Consensual Mechanisms in Criminal Proceedings – Integrative and Comparative Perspective

Table of Contents

Foreword

Consensual mechanisms have been the subject of wide interest in the doctrine and practice of criminal proceedings for years. Over time and depending on the legal system, the negotiated justice instruments were: praised, simply treated as an existing practical necessity, and severely criticized. In the perspective of contemporary solutions, these considerations were largely conducted through the prism of references to the most expressive, and at the same time probably the most controversial, manifestation of procedural consensualism, which is provided by the plea bargaining procedure in the form in which it has become so dominant in the United States legal system. In civil law systems, many representatives of the legal world combined their understanding of the need to relieve the criminal justice system of some of its excessive burden with concerns about the loss of the fundamental principles of the criminal trial model appropriate for their state, or more broadly, their legal tradition.

Such fears and objections were manifest also in the Polish criminal process, where consensual mechanisms were first introduced on a large scale with the creation of the new Code of Criminal Procedure in 1997. Despite initial objections, these instruments have over the years proved their practical usefulness, increasingly consolidating their place and importance in the legal system. Even the change in the legislative trend in the field of their development, which took place in 2016, did not result in their marginalization in the criminal justice system.

The example of Poland as a legal system where consensual instruments were introduced relatively late, and yet they managed to disseminate and integrate with the model of the criminal process, became the starting point for creating an international research team that set itself the goal of conducting integrative and comparative studies of consensual mechanisms in criminal proceedings. The principal goals of the research team have been focused on two main layers. The first of them is a reference to the common systemic foundations of consensual mechanisms and the observation of most up to date supranational trends in their development. The second layer was to concentrate attention on the analysis of consensual mechanisms in those national legal systems where consensual mechanisms are functioning consistently, but are relatively novel, may have limited application, and are deprived of such traditional grounding as in the common law systems or such wide and pioneer construction as in the family of civil law countries may be observed in the Italian criminal process.

Prof. AMU Ph.D. habil. Barbara Janusz-Pohl

Theoretical and methodological foundations for consensual models based on Polish example

1.1. General assumptions – notion of conflict, relevant typologies and formulas of negotiations

‘Consensualism’ is synonymous with the notion of ‘negotiated justice’ and, as a legal phenomenon, can be interpreted in the frame of the Conflict Resolution Theory. Consequently, the concept of conflict comes to the fore. Nevertheless, interpreting such a concept is not easy in relation to criminal law. Let us, therefore, begin our considerations by defining the concept of the conflict itself.

The mere notion of conflict derives from the Latin word conflictus, which means ‘collision’. The Dictionary of the Polish Language defines conflict as ‘a conflict of interests, views, incompatibility, dispute, conflict, or collision. Conflict is also defined as a clash caused by a divergence of attitudes, goals, and ways of acting toward a specific object or situation’¹. In addition, one can distinguish personal conflict, i.e. ‘a long-lasting state of affairs in which two persons (or groups of persons) disagree in some respect or one is pursuing an objective unacceptable to the other, each believing that its views and objectives should be recognised as valid, and wishes to achieve this by all means’².

Drawing a general background, we can point out that in the social sciences, there are two different approaches to the issue of conflict. The first is the functional view, focusing mainly on integration and consensus. Conflicts from this perspective are dysfunctional to the social system, disrupting its balance. In the second view, conflict is seen as a constant and inherent part of social life, being the basis of social development and change³.

Undoubtedly, the first meaning is applied when it comes to the criminal law dimension. Conflict can be analysed at several levels: structural (indicating the actors involved in the conflict and the relations between them), psychological (which recognises the contradiction of interests, views, or attitudes), as well as concerning the sources of conflict (the source of conflicts can be both objective and subjective causes).

In relation to criminal law, the structural and psychological analysis is crucial since the source of relevant conflict is always objective and based on the violation of a sanctioned norm in criminal law⁴.

When the perpetrator of a crime violates a sanctioned norm in criminal law, we colloquially say that the perpetrator has entered into a ‘conflict with the law’. Of course, this is a parabola because the perpetrator has violated the law and, through their behaviour, has violated or threatened individual or common goods legally protected. Consequently, in such a case, they must face negative legal consequences for their behaviour. Thus, the first consequence is initiating criminal proceedings. In these proceedings, the perpetrator will confront law enforcement authorities and the victim.

This work will refer to such a specific conflict as a primary one. The study of models of criminal proceedings indicates that the primary conflict, rooted in a violation of the sanctioned norm in criminal law, is not the only one⁵. In the course of the criminal process, secondary conflicts arise. They are connected with the different procedural roles of criminal proceedings participants, the different scopes of their competencies, and sometimes the opposing interests. Respectively, the typologies of conflicts recognised in the social sciences regarding the cause of their occurrence (conflicts of relations, values, data, and interest, namely structural conflicts) can be of some importance for describing secondary conflicts⁶.