CRIMINAL PROCEDURAL SYSTEMS

Three fundamental systems of criminal procedure are usually distinguished throughout history which follow one another in chronological order:

• the accusatory,

• the inquisitive

• and the mixed

Originally, the accusatory form obeys the private conception of criminal law, which is why it is the first to emerge in time. In its most advanced form, the fundamental characteristics of the accusatory process are:

a) The judge does not proceed on his own initiative, ex officio.

b) It is the accusation that determines the scope, both subjective and objective, of the process.

c) There must be a correlation between the accusation and the sentence: the judge cannot condemn a person other than the accused, or for acts other than those accused.

d) The accusatory process is oral and public.

e) The decision corresponds to juries that represent the community and are not attached to any hierarchy.

From this condition, and from the orality and immediacy of the procedure, another character of the system necessarily derives: the single instance.

The bankruptcy of the accusatory system occurs when it is recognized that the prosecution of crimes cannot be left in the hands of individuals, but that it is a function that the State must assume and that must be exercised in accordance with the principle of legality.

The inquisitive process is an elaboration of Canon Law in the Middle Ages as the Church took all the elements from the secular institutions, but animated them with a new spirit. Driven by identical needs, the secular powers only later adopted its principles. The characters of the inquisitive process are:

a) The State proceeds ex officio, through the same body, in the double function of accusing and judging, and creates permanent bodies for the investigation and prosecution of crimes.

b) The function of judging is specialized.

c) The subjective and objective determination of the accusation remains in the hands of the judge, so that the congruence or correlation between the accusation and the ruling is meaningless.

d) The procedure is written and secret. As a counterpart, the appeal and the legal evidence system can be considered as institutions designed to limit the powers of the judge. In this sense, the inquisitive process represents a more scientific and complex system than the accusatory one. e) It is not possible to speak of contradiction and equality of the parties, since there are not even true parties.

f ) Before disappearing in the course of the 19th century, the inquisitive form lost some of its non-essential ingredients, such as torment, due to the attacks of the ideas of the Enlightenment.

A new reception of foreign law determines the reform of criminal prosecution in the main nations. The law received can be described as Anglo-French, since, as in the political and constitutional field, the institutions of England and France served as a model for the rest of the countries. This third procedural form is known as the formal accusatory system.

The judge does not proceed ex officio, but the process is conditioned by an accusation, but the State does not lose interest in the function of accusing and assigns to it another independent body of its own: the Public Prosecutor's Office.

In addition, the formal accusatory system has preserved the judicial investigation, including its written and secret nature, although with a completely different scope than it had in the inquisitive process. In the latter, the judge ruled based on the result of that investigation, which he himself could conduct.

In the current process, the preliminary investigation, entrusted to police, prosecutor or judicial official, in any case other than the one that assumes the function of judging, does not serve as the basis for the sentence, but for the accusation, and also responds to the purpose of ensuring the evidence and the presence of the accused in the trial itself. The trial is oral, public and confrontational, and is governed by the principles of immediacy and concentration.