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Samenvatting Comparative Criminal law and Criminal procedure
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- Vrije Universiteit Brussel (VUB)
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Summary Comparative Criminal law &Criminal procedure
Introduction
1. The general purpose of the book
Purpose is NOT to compare specific criminal offences such as rape or arson between e.g. E and NL, but
to compare fundamental rules that are generally applicable to most offences within a penal system.
- Fundamental rules can be found in the ‘general part’ of criminal codes of civil law systems, the
‘special part’ contains definitions of offences (murder, rape, theft, …).
o General part consists of doctrines, rules and definitions applicable to all offences, not limited
to law in the books in most legal systems it includes building blocks of criminal liability
(actus reus and mens rea) and generally applicable defences (excuses and justifications).
Criminal law has two main functions: control deviant social behaviour (1) and canalise and circumscribe
the application of coercive measures and punishment = rules for state to exercise powers thereby
protecting the citizen from arbitrary measures (2).
So criminal law polices society (control crime) and polices the police (safeguarding citizens against
repressive state powers).
2. A comparative approach
Comparative law: to determine similarities and differences between 2 or more national legal systems.
Every country has its own criminal law BUT interesting to see what solutions other legal systems have
for present and future problems and maybe even solve problems in your own country with a
comparative approach we may find interesting common principles, concepts and rules, but also striking
dissimilarities. Often there’s a greater similarity between diverse systems than we commonly realise.
Comparative methodology is not a goal in itself, it’s an explanatory tool for a better understanding
of basic concepts of criminal law.
You look at differences and similarities with a purpose of trying to understand something thereby
looking at practice (e.g. courts, the way lawyers act, …) + at different types of sources (e.g. statutes,
books, culture of the country such as vision on economy, social differences, …, etc.).
A. How to start a comparison?
It’s an approach but not an easy one due to the many systems and differences, there’s no time nor
financial resources to do it (e.g. travelling to other countries, knowing people there, …).
- E.g. a study of 40 countries is impossible, law is constantly changing and you need about 6 months for one
country. Once you finish your study, you’ll have to start over because the law has probably already changed.
- In Europe we have a tendency to limit ourselves to certain (1 or 2) countries we’ll look at Germany, NL,
FR and England = the mothers of all law systems. It’s also interesting to know where the law comes from
(FR law was introduced in the NL in the 19th century but then they dropped it and used more G law).
o NL = mixture of G and FR law, not B law which is way more influenced by FR than the NL.
o E = basis of common law
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, B. Why: the purposes of comparison?
Purposes of comparison of criminal law are from scientific, legal-political or practical nature.
In the 19th century some books were written explaining the different systems country after country (an
overview) which was the way to gather knowledge (encyclopaedists) BUT more interesting is trying to
understand your own system by looking at the law in another country (preferably a comparison
between ‘acquainted’ systems) only possible with law from countries close to each other.
- E.g. B and FR have basically the same criminal code based on French law, apart from some differences.
One step further = the mirror when confronted with something completely different you’ll achieve
a different view on your own system and start to see the blind spots and the mechanics behind the
rules: the reason why a rule exists?, certain problems or solutions, how people are dealing with it?, etc.
- Some say at least some common ground is needed to compare systems, there needs to be a
possibility to compare and also some understanding of the system is needed.
o Comparison on a higher level so the details will be different however a comparison is possible
e.g. role of judge, role of prosecutor = institution or person NOT on the low level.
- Others say that when the only thing you find out is that two systems are really really different
then your research will be completely useless thereby making comparison impossible.
It’s probably not possible to find a global law for the entire world but maybe a universal law for
Europe is possible, because some common standards can be found = harmonisation.
Again it’s to obtain a better understanding of the law in your own country, but it can also be an impetus
for policy change, a way to harmonise law of different states, to create universal legal principles or to
discern (onderscheiden) legal families by grouping countries with similar characteristics.
- Also practical use, knowledge can be used by official and judicial authorities for requests for
mutual legal assistance or by lawyers when they assist client’s abroad.
