man revealed the names of the thieves by the use of ambiguous phrases.

A law regulating afarsata meetings was issued on August 2, 1933. This law provided that gatherings be conducted on Sundays only. The person who revealed the identity of the suspect, pursuant to this law, was made to testify before the court. Hence, this law made it possible for the accused to confront witnesses for the prosecution. A person who failed to attend such gathering would be liable to a payment of a fine (adafagen). If the people failed to identify any person responsible for the alleged crime, the entire community would be liable to make the damage good. If the offence committed was homicide, members of the community had to contribute to redress the damage inflicted on the relatives of the deceased.

Later on, a circular letter was issued by the Ministry of Interior that required the attendance of a policeman in all such meetings. Furthermore, when the investigation was over, the so-called “bird” was required to testify openly before the court.

In times when modern techniques of criminal investigation were not sufficiently developed or totally absent, techniques such as the afarsata must have had their own reason deter. After the adoption of modern techniques of investigation and other rules of criminal justice, the decision to maintain such an institution was unwarranted, particularly when it is seen in the light of its negative effects. It was not deemed wise to maintain such an institution because it was not only a psychologically and socio-economically damaging practice, but also an ineffective method of screening criminals from amongst innocent persons. In fact, it allowed a great deal of lee-way for abuse and even corruption. Even where it was correctly applied, the very nature of the procedure went against the principle of due process of law. Since the leba shay assembly, by its nature, passed in to decline and since it was, at least by implication, repealed, there was nature, passed in to decline and since it was, at least by implication, repealed, there was no justification for its continuity after the promulgation of the 1955 Revised Constitution.

(iii) Market guard and secret guard (1909-1936)

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The market guard (arada Zebagna) was very close to what we now refer to as the metropolitan police force. The main responsibilities of the market guard were:

1)      to maintain peace and order in the city of Addis Ababa,

2)      to guard at night the shops in the market places (arada), and

3)      to detain any person who acted contrary to the law and the accepted ways of behavior, and cause such person to appear before the competent municipal court.

The market guard also had the power to arrest persons found committing, or suspected of committing, a crime. After the necessary investigation, the market guard could bring such persons before the market court. An appeal from the decisions of the market court was taken to the lord mayor of the city.

Where a person instituted a civil action for battery, the market court required a prior payment of the court fee. This was controversial. One person remarked: “what justice where the one injured is required to pay beforehand.”

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The secret guard (mist’ir zabagna) was a unit of the market guard that was charged with the responsibility of crime prevention.

The secret guard was charged with the crime prevention by moving around public squares, and in hotels and bars where alcohol was served. The inscription “Secret Guard” was engraved on the front of their identity (and “secrecy”), this was done to have a deterring effect on would-be criminals aware of their presence.

The secret guard remained a device of crime prevention and control during the period before 1936. It maintained peace and order, gave due warnings, reprimanded offenders who committed petty offences, and brought before a court of law those persons who were accused of committing serious crimes. In short, the institution can be said to have served as useful technique for the enforcement of enacted laws and customary laws.

Public prosecutor and legal Counselor

Not much is known regarding the establishment and development of the institution of public prosecutor in Ethiopia for the earlier period. One may find scattered facts that indicate the existence of a public prosecutor before the eighteenth century, the most vivid account of which was given by James Bruce, the eighteenth-century Scottish traveler who lived in Ethiopia for some years and wrote a book on his quest for the source of the Nile… the chief administration of prisons were customarily required to act on behalf of the government as a public prosecutor.

This practice was operative until finally a law establishing the office of public prosecutor was issued in 1943. According to this law, a public prosecutor should possess a sound knowledge of law or should have judicial experience. No person was to be appointed a public prosecutor other than those who had been an advocate, government official, or police officer who has above the rank of assistant inspector of police. According to this law, all prosecutions other than private complaints were to be conducted by a public prosecutor who could plead in any court where a criminal case was instituted.

Before 1943, the initiation of criminal proceedings was to a very large extent left to the aggrieved party or to his representative. It must have been the outcome of this procedure that the framing or handling of issues of fact or law required no special skill. Any person who attended court sessions and was gifted in oratory was considered as person skilled in the art of advocacy. Without the need to fulfil any formality, such a person could practice law both in civil or criminal proceedings. Legal counselors were free to enter in to contractual arrangements with individual litigants to be paid a fixed sum of money or to be given a plot of land in return for the services they rendered. In cases in forma pauperis, any person attending court litigation had the right to offer his legal service, known as voluntarily without payment (belich’egnannet), but such offer had to secure the consent of the accused party.

Legal skill was, in those days, acquired through frequent attendance at law courts and practice. As a result, except for complicated cases, every person who satisfied the minimum requirement could argue his case without the need of legal aid. The existence of such laissez-faire practice in the legal profession has accentuated the degree of refinement attained in the modes of litigation known as “be interrogated” (tat’ayyeqser’at), which is demonstrated below.

Features of court proceedings

Litigation, at its initial stage, was a voluntary and spontaneous form of arbitration. A party to a dispute was entitled by law to call upon any passer-by to decide his case. If the parties to the alleged dispute were satisfied by the rulings of the road-side courts, the matter would be considered settled. However, if a decision could not be obtained which was satisfactory to both parties, they would go to the regular court. Sometimes the person who acted as the road-side judge would take them to the lowest official judge.

Assessors (techewoch) stood next to the judge in order of importance. Some of them were selected by the contending parties, and some by the court from among those people attending court session.

The third typical feature of the judicial process was the production of guarantee (wass). The most frequent forms of guarantees were: (a) yesene-ser’al wass (a guarantee produced by both parties at the time of initiation of a case to ensure respect and fulfillment of all procedural requirements of the court and also to ensure the appearance of the party in question on the day fixed for the hearing); (b) yedagnennet wass (a guarantee produced by both parties at the initial stage of a proceeding for securing the payment of the court fee by the party who lost the case); (c) yewurered wass (a guarantee entered in to at the time of court proceeding to secure the payment of a wager or bet payable by the loser on and at the time of settlement of the issue under consideration; and (d) yebesselle wass, a guarantee to secure the payment of the value claimed in a civil suit, produced at the time of pronouncement of judgement).

The fourth and last element in a legal process involved in this system was the institution known then as nagarafaj (advocate or lawyer) that pertained to a person who usually had a fair knowledge of the law and who had agreed to represent a person before a court.

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In principle, a witness was not required to tender an oath before his testimony. He would, however, be warned to testify to the truth and only the truth. Failing this, the party against whom the witness testified had the right to request the court to require the witness to tender an oath. This was done during Holy Mass particularly, when the Holy Communion was offered. The witness would close the door of a church or hold the Holy Bible and say:

May he perforate me like his cross,

May he erase me like his picture,

May he chop me down in to pieces like his flesh,

May he spill me like his blood, and

May he choke me up as his alter is closed,

If I am not telling the truth.

In case of perjury a penalty, short of death sentence, would be imposed on him in secular courts. In ecclesiastical courts on the other hand, a clergy who is proved swearing falsely was expelled or deposed, according the provisions of the Fetha Negest.

If a witness had already testified out of court, the other party could impeach the credibility of his testimony or might claim that it could not be admissible at all. Consanguineous relationships and other relationships such as godfather, adopted child, godchild and the like were grounds that could be invoked to bar a person from testifying or to discredit his testimony. The party who called the witness would, before asking him to testify, warn him as follows:

One may go to hell after death;

One may be reduced to bones, laying sick in bed;

One may also be a permanent inmate of a hospital;

All the same, one is obliged to tell the truth.

