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The purpose of any criminal justice system is to deliver justice to all by convicting the guilty and protecting the innocent. Two model systems exist, which provide different rules to deal with the offender and bring him to justice. They are commonly known as the inquisitorial criminal justice system and the adversarial criminal justice system. The adversarial system is the system of law generally adopted in common law countries, whereas the inquisitorial justice system is usually found on the continent of Europe among civil law systems. They both aim to ensure that procedural fairness exists across the criminal justice system. Nowadays, however, it is commonly assumed that no criminal justice system belongs entirely to one of these two models.
Within the literature on wrongful convictions, most of the attention has been devoted to wrongful convictions in which innocent people have been convicted after trial. However, the reality today is that the normal trial proceeding is the exception and that the great majority of cases are resolved by way of alternative or summary proceedings, in which the public prosecutor plays a crucial role. It is certainly true that alternative proceedings are a simple method to relieve courts’ heavy caseload. However, it must not be forgotten that simplification of proceeding usually goes along with restrictions on a criminal defendant’s rights and also may reinforce the risk of wrongful convictions. Hence, the problem of wrongful convictions in these kinds of proceedings should deserve much more attention than what has been the case until now.
Taking the Swiss criminal justice as example, which is based on a modified inquisitorial tradition, this contribution highlights the risk of wrongful convictions especially in alternative proceedings. Conclusions drawn from the Swiss legal system may also be valid in all other criminal justice systems where alternative proceedings are the rule rather than the exception. Future researches should concentrate their efforts on wrongful convictions in alternative and summary proceedings. This is important in order to improve the quality of judicial systems.
Models Of Criminal Justice Systems
The goal of every criminal justice system is to ensure that those guilty of committing a criminal offense are convicted and that the innocents are acquitted. In achieving this goal, the different criminal justice systems provide for different safeguards. Traditionally, criminal justice systems are either inquisitorial or adversarial. The inquisitorial system of justice is employed in many continental European jurisdictions, whereas criminal proceedings in the United States and in other common law countries such as England and Wales operate under an adversarial justice system. However, today it can be assumed that no criminal justice system is entirely either adversarial or inquisitorial. Continental jurisdictions have adopted adversarial elements, and inversely common law systems take over legal rules from inquisitorial justice systems. The Swiss criminal justice system, based on the inquisitorial tradition, took a step in this direction by introducing an abridged proceeding (abgeku€rztes Verfahren) that is similar to the American plea bargaining.
The distinction between both models of criminal justice systems has therefore become less important. In fact, in overloaded criminal justice systems of both models, criminal trials become relatively infrequent, and the determination of guilt is mainly made by the prosecutor. In the American criminal justice system, the overwhelming majority of criminal charges are resolved by guilty pleas, and virtually all of those are the result of plea bargaining. In 2010, about 97.5 % of cases in the federal system were settled by guilty pleas or nolo contendere (Maguire 2010). In the Swiss legal system, approximately 90 % of the convictions are based upon a penal order, a decision issued by a public prosecutor (Hutzler 2010). Hence, in reality, Switzerland and the United States mostly have an administrative criminal justice system today where the prosecutor combines the executive and judicial power. The public prosecutor is a public official with decision-making powers that are to a large extent adjudicatory. The problem is that the prosecutor faces extremely limited oversight of his decisions, and thus, wrongful convictions are a risk to seriously take into consideration.
Main Features Of The Swiss Criminal Procedure
On January 1, 2011, the first Swiss Code of Criminal Procedure (CCrP) came into force and replaced the 26 cantonal criminal procedure codes and the Federal Act on the Administration of Federal Criminal Justice. This is the most significant legal reform that Switzerland has seen in this area of the law. The elimination of legal fragmentation has the aim to ensure increased equality before the law and greater legal certainty (Bundesrat 2005).
For efficiency reasons, the examining magistrate, previously found in some cantons following the French tradition, has been abolished, leaving only the public prosecutor. Thus, the public prosecutor occupies a central position and his powers are broad. He conducts the preliminary proceedings, pursues criminal offenses within the scope of the investigation, brings charges, and pleads in favor of the criminal charges (Article 16 para. 2 CCrP). In addition, in order to deal with an increasing caseload, prosecutors have been given more power and discretion to divert cases. The enormous power vested in the prosecution is compensated by the judge being responsible for compulsory acts (e.g., search and seizure) and extended defense powers (such as the right to be “immediately” assisted by a lawyer). The advantage of such an inquiry model is the achievement of a high grade of efficiency of prosecution by realizing homogenous investigation, examination, and charging (Bundesrat 2005). The abolition of the examining magistrate also brings the Swiss legal system closer to those used in common law systems.