Problem-solving: the bigger the problem, the more difficult your analysis is going to be the context
in different countries can be different so never a certainty that a solution from another country will be
a solution for your country. It might even cause more problems.
= the cherry-picking process policy makers choose something they think is nice and introduce it
in their country neglecting the whole picture but most of the time that’s not a good idea because
it is linked to different things in that particular system where the solution came from.
o E.g. in G law there is no obligation for the prosecutor to prove something, so it might seem like
defendants there have to prove their own innocence but that’s not the case. People are also innocent
until proven otherwise but it’s up to the judge to prove it. If you’d only look at the rule of the prosecutor
you might think it’s a solution but it’s not, you have to look at the entire picture.
o The more the systems are related, the more likely it is that the solution is a good one.
o Sometimes the solution doesn’t come directly from the other country, sometimes
intermediate steps are necessary (e.g. interpretation, translation, …).
Development of countries which are in development themselves or are disrupted by certain political
events, e.g. after war time you can use your own knowledge in a particular country in Germany and Japan
American law was introduced to help improve the system. The German Constitutional Court was inspired by the
US Supreme Court.
- Investigation about which part of the own law is appropriate for the local situation of the host country.
- Ex-colonies were often forced to take law of Western countries (e.g. B, F, S, E criminal law in Africa).
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, Policy (better regulation) + ideas: achieve ‘better’ law or ‘better’ legislation or policy and the systematic adoption
of foreign ideas can lead to harmonisation of legal systems.
Internationalisation: could lead to the discovery of universally valid legal principles which would be applicable
throughout the world.
C. What will be compared? The comparandum
Object of the research = thing that’ll be compared only useful if it can be compared. When conclusion
just points out the large differences, then it doesn’t provide new insights. There need to be some
common characteristics in the different laws to examine why others differ (e.g. no apples and pears).
- Don’t interpret too radically, because then not a single legal rule or institution can be compared.
o E.g. classical criminal trial procedure in E with a jury compared to FR and B where it’s in front of a court
with professional judges OR state magistrates as prosecution in civil law and lawyers acting for Crown
or state in common law countries.
- Solution = comparison to a higher level than the technical one focus on legal concept or institution.
o E.g. G and Dutch criminal procedure doesn’t know burden of proof like in FR and B law, comparison
between NL and B wouldn’t make sense, BUT an examination of the principle of presumption of
innocence and whether in the end the guilt must be proven by the state would be.
D. How to compare? The comparative method
A comparative researcher will study, discuss, travel, watch TV, read newspapers, consult figures and
statistics, etc. law rule = usually result of long evolution, a rule of law can be studied at a given time
(static view) or by sketching the evolution (dynamic view).
- Internet made things easier but staying on site gives an opportunity to sniff the local atmosphere.
Questions can be asked in writing, but a personal contact is usually more appropriate.
- NOT only law in the books but also law in action case law is the most useful for the researcher,
but statute law and doctrine must not be overlooked.
Comparative researchers pay attention to culture, criminality in general, social figures, religion
and ethics, general beliefs, political system and ambiance, economic figures, …
Possible problems?
- Language: a lot of different countries/languages + limited number of articles in English (e.g. Polish law).
o Caution for false similarities (false friends) such as ‘highest national court’ vs. Supreme Court,
High Court, … + sometimes insoluble translation difficulties (e.g. Court de Cassation in French).
▪ Solution: original term in brackets next to a loose translation in the other language.
- Time: you need a lot of time, more than a normal classical approach.
- Sources: need for a lot of different sources.
Different approaches:
1. Systematic approach: you take your rule and compare it in the other countries, but this alone is
not sufficient you have to study the whole system to avoid making mistakes.
o Advantage is that you look at the whole picture opposite to 3. where you limit yourself and
might miss some important information.
2. Question approach: ask certain questions and look at solutions and answers in the different
countries more intelligent approach because than you will make an analysis of your own law.
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,3. Functional approach: limit yourself to certain problems then ask one or two questions to make
your analysis you’ll only do the comparison when it’s needed and possible. This may lead to
cherry-picking and neglection of the whole picture = disadvantages.
o Another possibility with this approach is to look at the meaning and function of a specific rule
by finding a corresponding rule in another system. Afterwards you focus on the institutions
(reason of existence, functioning, legal culture) rather than comparing on a technical level.
