THE LIMITS OF PRIVATIZATION OF THE CRIMINAL PROCESS – IN SEARCH FOR THE EFFICIENCY AND JUSTICE OF THE SYSTEM
Research grant implemented by Dr Dagmara Gruszecka (project manager) as part of the SONATA NATIONAL SCIENCE CENTER competition no. 2015/19/D/HS5/00518
In the rapidly changing social reality, the classic structures of criminal proceedings, along with the characteristic pattern of relations between the state conducting the trial and the individuals – quite passively – participating in it, cease to meet the needs of an effective, but also fair, trial response to a committed crime. This, in turn, forces legislators to look for new procedural solutions. The common denominator of the changes toward increasing the adversarial nature of the proceedings, expanding the use of procedural agreements and mediation and alternative methods of resolving criminal conflicts, the rights of the parties to actively influence their procedural situation through, among other things, the possibility of private collection of evidence, and the restoration of the victim of a crime to his role as a full-fledged subject of the trial, can be found in the concept of „privatization” of criminal proceedings. Introducing certain private-law concessions into the public-law construction of criminal proceedings seems to be one of such, quite promising, solutions.
But what would the concept of „privatization of criminal procedure” actually mean? In the literature, various typologies of privatization patterns and various definitional proposals are reported. In the context of the subject of the research, however, it should be emphasized that in the general concept of „privatization of law” two problematic strands become apparent in the first place. In addition to tendencies to expand the participation of non-state entities in the implementation of tasks hitherto covered by the exclusive competence of state bodies, there is a parallel penetration into law and the criminal process of constructions of private-law origin, which can also be described as a „civilizing” of criminal proceedings.
Privatization, which on the one hand reflects the dynamic potential of criminal procedure, on the other hand, however, encounters impassable boundaries. With all awareness of the contentiousness of such a division, it can be proposed that these boundaries can be assigned to three areas: 1) the place of criminal procedural law in the system of law, especially in view of the division into the domain of public law and private law, 2) the relationship between the state and the individual, protected by the constitutional standard, 3) the functionality of the criminal process and the need for different methods of resolving criminal conflicts to coexist within it. Accordingly, the boundaries would be systemic, constitutional-legal and functional. To maintain the current constitutional (and convention) standard of criminal procedure, private activity can be permitted only to the extent that it does not violate the essence of the state’s obligations to protect public safety and order and the rights and freedoms of individuals. The deeper a given procedural activity interferes with the sphere of a citizen’s freedom, the more strongly the state’s monopoly becomes justified. The area in which the possibility of private activity seems best justified is the sphere of evidentiary proceedings – the private gathering, but also the taking of evidence. For this reason, preliminary proceedings also appear to be the most suitable for privatization.
As already indicated, the origins of privatization concepts lie in the problems posed for the modern justice system by the modern risk society, which arise at the intersection of the aspiration to introduce a freedom-oriented, guarantee-oriented model of criminal law and process, and the need to increase the effectiveness of criminal law protection. To recapitulate, it should be recognized that the results achieved as part of the research are a new, important voice that falls within the scope of fundamental issues of criminal trial science, but also an expression of the correct perception of the relationship between the authority (the state) and the individual in a liberal, respecting the rule of law, democracy.
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