[1] I have been at pains to find which event Mr. Whitton refers to when he contends "that the fork in the road between the European system and the English system" was arrived at in November 1215. Is he considering the fourth Lateran council that prohibited trial by ordeal and thus opened the way to a modern investigative style of criminal procedure ?

[2] To note that there were two Inquisitions, the Papal one (today the Congregation for the doctrine of the faith), and the Spanish one. The former, created in 1233 to combat the heresy of the Albigenses, did indeed torture occasionally but otherwise can be considered, all things being equal, as a "progressive" criminal procedure instrument. The latter, established two and half centuries later, was essentially a political instrument in the hands of Spanish kings, and notoriously much harsher than its papal equivalent.

[3] I will henceforth use "civil" in the strict sense of the word, that of a dispute between private parties, as opposed to "administrative" or "public law" disputes for which continental countries often have specific courts or tribunals.

[4] Art. 87 of the Greek Constitution, 106 of the Italian Constitution, art. 63 of the French Constitution, art. 221 of the Portuguese Constitution, art. 124 of the Spanish Constitution, Dutch act on the organisation of the judiciary.

[5] The Danish Objektivitetsprincippet, art. 160 II of the German Strafprozessordnung, art. 239 of the Greek C.P.P., art. 358 of the Italian C.P.P., art. 53 of the Portuguese CPP, art. 124 of the Spanish Constitution.

[6] Art. 327 Greek C.P.P.

[7] Art. 153 & ff. German StPO, art. 43 of the Greek C.P.P., art. 112 of the Italian Constitution, art. 283 of the Portuguese CPP, art. 105 of the Spanish Ley de Enjuiciamento Criminal. The German prosecutor is not bound by the principle of legality where it comes to juveniles (art. 45, 47 Jugendgerichtsgesetz).

[8] Tiltaleundledelse (s. 722 of the Danish administration of justice act), Dutch oportuniteitsbeginsel (art. 167 of the C.P.P.), the French classement sans suite (art. 41 C.P.P.), but also in Belgium or Luxembourg, art. 280 of the Portuguese C.P.P. for petty crimes.

[9] See for an interesting illustration of a conditional waiver the French injonction thérapeutique (art. L. 628-1, and L. 355-14 and following of the public health code), where the prosecution has a discretion to drop charges of drug abuse on condition the offender undertakes medical and psychological treatment.

[10] For instance the French "juge d'application des peines" (art. 709-1, 722 C.P.P.).

[11] See the recent report by Sir Iain Glidewell, and the press' comments about the replacement of Dame Barbara Mills.

[12] The French, Belgian or Luxembourg "juge d'instruction", the Spanish "juez de instruccion", the Portuguese "juiz de instruçao", the Dutch "rechter-commissaris" ..., and to a certain extent, the Italian "giudice per le indagine preliminari".

[13] On average, in 10 % of cases. The remaining proportion are the cases brought directly to court by the prosecution, along the lines of one procedure or the other. See for a complete illustration of the procedural rules applicable articles 79 & ff. of the French C.P.P.

[14] See for instance since 1989 the cases of the "Guilford Four", the "Birmingham Six", the Blakelock appeal, the releases of Judith Ward, of Stefan Kiszko, of the "Maguire Seven", quoted in In the Name of the Law - The Collapse of Criminal Justice, by David Rose, Jonathan Cape ed., 1996, or the very recent Patrick Nicholls case.

[15] See a very recent illustration in an article published in the Belgian newspaper Le Soir, December 1st, 1998 edition. A Belgian juge d'instruction had a body dissolved in a bath of a household brand of detergent, named "Cleanest", to reconstruct the alleged disappearance of a victim where to persons accused of the murder are dissenting. The experiment confirmed that this product was indeed capable of disposing of a victim's body.

[16] On average, a French juge d'instruction thus closes some 20 % of his cases by an ordonnance de non-lieu (9,114 out of 44,485 cases for 1996 - Les chiffres clés de la Justice, French Ministry of Justice, 1997). This is to be compared with an average of 4 % of cases thrown out during committal proceedings in the United States, or the 14,800 Crown Court acquittal verdicts in 1993, against 87,000 committals, i.e. 17 % (as quoted by David Rose, see above).

[17] Art. 763 and ff. of the Nouveau Code de Procédure Civile.

[18] Access to Justice, Final report by the Right Honorable the Lord Woolf, Master of the Rolls, July 1996, HMSO.

[19] Article 9 of the 1789 "Déclaration des droits de l'Homme et du Citoyen". For a further illustration of this ancient right, see the film "Le retour de Martin Guerre" a romanticised version of a 1559 criminal case, which nevertheless shows an investigating judge already at work.

[20] See art. 261 of the German StPO.

[21] In France, Belgium, Denmark (art. 159 CPP), Germany (art 136-1 and 243-4 StPO).

[22] In Belgium, Netherlands, Denmark, Spain, in Germany the "Unmittelbarkeitsprinzip"

[23] "procès-verbal faisant foi jusqu'à inscription de faux", e.g. art 336 of the Code des douanes.

[24] "procès-verbal faisant foi jusqu'à preuve contraire", e.g. art. 537 French C.P.P.

[25] "procès-verbal ne valant qu'à titre d'information". Similar rules are found in Belgian procedure (art. 163, 195 et 211 Belgian C.P.P.).