▪ Micro/macro comparison = at the level of legal rules or institutions OR legal systems.
The comparison itself is done by looking at culture and law in action (jurisprudence) but case law
alone is insufficient. Parties need to bring the case to court which doesn’t always happen so
jurisprudence might be incomplete. That’s why travelling, interviews, etc. is needed.
Difference between:
- Horizontal comparison: you’re going to study country after country (e.g. France, Germany, ..).
- Vertical comparison: you’re going to analyse a problem in France, Germany, … and then the next
problem in the same countries.
We’ll use both methods, but the course book uses the vertical approach.
3. Harmonisation
European law has become very important and in sometimes you’ll find the same rules in all the
different member states. Harmonisation itself has different definitions, but mainly it is trying to have
more or less the exact same rules or basic principles in a group of countries.
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,- Criminal law: only one major instrument today for harmonisation = EU linked with certain
values but it is more a matter of the citizens
- Criminal procedure: two different instruments and way more delicate because it also has to do
with how the state is organised, different states have to agree how they’ll act in certain situations.
Criminal law:
1. European communities were only interested in their own interest (financial), they were trying to
discover a fraud mechanism = limited scope, concerns only a little part of criminal law.
2. Cooperation between the different member states: idea with treaty of Amsterdam was to make
a space of law and safety (recht en veiligheid).
o Decision in one member state is also applicable in other member states.
o Basic idea is mutual recognition of decisions in the treaty was some indication on how to
reach this cooperation. If you have the same crimes everywhere then it’s easier to recognise
them (e.g. criminal organisation in France, but not known in Belgium so we couldn’t recognize
it). So they started to draft some instrument for common rules.
3. Common rules with minimal obligations for certain crimes such as money laundering, environ-
ment crimes, … most of these common rules are about crimes, there are a few rules about the
general part of the criminal law but definitely not many.
Criminal procedure
Concerns the nature of the procedure it’s very dynamic and changes a lot, because it’s based on an
‘action, reaction’-principle. It’s difficult to find a standard for criminal procedure since it deals with the
way the state is enforcing the law. It’s very difficult to find common rules between the various
countries (e.g. passive judge active judge, importance of the parties in the process varies, some have a pre-
trial judge and others don’t, …).
So nowadays there isn’t much harmonisation for criminal procedure. Only two instruments are
available to obtain some kind of harmonisation.
1. European Convention on Human Rights (ECHR)
2. European Court of Human RIghts
A. ECHR (European Convention of Human Rights)
1. Global approach: when European Court of Human Rights is deciding in a certain case they’ll always
speak about certain facts, not in general. They analyse the way national authorities applied their
law in a certain case and then they look whether it’s in compliance with European law. BUT they
will not study the law of the country itsel (e.g. Belgian law), they’ll rule whether all the courts in
Belgium have ruled in compliance with e.g. art. 6 ECHR.
o After a while it becomes clear that the court is ruling in a similar way in various cases. Their
rulings aren’t limited to one country anymore but applicable in all the member states.
o National law is mostly provided by parties themselves, sometimes the court itself brings some
new elements but not often. Sometimes they even use a comparative approach to see how
other countries dealt with a similar problem.
▪ After a while the court decided to make a summary of their jurisprudence, of cases they
treated in the past the result is the development of certain rules derived from certain
case = development of certain rules by using the global approach.
2. Autonomous approach: the court is not going to say which law is the best, but they agree that
they don’t have to limit themselves to those systems. They are free to interpret art. 6 ECHR in the
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, way they think it should be interpreted, not in the way this would be explained in a common or
civil law system. They have their own view on the ECHR and won’t choose between common or
civil law systems.
o A new model develops namely the fair trial rule of art. 6 a whole number of rules
concerning a fair trial emerge which become the standard for all member states to follow.
3. Margin of appreciation: countries are free to organise their system the way they want to, they
have a large freedom, but the fair trial is the minimum standard which is given by the court.
o E.g. art. 6 ECHR says nothing about the right of appeal so there’s no need to have an appeal
court. Every country decides for itself whether they have an appeal court or appeal system.