The Swiss procedure is guided by the principle of the factual truth (Prinzip der materiellen Wahrheit). The goal of the prosecution is not to seek a conviction but to discover the truth and to apply the law. Hence, the public prosecutor has the duty to investigate in an objective and neutral way and must therefore take into account the incriminating and the exculpatory circumstances with equal care (Article 6 para. 2 CCrP). If the public prosecutor is convinced that a decision needs to be reviewed for factual or legal reasons, he is entitled to appeal. He may do this to the disadvantage as well as to the advantage of the condemned (Article 381 CCrP).
The prosecution is obliged to fully disclose its files to the defense, and a restriction to the entire disclosure of the files is only possible under certain conditions defined by law, namely, if there is reasonable suspicion that a party is misusing its rights, to ensure the safety of people or to guarantee public or private confidentiality interests (Article 108 CCrP). This obligation to fully disclose is based on the right to be heard, which is one of the basic fundamental legal rights in Switzerland (Article 29 para. 2 of the Swiss Federal Constitution; Article 107 CCrP) and the continental law in general. This rule may be of particular importance in the context of the abridged proceedings, a procedure that is comparable with American plea bargaining and is described later in this contribution. A person accused of a crime will be aware of the strengths and weaknesses of the case. If the accused then decides to confess to a criminal offense, he will act in full knowledge of the prosecutor’s file.
In contrast to criminal proceedings operating under an adversarial justice system, in which the parties are each responsible to investigate the case and to present their evidence before a passive and neutral judge or jury that will decide on guilt, defense lawyers in an inquisitorial system usually do not conduct their own investigation and play only a limited role in establishing the relevant facts. It is the court that is required to actively investigate the case and is ultimately responsible for discovering the truth. It is based on the “free evaluation” ( freie Beweiswu€rdigung) of all available evidence that the court reaches the decision about the innocence or guilt of the accused. The judge is required to be intimately convinced regarding the truth of the facts unless he admits them as being proven (Hauser et al. 2005; Trechsel and Killias 2004). The court must cite its rationale for the verdict and the sentence. The aim of this last duty is the protection of citizens against arbitrary state decisions.
In contrast to the adversarial system, a defendant’s confession is considered similarly to other types of evidence, and the prosecution is still required to present a full and compelling case (Hauser et al. 2005). A confession is a mitigating factor of limited impact on the sentence. In the Swiss criminal justice system, a confession qualifies the defendant for a sentence reduction of about 10 % (Killias 2008).
The right to remain silent or the right against self-incrimination is also fundamental in an inquisitorial criminal justice system (Article 113 CCrP; Article 32 para. 2 the Swiss Federal Constitution; Article 6 subparagraph 2 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and Article 14 para. 2 International Covenant on Civil and Political Rights (ICCPR)). The accused has the right to refuse any cooperation in the criminal proceedings, and no disadvantageous conclusions can be drawn from silence.
From the brief description of the Swiss criminal procedure, it is clear that it provides for different safeguards (i.e., right to be heard, right to remain silent, principle of the factual truth that oblige the prosecutor to investigate objectively) to ensure that those guilty of committing a criminal offense are convicted and that the innocents are acquitted. A trial serves as check on governmental excess and intends to assure the accuracy of the verdict. Alternative or summary proceedings are not invested with the same degree of safeguards that are present in the normal procedure and thus might present a higher risk of wrongful conviction.
The Swiss criminal justice system has two alternative proceedings, namely, the abridged and the penal order proceedings. These will be described in the following section.
Penal Order Proceedings
In Switzerland, the majority of convictions does not result from a court trial but is based upon a penal order. Overall, about 90 % of all cases are settled out of court (Hutzler 2010). In some cantons, closer to 97 % of the cases are dealt with by penal order (e.g., Basel in 2010, http://www.statistik-bs.ch/tabellen/t19/2). This procedure is often used in cases of traffic offenses, minor thefts, and possession of drugs.
