Group 3 - Court Proceedings
Introduction
Court proceedings allow parties and their representatives to resolve legal issues in an orderly
fashion. Parties present arguments to the judge and reinforce their arguments with evidence,
which then the judge will determine a decision based on the arguments and facts of the case.
Civil and criminal procedure are bodies of law that state the standards and rules courts must
follow with regards to cases. The law governs how and when a case can start, what evidence
can be used in court, and other elements that allow the case to be resolved.
Criminal proceedings usually start with a criminal charge against the accused and end with
either the acquittal or conviction of the defendant. Civil procedures usually start with a civil
procedure/legal issue and end with a judge made decision resolving the said issue in the form of
a remedy or damages. Regardless of jurisdiction, they follow this general structure due to the
fact the objective of court is to resolve the case, which is the same in each jurisdiction. Not only
that but also both criminal and civil proceedings are based on similar principles such as the
right to a fair trial, due process and the presumption of innocence. Although founded on similar
principles, details of the proceeding such as rules of evidence can differ significantly from
jurisdiction to jurisdiction.
Proceedings in Sweden:
The Fundamental Principles
The Swedish Procedural Law is characterized by three fundamental principles that exist since
the 1940s. The principle of orality means that the claim, the defendants' plea and the pleadings
must be held oral. The principle of immediateness signifies that the judgment can only be based
on what has been presented during the main hearing. The principle of concentration describes
that the case must be prepared so it is possible to bring it to a termination at the trial. The
described principles still exist but they are not applied that strict as it was the case in earlier
times. They have to be brought in balance with new requirements such as practicability and
cost effectiveness. According to this, the general tendency is flexibility.
Evidence
The most common means of proof are the hearing of parties, witnesses and experts, evidence in
written documents, inspection of objects and appraisal of the scene of the event. Since there is
the principle of free presentation of evidence it is possible to dispose other kinds of evidence.
The means of proof are the same for Civil and Criminal Cases. In the Civil Cases the parties
can be heard under criminal liability whereas that is not possible in Criminal Cases. In the
Criminal Cases the prosecutor has the burden of proof and with that has to give the proof that
the defendant committed the crime “beyond any reasonable” doubt. In the Civil Cases the
parties have the burden of proof. Mostly the proof has to be “proved” but sometimes the only
requirement is that certain legal facts must be reasonable. In both cases the requirement is not
as high as in the Criminal Cases.
Criminal Cases
The criminal law procedure consists of four different levels. The procedure starts with a
preliminary investigation of the police and the prosecutor when there is any reasonable
suspicion that someone committed a crime. The prosecutor can open up the case with an
written application to the court (prosecution starts). This application has to contain, among
other things, a specification of the offence. It is important to mention that nobody can be judged
for an offence that was not mentioned in the prosecutors’ description. Furthermore the
prosecutor has to clarify what evidence he wants to deliver and what the evidence shall
demonstrate due to the fact that the defendant has to know what he is in for. It is not allowed to
work with surprises and tactical application of evidence.
The main hearing starts with the prosecutor presenting his indictment. Afterwards all parties
have the possibility to clarify their legal point of view. Even if the defendant makes a
confession the presentation of evidence has to take place. Afterwards witnesses and experts are
questioned under oath. The burden of proof is on the prosecutor. He has to give the proof for all
aspects of the crime as well as for the subjective elements of the crime. The judgement can only
be based on what happened and what was said in the main hearing.
Summary forms of criminal and civil procedure
The Summary Criminal Procedure shall be a speedy, inexpensive and, for the defendant, a less
burdensome alternative to the normal criminal procedure. In the Civil Summary Procedure the
Enforcement Service is responsible (instead of the court). It shall be a speedy and effective
alternative for all sorts of collection of debts.
Civil Cases
Small Claim Cases were adopted in 1974. They are only available for cases where a out-ofcourt settlement seems possible and the amount in dispute does not exceed 21,200 SEK (2010).
The judge is even more committed to lead the parties trough the case so that they do not have to
engage a lawyer. This makes them to a speedier and cheaper alternative to the normal Civil
Cases.
The “normal” Civil Case starts with a claimants' application submitted to the District court. It
has to point out the claim and the material fact. In the subsequent preparatory proceeding both
parties have to demonstrate what evidence they want to use and have to point out their position.
Due to thefact that today a majority of the civil cases is already decided in the preparation, it is
quiet important that the parties are well prepared. If a main hearing takes place the plaintiff first
presents his claim and the accused can reply to that. Afterwards there will be the presentation
of evidence and the pleadings. The procedure closes with the judgement.
Group Actions
Since 2003 group actions are permitted. They are available for the whole civil law.
Proceedings in Germany:
Proceeding in civil cases
Before filing a lawsuit, the probability to be successful should be quite high, since the losing
party has to pay legal costs. There is no filing of actions ex officio. The judge can order pretrial proceedings in writing, giving the parties the opportunity to explain their positions. Then,
there has to be a conciliatory hearing, where the judge asks questions and discusses the legal
issues with the parties. In case there is no settlement, the trial is just after this hearing. The
parties decide about the facts they want to use at trial. However, the court may order to take
evidence, when facts are controversial. If facts remain uncertain, there has to be a decision
against that party, which has the burden of proof. The principle rule, concerning the burden of
proof, is: every party has to prove these requirements of the norm, which are more favourable.
At trial the lawyers may refer to their former written explanations. The judge either pronounces
the sentence subsequent to the trial or he orders a date for the pronouncement of the decision.
The hearings are public, but there are few exceptions. The court may only adjudge to the
plaintiff what he named in his suit and not more.