▪ If they do decide to have one then it has to be in compliance with art. 6. The main
concern is that in the end it needs to be a fair trial, if that’s the case without an appeal
system then there’s no problem.
o The court won’t literally say what to do to but by using the autonomous interpretation they
are imposing some standard rules.
Whether this will lead to one model for all countries is currently still the subject of huge debate.
➢ YES: the court will achieve one model in all aspects of the criminal procedure and the
systems will converge the new model will be called the fair trial model.
➢ NO: there will only be certain standards but in the details it’ll still be very different.
▪ E.g. Salduz case about terrorism, torture and the right to remain silent the court says you
have to find the general principles which isn’t always easy. In this case the general principle
was the right to remain silent which can be achieved with the assistance of a lawyer. It took
a while before the member states were inclined to follow this judgement, but eventually they
did which was the beginning of harmonisation on assistance of a lawyer during pre-trial.
B. European Union
Some say it’s up to the European Union to draft common rules.
1. Cooperation: helping each other was the first step.
2. Common rules from European Commission: they started with very large common research (e.g.
right of family of victims, assistance of the lawyer, …).
The EU could certainly be the one to achieve harmonisation but it’s going very slow and in a very limited
way. Not on the level of whether they need a pretrial judge in the procedure at this moment this is
way to difficult due to differences between the countries. It’s a dynamic process and we will have to
see how it proceeds.
Chapter 1: Judicial system and prosecution
1. England and Wales
Most of the time the English and Welsh system are alike, Scotland however has a different system.
A. Courts
English judicial system is based on classification of offences (same in continental systems):
- Indictable offences: most serious crimes (e.g. murder, manslaughter, grievous assault and battery, rape, incest,
robbery (theft with violence), death in traffic, false testimony and some gun crimes) treated on indictment.
o Corresponds with what we know in B as crimes, ‘correctionalised’ crimes and délits (wanbedrijven).
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,- Summary offences: less serious offences with often no custodial penalty (vrijheidsstraf) (e.g. threats,
serious traffic violations) exclusively in statutes with single sentence of less than 6M imprisonment.
o Normally treated summary unless for some in case of connection with crimes on indictment.
o Corresponds with lowest offences and certain ‘délits’.
- Either-way offences: relative seriousness (e.g. theft, handling stolen goods, fraud like obtaining by
deception, burglary, vandalism, (sexual) assault, prostitution, false witness outside process, prohibited weapons,
most drug crimes) manner of persecution depends on the circumstances of the case, in the statute
two sentences are mentioned depending on treatment on indictment (CC) or summary (MC).
o Treatment on indictment doesn’t happen too often, try to avoid it as much as possible.
I. The Magistrates’ Court (Magistrates’ Court Act 1980 and Senior Court Act 1981)
Jurisdiction at 1st instance for summary offences and sometimes for either-way offences sentencing
power up to 6M imprisonment. Main criminal court in E that deals with 97-98% of all criminal cases.
- Mainly ‘urban crime’, traffic offences and different criminal laws in special matters for which there’s
a simplified procedure that doesn’t take too long ( jury trial = 1 week up to a month).
- Consists of lay judges and sometimes (part-time) professional judges:
o (Lay) Magistrates (Justices of the Peace): sit part-time (1-2 times a week), unpaid (fee for travel
expenses), not legally schooled (but no prohibition for trained lawyers or academics to sit), in 2006
30 000 magistrates, at least 2 should sit and assisted by legally qualified clerk.
▪ Not a good representation of the E population, mainly white men in their 50-60’s already
involved in the community or local politicians (no minorities).
▪ Advantage of lay judges is that they’ll focus more on the individual judge = routine.
o District Judges: full time professional judges, formal lawyers with at least 7 years of experience,
who are usually assigned to a particular court, but they can sit across whole E and W.