The prosecutor issues a penal order (also known as summary punishment order or Strafbefehl) if the accused person has, in the preliminary proceedings, accepted responsibility for the factual circumstances of the case or if the circumstances have been otherwise sufficiently resolved. Hence, in the second scenario, a hearing of the accused prior to the decision is not a condition. In the penal order the circumstances of the cases are described and a sentence is imposed. This decision may be appealed by the defendant and other interested persons by submitting a written petition to the prosecutor within 10 days (Article 354 para. 1 CCrP). Grounds must be given for the appeal, except for an appeal by the defendant. Consequently, the case is tried in court (Article 356 CCrP). If no objection is made, the penal order becomes final and has the same effect as a judgment following a trial (Article 354 para. 3 CCrP). As a consequence, this written procedure may result in a judgment where the prosecutor decides mainly on the basis of the police files and without the parties being heard. However, since the defendant has the possibility to raise objection and ask for a full trial, this procedure is not seen as incompatible with the constitutional right to be heard (Hauser et al. 2005; Piquerez 2006).
The prosecutor has no discretion in deciding whether he wants to use the penal order or the ordinary proceedings. Once the legal requirements for the use of the penal order proceedings are fulfilled, the prosecutor must choose this way to deal with the criminal case.
The scope of application of the penal order proceedings, at the origin designed for petty offenses punishable with a fine, has widely been expanded over time. Today, the prosecutor has the possibility to impose a prison sentence of up to 6 months (Art. 352 para. 1 CCrP). This rule is quite problematic since a prison sentence is a sanction serious enough that it should not be imposed solely on the judgment of the prosecutor without compulsory preliminary hearing of the accused and without any judicial control.
The penal order is also used in many other European legal systems and is commonly referred to as the continental form of plea bargain (Langbein 1974; Trechsel and Killias 2004). However, various aspects differ between both proceedings. In the case of a penal order, the evaluation of the case is exclusively made by the prosecutor, and he is the one who imposes the sentence. During this process, the defendant, in contrast to American plea bargaining, is not represented by a lawyer. Since the prosecutor does not have the duty to hear him prior to the decision, the defendant usually does not participate. The defendant may only accept or refuse the order. A bargain between prosecution and defendant does not take place. In contrast to American plea bargaining, a defendant who does not accept the penal order and insists on a full trial does not take a risk of having a harsher sentence imposed by the court (Killias 2008; Trechsel and Killias 2008). This is mainly attributed to the fact that a penal order can only be issued if the facts are sufficiently clear and the culpability is not dubious, so that a reduction of the charges is unlikely to occur. As a consequence, the risk of false confession (i.e., accepting the penal order when the defendant is not guilty) does not exist to the same extent in the continental law as in the American system.
The CCrP has introduced the possibility of ending a case by way of abridged proceedings (abgeku€rztes Verfahren). This procedure is quite similar to the bargaining under the American system and thus brings the Swiss legal system closer to the common law systems. Prior to the introduction of the CCrP, three out of 26 cantons already had such an alternative procedure.
The accused person may submit an application to the prosecution for the case to be conducted by way of abridged proceedings provided that he accepts liability for those circumstances essential to the legal evaluation of the case (although an outright confession is not required) and that he accepts at least in principle the civil claims (Article 358 para. 1 CCrP). An abridged proceeding is only possible if the prosecution requests the imposition of a prison sentence not exceeding 5 years (Article 358 para. 2 CCrP).
If the application to the prosecution to handle the case by way of abridged proceedings is accepted, the defendant must have a lawyer to represent him (Article 130 (e) CCrP). With this rule, the protection of the accused person during the informal negations with the prosecution should be secured.
Informal negotiations are closed by an indictment the prosecution conveys to the parties. They have 10 days to accept or reject the indictment (Article 360 para. 2 CCrP). In addition to the points usually found in an indictment, this document contains the sentence and the warning to the parties that by accepting the indictment, they waive the right to ordinary proceedings and to initiate legal remedies (Article 360 para. 1 CCrP). The consequence of this provision is that the convicted may not file a petition for revision. This is especially the case for petition for revision based on new evidence, since the court does not conduct an evidentiary hearing; this is in contrast to the ordinary proceeding. However, the use of this legal remedy should still be possible to eliminate decisions that are unacceptable from a constitutional point of view (e.g., exercise of coercive power by the prosecution on the suspect, abuse of public office, or the decision is irreconcilably in contradiction with a later criminal decision which involves the same factual circumstances). If the parties reject the indictment, the prosecution will conduct ordinary proceedings (Article 360 para. 5 CCrP). If the indictment is accepted, the prosecution transmits the indictment together with the files to the Court of First Instance (Article 360 para. 4 CCrP). During the principal hearing, the court will have to establish whether the accused person accepts the circumstances of the case on which the charge is based, and whether this assertion corresponds to the position as set out in the files (Article 361 CCrP).