In a similar manner, the defendant would advise the witness to tell the truth and ask him to testify that he did not know what was alleged by the plaintiff.

After the witnesses had given their testimony, the party that felt the most of the witnesses had testified in his favour would pray for judgement to be entered in the following manner: “threshing ground would go to the one who prepared it, judgement should be made in favour of one who had proved right”.

There were instances where each party to the suit would claim that the testimony given stood in his favour. In such a situation, contentions were settled by mere allocations of the testimony to this or that party by persons selected as new observers (irtibe emagne). Later on, however, a rule was made that required the witness who gave the testimony that had become the object of contention to be recalled to state whom his testimony favoured. His answer would automatically settle the matter.

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Appeal

Judicial and administrative functions were entrusted to governors and local chiefs such as grant land-holders (bale-gult), the head of a monastery or church, or the shum (chief) of court of first instance (yesir dagna) on matters of extra- contractual liabilities and matters connected with contract such as those arising out of betrothal or marriage relationships. An appeal against the decision of these courts was lodged to the destrict court (akaldagna). In regions administered by the officials of the palace (gann-geb), provincial governors (shaleqas) or persons appointed by them as representatives (messlenes)or as local officials (duges) used to have jurisidiction at the district level as a district court.

Appeals from the district court were taken to the governor’s (shaleqa-wambar) at the province level. From this it used to go to the provincial governor himself for review. Appeals from the provincial governor’s judgement were lodged with the chief justice and his judges. Cases of injury to the human body, arson and homicide were adjudicated by the chief justice and the senior judges (ras wambars) and not by local governors.

The court of the chief justice was therefore the supreme judicial body for all civil and criminal matters save crimes punishable by death. Sentences other than capital punishment passed by the chief justices were executable without the need for confirmation by the emperor. In some exceptional situation, however, the decisions of the chief justice were appealable to the Crown Court. In case where a person had lost a case in the court of the chief justice, and where such a person secured leave to take his case to the Crown Court, a note used to be issued enabling such a person to appear before that court.

Sentences of capital punishment were passed by the emperor only after the assessors gave their option in the crown court on every point of the case and the relevant provisions of the Fetha Negest which were read and interpreted by scholars.

An appeal could be based on any substantive or procedural issues, including interlocutory matters. Every complaint lodged against the judgements or interlocutory decisions of a court was examined not only by judges sitting in higher courts, but also by korqwaris (king of assessors) attending the court session.

Appeals made on interlocutory orders were not very frequent. However, whenever one of the parties felt such interlocutory decisions would be prejudicial to the principal issue, he was justified in making an interlocutory appeal. For example, if on a question of title, a ruling was given regarding the mode of proving such a subsidiary issue as the existence of a pre-emptive right in the customary law of a specific ethnic group, which would adversely affect the interest of the complainant unless immediately addressed, then this might be considered as a justifiable ground for lodging an interlocutory appeal.

Another matter that was taken to a higher court, particularly that of the Chief Justice, was the question of interpretation of the law. A dispute over who had the right to prove an allegation, and questions of interpretation of law were submitted to the Chief Justice, who was assisted by the senior judges. For instruction or guidance as to how a set of facts or questions of law was to be interpreted, it was to this court that judges of lower rank had to make reference.

In those days (before the Second World War), everyone had a chance to take his case on appeal as far as the emperor, when s/he was not satisfied with decision of lower courts. Regarding the procedure applicable in the Crown Court, for the earlier period, the Ser’ate Mengist, which is believed to have been an old legal text, provided the following order for assessors to speak:

The first ones to give their options are Shaleqas. Then follow Seyoum Musse. Then the Bejirond of Anbessa Bet and Bejirond of the palace followed suit. Next to them come Lique-Mequas, Balambaras, Fitawrari, Gerazmach, Blaten Geta of first rank, Tsehafi Te’ezaz, Ras Masserea and Basha. The next that would be allowed to speak are Dejazmach of Damot, of gojjam Amhara, Begameder, Semien and after them follows the Nebure-ed of  tigray, than comes Akabe Ser’at, Blaten Geta and finally Ras.

Regarding the nature of proceedings of the chilot in the recent past, Blaten Geta Mahteme-Sellassie gave the following account:

Criminal cases brought from various lower courts were read in the presence of the accused. Everyone listens to the case as one would do in Holy Mass. Where a case is sufficiently dealt with, the accused will be asked as to whether he admits or not. If he admitted all that had been said and if the case was instituted by a private complainant, the aggrieved party would plead that the verdict be given.

If the accused requested that his case be further investigated, then everybody attending the court would be allowed to ascertain the truth by way of examination and cross- examination. All persons skilled and experienced in this matter will make use of every bit of their wits and intelligence.

After conviction, the private complainant or official of the government demands that the accused be sentenced to death or to this and that type of punishment, while the accused pleads that his case does not carry such sentence or simply prays for mercy.

After this, the process of the sentencing starts.

Every person attending the court, starting from those who are standing and the shambles, would give his opinion when requested by the usher (agafari). Everybody does according to the practice of his locality. When doing so, one had to turn his face towards the emperor and stand close to the usher (agafari)….

After those who have stood gave their opinion, those who sat do the same starting from the lowest to the highest rank. Then follow the judges (wambars) in their order of rank. The Betwededs and Dejazmaches would give their opinion coming just before the judges of the first devision.

Then, the chief justice (afe-negus) gives his opinion. Everybody had to remain standing in the entire process, except for the emperor. Raising his head, the Emperor listens to them all attentively. The scholars having cited the appropriate provision from the Fetha Negast would read and translate and interpret it for the public and would decide whether the accused deserves capital punishment, imprisonment or any other punishment or no penalty at all. If the emperor finds any problem as to the interpretation of the cited provision, he may adjourn the case for the morrow. If the interpretation suggested is favoured, judgement would immediately be given and when the death sentence is pronounced, one hears the cheering of the family of the victim and the cry of the family of the condemned.

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Finally, the right to take cases to the crown court was, likewise, provided in the law. Hence, one may realize that a party to a suit had, in those days, as many as five stages of appeal.

The emperors of Ethiopia were reviewing cases in the Crown Court (Zufan Chilot) while seated. However, Emperor Haile Sellassie I, due to a vow he made to God while he was in exile in Britain during the Italian occupation from 1936 to 1941, reviewed cases in the Crown Court (in the period 1941-1974) standing up for hours.

Execution of judgments

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Judgements in minor criminal cases were executed then and there as the decision was made by lower courts. Serious criminal offences such as homicide, injury to the human body and arson, however, after being decided by the competent courts, would be sent to administrative bodies that had the responsibility and power to execute them. Blaten Geta Mahteme-Sellassie gave account of the execution of decisions rendered by the Crown Court as follows:

After the judgment had been rendered, an instruction is issued to the office of the ligaba [Lord Chamberlain] to execute the sentence. The ligaba would, on his part, according to the judgment, order the convicted person to face a firing squad, to be for life or for a given period. Immediately after a sentence of flogging is pronounced, the person’s hands and legs would be tied with a rope. Then, he would be pegged in the middle of a field where he would receive utmost forty lashes. The sentence of flogging was executed by an authorized person.

Capital punishment, when confirmed by the emperor, was executed around the area where the present Addis Ababa Qirqos Church is located. Later, it was executed in a building in the neighborhood of the present ammunition factory.