▪ For more complex cases regarding the law or evidence = ‘interventionist’.
o Deputy District Judges: appointed temporary and part-time sitting judges usually in run to be
appointed as District Judge they have the same tasks as District Judges.
o Justices’ Clerks: lawyers with more than 5 years of experience who take care of administration
of the court + legal advisor to the Magistrates.
2 or 3 Lay Magistrates assisted by a Clerk (chairman = one with experience or senior one) OR a single sitting
(Deputy) District Judge exceptionally a (Deputy) District Judge (as chairman) with 2 Lay Magistrates.
Efficiency of the system of lay judges is ensured by basic and continuous training (1), chairman
with years of experience so not considered totally ‘lay’ (2), assistance of clerk for matters of law
(3), complex or evidentiary cases are treated by legally trained District Judge (4) and more
remedies against these decisions than those of the Crown Court (5).
Since 2014 ‘Traffic Courts’ for driving licence offences, lightning offences, speed limit offences or
vehicle insurance offences local Magistrates’ Court can deal with more serious urban criminality.
II. The Crown Court
Jurisdiction at first instance for indictable and either-way offences + decides also on the sentence
when the case was referred by the Magistrates’ Court + limited civil jurisdiction one Court that can
sit anywhere in E and W (most famous court centre is based in London). Consists of professional judges:
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, - High Court Judges: 20 judges who treat the most serious or complex cases, usually experience
as a judge in a criminal court or as a lawyer in criminal cases BUT not compulsory.
o Can also sit in the Court of Appeal so they’ll rarely sit in the CC (only for very difficult cases).
- Circuit Judges: full-time judges with > 10 years experience in the CC (usually as barristers) or another
judicial office some sit in both criminal as civil (County Court) matters or exclusively in criminal.
- Recorders: part-time judges appointed for fixed term and need for > 10 years experience.
- Deputy Circuit Judges: appointed for limited period for needs of service (e.g. senior judges).
Professional Judges sit alone or with a jury of 12 people/with Magistrates only 2% of criminal cases
are treated at the CC and less than that with a jury since most defendants plead ‘guilty’ = no jury trial
(only a debate about the sentence/punishment which is not delivered by a jury but a judge).
- Criticism on jury system: lack of representativeness in relation to the current population, unfair
decisions, high costs, emotional strains for jury members (pictures/videos of horrific crimes), …
o Disadvantages such as possibility of intimidation and threats, weak employment position of
long absent worker, lack of objectivity and influence (by opposite sex/media), jurors are
legally unskilled, suggestibility by lawyers/trial judge.
- Exceptions!: serious and complex fraud cases (not yet into force) with a ‘preliminary hearing’
without a jury + threats against the jury.
Also advantages of jury trial:
- constitutional haven against authoritarian state with dictators and political influences: during
Middle Ages the idea was that it was better to be judges by your own people than the King.
- to avoid that the trial is influenced by professional judge who is more inclined to act routinely,
jury’s are supposed to be more open for new questions and debate in society
o BUT not confirmed in the statistics, 61% of the acquittals is the result of a decision of trial
judge alone, the jury is less inclined to acquit no proof that jury is more lenient.
- the mitigation of repression: cases where jury acquitted because they didn’t agree with law itself.
Lot of debate in different countries to abolish jury trials or not in NL it was abolished since the 19th
century, but F and B still use it. G is somewhere in between, but mostly a system of lay judges.
CC also sits as an appeal court against decisions of the MC composed of a High Court Judge or Circuit
Judge or Recorder as chairman and 2-4 Magistrates as assessors. Shows a tendency to limit the
influence of lay judges.
III. Appeal Courts
High Court (Divisional Court of Queen’s Bench Division): 2 or more High Court Judges with most senior
one as chairman.
- Judicial Review: adm. appeal ( RvS) which can be used against decisions of all institutions + to
supervise the work of the lower courts most of the time based on law, NOT on facts.
- Case stated: appeal court to review decisions on point of the law by MC or CC.
Court of Appeal (Criminal division): presidents of other senior courts and 38 Lord or Lady Justice of
Appeal at least 3 judges decide on appeals (on points of law or facts) of decisions from the CC.
- Main criteria to decide a case is to judge whether a decision looks right (fair trial, normal decision, …).
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