Following the principal hearing, the court retires and conducts its deliberation in private. The court has to determine whether the carrying out of abridged proceedings is lawful and appropriate, whether the charge corresponds to the conclusions of the principal hearing and to the files, and whether the sanctions requested are reasonable (Article 362 para. 1 CCrP). If the court comes to the conclusion that the requirements for a judgment by way of abridged proceedings are met, it converts the criminal offenses, sentence, and civil claim of the indictment into a judgment (Article 362 para. 2 CCrP). On the other hand, if the court estimates that the requirements are not met, it sends the files back to the prosecution in order to proceed by way of ordinary proceedings (Article 362 para. 3 CCrP). Declarations like confessions provided by the parties in respect of the abridged proceedings cannot be used in ordinary proceedings (Article 362 para. 4 CCrP). A party may only appeal against a judgment in abridged proceedings on the basis that it did not accept the indictment or that the judgment does not correspond to the indictment (Article 362 para. 5 CCrP).
Since the abridged proceeding was introduced only recently on a nationwide basis, it is too early to draw some clear conclusions on the dangers of the proceedings for innocent defendants. The canton of Basel-Landschaft was the first canton to introduce an abridged proceeding in 2000 so that some statements can be made based on its experience. Until now, this alternative procedure has been relatively rarely used. Between 2000 and 2008 a total of 96 persons have been convicted based on this proceeding. Hence, on average 12 accused are condemned by way of abridged proceedings per year. It seems that sentences are not less severe in this kind of proceedings as compared to similar cases judged by way of ordinary proceedings. It is true that the danger of false confession exists, since some defense lawyer might suggests their clients use the abridged proceedings, although no confession of the accused offense occurred during the preliminary proceedings. However, in such a situation it is not unusual that the court rejects to handle the case by way of abridged proceedings. Therefore, to a certain extent, the court can be considered as a safeguard against false confessions (Gillie´ron 2010).
The risk with the Swiss abridged proceedings is that over time it comes closer to American plea bargaining and takes over not only its advantages but also its disadvantages. In the US criminal justice system, the court only rarely refuses to reject a guilty plea, so that it may be assumed that the court is not really an efficient safeguard against wrongful confessions. The reason for accepting guilty plea proposals is that the prosecutor knows all details about the case, whereas the judge has less background information on the alleged crime and the defendant. Moreover, if judges would start to call the prosecutors’ decisions into question, the caseload would become overwhelming (Wright 2009). In fact, the judicial inquiry is limited to ascertaining that the defendant is of sound mind and understands the consequences of his actions, rather than examining the accuracy of the facts to which he is attesting. The judge is only required to assure that the conduct to which the defendant confesses constitutes in fact an offense under the statutory provision under which he is pleading guilty. In reality, the assessment of the defendant’s responsibility is made within the executive branch, in the office of the prosecutor, and does not occur in court at all (Lynch 1998).
American plea bargaining may be defined as an “informal, administrative, inquisitorial process of adjudication, internal to the prosecutor’s office – in absolute distinction from a model of adversarial determination of fact and law before a neutral judicial decision maker” (Lynch 2003, p. 1404). The risk inherent in plea bargain is best described by Barkow. According to her, plea bargaining “causes a systematic imbalance of power by allowing prosecutors to bypass the check of the judicial process” (Barkow 2006, p. 1050). In fact, the prosecutor faces extremely limited oversight over his decisions. Hence, abuse of discretion and arbitrariness might be a risk. This in turn favors the risk of wrongful convictions.
Is The Public Prosecutor The World’s Most Objective Authority?
The Swiss legal system, by abolishing the examining magistrate, has adopted a system where the public prosecutor is the key actor in the criminal justice system. The public prosecutor has extremely wide powers since he is the one who conducts the preliminary proceedings, pursues criminal offenses, brings charges, and pleads in favor of the criminal charges (Article 16 para. 2 CCrP). Moreover, he makes all important decisions in alternative and summary criminal proceedings. The legitimate question that arises in this context is whether the public prosecutor is the world’s most objective authority. On the one hand, the prosecutor is obliged to investigate in an objective and neutral way since he has a duty to truth and justice (Article 6 para. 2 CCrP). However, on the other hand, the prosecution represents the state at the trial. As a matter of fact, this last task excludes strict neutrality. It can be assumed that at trial, the prosecutor’s aim is to seek a conviction. Furthermore, the great majority of cases are resolved by alternative proceedings such as the penal order proceeding, in which the public prosecutor takes the important decisions. In this alternative procedure, the prosecutor, in deciding whether to punish the defendant, is in reality an inquisitor seeking the “right” outcome. Taking all this into consideration, the public prosecutor’s objectivity within criminal proceedings is questionable and may increase the risk of wrongful convictions.
