The Acceleration of Criminal Proceedings and the Rights of the Accused: Comparative Observations as to the Reform of Criminal Procedure in Europe
| Author | Albin Eser |
| Published date | 01 December 1996 |
| Date | 01 December 1996 |
| DOI | http://doi.org/10.1177/1023263X9600300403 |
| Subject Matter | Article |
Albin Eser *
The Acceleration of Criminal Proceedings and the Rights
of
the Accused: Comparative Observations as to the
Reform of Criminal Procedure in Europe 1
§1. Introduction
The Crisis
of
Criminal Procedure -A Glance over the Borders
There has probably never been a time in which one was ever completely satisfied with
criminal justice. As it is a creature of human devising, it is accordingly tainted with all
human shortcomings. Perhaps, however, the complaints about the state of criminal
justice were only seldom as harsh as they are now, when they are by no means limited
to a single country, but rather may be observed virtually world-wide. Therefore it is
hardly surprising that many and diverse efforts may be observed at present towards
*Director of the Max Planck Institute for Foreign and International Criminal Law, University of
Freiburg (D).
The present article is an extended, substantiated version of a lecture delivered at the Law Faculty of
the Charles University inPrague on20th September 1995and before the Supreme Courtof the Czech
Republic in Brno on 21st September 1995. It is largely based on the evaluation of material compiled
by academic staff and research guests at the Max Planck Institute for Foreign and International
Criminal Law (Freiburg, Germany) from the early 1980s onwards. Apart from the most recent
developments, the material has been published as a series of regularly updated reports on the
development of criminal law in Europe by: A. Eser and B. Huber (eds.), Strafrechtsentwicklung in
Europa. LandesberichtetiberGesetzgebung, Rechtsprechung undLiteratur, vol. 1(1982/1984), (edition
iuscrim, Max-Planck-Institut fur auslandische und internationales Strafrecht, 1985); vols, 2.1, 2.2
(1984/1986), (edition iuscrim, 1988); vols. 3.1, 3.2 (1986/1988), (edition iuscrim, 1990); vols. 4.1,
4.2,4.3
(1989/1992), (edition iuscrim, 1993, 1994and 1995 respectively). Unless otherwise stated or
unless hitherto only available as unpublished material from the respective country divisions of the
Max-Planck-Institute, the sources of the legal changes presented below may as a rule also be found in
the aforementioned reports. Of the numerous colleagues at the Institute, who generously contributed
to the compilation of the material, I am particularly indebted to Ms Beate Weik, Mr Holger Barth and
Mr Reinhard Dold for their assistance in collecting and analysing the material. I would also like to
thank Ms Caterina Bolognese for her translation of this paper into English.
MJ 3 (1996) 341
IThe Acceleration of Criminal Proceedings
reform in the area of criminal procedure.
If
one tries to identify the main purposes of
these efforts, two are most evident: the greater efficiency of criminal proceedings and
a better protection of human rights.
Since, on the one hand, the efficiency of criminal prosecution is primarily assessed
according to the velocity of its implementation and the short duration of individual
proceedings, many efforts towards reform are directed towards an acceleration of
criminal proceedings. As for human rights on the other hand, since the focus is above
all on those of the accused, the priority in many countries is to improve his position.
It
is true, however, that the attainment of these goals at present is no easy task;
moreover, they can easily come into conflict with each other. For if, on the one hand,
the proceedings are to be as brief as possible, then little time is left for considering the
conflicting interests of the accused. On the other hand, if the accused is to be able to
assert his rights fully, then this could prove to be very time-consuming.
Thus if the attainment of one goal should not completely undermine the other, certain
compromises will be unavoidable. The fact that the priorities can be set - consciously
or subconsciously - in different ways, may be explained by two examples in which the
balancing issue was at any rate a conscious one: First, the original Swiss canton
Schwyz
legally entrenched an acceleration precept inits 1988 reform of criminal procedure and
made it clear, through its particular treatment of custody cases, 2that the right to a
speedy trial, which is also proclaimed by the European Convention for the Protection
of Human Rights and Freedoms (ECPHRF), 3is primarily meant to serve the interests
of the accused. Secondly, at the 60th Conference of German Lawyers of 1994 in the
Federal Republic
of
Germany, the only common objective as to the principle of
acceleration which received majority support, was one in which the status afforded to
'the State interest in the speediest, least costly and time-consuming proceedings possible'
and to 'the accused's interest in the speedy punishment
ofthe
crime which weighs upon
him' would equal the status afforded to the 'protection of the accused from unnecessary
State delays in proceedings' . 4
Therefore, when looking at ways to reform criminal procedure in the European arena,
the kind of individual changes which immediately suggest themselves for consideration
are especially those which are directed towards an acceleration of criminal proceedings
(§ 2) and/or a reinforcement of the rights of the accused (§ 3). In addition, an area will
be examined as an example, in which the tension between efficiency in criminal
prosecution and the rule of (criminal) law may be made particularly clear, namely, the
use of undercover investigators in preliminary proceedings (§ 4).
2. Art. 3, para. 2 StPO-Schwyz, Amtsblatt (1988), 1221. Cf. Heine and Hein, 'Landesbericht Schweiz",
in A. Eser and B. Huber (eds.) Strafrechisentwickiung; vol. 3.2, 1020 ff.
3. Art. 6, para. 1 ECPHRF.
4. Resolution 1.2.2 of the Criminal Section of the 60th Conference of German Lawyers 1994, 47 Neue
Iuristische Wochenschrijt (N1W) (1994), 3071.
342 MJ 3 (1996)
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