A convict against whom the death sentence had been passed and confirmed used to be given three days leave to take the traditional medicine against tapeworms (kosso, i.e. the plant Hagenia abyssinica). It was within this time that he was required to leave his will and to make a confession, if he wanted to do so. If he was to be killed by a firing squad, one of the relatives of the aggrieved party would be given a rifle to shoot and kill him. If the capital punishment was to be executed by hanging, it was usually done within the prison grounds by an authorized person. It is said that the act of hanging a convicted person used to take place in Addis Ababa on the branches of an oak tree that was found where the present statue of the Emperor Menilik II is located. If the rope broke loose when the convicted person was being hanged, he would be set tree. Many years ago a person was sentenced to face a firing squad, accordingly, he was shot at. However, he was only wounded and slowly recovered. The issue was raised as to whether he should be shot again. To cut the Gordian knot, a committee consisting of Ethiopians and foreigners was set up to decide the issue. The Ethiopian members of the committee drew an analogy between the customary usage that forbids the hanging of a convicted person for the second time in cases where he had been saved because the rope broke before he died. The foreigners, on the other hand, held that irrespective of time and other considerations, a judgment once passed should be executed. It was finally decided by the emperor that the opinion that conformed to the traditional practice should prevail.

Places where sentences of impersonment were executed were prisons known as government prisons (weheni bet), provincial prisons (isir bet) and gaols (zebetteya). Government prisons were established in Addis Abeba and other places and were administrated by a warden (weheni azazj). Government prisons were the central government’s prisons, whereas provincial prisons were under the control of provincial governors. Gaols (zebetteyas) were set up in Addis Abeba and Harar, they had the same function as modern police stations.

Thieves found in the market place in Addis Ababa were detained in the gaol. Many popular couplets (losing all flavour in translation) expressed the common feelings about the goal, e.g., “the market is nice, for eating meat and drinking mead (tej) but what makes one afraid is that one might have to spend a night in gaol.

In the period under discussion, persons accused of committing serious crimes were often kept in prison for undefined periods. Such persons used to petition the court to determine their status. The court had the right to release such prisoners when it deemed it appropriate. Detainees who had no relatives to bring them food were permitted, under guard, to go to the house of their relatives, friends and acquaintances in search for food and drink. Persons who could not pay the agreed amount of blood money (guma) would try to raise the required amount of money by going from village to village accompanied by a guard. To symbolise their distress, they used to tie their hands with iron chains.

Depending on the gravity of the crime committed, a prisoner could be sentenced to three different types of imprisonment. The first one was known as imprisonment by chaining leg and hand (igir teworch). This kind of the penalty was imposed on dangerous criminals such as habitual murderers and bandits. The second imprisonment by shackle (igir beret) was a measure taken against murder, mutilator of human body and persons who committed arson. The third kind of penalty that was taken against common criminals was chaining by the leg (igire mook).

Historical Introduction to the Criminal Procedure Code, 1961

Prior to the 1960 CPC there was no systematic body of legislation in the field. Only a few proclamations enacted early during the post Liberation era were in existence. These showed a strong Anglo-Indian influence, as might be expected from the British influence in the country at that time.

In the early 1950’s the Ethiopian government decided to adopt new codes in all major areas of the law, and for that purpose to call in foreign experts to do the drafting in close consultation with local Ethiopian and expatriate colleagues. The task of drafting the criminal procedure code fell initially to the eminent scholar of comparative penal law and procedure, Professor Jean Graven of Geneva. He was then also engaged in drafting the Ethiopian Penal Code of 1957. From the documents now available to the present writer, it appears that formal discussions of the CPC began on August 13, 1955-the date of the first process verbal-in a “commission of codification of procedure” presided over by the Minister of Justice. Notes of all commission discussions were taken by M. Philippe Graven, son of Professor Jean Graven and at that time an advisor to the Ministry of Justice. Virtually all of the codification materials were originally drafted in the French language, and French and Amharic were probably the languages of discussion at the commission sessions.

The commission’s first discussions took place until October, 1955; there was then a break until they resumed in July, 1956; they then carried on more or less continuously through February, 1957, when there was another hiatus. They resumed in August, 1958 and occurred through October of that year. Another period of commission inactivity on the project followed; this ended in October, 1960, when final discussions were held. These terminated in commission approval of the draft code, apparently in November, 1960. After submission of the code, parliament amended the draft in some respects; it was promulgated in 1961.

In its deliberations, the commission considered several drafts of a procedure code. Beginning with an initial draft of 241 articles (dated March 1, 1956), Professor Graven had presented to the commission an avant-project of 840 basic articles, and another 174 articles dealing with post-judgment proceedings by December 29, 1956. The next version of the code’s text was apparently the texte definitive, drafted by Professor Graven in two instalments, dated December 6, 1958 and July 23, 1959. This version consists of only 159 articles, and resembles the present code in content much more than did the first draft. The texte definitive also contains annotations by Professor Graven commenting on the changes he had made in the previous drafts. The last text version available to us is a very slightly modified English translation of the texte definitive; it is dated November 9, 1959, and consists of 158 unannotated articles.

The history of the CPC is in a way the story of a gradual discarding of Professor Graven’s initial drafting work, although it is clear that his draft did ultimately influence the code’s final structure, and in some respects its contents. A major alteration of the draft occurred when, apparently in 1957, the commission decided that the code should not contain the draft’s many general provisions dealing with judicial organization, jurisdiction, evidence, etc., but that those provisions, which constituted the first 443 articles, should be shifted to a separate code, the “code judiciaire,” which would govern these matters for both civil and criminal matters. During 1957 and 1958, Professor Graven drafted two versions of a code judiciaire, adapting the borrowed 443 articles as its core, but adding others to a grand total of 757 provisions. The commission sat to discuss this code between August 2, 1957 and August 12, 958, but eventually decided to drop it entirely. Seeing as the Civil Procedure Code appeared in 1965, and an evidence is reportedly now in the drafting stages, it seems doubtful that the code judiciaire will ever be revived.

The second factor which led to the partial abandonment of Professor Graven’s draft was the decision, reached apparently in late 1958, to abandon the initial project of an evenly “mixed” continental-common law procedure for an overall design more substantially adversary and thus less continental. A perusal of the commission debates reveals that even from the start there was some difference in views between those commission members who were trained in common law procedure, and those who were trained in continental procedure. This difference was of course to be expected. It may well have contributed to the creativeness with which the drafters approached the task, as they it, of constructing a truly Ethiopian procedure, which would not simply copy either continental or common law procedure, and those who were trained in continental procedure. This difference was of course to be expected. It may well have contributed to the creativeness with which the drafters approached the task, as they saw it, of constructing a truly Ethiopian procedure, which would not simply copy either continental or common law rules. Be that as it may, in October, 1958, the commission agreed to give Professor Graven’s avant-project to sir Charles Matcew for examination and proposed amendment. Sir Charles was a distinguished English jurist who had had wide experience in East Africa, Ethiopia (during the post-Liberation period), and Malaya prior to his renewed tenure in Ethiopia as Advisor to the Ministry of Justice. Sir Charles was asked to review Professor Graven’s draft with a view to simplifying it, and to making it less “inquisitorial” and more “adversary” than it was. A likely reason for both the referral to an English lawyer and the instructions given was that the Ethiopian courts had British-influenced, adversary procedures since 1941 at least; substantial alternation in procedure might have caused confusion to Ethiopia’s judges and advocates. It is most likely that professor Graven’s texte definitive, which so differed from the avant-project, was strongly, influenced by sir Charles’ proposals. Indeed, the November, 1959 English “version” of the texte definitive may have been drafted by sir Charles. Professor Graven had stopped attending the CPC commission discussion in August, 1956, and Sir Charles Mathew first began attending those meeting in early February, 11957, playing an important role until the deliberations ended in November , 1960. It appears that Professor Graven submitted his texte definitif to the commission from abroad, and that the whole movement towards a more adversary procedure and away from some of the continental institutions of his draft occurred after his departure from the scene.