However, the way the public prosecutor is controlled may limit the risk of abuse and hence wrongful convictions. To determine whether this is actually true, it is necessary to take a look at the structure and the manner of organization of the public prosecutor’s office. Although Switzerland now has a unified criminal procedure, the organization of the public prosecution service – and in a broader sense the criminal justice authorities – remains a matter for the cantons (Art. 14 para. 2 CCrP). Thus, it is highly decentralized.
In general, prosecution services are organized hierarchically (Arn et al. 2011). Hence, prosecutors have to follow directives and instructions received from their superiors. In the majority of cantons, the Minister of Justice and hence the cantonal government stand at the top of the hierarchy. In some other cantons, the public prosecutor’s office is part of the judiciary and under supervision of the cantonal Supreme Court. In those cantons where the public prosecutor is subordinated to the cantonal government, the latter only rarely issues instructions. Thus, the public prosecutor’s office is autonomous and independent in a factual way regarding the functional scope, i.e., when fulfilling the tasks and in the decision practice (Hauser et al. 2005). At most, the cantonal government will issue general recommendations in order to ensure that certain aims of crime policy are pursued. In the other cantons, where the public prosecutor is as independent as the judiciary, the cantonal Supreme
Court is normally not allowed to give any instructions. Its supervision is limited to receive and control the annual report (Cornu 2000). Hence, it is clear that prosecutors, in fulfilling their tasks, are to a large extent independent and are not really held accountable. It should be noted in this context that it is very important that prosecutors provide neutral, nonpolitical decisions in individual criminal cases and that prosecutorial independence is an essential element that contributes to achieving this goal. For this reason it is essential that the role of the judge does not continue to lose its significance since prosecutorial decisions can only be controlled effectively by the judiciary.
Wrongful Convictions In Switzerland
Inspired by research on wrongful convictions in Germany conducted by Karl Peters (1970–1974), a project supported by the Swiss National Science Foundation (SNSF) has analyzed all mistaken convictions (successful petitions of revision) in Switzerland between 1995 and 2004 (Killias et al. 2007). Over the considered time period, a total of 236 petitions for retrial have been admitted. The majority (159 successful petitions of revision) concerned penal orders. When considering the number of cases that are dealt with in this kind of summary proceedings, this outcome is not out of proportion. But it is highly probable that in this field, there are much more wrongful convictions than those discovered by the research. It is highly possible that the majority of convicted waive their right to challenge the decision and prefer to pay a fine (Gillie´ron 2010; Killias 2008).
The results of the study show that wrongful convictions in which innocent people have been convicted after a trial play a minor role. Most cases where there was a successful petition of revision involved an excessive sentence imposed by the court when some mental problem of the convicted had not been recognized by the court and hence not been taken into account. In fact, the ignorance by the court of some mental problems of the convicted was a factor in 46.4 % of admitted petitions for retrial based on new evidence. In about one third of the admitted petition for revision, the court had convicted a factually innocent person, mostly due to perjury by “victims” of crimes against sexual integrity, or in other cases because of eyewitness misidentification or false confession by the defendant that he later repealed. The study did not identify exonerations due to DNA evidence (Killias et al. 2007). This might be the consequence of not storing items of physical evidence over a long period.
In contrast, wrongful convictions by penal order mainly concerned factually innocent defendants, who for the most part had been found guilty of a traffic violation and sentenced to a fine. Based on the available opinions, the granting of the motion for retrial led in 21 cases to a reduced sentence, in one case to a harsher sentence, and in 109 cases to the acquittal of the convicted. Wrongful identification and insufficient investigation of the facts were the leading factors contributing to wrongful convictions (Killias et al. 2007).
Risk Of Wrongful Convictions Inherent In Penal Order Proceedings
There are different factors specific to the penal order proceedings that increase the risk of wrongful conviction (for a detailed discussion of these risks, see Gillie´ron 2010). These are briefly described below.
Investigation: In the great majority of cases, the prosecutor bases his decision on the sole basis of the police accounts. However, those may be inaccurate or incomplete. The prosecutor is not required to hear the defendant, even if he has the intention to impose a prison sentence. In addition, it is also possible that the prosecutor expects that the defendant will make opposition if he is innocent. In sum, the prosecutor’s investigation is often not conducted with enough care.
