Diverse criminal procedural
traditions across Europe are undergoing a process of being drawn together from
two strong forces, the EU Area of Freedom, Security and Justice, and the
European Court of Human Rights. Increasingly, Member States are reforming their
criminal procedural systems to take account of the developments in both arenas.
Since 2003, Poland has been amending its Code of Criminal Procedure in an
effort to make it more ‘adversarial’. A recent reform, the strongest move yet towards
developing an adversarial system, came into force in July 2015. The 2015 reform
introduces procedures that look adversarial.
The reforms in this jurisdiction, and indeed those of other Member States
towards a more ‘adversarial’ system challenges us (again!) to examine what we
understand by ‘adversarial’, whether it
is understood differently from the common law perspective versus the
Continental (so called ‘inquisitorial’) perspective and whether if so, the convergence
of procedural traditions is more imagined than real. The article will approach
this question taking Poland as an example, drawing comparisons between its approach
and that of Italy, and using Ireland as exemplar of the common law adversarial
procedural tradition.
It traces the reforms to Poland’s
criminal procedure and questions whether it can really be described as ‘adversarial’.