[26] Art. 896 of the Danish C.P.P., the German "Richterliche Ueberzeugung", "intime conviction" of art. 342 Belgian C.P.P., art. 427, 536 and 353 French C.P.P., the latter states specially in the latter article for the assizes court: "the law does not ask judges for an explanation of the means by which they are convinced, it does not set any particular rules by which they must assess the fullness and adequacy of the evidence; it stipulates that they must search their conscience in good faith and silently and thoughtfully ask themselves what .impression the evidence given against the accused and the defence's arguments have made upon them. The law asks them only one question which sums up all of their duties 'Are you personally convinced'. But other courts must give reasons for their decision.

[27] There is nevertheless an interesting quasi -exception with the Italian pattegiamento, already mentioned. It is probably not a coincidence that this exception stems from the most "accusatorial" of continental procedures. However, the absence of plea bargaining stricto sensu does not preclude the prosecution and defence from concluding certain procedural arrangements in many systems. But these arrangements remain alien to the Bench.

[28] Here J. Grisham's novel The Runaway Jury makes compelling reading. It purports to demonstrate, in a civil liability case initiated against tobacco-producing companies, that American experts are recruited for their ability to sing to the tune of the person who hires them, hence the nickname "saxophones".

[29] As an illustration, a court-appointed medical expert in a standard case of claim for damages after a car-accident will be paid around 2.000 FF (approx. 570 Australian $), a land surveyor's investigation will be valued at around 10.000 FF ( approx. 2.850 Australian $), on a going rate of around 400 FF. an hour.

[30] Nebenklaeger: see section 395 & ff. of the German Strafprozessordnung, art. 2 of the French penal procedure code, art. 91 of the Greek penal procedure code, art. 69 Portuguese C.P.P.

[31] Which also explains that the prosecution service also has its word to say in a certain number of civil procedures which are considered as having a public interest. This happens in suits governing civil status (paternity, guardianship cases), but also in certain commercial cases (bankruptcies for instance).

[32] See the Crown Prosecution Service Internet site, "standards of proof in the case of Joan Francisco", 27th June 1998.

[33] See above footnote no. 17

[34] See nevertheless the most interesting constitutional reform (art. 151 of the Constitution) under way in Belgium (Internet site: http://www.just.fgov.be/cgi/article.pl) regarding the appointment of the judges, in the wake of the pedophile scandal involving Marc Dutroux.

[35] "Auditeur de justice"

[36]

Ecole Nationale de la Magistrature	E.N.M. - Département international
9, rue Joffre	8, rue Chanoinesse
33080 Bordeaux	75004 Paris
France	France
Tel. (00.33) 5.56.00.10.10	(00.33) 1.44.41.88.20
Fax. (00.33) 5.56.00.10.99	(00.33) 1.44.41.88.21
E-mail: initiale@enm-magistrature.fr	continue@enm-magistrature.fr
or secgen@enm-magistrature.fr	internal@enm-magistrature.fr

[37] As a basis of comparison, the following example can be used to illustrate the compulsory schedule for costs used by German private practitioners, for a 30,000 D.M. claim, the lawyer's expenses will be 3,315 D.M. (Prozessgebuehr, Verhandlungsgebuehr and Beweisgebuehr) plus 1,425 D.M. for court fees, plus 16 % V.A.T. For the same claim, appeal costs will be fixed at 6, 447 D.M. plus V.A.T. (the German Deutshe Mark is roughly equivalent in value to the Australian Dollar).

One can also quote the tentative schedule offered in 1989 in a big French town (in "Illégalité du bareme des avocats", Gazette du Palais nr 134, p. 15, 14.05.97). It is a little ancient (French lawyers are very cagey about their fees), but the low rate of inflation and the serious economic competition going on between advocates have not dramatically increased these amounts (on the basis of Austr. $ 1 = 5,70 FF. approx.)
 

Considering this information, it is understandable that French judges are not required to assess costs in their decisions, because people who are over the legal aid limit (currently 4,500 F for total aid, and 7,000 F for partial aid, for one person without family charges), will not ruin themselves litigating, even if expenses are by no mean cheap.

[38] "Rights for All", an Amnesty International report on the situation of Human Rights in the United States of America, October 1998, accessible on Amnesty's Internet site.

[39] "The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal; there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no-one with a clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts, and the rules of court, all too often, are ignored by the parties and not enforced by the court" page 2, Access to Justice, Final report by the Right Honorable the Lord Woolf, Master of the Rolls, July 1996, HMSO.

"Our assessment of the Crown Prosecution Service is that is has the potential to become a lively, successful and esteemed part of the criminal justice system, but that, sadly, none of these objectives applied to the service as a whole at present" Sir Iain Glidewell, as quoted by a BBC report.

[40] See on Internet the ranking of the 50 largest law firms in the world, ranked by size, on: http://www.ljx.com/newswire/stories/chart/lawyers50.html and by revenue on http://www.ljx.com/newswire/stories/chart/revenue50.html.

[41] But U.S. detention rates are around 680 inmates for 100,000 population (see the Amnesty International report quoted above).

[42] See the amended rules governing the prosecutor's powers (section 6 - rules 37 & ff.)

[43] Tulane Law Review, 12 (1938), 401-11 (p. 410), as quoted by Martin Weston, in An English Reader's Guide to the French Legal System, Berg ed., ISBN 0-85496-642-0, 1991, p. 143.