Comparative procedural traditions

Abstract

Diverse criminal procedural traditions across Europe are undergoing a process of being drawn to gether by two strong forces: the EU Area of Freedom, Security and Justice and the European Court of Human Rights. Increasingly, Member States are reforming their criminal procedural systems to take account of the developments in both arenas. Since 2003, Poland has been amending its Code of Criminal Procedure in an effort to make it more ‘adversarial’. A recent reform, the strongest move yet towards developing an adversarial system, came into force in July 2015. The 2015 reform introduces procedures that look adversarial. The reforms in this jurisdiction, and indeed those of other Member States, towards a more ‘adversarial’ system challenge us (again!) to examine what we understand by ‘adversarial’, whether it is understood differently from the common law perspective versus the Continental (so-called ‘inquisitorial’) perspective and whether, if so, the convergence of procedural traditions is more imagined than real. The article will approach this question taking Poland as an example, drawing comparisons between its approach and that of Italy, and using Ireland as exemplar of the common law adversarial procedural tradition. It traces the reforms to Poland’s criminal procedure and questions whether it can really be described as ‘adversarial’.

Biobordering as a Concept

“…In adversarial systems, such as that in the UK, the judge plays an active role as 'fact finder' and is regarded as the 'experts of experts', while the disputing parties (the prosecution and the defence) present their versions of the facts and might have unequal access to resources and experts. Poland is considered to have a mixed system (Ryan, 2016).…”

Criticisms, Reaction and Counter-Reaction

“…His statement gives the impression of academic arrogance, yet elsewhere Ryan admits to achieving only 'an undistinguished second-class Honours BA'. 47 Certainly, Ryan had nothing original to say about the History, either then or later. But it was Macintyre's accusation of cowardice in launching the posthumous betrayal of Clark that stuck in Ryan's craw.…”