Ninth Conference on the Future of Adversarial and Inquisitorial Systems 2017
NINTH CONFERENCE ON THE FUTURE OF ADVERSARIAL AND INQUISITORIAL SYSTEMS
RIGHTS AND REMEDIES IN CRIMINAL PROCEDURE: EXAMINING THE NATURE OF THE RELATIONSHIP
April 6-8, 2017
In this conference, scholars from US and EU-based institutions considered the relationship between rights and remedies in criminal procedure in various aspects–including the contrasting approaches of adversarial and inquisitorial traditions and how this illuminates differences in the role of law across jurisdictions; new remedies developed through EU co-operation and ECHR rights-based approaches; and the challenges of international criminal law remedies, where the approach may differ from those operated at the national level.
As part of the Ninth Conference on the Future of Adversarial and Inquisitorial Systems, participants sought to consider these issues in context. Is there a difference between adversarial and inquisitorial approaches, or do all the systems apply the criterion of the effective violation of a substantial right? In various systems, legislatures and courts have considered exclusionary rules (mandatory and discretionary), fines, victim compensation and injunctive relief in different contexts. Rights such as appointed counsel or discovery help shape the system as well, as they shape the regulation of investigation and prosecution. Different considerations may apply during the investigative and adjudicative phases of criminal cases, with the courts having more discretion to shape rights and remedies in areas within their exclusive domain.
What is the source of the rights and remedies–legislation or case law? Does case law play the prominent role, leaving to the legislator a secondary (and often ineffective) role? Does the legislator set out the general framework, while the details are regulated by judicial decisions? And if remedies are the subject of judicial law-making, how is accountability of judicial decisions ensured by the systems? How much flexibility may systems build into their remedial systems? Should courts grant a remedy whenever there is a violation of formal provisions, or should harmless error and deterrence guide decision-making?