Investigating criminal justice

Here's about all that many of us trained in the common law would have to say about our Continental counterpart:

Criminal procedure in civil law countries is inquisitorial. Dating back to the Code Napoléon of 1808, it features a juge d'instruction who both conducts police inquiries and issues judicial orders. The dominance of this investigating judge makes the inquisitorial system of the civil law entirely different from the accusatorial system of the common law.

But this comparative criminal law nutshell distorts reality.

That's in part because neither the inquisitorial nor the accusatorial method is any longer discrete. Rather,

aspects of each method now occur in the other to a degree that distinguishing the two 'is almost a "metaphysical question" which is now sterile and obsolete,'

as I wrote a while back (p. 833 n.144), quoting a chapter by Françoise Tulkens (left), then a law professor at Belgium's University of Louvain and since 1998 a Judge on the European Court of Human Rights, in The Criminal Process and Human Rights (1995).

The nutshell above is also distorted because even in France, the country that promulgated the Napoleonic Code, the investigating judge long ago lost considerable power. Our colleague Mireille Delmas-Marty (below left), Chair of Comparative Legal Studies & Internationalization of Law at the Collège de France and editor of the 1995 Criminal Process volume quoted above, traced this evolution in a recent Le Monde commentary. Her essay called into question aspects of a reform package put forward in March by a committee of jurists assembled last year by France's Minister of Justice, Rachida Dati (right).

Delmas-Marty noted that the juge d'instruction used to handle 40% of all criminal matters, "making him the most powerful man in France." No more. The juge's share dropped to 20% by 1960 and shrank to 8% by 1989. Today it's a measly 4% of all criminal matters.

Why the decrease?

Among the reasons, Delmas-Marty asserted, were reforms that increased the protections owed to persons under investigation. Even as those reforms were instituted, the prosecution gained more authority to act during the preliminary phases of a criminal case, and by means less cumbersome than those of the investigating judge. Examples of that new authority:

► Since 2007 victims seeking to pursue a criminal case via the partie civile mechanism were required first to address the prosecutor, not the juge. (Aside of note: Exercise of the power of investigating judges in Spain to pursue extraterritorial criminal investigations even in the face of opposition by the public prosecutor now faces resistance. As detailed here, here, and here, the Spanish government is working to require concrete jurisdictional links to Spain and "proof that no other national court system has taken up a given case" -- even as the most noted exerciser of extraterritorial criminal jurisdiction, Judge Baltasar Garzón, faces a misconduct inquiry related to an investigation into crimes during Spain's Franco era.)

► A bill that would effect domestic implementation of the Rome Statute of the International Criminal Court likewise gives the prosecution a "monopoly" over the pursuit of international crimes.

Thus did the French system shift toward an accusatorial method -- in Delmas-Marty's view, not in a good way. Prosecutorial power expanded even as fair-process safeguards retracted. The European human rights court wrote last summer in Medvedyev v. France that

the public prosecutor is not a 'competent legal authority' within the meaning the Court's case-law gives to that notion: as the applicants pointed out, he lacks the independence in respect of the executive to qualify as such.

In her commentary Delmas-Marty urged the following "re-equilibration of powers" as the current reform effort proceeds:

► Guarantees of independence and impartiality of the public prosecutor must be reinforced.

► Should the juge d'instruction be replaced with "a new 'judge of investigation and of liberties,'" as proposed, the granting to the latter judge of genuine power to supervise the public prosecutor throughout the course of investigation. Quoting Sorbonne Law Professor Geneviève Giudicelli-Delage, Delmas-Marty called for an "'optimum distance'" between the judge and the prosecution "because if the judge is placed too close he is blinded, but if he is too far away he is blind."

► Rights of the accused and the presumption of innocence must be strengthened by allowing for greater judicial oversight of prosecutorial action and for improvement of legal aid for the poor.

► Victims who wish to proceed as parties civiles should once again be permitted ask the judge directly to open a criminal investigation.

In words applicable to any system of criminal justice, Delmas-Marty concluded:

Whether it is a matter of the investigatory or the adjudicatory phase, it is not just technicalities, but also policy, that is at stake. The legitimate desire to simplify procedures and speed decisionmaking should not result in a power shift that works to the detriment of judges whose independence is guaranteed by the Constitution and to the benefit of a prosecutor who remains under the orders of the Minister of Justice.

A Judicial Field Trip: Khmer Rouge Tribunal

In an interesting turn of events, particularly for a lawyer schooled in the common law tradition, investigating judges from the Extraordinary Chambers in the Courts of Cambodia (ECCC) travelled Wednesday to the former Khmer Rouge stronghold of Pailin to host a town-hall style meeting. In earlier efforts to interview Pailin residents, both Cambodian and international judges had faced recalcitrance from locals possibly concerned that they might fall under the jurisdiction of the court. Given the tribunal's need for testimony from former Khmer Rouge cadre, the judges decided to hold an informational meeting to explain the limited jurisdiction of the court, which is focused on "those most responsible" for the crimes of the regime. While that phrase has yet to be precisely defined, the court officials reportedly assured lower-ranking cadre that they would not be prosecuted. NGOs have already played an unusually large role in conducting outreach around the Khmer Rouge tribunal, both through field visits to explain the mandate and process of the court and by bringing both victims and perpetrators to visit the court. But it is startling to see the judges get in on the game; while investigating judges have played a role in criminal cases for some time in continental Europe, their use is diminishing due to concerns about effectiveness and impartiality. The ECCC is the only international criminal tribunal to deploy investigating judges. As a recent article argues, perhaps the investigatory role is appropriate in international criminal law cases, where courts face complex factual and legal scenarios, counterproductive adversariality between the prosecution and the defense, accusations of political bias, and the participation of victims throughout the process. But is outreach, including promises about the limits of prosecution, an appropriate part of that role? (photo credit AFP)

Executive meddling in the ECCC

Just as the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) are getting into the meat of their work, with the prosecutors' introductory submissions filed last month, the executive has transferred Co-Investigating Judge You Bunleng to the position of President of the Cambodian Court of Appeal. Yesterday, the UN Special Representative of the Secretary General for Human Rights in Cambodia Yash Ghai and the Special Rapporteur on the Independence of Judges and Lawyers Leandro Despouy slammed the executive branch for this move, stating that "the replacement of the Appeal Court President was done at the request of the executive branch of the government in contravention of the separation of executive and judicial powers specified in the Constitution." (The Constitution empowers only the Supreme Council of Magistracy to transfer judges.) This move sends several concerning messages. First, it says to the other Cambodian judges in the ECCC that they are under the control of the executive, and can be transferred at the whim of Prime Minister Hun Sen. Second, it tells the tribunal staff, national and international, that the executive can delay the process whenever it pleases -- a real concern for the ECCC, whose three-year mandate is ticking past. Perhaps most importantly, this move signals to the rest of the Cambodian judiciary and the world that the Cambodian government is all too willing to deny the "essential protections provided to judges, including guarantees of tenure, that enable judges to administer, and be seen to administer justice efficiently, impartially and fairly, free of political interference."