Knowledge of this background to the code makes it easier to understand the code’s structure and sources. The unique organization is essentially based on Prof. Graven’s avant-project. Many code provisions, particularly those with continental sources, are also derived from his avant-project, but they have usually been lifted out of their original context and shortened almost beyond recognition. The Code’s sporadic relationship to Malayan, and therefore, ultimately, Indian law, derives from the influence of Sir Charles Mathew’s drafts. The overall flavor of the law is adversary, but the adversary system often contains fragments of “inquisitorial” procedure retained from the avant-project.

In my opinion, the criminal procedure Code is not very satisfactory. Indeed, it is hardly a “code” at all, if by that term we mean a consistent, integrated body of law whose coverage of the subject is reasonably comprehensive. The law especially suffers from being overly brief [only 224 articles as compared with the Civil Procedure Code’s 482 articles], and therefore from being too sparse, with too many crucial gaps. Filling the gaps by the interpretation is made extremely difficult because it is hard to extrapolate legislative intent from a body of law which so lacks cohesiveness. And, of course since no one foreign country’s legislation was substantially taken as a model, one cannot often resort to foreign commentaries or jurisprudence for aid, as one can for substantial portions of every other Ethiopian code.

Hopefully, the code will before too long receive a fresh appraisal, with a view towards comprehensive revision. Because the code is still somewhat new and is not yet followed everywhere in the country, there is still a period of “grace” in which to work...

 

The Status of the Public Prosecutor

The crown prosecution service in England and Wales is comparatively new and its status is comparatively lowly. It has no power to direct the police during the investigation, and for the first fifteen years of its existence-until 2000-crown prosecutors did not even have the right to appear in the crown court to present the case against defendants accused of serious offences. Crown prosecutors are, in law, civil servants, and enjoy no particular immunity or security of tenure.

In continental Europe (as in Scotland) the public prosecutor is a long-established office, the status of which is considerably higher. The public prosecutor has, in principle at least, the right to give the police directions when offences are being investigated and it is he, not they, who decide if someone shall be prosecuted. Public prosecutors routinely appear before the courts to prosecute, and for them to engage a barrister for this task would be unthinkable. In three of the countries in this study- France, Belgium and Italy- public prosecutors enjoy what is called in French le statut de magistrate, which means that for a number of legal purposes they are equated with judges. In France, Italy and Belgium it is customary to refer to both judges and prosecutors to gather as a single group: la magistrature in France and Belgium, in Italy-public prosecutors enjoy what is called in French le statut de magistrate, which means that for a number of legal purposes they are equated with judges. In France, Italy and Belgium it is customary to refer to both judges and prosecutors together as a single group: la magistrature in France and Belgium, in Italy la magistratura . in all three countries both groups are initially recruited and trained together- in France, at a special ‘judges-school’, the Ecolenationale de la magistrature…

To many English lawyers this looks alarming, because of the risk that there will be too much professional solidarity between judges and prosecutors. These fears are sometimes expressed by critics on the continent as well. However, on the credit side, giving prosecutors le statut do magistrate is thought to help ensure the recruitment of suitable people and to maintain high professional standards and a degree of detachment and impartiality in carrying out the task of prosecuting. the high status of prosecutors in Italy is certainly part of what made it possible to abolish the Italian equivalent of the juge d’instruction and to transfer to the public prosecutor a large part of the corresponding responsibilities and it is also something that makes it politically possible for various people seriously to advocate the same type of reform in France.

The Status and Organization of the Police

In the four continental countries in this study, police forces are differently organized than they are in England, and in several ways their status is different. In England and Wales there are at present forty-three different police forces, all organized and administrated locally. In continental Europe, by contrast, the trend is to organize police forces on a national basis. That said, however, a balance of power is usually maintained in various ways. In France there are two national forces that operate in parallel-the police nationale under the direction of the home office, and the gendarmerie that exists under the wing of the Ministry of Defense and these two main organizations are supplemented by a number of local police forces in the bigger towns. A broadly similar arrangement exists in Italy; in Germany, by contrast, police forces are organized by the different Lander. As regards the status of the police, one difference is that when investigating crimes they operate (at least in theory) under the direction of the public prosecutor. A second difference is that, unlike in England where broadly speaking all police officers have similar powers, the various coercive powers that exist to enable continental policeman to investigate crimes are usually the monopoly of a restricted group within the police who are known in French as la police judiciaire. (this term was difficult to translate in to English, and in what follows la police judiciaire has usually been quietly turned in to ‘the police’.)

The Status, Recruitment and Training of Judges

In England and Wales, as in the rest of the common law world, professional judges are recruited from the ranks of successful legal practitioners (and predominantly from the bar). The consequence is a professional judiciary that is predominantly male and universally middle-aged. In the other countries in this study, as in Europe generally, there is a career judiciary. Those who wish to become judges apply to do so at the end of their law studies at university, and, like those who in England wish to join the civil service, make a formal application, which leads to their sitting an examination, on the basis of which they are selected or rejected. A period of training follows, which in France even takes place at a special residential college, the Ecole nationale de la magistrature. The continental judge then starts in a lowly post, from which he or she hopes to move upwards by a series of regular promotions. One consequence of this is that the continental judiciary is, on average, very much younger than the judiciary in England and Wales. In Germany, for example, you will meet the jurist ‘who enters the judicial profession while still in his twenties and whose first working day might require putting in to prison a defendant who is old enough to be his grandfather.

The different method of recruitment leads to other subtle differences, too. One of these is the different relationship that exists between Bench and Bar. On the whole, English barristers and English judges get on well together, and barristers usually treat the professional Bench with respect-which is not always the case in continental Europe. This sometimes leads continental observes (or at least those whose source of information is Bar) to form a very favorable view about the standing and quality of the English judiciary. But here there is another paradox. The English method of recruiting judges from the ranks of successful middle-aged practitioners is, of course, extremely expensive, and it is probably true that this costly system is only tolerated in England and Wales because (in sharp contrast to the situation in continental Europe) over 90 per cent of all criminal cases are tried by lay magistrates, who give their services free and who have formal legal training.

Legal Status of the Victim

In English law, the person claiming to be the victim of the offence has no special status in the criminal proceedings brought in relation to it. Like any other citizen, he has the right to bring a private prosecution. He has no right to any kind of help from the state if he decides to do this, however-and a private prosecution is fraught with a number of serious hazards…the risk of having to pay the successful defendant’s costs if the proceedings result in an acquittal. If the police and the Crown Prosecution Service decide to bring proceedings, the victim has no legal right to join in. He has no legal means of making sure that the court hears his side of the story, and no right to ask the court to order the convicted defendant to pay compensation (although the court does indeed have power to make a compensation order).

