On the Scope of Competitiveness of Court Proceedings in the Draft Code of Criminal Procedure

• Author: Meris Sillaots
• Pages: 198-206

Meris Sillaots

On the Scope of Competitiveness of Court Proceedings in the Draft Code of Criminal Procedure

Orientation towards competitiveness of court proceedings is among the most attractive elements of the reform of criminal procedure, which is presently being prepared in Estonia. In accordance with that orientation, the draft Estonian Code of Criminal Procedure (hereinafter: the Draft) provides, in section 15, for the competitiveness of judicial proceedings. In that section of the Draft, we can read that in judicial proceedings, the functions of prosecution, defence counsel and adjudication of a criminal matter will be performed by different parties. Other parts of the Draft also contain several substantial "signs" referring to the characteristics of competitive judicial proceedings. At this point, non-exhaustive reference could be made to e.g. cross-examination (section 289); the two-file system (section 265); the criminal defence counsel's mandatory participation in the procedure (subsection 42(4)); the dispatch of a copy of the criminal file to the defence counsel (section 221); the parties' independent right to present lists of the persons whose appearance before the court they apply for (subsection 224 (2) and subsection 225 (1)); the option that court hearings can, in many respects, be "shaped" by the parties' applications; the judge's right, but not an obligation, to order collection of further evidence on the judge's own initiative (subsection 298 (1)).

However, it must be admitted that in reality, the above-listed signs by themselves need not make criminal proceedings competitive. For example, a definite division of functions between different participants in proceeding is, naturally, an elementary condition for the competitiveness of court proceedings. Cross-examination is certainly characteristic of competitive judicial proceedings, although in the so-called inquisitional procedure applied in Germany, cross-examination is also permitted by law (section 239)¹. The two-file system provided in the Draft may also be of assistance to ensure competitiveness of judicial proceedings. At the same time, it must be noted that the positive effect of the two-file system will not be fully realised unless the stages of the pre-trial and court proceedings are sufficiently separated from each other. The Draft provides for the principle that the judge of preliminary investigation prepares a completely separate file for court proceedings from some materials of the criminal file prepared as a result of the pre-trial investigation (section 265 of the Draft). According to the Draft, the file prepared for the court proceedings does not contain evidential information collected as a result of the pre-trial investigation. Nevertheless, the separation of the stages of the pre-trial and court proceedings will be relatively imaginary if results of the pre-trial procedure can be disclosed very easily during the court hearing.

Since the preparation of the new draft Estonian Code of Criminal Procedure is said to be based on the Italian model of criminal procedure ² , it must be mentioned, as an aside, that according to specialist literature, a strict separation of the stages of preliminary investigation and the main proceedings was, for the Italian legislator of the reform, the central point of the new law of criminal procedure. Moreover, practical importance is statedly attached to the requirement that the court file of the main proceedings should contain substantially less information than the prosecution's file³. The preliminary investigation and the main proceedings have been separated with such a strict line in order to prevent the direct use of the prosecution's investigation results in making the judgement⁴. Apparently, the creation of the new Estonian criminal procedure should also be aimed, to a considerable extent, at the requirement that the results of the pre-trial investigation, and, in particular, testimonies given in the course thereof, should not be disclosed too easily and not be used subsequently in making the judgement.

As regards the competitiveness of criminal proceedings, the text of the Draft should, inter alia, be read with a view to such substantial fulcra which could be characterised by the general keywords of "contradictoriness", "right of confrontation" and "equal opportunities of the parties".

Since the Draft provides for only the competitiveness of judicial proceedings, particular attention should be paid to how much and how the court hearings and the judgement can be influenced by the results of the pre-trial investigation, or, in other words, whether and to what extent the stages of the pre-trial and court proceedings are separated from each other. The less those stages are separated, the more difficult it will be to achieve judicial proceedings with an optimally balanced competitiveness based on equal opportunities of the parties.

In the case of the inquisitional model of criminal procedure, which is presently applicable in Estonia, results of the pre-trial investigation have a very strong influence on the court hearing and the judgement. This becomes particularly evident through those provisions of the applicable law that permit the disclosure of evidence collected during the pre-trial investigation to quite a large extent. In that respect, it is, in many cases, permitted to disclose testimonies given by witnesses and victims during the pre-trial proceedings (sections 246 and 247 of the Code of Criminal Procedure) and, hence, to turn such testimonies into evidence without the presence of the defence counsel, i.e. without examination by the defence counsel. As, in the case of the procedure presently applicable in Estonia, the accused cannot actively participate until the stage of the court proceedings, the active role of the accused in examining the evidence is, in many cases, limited to participation in the evaluation of pre-trial evidence in the court proceedings, either personally or through the defence counsel. One of the advantages of the future Estonian criminal procedure could be the fact that, in comparison with the present situation, the accused will have a much greater say also in the collection of evidence. This means that at least in the case of testimonies by an adverse witness, which is regarded as collection of evidence, the accused will be provided with the opportunity to be, at least once during the proceedings, confronted with the adverse witness, i.e. to examine or have examined the prosecution's witness. Such option would also be a precondition for the realisation of equal opportunities of the parties in criminal proceedings. At the same time, the opportunity of the accused to be confronted with an adverse witness could be regarded as a substantial element in establishing the truth.

The following paragraphs take a closer look at some provisions of the Draft which, besides other provisions, will have a serious influence on the actual competitiveness of judicial proceedings in the future.

1. Disclosure of pre-trial testimonies of witnesses at cross-examination

Subsection 290 (1) of the Draft provides that in order to verify the reliability of the testimonies of a witness, the court may, at the request of a participant in proceeding, order the disclosure of a testimony given by a witness in the pre-trial investigation if the testimony is in contradiction with a testimony given at a cross-examination.

Here, the principal issue lies in the question of which evidential importance will be borne by testimonies disclosed in such manner. Will those disclosed testimonies have an equal evidential importance in comparison with testimonies given in a court session?

This question arises from the clause "to verify the reliability", which is present in subsection 290 (1) of the Draft. That clause directs attention to the objectives which may serve as grounds for the disclosure of a testimony given by a witness in the pre-trial investigation. However, there is the problem that witness' pre-trial testimonies disclosed before the court for the purpose of verification of their reliability, because of such testimonies being in contradiction with subsequent testimonies given in a court session (cross-examination), can principally be provided with a different procedural meaning under the law.

There is an option that such testimonies disclosed in a court session could be statutorily accepted as an evidential basis for, essentially, making the judgement (as in the event of...