Prosecution: The prosecution alone is responsible to issue the penal order. The decision is only subject to judicial control if the defendant or other interested persons make opposition. The fact that in this summary procedure the prosecutor acts as an inquisitor may contribute to increase the risk of wrongful convictions.
Form and time limit to make opposition: Defendants have a legal right to make written opposition within 10 days if they do not agree with the prosecutor’s decision. The short time span and the written form might hinder the defendant to exercise this right.
Defendant’s behavior: Various reasons can explain why defendants miss the deadline to make opposition or decline to exercise this right. It is possible that due to functional illiteracy, the defendant is unable to understand the instructions about the right to make opposition. This assumption has some support in view of the fact that about 16 % of the Swiss population is unable to understand a text of some complexity (Notter et al. 2006). Other reasons for not contesting the order include indifference, ignorance of the law, and fear of unfavorable outcome, such as costs of the procedure.
Conclusions And Future Research
Many studies have focused their attention on wrongful convictions in which innocent people have been convicted after trial. In this context, the question whether an inquisitorial criminal justice system or an adversarial criminal justice system is better able to protect the innocents has often been discussed (see, e.g., Thomas 2008; Walpin 2003). Both models of criminal justice systems provide for different safeguards to ensure that those guilty of committing a criminal offense are convicted and that the innocents are acquitted. In the Swiss criminal justice system, based on a modified inquisitorial tradition, the right to be heard and in particular the full disclosure of the prosecutor’s files and the obligation of the courts to cite their rationale for the verdict and the sentence may prevent the conviction of an innocent person. Furthermore, the principle of the factual truth that obliges the prosecutor to investigate in a neutral way may contribute to avoid and correct wrongful convictions.
However, nowadays, no criminal justice systems can claim to entirely belong to one of both models. Criminal justice systems that operate under an inquisitorial justice system have adopted adversarial elements and conversely. As a consequence, this distinction tends to lose its importance. This is reinforced by the fact that today, criminal trials are the exception rather than the rule. Today, the overwhelming majority of criminal matters are resolved by way of alternative or summary proceedings. In legal systems in which criminal trials become relatively infrequent, the determination of guilt is mainly made by the prosecutor. The prosecutor, by making important decisions in alternative proceedings, combines the executive and judicial power. His decisions are to a great extent adjudicatory. The problem in alternative proceedings is that the prosecutor faces extremely limited oversight of his decisions. Although a simplified procedure, such as the abridged proceedings under the Swiss legal system and American plea bargaining, still requires a decision by the court, the court hearing in this kind of procedure provides restriction on prosecutorial power to a much lesser degree. Therefore, wrongful convictions are a risk to seriously take into account.
In this contribution, the risk of wrongful convictions in the Swiss penal order proceedings, in which it is usual that the prosecutor takes his decision on the only base of the police report, has in particular been highlighted. At the origin, this summary procedure was designed for petty offenses punishable with a fine. Its field of application has widely expanded over time. Now, the prosecutor has the possibility to impose a custodial sentence of up to 6 months. Therefore, the penal order proceeding is not limited to petty offenses any more, but extends into criminal acts of some gravity. If the defendant does not make opposition to the decision, the decision is issued without judicial control. The wide scope of application of this procedure without any judicial control is more than critical, since this kind of proceedings is inclined to produce wrongful convictions and since almost all defendants are convicted in this way. Possible solutions that would help to prevent wrongful convictions would consist in having a judge being more actively involved (i.e., checking the penal order), a compulsory hearing of the defendant, and being represented by a lawyer if a custodial sentence is pronounced.
Concerning the abridged proceeding, it is too early to make some statements with regard to the risk of wrongful convictions. In a few years, more information will be available regarding its application frequency, the kind of crimes resolved in this way, and the problems related to it.
Alternative and summary proceedings certainly make sense if the aim of the criminal justice system is crime control or bureaucratic efficiency. However, if the aim of the justice system is the protection of individual rights, alternative proceedings are harder to justify.
It is clear that given the large amount of criminal cases that enter the criminal justice systems, it is not possible to give every defendant a criminal trial. Methods must be found to reserve full trials to those cases that deserve to go that route and treat the vast majority of other cases in another way. Future research on wrongful convictions should pay much more attention to alternative proceedings. A better understanding of the risks of wrongful convictions in these types of proceedings helps criminal justice systems to take measures in order to improve the quality of their legal system. The defendant should in turn benefit from this, since his rights would be better secured.
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