In the other systems in this study, the defendant has (at least in theory) considerably greater rights. In France and in Belgium the victim can make himself a partie civile, and as such either institute proceedings or make himself a party to them if the public prosecutor has started them already. In Italy and Germany the victim has second of these rights, but not the first…

Although the position of the victim is theoretically stronger on the continent than in England, it is debatable question how much (if at all) the victim is really better off. Compensation orders are a case in point. In England the victim has no right to ask the court for one, and unlike in continental Europe the sums so awarded are usually small because they are always geared to the defendant’s ability to pay. On the other hand, where a French or Belgian court awards a partie civile damages against the defendant, it is the partie civile who then has the thankless task of trying to make the convicted defendant pay; whereas in England, compensation orders are enforced automatically by the same court machinery as is used to make the defendant pay his fines.

The Fundamental Principles of Procedure (England)

English law has traditionally been rather short on public pronouncements about the fundamental principles of criminal procedure, whether in statutes, case law or books. However, from two of the ancient Acts of parliament that are regarded as having ‘constitutional status’ certain basic principles are usually derived. The first of these is Magna Carta 1215, clause 29, which is as follows:

No freeman shall to be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, unless by the lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

From an early date, this provision has been taken-rightly-as establishing the principle of legality: the notion that citizens are only to be punished to the extent and in the ways that the law allows, and in accordance with due process of law.

This clause also had an important influence on the development of habeas corpus, the procedure under which any person physically detained is entitled to have the legality of his detention examined by a judge. Historically, the main importance of habeas corpus was that it became the vehicle for challenging the arbitrary imprisonment of the king’s potential opponents. Within criminal procedure, it also served an important function at one time as the mechanism by which defendants in ordinary cases could challenge the refusal by the justices of the peace to grant them bail, and excessive periods of pre-trial detention although such challenges are now made by using different legal machinery, and in modern books on English criminal procedure habeas corpus hardly gets a mention.

From clause 29 of Magna Carta it is also possible to derive the principle that cases must be tried within a reasonable time-although the only defendant who has tried to invoke it in this sense in modern times was unsuccessful.

It is widely believed that clause 29 contains a guarantee of trial by jury. Although a string of legal writers have said this, it cannot possibly have been the original intention of the provision, because when Magna Carts was drafted in 1215 trial by jury in criminal cases had not yet come into existence. Furthermore, even if the phrase ‘judgment of his peers’ does refer to jury trial, it gives no absolute guarantee, because what the clause requires is ‘judgment of his peer or the law of the land’. And, of course, clause 29 has not prevented parliament in the past from enacting statutes that limit jury trial.

The other ‘constitutional’ status in this area is the Bill of the Rights Act 1688, a clause of which provides ‘that excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishment inflicted’. This was passed in reaction to the very server penalties (including mutilations) which the courts had earlier imposed in potential cases. It is possible to read within this provision the germ of a more general notion of proportionality, at least as regards the sentence.

Until the Human Rights Act 1998, for other ‘fundamental principles’ of criminal procedure it was necessary to look at case law: among the basic principles that could be found spelt out there were the presumption of innocence, the principle that trials must take in public, the principle that in contested trials the evidence of key witness must be given orally, the principle that the defendant has the right to challenge the prosecution witnesses by means of cross-examination, and the principle that English criminal procedure is ‘accusatorial’ in the sense that the calling and examination of witnesses at trial is a matter for prosecution and defence, and not the judge.

But now that the Human Rights Act has incorporated the European Convection into UK law, the search for fundamental principles normally takes place within the framework of the Convention. Recent as it is, the impact of this Act on English criminal procedure is already evident. Thus in one recent case, it led the House of Lords to put a narrow construction on a provision of an Act of parliament, which, if interpreted literally, would have reversed the burden of proof in drugs cases. In another case it affirmed the defendant’s right to a ‘fair trial’ under Article 6 of the Convention by restrictively construing a recent Act which, in the interests of victims, sought to limit the questions that defendants could ask complaints during cross-examination in sex cases.

Fundamental Principles of Procedure (France)

The fundamental principles of procedure are mainly principles that presently have constitutional value. Given their heterogeneity which reflects the values in the constitutional source one should distinguish between non-specific principles which may be invoked in the field of criminal law and specific principles that are peculiar to criminal law or to criminal procedure.

The non-specific principles are more numerous: equality in the eyes of the law (… article 2 Constitution); judicial guarantee of individual liberty (article 66, Constitution); security of persons and property… the dignity of the person (preamble to the constitution of 1946); protection of legal rights and of the separation of powers…, the consequence being the right to appeal before the courts of law.

In criminal law, there is also the non-retroactivity of laws…; the principle that punishments should only be imposed where new laws softening the harshness of a rule, and proportionality); the individual nature of penalties…; in criminal procedure, the presumption of innocence…; the right of defence, and its corollary, the adversarial principle…

In 1989 the Commission justice penal et droits de l’homme proposed that a list of basic principles should be placed at the head of a new code of criminal procedure. Although not accepted at the time, the reform of criminal procedure in 2000 added a preliminary article to the beginning of the code de procedure penale, setting out guiding principles:

I - Criminal procedure should be fair and adversarial [contradictoire] and preserve a balance between the rights of the parties. It should guarantee a separation between those authorities responsible for prosecuting and those responsible for judging. Persons who find themselves in a similar situation and prosecuted for the same offences should be judged according to the same rules.

II- The judicial authority ensures that victims are informed and that their rights are respected throughout any criminal process.

III- Every person suspected or prosecuted is presumed innocent as long as guilt has not been established. Attacks on his presumption of innocence are proscribed, compensated and punished in the circumstances laid down by statute. He has the right to be informed of changes brought against him and to be legally defended. The coercive measures to which such a person may be subjected are taken by or under the effective control of judicial authority. They should be strictly limited to what is necessary for the process, proportionate to the gravity of the offence charged and not such as to infringe human dignity. The accusation to which such a person is subjected should be brought to fine judgment within a reasonable time. Every convicted person has the right to have his conviction examined by a second tribunal.

The Fundamental Principles of Procedure (Germany)

The constitutional norms are imposed on the three branches of government, which are bound by the principle of legality (Gesetzlichkeitsprinzip: article 20, para3, GG).

The Grundgesetz specifies in its First Title, concerning fundamental rights (die Grundrechhte), various principles relating to the respect and protection of human rights. They are all derived from the principle of the inviolability of human dignity (article 1, GG) and are directed towards respect for the liberty (article 2, GG) and equality of persons (article 3, GG). These civil liberties, in the sense of the French Declaration des droits de l’homme et du citoyen of 789, are designed to protect the individual from the State and are therefore binding on all the organs of the State endowed with any portion of sovereignty. The articles following this set out various general rights, but few govern criminal procedure. Attention can nevertheless be drawn to the principles of inviolability of privacy of correspondence (article 10, GG), the inviolability of the home (article 3, GG, regulating searches) or even the restriction of the examination of nationals (article 16, Para. 2 GG).

Furthermore, the Grundgesetz contains certain rules in Title IX concerning judicial organization, which are fundamental rights of a legal character (Justizgrundrechte or grundrechtsgleiche Rechte), such as the principle of the legitimate judge (Grundsatz des gesetzlichen Richters (article 1101, GG)), the right to a hearing by a judge (article 03, Para. 1, GG; Recht auf rechtliches Gehor), legality (non-retroactivity of offences and principle of clarity and definiteness of a law constituting an offence (article 103, Para. 2, GG: Ruckwirkungsverbot and Bestimmtheitsgebot))… and the necessity of the intervention of a judge for all measures that restrict individual liberty (article 104, GG). In addition there is the prohibition of the death penalty (article 102, GG).

