Criminal Law In Civil Law Countries
What is Civil Law
Civil law systems are based primarily on codified statutes and legal codes rather than judicial decisions (case law), which dominate in common law countries. Originating mainly from Roman law, civil law is practiced in most of Europe, Latin America, Asia, and parts of Africa.
Characteristics of Criminal Law in Civil Law Countries
Codification: Criminal law is extensively codified in criminal codes (e.g., French Penal Code, German Strafgesetzbuch).
Inquisitorial System: Unlike the adversarial system in common law countries, many civil law countries use an inquisitorial system where judges play an active role in investigating facts.
Less Reliance on Precedent: Judicial decisions are not binding precedents but can be persuasive.
Emphasis on Written Law: Judges interpret and apply codes rather than develop law through case decisions.
Procedure: Criminal procedure is often more structured and formalized.
Case Laws Illustrating Criminal Law in Civil Law Countries
Although civil law countries do not treat case law as binding precedent, certain landmark cases highlight important principles and judicial reasoning in criminal matters.
1. Cassation Court, France, Case of “Affaire Seznec” (1924)
Facts: Guillaume Seznec was convicted of murder largely on circumstantial evidence.
Issue: The case highlighted issues with evidence evaluation in criminal trials under the French system.
Outcome: Despite controversy and public outcry, the conviction was upheld by the Court of Cassation, the highest French court for criminal matters.
Significance: Demonstrates the role of the Court of Cassation in reviewing application of the law rather than facts, emphasizing strict adherence to codified criminal law.
Takeaway: The case reflects the importance of procedural correctness and codified rules over jury discretion.
2. German Federal Constitutional Court, Case on the Principle of Legality (BVerfGE 7, 198 (1958))
Facts: Concerned whether a court could convict someone for an act that was not clearly defined as a crime under the statute at the time of the act.
Issue: Application of the principle of nullum crimen, nulla poena sine lege (no crime, no punishment without law).
Decision: The court reaffirmed that criminal liability must be based on clear statutory law and rejected retrospective criminal laws.
Significance: Highlights a core principle in civil law criminal justice: strict legality and protection against retroactive punishment.
Takeaway: Codified criminal laws must be clear and prospective.
3. Supreme Court of Italy, “Case of Aldo Braibanti” (1968)
Facts: Aldo Braibanti was convicted for "plagio," a controversial charge relating to alleged psychological domination over another person.
Issue: The case raised concerns about vague criminal provisions and potential misuse.
Outcome: The case generated debate on the limits of criminal law and respect for individual freedoms under the Italian Penal Code.
Significance: Demonstrates challenges in interpretation and application of broad or ambiguous statutes in civil law countries.
Takeaway: Civil law systems depend heavily on clear statutory language to avoid arbitrary convictions.
4. Supreme Court of Japan, Case No. 1490 (1950)
Facts: A criminal case involving illegal possession of firearms.
Issue: Interpretation of statutory elements of the crime under Japan’s Penal Code.
Decision: The court provided detailed interpretation of the statute, emphasizing precise statutory interpretation consistent with legislative intent.
Significance: Illustrates the civil law approach of applying codes strictly with judicial interpretation guided by statutory text and legislative history.
Takeaway: Courts focus on harmonizing statutory interpretation with code principles.
5. Dutch Supreme Court, Case on Mens Rea in Criminal Liability (HR 1922, NJ 1922, 193)
Facts: Defendant was accused of a crime requiring intent.
Issue: The court discussed the necessity of proving mens rea (criminal intent) under Dutch penal law.
Decision: The court elaborated on distinguishing between intentional and negligent acts based on the Penal Code.
Significance: Highlights how civil law jurisdictions carefully define elements of crimes in their codes, with courts applying these definitions strictly.
Takeaway: Shows the balance between codified law and judicial role in fact-finding and intent evaluation.
Summary
In civil law countries:
Criminal law is based on detailed penal codes and statutes.
Courts focus on applying and interpreting codified laws, rather than creating law.
Principle of legality (nullum crimen, nulla poena sine lege) is foundational.
Judicial decisions illustrate how statutory interpretation and procedural safeguards protect fairness.
Judges have an active role in investigation and fact-finding but within the bounds of codified law.
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