Comparative procedural traditions
| Author | Andrea Ryan |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| DOI | 10.1177/1365712716655169 |
| Subject Matter | Articles |
The International Journal of
Evidence & Proof
Comparative procedural
2016, Vol. 20(4) 305–325
ª The Author(s) 2016
traditions: Poland’s journey
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from socialist to ‘adversarial’
DOI: 10.1177/1365712716655169
epj.sagepub.com
system
Andrea Ryan
University of Limerick, Ireland
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’.
Keywords
adversarial–inquisitorial, legal culture, Polish criminal investigation, Polish criminal procedure,
post-communist Poland
Introduction
Diverse criminal procedural traditions across Europe are undergoing a process of being drawn by from
two strong forces: the EU Area of Freedom, Security and Justice and the European Court of Human
Corresponding author:
Andrea Ryan, School of Law, Foundation Building, University of Limerick, Castletroy, Limerick V94 PX58, Ireland.
E-mail: andrea.ryan@ul.ie
306
The International Journal of Evidence & Proof 20(4)
Rights. Increasingly, Member States are reforming their criminal procedural systems to take account of
the developments in both arenas. Poland, a member of the EU and signatory to the European Convention
on Human Rights, broke away from its socialist/communist legal family through drafting a new Con-
stitution and a Code of Criminal Procedure (CPP) in 1997.1 Since 2003, Poland has been amending the
CPP in an effort to make it more ‘adversarial’. To that end, major overhauls to the CPP were undertaken
in 2003 and 2010.2 The most radical reform, the strongest move yet towards developing an adversarial
system, came into force in July 2015. Currently, there are three types of criminal procedure operating in
Poland: the 2003/2010 system, which is being used to try cases commenced in the trial courts prior to 1
July 2015; the system introduced under the 2015 reform, which is to operate for all cases commenced in
the trial court after the 1 July 2015, and a third system, introduced by the recently elected Law and
Justice Party, which came into effect from 1 April 2016.
The 2015 reform in Poland introduces procedures that look adversarial, including reducing the
formerly active role of the court, substantially increasing the role of the prosecution and defence in the
presentation of evidence and limiting the admissibility of illegally obtained evidence. The reforms in this
jurisdiction, and indeed those of other Member States, towards a more ‘adversarial’ system challenges us
(again!) to examine what we understand by ‘adversarial’. Is it understood differently from a common law
perspective to that of the Continental (so-called ‘inquisitorial’) perspective? If this is the case, is a
convergence of procedural traditions more imagined than real?
The article will approach these questions taking Poland as an example, drawing comparisons between
its effort to achieve a transition towards an adversarial criminal procedure and that of Italy, which took a
similar path in 1989. It will use Ireland, which has derived its common law adversarial procedural
tradition from Britain but, like Poland and Italy, has a written Constitution, to highlight the differences
that exist between continental and common law adversarial procedure.
Part 1 of this article will first set out the traditional modes of comparison of procedural traditions
drawing on the inquisitorial/ adversarial dichotomy; It will then outline the legal culture of Poland,
examining the historical underpinnings of its criminal procedure, the procedure prior to the First World
War and the Socialist system that was imposed after World War Two, lasting up to 1989. Part 2 will then
turn to examine the efforts of Poland to move towards an adversarial system through an examination of
the criminal process, taking account of the reforms to the CPP that have attempted to achieve that
objective.
Part 1
Accusatorial/adversarial and inquisitorial models
The dominant mode for comparison of Anglo-American criminal procedure with its Continental Eur-
opean counterpart is by juxtaposing them as accusatorial and inquisitorial models. Commentators often
use the term ‘accusatorial’ side by side with ‘adversarial’ or even use the two terms interchangeably (for
a detailed discussion of this point see Ryan, 2014: 67). The tendency amongst Polish commentators is to
use the term ‘adversarial’, as a translation of the word used by the ECtHR in Polish cases,
kontradyktoryjnos´c´.
The accusatorial model is associated with the idea that an accusation is made by an accuser, the
accused person is presumed innocent until proven guilty, and the accuser bears the burden of proving his
accusation (Jackson and Doran, 1995: 57). Accusatorial procedure denotes also a public trial where
evidence is presented orally. The role of the court is principally one of facilitating the parties to the
dispute. An adversarial process is characterised by the fact that responsibility for the investigation, as
well as selection and presentation of the evidence, lies with the two parties to the case: the accuser and
1. A new Code of Criminal Law and Code of Execution of Penalties were also completed in 1997.
2. These will be referred to as the 2003/2010 reforms.
Ryan
307
the accused (see Hodgson, 2010). The accuser (the prosecutor) will select what evidence is to be heard,
but the defence also may conduct their own investigations, present their own witnesses, including if it is
considered appropriate, the defendant himself. The presentation of the case by the parties is through a
tightly controlled system of examination of witnesses by the prosecutor, who in theory is supposed to be
non-partisan. The defence may cross-examine the witness, but keeping within the bounds of what has
been related during examination by the prosecution. Witnesses give testimony in response to the line of
questions put to them, and therefore do not narrate events in the same manner that would be usual for
accounts of events that would appear in normal social intercourse. The judge does not question the
witnesses but sees only that each side, prosecution and defence, ‘abide by the rules of the contest’ and is
called on to rule out certain evidence that may lead the amateur jurors (if a jury is trying the case) to
reason inappropriately by giving it too much weight or where evidence should not be put before them
that has been tainted by the manner of its collection. Each side are in a position of theoretical equality.
The defendant may not be forced to give evidence; it is considered that to do so affects the equality of the
parties, as it would give the advantage to the prosecution (Damasˇka, 1973: 563).
The role of the judge in an adversarial trial is one of a neutral passive arbitrator, often referred to by
commentators as ‘umpire’, in a setting where trial is seen as a contest. He has no role in selecting or
examining witnesses, and where the witness is being questioned, has limited powers of intervention. To
intervene, it is generally thought, weakens the position of impartiality of the judge. That is not to say that
the judge has no part to play in the trial. In the classic common law adversarial trial the case is presented
to a jury, a panel of lay citizens, who have no legal training. The judge therefore controls what is put
before them, and instructs them on what is legally required of them. At the close of the cases of the
parties, he sums up the case for the jury, and instructs them on the standard of proof that must be reached
in order to convict the accused, that is, proof beyond a reasonable doubt. The jury decides alone, with no
other assistance from the judge save for clarifications that may be sought in open court in the presence of
the parties. Having reached a verdict, the jury gives no account to any other of the trial participants or
indeed to the general public of how they came to their decision in the case. The parties control the
evidence; they decide what evidence to put forward, what to agree on and whether to object to the
evidence of the other side, and it is only when such an objection is raised by either party that the judge
takes an active role in coming to a decision as to whether the evidence should be put before the jury or
not.
Under the inquisitorial model, it is the state...
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