More generally, the law must be in accordance with the principles of a ‘republican, democratic and social’ State where the rule of law prevails (article 28, GG). From this statement constitutional case law derives, for example, the presumption of innocence (Unschuldsevermutung), which makes it obligatory for the public prosecutor to investigate a case and search for evidence of innocence as well as guilt… that remand in custody must only be used where necessary.

Relevant Laws

Art 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, UDHR

Art 2, 4, 6, 9, 10, 11, 14, 15, 17, ICCPR

Art 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 37, FDRE Constitution

Art, 2, 4, CC

Office of the Central Attorney General of the Transitional Government of Ethiopia Establishment Proclamation No. 39/1993

Definition of Powers and Duties of the Central and Regional Organs of the Transitional Government of Ethiopia Proclamation No. 41/1993

Definition of Powers and Duties of the Central and Regional Organs of the Transitional Government of Ethiopia (Amendment) Proclamation No. 73/1993 Attorneys Proclamation No. 74/1993

The Federal Courts Proclamation No. 25/1996 (as amended)

The Re-Establishment and Modernization of Customs Authority Proclamation No. 60/97 (as amended)

The Federal Police Commission Proclamation No. 313/2003

The Federal Prisons Commission Establishment Proclamation No. 365/2003

Revised Federal Ethics and Anti-Corruption Commission Establishment Proclamation No. 433/2005

Definition of Powers and Duties of the Executive Organs of the FDRE Proclamation No. 471/2005

Ethiopian Revenues and Customs Authority Establishment Proclamation No. 587/2008

 

Adjudicatory Processes

The process of adjudication is typically either adversarial (also called accusatorial) or inquisitorial in nature… Both systems have the finding of truth as a fundamental aim, and each is guided by the principle that the guilty should be punished and the innocent left alone… The differences between the two are in their assumptions about the best way to find the truth.

The adversarial system is often considered the successor to the private vengeance. As societies evolve, the power to initiate action first lies with the wronged person (the accuser). That power eventually extends to relatives of the “victim,” then to all members of the person’s group, and finally to the government responsible for the well-being of the person. In time, then, the accuser moves from being the individual to being the state (as in State of Texas v. Jones). The setting for the accusation is before an impartial official serving as referee (judge). Because the disputing parties (the state and the accused) behave in a manner similar to a contest, they are considered adversaries.

The inquisitorial process also shows societal evolution but along a different path. Here, the wronged person is eliminated as a private accuser and replaced with a public official. Unlike the adversarial process, the inquisitorial process does not keep the pubic official in the role of accuser. Instead of accusation, there is now, investigation. Because the parties are not engaged in a contest, a referee is not necessary. Instead, the impartial official (judge) serves as an inquisitor actively seeking to determine what transpired.

In general terms, the common legal tradition uses the adversarial process, whereas the civil legal tradition follows one of inquisition. Because of its civil roots, the socialist tradition also exemplifies the inquisitorial process. The Islamic legal tradition offers a unique combination relying on the private accusation in an inquisitorial-type setting.

The Adversarial System

The adversarial system is often compared to a game or contest in which both sides are trying to win and a neutral umpire decides two things: (1) whether they are playing by the rules and (2) which side wins. Often, the judge acts as umpire for both these aspects of the contest. In some cases, the judge’s chief responsibility is to make decisions that ensure a fair contest, while a jury declares the actual winner.

The analogy to a game is not inappropriate when analogy to a game is not inappropriate when describing an adversary system. Not only is the accused not obligated to cooperate with the government in a case, but the government may fail to disclose crucial elements of its case against the accused. This does not mean that the government has the right to ignore or suppress evidence that would help the other side in the case-only the accused has that right. But it does mean that the prosecutor, who represents the government, is expected to devote his or her efforts to providing guilt rather than potential innocence once an individual has been indicted and is moving toward trial.

Another way to understand the adversarial system is to compare it to its philosophical opposite-the nonadversarial or inquisitorial system. Advocates of the adversarial systems of justice believe that the competition between the two parties is the best process for obtaining truth. Advocates of the nonadversarial system, which we will discuss later, believe that judicial control of the investigative process is the best way to uncover the truth. These fundamental beliefs create the differences in the role of witnesses, attorneys, and judges found in the common and civil law systems…

In the adversarial system, most of the procedural advantages are on the side of the accused. The right to an attorney, the right to remain silent, the right to be free of unwarranted searches and arrests, the right to compel witnesses to appear for the defense, the right to confront one’s accuser, the right to appeal-these and other rules of criminal process help keep the prosecutor from automatically winning a case. These rules have been developed over centuries as a response to abuses of citizens by monarchs and governments in dealing with their citizens, and these rules recognize that arbitrary government action remains real possibility.

There is concern that correct criminal procedure has become so extreme that predatory criminals who learn to manipulate the rules of the system are likely to win the game despite their obvious guilt. Such criticism often does not take in to consideration mitigating factors that counteract excessive manipulation of criminal procedure. In the first place, a vast majority of cases that occur in common law countries are settled through guilty pleas rather than through court trials. Students of criminal justice in the United States are well aware of the importance of plea bargaining and sentence bargaining in the settlement of criminal cases. In these cases, the accused agrees to plead guilty in return for various concessions, such as a lesser charge or a reduced sentence. On an aggregate basis, it is estimated that over 90 percent of criminal cases are settled through plea bargains in the United States.

In common law jurisprudence, a prosecutor has the obligation not to accept a guilty plea if there is no evidence to support it. However, once a guilty plea is accepted and made before a judge, no further trial is held.

America’s overt, and by now legitimized, plea bargaining seems unique in modern legal systems. Nevertheless, we find that most cases in other common law countries are also settled through guilty pleas, despite the claims of legal system personnel that no plea bargaining exists. For example, in a study of the lower criminal courts in Sheffield, England, it was found that over 80 percent of cases were settled through guilty pleas…

The decision to plea guilty rather than use the full weaponry of the adversary system to make the state prove one’s guilt weakens the system in a significant way. The motivation for pleading guilty may be varied honest remorse, overwhelming evidence of guilt, a desire to achieve a guaranteed outcome, a belief that a judge will deal more leniently with a person who does not go to trial but the result is the same. Many more cases can be processed than could be under a “pure” adversarial system, and the intricacies of adversarial criminal procedure are largely evaded.

A further factor that must be considered in discussing the supposedly dysfunctional nature of the adversarial process is that this process is in no way as complex in most common law systems as it is in the United States. For example, the exclusionary rule, which is the target of much criticism in the United States, does not exist in England in the case of most violations of search and seizure rules. In the United States, illegally obtained evidence, no matter how incriminating or useful, may not be produced at trial. In England, by contrast, only evidence that has been obtained through undue pressure on the accused is barred.

The Inquisitorial System

U.S. Supreme Court Justice Warren Burger once remarked that “if he were innocent, he would prefer to be tried by a civil law court, but…if he were guilty, he would prefer to be tried by a common law court” (Burger, 1968). This remark is in some ways an indictment of the Common Law procedure in its suggestion that it is less likely than the civil law procedure to arrive at the truth of a case. We can weigh the validity of this statement as we examine some of the details of civil law procedure.

