As early as 1866, Faustin Helie, a French judge and legal author, underlined the idea of a necessary equilibrium between the interests of the society (which needs to be protected from infringements) and the interests of the accused persons (whose rights must be totally guaranteed) in the criminal procedure. The aim of protecting society's interests in criminal procedure seems to be contradictory with the necessary protection of individual rights. Nevertheless, a modern criminal procedure system tries to conciliate those interests into an adequate system. For that reason, in countries such as Australia or France, the question of how to reform criminal procedure is arising but the arguments differ as Australia is a common law country and France is a civil law country with some differences in law traditions. In a criminal procedure, two different basic systems can be defined: the accusatorial or the adversarial system and the inquisitorial system. The adversarial system is defined as "The common law system of trial which requires one party, usually the plaintiff or the prosecution, to collect evidence and present it to a judge to prove a cause of action or charge against another party who has to refute or defend.?
[...] Furthermore, in some complex cases, the accused person can need several lawyers to prepare his defence and deal with the evidence given by the prosecutor. Fortunate persons can easily deal with this but not poor people. In this case particularly, the adversarial system lacks of equity. In France, an inquisitorial based system, the investigating magistrate can find out the truth and be a guarantee of equity. For instance, there was a case of a homeless person who accused himself of being the murderer of the young Caroline Dickinson famous case dealing with a child murder). [...]
[...] This debate also pointed out the necessity for the French criminal procedure to adopt some aspects of adversarial criminal procedure. In fact, the rights of the accused person where described as baffled. This is maybe the main problem in the French inquisitorial procedure. Actually, some aspects of adversarial system have already been adopted. In fact, the investigating magistrate only deals with five percent of all criminal cases while he was supposed to be the heart of the criminal procedure (he was supposed to be a main body of the criminal procedure). [...]
[...] This is the reason why the modern criminal procedure is called a “mixed system” (but is still an inquisitorial system as we noticed before). It would not be surprising to adopt some aspects of adversarial criminal procedure. In fact, this system has advantages and many countries such as Italy or Germany tried to adopt characteristics of such a system to improve the criminal procedure. In France, the so called “Outreau case” was a big criminal case in which many people where accused of paedophilia and put in jail while they where innocent. [...]
[...] This state of fact is a result of history as a more refined version of the inquisitorial system emerged during in the beginning of the 19th century. Then it is necessary to point out that in both adversarial system and inquisitorial system, finding out the truth is the goal but whereas the adversarial system seeks the truth through the parties' exchange of arguments, the inquisitorial system focuses on the search for truth first and the exchange of arguments is secondary as are the rights of the accused person. [...]
[...] As a result, intimate conviction is an important element in inquisitorial system. It would be efficient to introduce this standard of proof in Australian criminal procedure[11] A code of criminal procedure Finally, it would be very important to adopt a code of criminal procedure. In fact, it would be a guarantee of a unified, clear and certain procedure. However, it would be necessary not to copy the French legislative inflation because it creates too much principles, rules and the law becomes uncertain. [...]
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