Even the traditional common law rule that prohibits the use at trial of investigative
evidence has been relaxed lately.
Although the classic dichotomy between inquisitorial and adversarial systems
still retains some importance for understanding certain cultural and theoretical
features of each of the two traditions (common law v. civil law), it is important to
acknowledge that
the borrowings between the two have been so extensive that it is no longer possible to
classify any of the criminal justice systems in Western Europe as wholly accusatorial or
wholly inquisitorial (JR Spencer).7.11.4 Progressive Convergence
Today, the opposition between the adversarial model of a dispute and the inquisi-
torial model of official inquiry represents two poles of a theoretical spectrum. Each
national system can be characterized as being more or less adversarial, depending
on the role that the parties have in the trial compared to the position of the judge and
on the importance played by the findings of prior investigations on the outcome of
the trial.
Identical Problems The progressive convergence of procedural systems, particu-
larly in Europe, is explained by different factors. First, the European national
criminal justice systems work within a similar societal background and are thus
confronted with identical problems in coping with crime. Not surprisingly, many
countries share common trends in the development of their criminal proceedings,
which reflect the common challenges that these countries face.
One example is the growing popularity of pre-trial case disposals, such as the mechanisms
of plea-bargaining, where the defendant agrees to the application of a lesser penalty to close
the case before the trial.Supranational Law Furthermore, an important move toward harmonization
derives from supranational law. After the Second World War, a number of interna-
tional instruments have entered into force, with a view to ensuring a better protec-
tion of human rights. These instruments place significant limitations on the
possibility for states to freely shape their criminal justice systems, and they have
led to a growing convergence of the different national procedures. All European
countries are bound by fundamental human rights embodied in international
conventions, particularly in the European Convention on Human Rights (ECHR).
The latter instrument has proved to be particularly stringent, thanks to the enforce-
ment assured to its provisions by the European Court of Human Rights (ECtHR).
The Convention and the large body of ECtHR case law have had a significant
impact on the shape of national systems, even to the extent that they have created a
blueprint of European principles of the criminal process.
150 J. Keiler et al.