One way to anger a scholar of the civil law is to claim that a major contrast between Common Law and Civil Law criminal procedure is that in the former the accused is innocent until proven guilty while in the latter the accused is guilty until proven innocent. This is indeed not necessarily true, since both kinds of procedure are theoretically based on a presumption of innocence. Nevertheless, the extensive pretrial investigation that characterizes Civil Law systems gives rise to the feeling that defendants who actually are brought to trial are most likely to be guilty.

Criminal procedure in civil law countries is characterized as inquisitorial, as opposed to adversarial, in nature. This characterization evokes unfortunate images of the inquisition, that notorious and cruel institution that persecuted alleged heretics during the sixteenth and subsequent centuries in Spain and other Catholic countries, extorting confessions through brutal tortures and executing its victims, often by burning. In fact, however, confessions resulting from torture were the norm in both England and Continental Europe for secular as well as religious crimes until the right to remain silent becomes the distinguishing characteristic of the adversarial system of procedure.

In modern civil law systems, the inquisitorial system refers not to any legacy of the inquisition but to the extensive pretrial investigation and interrogations that are designed to ensure that no innocent person is brought to trial. Even to this extent, inquisitorial is a misleading term that does not truly describe the rather hybrid procedure that developed in civil law systems, often in emulation of common law procedural rights, during the nineteenth and twentieth centuries. Miryan Damaska (1986, p. 3) describes the inquisitorial process as an “official inquiry” and compares it to the “contest” or “dispute” that characterizes the adversary process.

Many countries of the world can be classified as having inquisitorial systems, including our model countries of France, Germany, China, and even, in some respects, Japan. But there are important disparities in criminal procedure among them. France and Germany have long civil law traditions but differ from each other with respect to some aspects of criminal procedure, such as the use of a prosecutor in Germany and an examining magistrate in France. Italy another civil law country, changed much of its pretrial process in 1988, and its system now resembles Common Law procedures in many ways. The Italians call this “process Perry Mason.”

Despite individual variations, certain aspects of criminal procedure in the civil law countries give this procedure a distinctive character. Among these are the relative ease with which procedural rules are adopted and changed and the relative length and importance of the pretrial process in determining the out come of a case.

As we have explained on several occasions, an essential characteristic of the common law is the importance of precedent, form, and procedure in the passage of cases through the courts. Indeed, it was the “common” procedural rules that brought this rather amorphous body of law together in the thirteenth and fourteenth centuries. In the Civil Law, it is the substantive rules of the law-the rules that explain what is the lawful and what is not-rather than how one makes a case in court, that have tended to predominate. The procedure for effecting legality is changed quite simply, usually through legislation. In England and the United States, by contrast, although criminal procedure rules are often modified by legislation, they have a certain continuity because of their constitutional and common law status.

The Mixed Court

The mixed court is another variation of criminal procedure that is used primarily in civil law countries but that is also found in Socialist and Common Law legal systems. It is a method of adjudication in which one or more lay judges help the professional judge come to a decision. Lay judges are typical citizens, not professional legal personnel. They are usually elected (on the local level) or chosen by the government agency responsible for monitoring the courts. The lay judges either work as volunteers a certain number of days each year or serve a term prescribed by law. Their numbers very depending on the seriousness of the case, the court level, and the laws of the country; they range from at least two to six. In effect, the lay judges replace the jury system, providing the balance between the state acting against the accused and the peers of the accused in considering the interests of justice and the community at large. It is possible in many systems for the lay judges to overrule the professional judge. However, in practice, lay judges often defer to the professional judge’s knowledge and rarely muster a majority that overrides the professional judge’s vote. Their main function seems to be a restraining one, to keep the judge from acting in an arbitrary or unreasonable manner.

The mixed court in civil law countries developed in the nineteenth century when some European countries attempted to imitate the Anglo-American criminal jury system. It reflects the importance that civil law countries place on nonprofessional participation in the court process… One of our model countries, Germany, uses lay judges, called Schoffen, extensively in courts of appeal for cases of limited jurisdiction (minor offenses) and for first-level cases of general criminal jurisdiction (criminal offenses). Some countries employ all-lay tribunals. In this form, the courts usually have one person who is legally trained to work with and provide advice to laypersons in matters that are considered less serious or during administrative or arbitration hearings.

China employs lay judges, called lay assessors, in its people’s courts to serve as adjudicators in serious criminal cases of first instance. Lay assessors in China must be twenty-three years of age and eligible to vote; they are either elected or temporarily invited to sit on the court. The United States and England also use a derivation of this method in their lower courts. Many small towns in America have a person called a justice of the peace, who carries out many legal functions, including traffic violations, some misdemeanors, small civil claims, and some domestic matters. In England, in the lower magistrates’ court, at least two lay judges must hear all summary (minor) offenses.

The Convergence of Systems

Each country develops its own code of criminal procedure, at least partially as a result of its own history, and we would have to scrutinize them all to identify all the difference among them. The classification in to adversarial and inquisitorial systems, however, seems to be increasingly a matter of style and history rather than major differences in procedure. Civil law countries have adopted many of the rules of procedure that protect the accused from arbitrary action by the state. Common law countries have modified the excesses of the adversarial system by allowing for pretrial investigations, by allowing judges to participate in trial if they choose to do so, and by making various arrangements for avoiding trial through the use of plea bargains.

Convergence can also be seen in Islamic and Socialist legal systems. In Saudi Arabia, Islamic law reflects the inquisitorial system through strong cooperation between the judge and the investigator. In addition, the defense attorney is less adversarial than in common law trials. At the same time, Islamic law includes provisions for the right to confront accusers and to remain silent and for the presumption of innocence… And with the changes in the role of judges and in the standard of proof, the Chinese may actually have moved from a strict inquisitorial to a semi-adversarial model…

The end result seems to be a certain homogenization of criminal procedure among the legal traditions. This process was predicted by legal scholar John Merryman, who over thirty years ago wrote of the blending of the inquisitorial and adversarial systems:

In a sense, it can be said that the evaluation of criminal procedure in the last two centuries in the civil law world has been away from the extremes and abuses of the inquisitorial system, and that the evolution in the common law world during the same period has been away from the abuses and excesses of the accusatorial system.

The two systems, in other words, are converging from different directions toward roughly equivalent mixed systems of criminal procedure…

Contrasting Adversarial and Inquisitorial Processes

Barton Ingraham developed an intriguing and helpful model of criminal procedure that allows us to compare and contrast procedures in a variety of nations. The application of his model to procedural criminal law resulted in the identification of four areas in which inquisitorial and adversarial procedures differ:

1. The inquisitorial systems emphasize the screening phase of the criminal process with the idea that a careful investigation will determine factual guilt. The adversarial systems emphasize the trial phase, where the idea that complex rules of evidence to produce substantive results will ensure the defendant a fair trial.

2. The adversarial systems are much more likely to restrict the involvement of the judiciary in both the investigatory and adjudicatory process. The direct involvement of the judge in inquisitorial systems contrasts with his or her more indirect involvement in adversarial systems.

3. Because the inquisitorial system assumes that all involved persons are seeking the truth, the defendant is expected (though not required) to be cooperative. That cooperation includes supplying information to investigators and answering questions at trial. The adversarial systems, on the other hand, neither expect nor require the defendant to assist investigators. The burden of proof is no the prosecutor, who assumes that the defendant will maintain silence.

