The Term “Inquisitorial” The term “inquisitorial” could sound surprising. The
inquisitorial system of medieval times was characterized by a large use of torture
and no proper distinction between investigations and trial. This is no longer the case
in Europe nowadays. The reason why some systems are still labeled as inquisitorial
is that they supposedly retain some features of the old inquisitorial system, particu-
larly the characteristic of being structured as an official inquiry carried out by an
impartial judge. In fact, the opposition between adversarial and inquisitorial
systems reflects the idea that the adversarial model consists in a dispute between
parties, while the nonadversarial model does not. In the first mode of proceeding,
the parties are in charge of bringing the evidence and offering the arguments to
persuade a passive judge. In the second, it is an impartial judge who takes an active
part, by leading the proceedings and collecting all the relevant evidence.
7.11.1 Historical Patterns
Adversarial The dichotomy is built around some selected historical features of
civil law and common law countries. In this regard, the traditional common law
systems are taken to be characterized by the fact that the prosecution was mostly
left to the initiative of a private accuser (a citizen, often the victim) who would
conduct private investigations and bring the case against a defendant in front of a
jury of twelve laymen. The trial consisted in a battle of evidence and arguments
between the private accuser and the private defendant in front of the jury. Witnesses
were cross-examined directly by the parties. Evidence collected out of court during
the investigations was inadmissible, save for some limited exceptions. The jury
remained passive and returned a verdict of innocence/guilt without giving reasons
for it.
Inquisitorial By contrast, the traditional inquisitorial continental system would be
characterized by the fact that the state authorities were charged with the duty to
investigate on any suspicion of a crime. The investigations were conducted in a
formal and official manner by a career judge, called the investigating judge. All the
results of the investigations were recorded in adossier, which the investigative
judge would then hand over to the trial court, composed of a panel of professional
judges. At trial, the parties had the right to bring additional evidence and to present
their arguments. However, since the trial court could rely on the investigative
evidence previously obtained and could even collect further evidence on its own
motion, the role of the parties was marginal. The judge would even conduct the
examination of witnesses, while the parties could at most suggest some questions to
be put to the witnesses. The trial court gave reasons for its decisions.
148 J. Keiler et al.