Max Planck Institute for Foreign and International Criminal Law

The application of traditional criminal procedure is limited to national territory. In the case of transnational crime, serious practical problems emerge due to this limitation because access to the rules of criminal procedure in other European countries, which is necessary for the prosecution of such offenses, often cannot be assured.

This project focuses on the basic principles and current developments in the criminal procedure systems of six European counties (England and Wales, France, Germany, the Netherlands, Slovenia, and Spain) as reflected in legislation, case law, and practice. Following a common outline, the most important areas of criminal procedure are presented in English, and national characteristics and material focuses are distilled. The extent to which the case law of the European Court of Human Rights and the prescriptions of the European Union are reflected in national legislation is also explored.

The primary goal of this study is to offer both practitioners and scholars of comparative criminal law an up-to-date and clear presentation of the law of criminal procedure of several EU Member States in a prevalent language. Transnational criminal prosecution is credible only if carried out on the basis of knowledge of foreign procedural rules and conventions. In the absence of a uniform European procedural system, the instruments of the EU presuppose a fallback to national law.

At the same time, the project serves to promote comparative law scholarship. In a hectic reform process triggered by the modern manifestations and extent of crime, a transformation of the criminal justice system – probably the most comprehensive since the French revolution – is currently taking place. For the analysis and assessment of this reform phase, the book aims to appraise this process. In that material for further comparison of law is made available, the differing forms of the criminal process in the various justice systems can be examined, individual issues can be explored in depth, and the reaction to supranational requirements can be assessed. This is accomplished on the basis of country reports on various types of procedure (adversarial/inquisitorial).

The project methodology, with its country reports, follows the traditional approach to legal comparison. With England, a typically adversarial party process was selected to compare with the continental procedural systems; the inclusion of Slovenia reflected the need to portray a reformed legal system from behind the former iron curtain. Spanish and French procedural law are still relatively strongly influenced by the structures of classical criminal procedure, from which they extricate themselves only hesitantly. Conversely, the Netherlands exhibits very pragmatic reactions to the demands that management of modern crime imposes on a rule-of-law system. Germany was chosen as an example of a country whose procedure has taken on more and more adversarial features without abandoning the "inquisitorial" model.

The project is available as a publication of the Max Planck series Schriftenreihe des Max-Planck-Instituts – Strafrechtliche Forschungsberichte. In twelve chapters, each country report discusses sources and general principles of criminal procedure, the rights of the accused, agencies involved in the criminal justice system, the phases of the criminal process, the law of evidence, special rules, forms of consensual disposal, and current reform proposals. The comparative introduction examines the most important influences on criminal procedure systems today and presents themes common to these systems. The discussion thus offers starting points for in-depth legal comparisons as well as for the development of transnational and supranational solutions.