4. The role of the judge in adversarial proceedings is primarily one of referee. The attorneys develop and present their respective cases, and then a jury decides between the two versions of the facts. The court in an inquisitorial system is another investigator with the added power of being able to decide the case. The judges ask most of the questions and develop the facts while the attorneys exist more to argue the interpretation that the court should give those facts…

Ingraham believes that the main objectives of the inquisitorial system are a search for truth and the achievement of procedural justice. Are these objectives different from those of the adversarial system? The adversarial approach differs in the sense that the quest for truth and justice officially begins at the trial stage because information from the investigation is not considered until presented in court. Then each side presents its own private version of the truth, and the judge or jurors must decide who is the most convincing. As a result, the importance of how a person is adjudicated seems a more important objective in the adversarial process than determining whether the accused actually committed the crime. This point is similar to the distinction made…in terms of legal guilt versus factual guilt. One might argue that although each system seeks to determine both types of guilt, the inquisitorial emphasize the latter (factual guilt) while the adversarial highlights the former (legal guilt).

Just as common law and civil law systems borrowed aspects of codification and precedent from each other, so too have the inquisitorial and adversarial systems exchanged procedures. For example, the common law systems adopted a public prosecutor to file criminal charges without relying on a grand jury. Rules of discovery compel some sharing of evidence between the opposing sides, resulting in a “search for the truth” more similar to an inquisitorial than adversarial process. Also, the role of the common law judge has increased in areas like plea negotiation and what evidence the jury will be allowed to hear. The results of this cross-pollination are systems where each contains elements of the other … The resulting mixture is not, however, as complete as that found in Islamic law.

A Mixed System

Islamic procedural law is a mixed system combining adversarial and inquisitorial aspects. Because the Shari’a is a religious law based on divine command and revelation, it did not develop through judicial precedent or legislative codification. Furthermore, it does not require administration of justice to be a combined office (for example, the inquisitorial judge) or divide in to many (for example, the adversarial attorney, judge, and jury). Identifying Islamic procedural law is not so easy. Though the sacred law prescribes penalties for criminal acts, it does not specify the means used to apprehend the offender and bring him to justice. The matter is left to the discretion of the state…

Because of this discretion, Islamic law has features of both procedural types. The inquisitorial process seems to predominate, because historically there has been little division between the judge and the investigator. In addition, the defense attorney’s role is not so much adversarial as it is one of presenting favorable evidence, safeguarding against improper incrimination, and overseeing the criminal judgments. Simultaneously, such adversarial provisions as the right to confront accusers, maintain silence, and a modified presumption of innocence reflect adversarial interests.

A peculiar twist given procedural law by Islamic justice is the differing provisions for separate categories of offenders and its impact on the presumption of innocence. Shari’a judges place suspects in to one of three categories; “(1) the accused is from the pious and righteous group; (2) he is among the disobedient and immoral; or (3) his character is unknown though neither righteous nor immoral”… These categories help judges decide the appropriate procedures to follow when a person is accused of a crime. When presented with a person of the first category, jurists usually give no credibility to the accusations. After all, the person is pious and righteous and therefore deserves the benefit of doubt. Because accusation against the sinful and immoral person are more likely to be true, given his or her lifestyle, limiting the accused’s rights and freedoms in the quest for truth is permissible. Persons in the third category are generally placed with the moral and subjected to the same restrictions.

As these examples from several countries show, there is greater diversity among nations in terms of procedural criminal law than we found on issues of substantive criminal law. However, this focus on the adjudicatory process might lead us to believe that procedural law issues are essentially differentiated on the basis of which legal tradition a country follows. That assumption would be incorrect because there are differences in procedural law both among and between the legal traditions. One area of variation is linked to the concept of judicial review. As we considered that topic, we will see that procedural criminal law shoes variation beyond that which is explained by legal tradition affiliation.

Models of Criminal Justice

The procedures for crime control, the processing of criminal defendants, and the sentencing, punishment, and management of convicted offenders are closely linked to the guarantees and prohibitions found in the bill of rights and interpretations of those provisions by the Supreme Court. Interestingly, however, the major criminology and criminal justice textbooks used during the first half of the 20^th century make no mention of either the Bill of Rights or the United States Supreme Court. Not until the 1960 publication of the crime, justice, and correction by lawyer-sociologist W. Tappan did Supreme Court decisions begin to creep in to discussion of criminal justice processing. Actually, this should not be surprising. As will become apparent throughout this book, concerted Supreme Court activity in matters of criminal justice did not begin until the early 1960s. Since then the court has been extremely active. Its decisions can be understood within the context of two competing models of criminal justice: the due process model and the crime control model. Since these models underlie much of the discussion in later chapters, it is important to look at them more closely here.

The Due Process Model

In the 960s, Warren Court-the Supreme Court under the leadership of Chief Justice Earl Warren- announced a large number of decisions that were in accord with the due process model of the criminal justice system. This model stresses the possibility of error in the stages leading to trial. It therefore emphasizes the need to protect procedural rights even if this prevents the legal system from operating with maximum efficiency. Although no model can possibly describe reality in a completely satisfactory manner, the Warren Court’s decisions in the area of criminal law applied a relatively strict version of the due process model to the justice process. As mentioned earlier, one provision after another of the Bill of Rights was incorporated in to the due process clause of the Fourteenth Amendment, thereby obliging the states to grant criminal defendants many of the constitutional safeguards that were already routinely accorded to those accused of federal crimes.

The Crime Control Model

Whereas the Warren Court clearly was attuned to the due process model of criminal justice, the Burger Court –the Supreme Court under the leadership of Chief Jstice Warren Burger-appeared to support an alternative model of the legal process-the crime control model. This model emphasizes efficiency and is based on the view that the most important function of the criminal process is repression of criminal conduct. Proponents of this model put a premium on speed and finally, and cannot understand why obviously guilty defendants should go free simply because of errors by police or court personnel.

Models of Criminal Justice Systems

In order to judge the effectiveness of a criminal justice system (or anything else for that matter}, you need first to know what that system sets out to do. The academic Herbert Packer {1968} has identified two quite different potential aims for criminal justice systems: the “due process” model; and “crime control” model. The former gives priority to fairness of procedure and to protecting the innocent from wrongful conviction, accepting that a high level of protection for suspects makes it more difficult to convict the guilty, and that some guilty people will therefore go free. The latter places most importance on convicting the guilty, taking the risk that occasionally some innocent people will be convicted. Obviously, criminal justice systems tend not to fall completely within one model or the other: most seek to strike a balance between the two. This is not always easy: imagine for a moment that you are put in charge of our criminal justice system, and you have to decide the balance at which it should aim. How many innocent people do you believe it is acceptable to convict? Bear in mind that if you answer “none”, the chances are that protections against this may have to be so strong that very few guilty people will be convicted either. Would it be acceptable for 10 percent of innocent people to be convicted if that means 50 percent of the guilty were also convicted? If that 10 percent seems totally unacceptable, does it become more reasonable if it means that 90 percent of the guilty are convicted? It is not an easy choice to make.

Looking at the balance which a criminal justice system seeks to strike, and how well that balance is in fact struck, is a useful way to assess the system’s effectiveness. As mentioned at the beginning of this chapter, in recent years this balance has been the subject of much debate and disagreement as regards our criminal justice system, with the police, magistrates and the government claiming that the balance has been tipped too far in favor of suspects’ rights, at the expense of convicting the guilty. On the other hand, civil liberties organizations, many academics and the lawyers involved in the well-known miscarriages of justice feel that the system has not learned from those miscarriages, and that the protections for suspects are still inadequate.