Proceedings in criminal cases
The first step in criminal procedure is an investigation that is mainly controlled by the
prosecutor, who also decides, whether he prefers a charge or not. At the admission of
indictment the court decides if the suspect is suspicious enough. The trial is public. There is no
jury but there are usually lay judges in criminal cases. Firstly, the accused person has to answer
questions about himself. Then, the prosecutor reads the charges. After that, the defendant may
comment on the issue. However, he has the right to silence. The following hearing of evidence
includes the examination of the witnesses and expert witnesses. Though the judge leads the
questioning, both the attorney and the prosecutor may ask questions. In contrast to civil
proceedings, the court is supposed to ex officio extend the taking of evidence. Subsequently,
they make their pleadings and the defendant gets the final word. The German prosecutor is
objective. After the court´s consultation, the judge pronounces the sentence.
Proceedings in the Netherlands:
General proceeding principles are mainly based on article 6 of the European Convention of
Human Rights. The most important proceeding principles will be evaluated.
First, there must be real and effective access to the courts with hearing held within a reasonable
time. What is considered reasonable time ultimately depends on the complexity and
importance of the case, the behaviour of both the parties, and the length of time between the
conduct in question.
Secondly, impartiality of the judges is a critical element. Courts are established by law in order
to be impartial. A judge remains neutral and passive throughout the proceedings.
Thirdly, the Dutch legal system is known as an adversary system in that each party has the right
to make its views known and to explain them. Further, each party needs to get a real
opportunity to effectively comment on evidence and arguments by the opposite party.
Fourthly, the hearing and judgment must be made public. Hearings can be held in private when
it can be shown to be necessary and proportionate.
Fifthly, parties have a right to appeal for all decisions rendered by a lower court or a court of
appeal. The right to appeal a decision is limited to those parties to the proceeding who are
aggrieved by the decision.
In principle all kinds of evidence is admissible. There are few restrictions with regard to the use
of evidence. Improperly or illegally attained evidence may even be admissible unless its
admission would adversely affect trial fairness. Remedies are available for the breach of rights
like compensation or a reduced sentence.
Furthermore, the court must remain passive. The court is not allowed to base the judgment on
facts that have not been brought forward by any of the parties. The court is free in the
assessment of most evidence provided.
Moreover, the party in the proceedings relying on the legal consequences of facts or rights will
bear the burden of proof. However, in some cases the law will specifically provide otherwise.
The risk of not providing sufficient evidence lies on the party that has burden of proof.
Proceeding in civil cases
The proceedings in civil cases are divided into summons procedures, summary procedures or
petition procedures. Proceedings in civil cases normally start when a plaintiff has a claim
against the defendant. The plaintiff will order a bailiff to send a summons to the defendant. The
defendant will then get the opportunity to reply on the claim by the plaintiff. Subsequently, an
appearance by the parties in person or through a lawyer may take place. The court hears both
parties’ statements. Witnesses may later be called upon to be present in court to testify. Finally,
the court makes a judgment that terminates the lawsuit. After a final judgment an appeal or an
appeal in cassation may be lodged.
Proceeding in criminal cases
In order to start a criminal procedure the summons has to be valid, the court needs to be
authorized to adjudicate and the public prosecutor needs to be receptive. Before the offender’s
first appearance before court the complaint is reviewed by the court to determine whether there
is sufficient legal basis to prosecute. The pre-trial phase ends with the decision to prosecute the
case and to summon the offender. After the reading of the charges, the court examines the
accused, the witnesses and experts. Afterwards, the public prosecutor and the defense counsel
may ask additional questions of the aforementioned. Next, the public prosecutor and the
defense counsel make their closing speech. Before the presiding judge closes the trial the last
word is given to the accused. Finally, the court goes in chambers to deliberate the verdict and
the sentence. After a final judgment an appeal or an appeal in cassation may be lodged.
Proceedings in England & Wales:
General principles
Court proceedings in English law are founded upon two main principles, the rule against bias
and the right to a fair hearing, and are often referred to collectively as ‘natural justice’.
The rule against bias reflects the need to maintain public confidence in the legal system. In
other words, all courts, tribunals and judges must be impartial to give a fair verdict. Lord
Denning commented on this need for impartiality in the case Metropolitan Properties Co Ltd v
Lannon [1968], stating that "Justice must be rooted in confidence and confidence is destroyed
when right-minded people go away thinking: 'The judge was biased.'"
The principle of a right to a fair hearing is based on Article 6 of the European Convention on
Human Rights. Aspects of a fair trial include prior notice to the hearing, the opportunity to be
heard and to state their own case, fair conduct of the hearing and a right to legal representation.
Civil proceedings
Civil matters are firstly heard in either the County Court or the High Court. The County Court
deals with Small Claims issues whilst the High Court deals with more serious issues. All claims
under £15,000 will be heard in the County Court, and claims above that may be heard in either
the County Court or the High Court.
The proceedings of a civil case are outlined by the The Civil Procedure Rules 1999 which aims
to ensure that both parties in the case obtain justice. Before the case the parties are encouraged
to state the facts of the case. This is done by issuing a Part 7 claim form in which they
described their issues to the court. The party must also include a Statement of Truth, clarifying
that they are telling the true account of the story and accept the consequences of this. This will
then be sent to the defendant. Within 14 days the defendant must either admit the claim, partly
admit the claim, or include a defence against the claim, he cannot merely deny it.
Depending upon the details and the response from the defendant, the case will be prioritised
and then dealt with at court. A Small Claims procedure is the least significant court proceeding,
is often relatively informal and without legal representation, where the evidence is clear and the
judge makes his decision based on this evidence. A Multi Track procedure deals with larger
issues and may include the use of expert witnesses to determine the outcome.
Criminal proceedings
In English criminal law, the burden of proof is on the prosecution, meaning that the prosecution
have to prove beyond reasonable doubt that the defendant is guilty, and is presumed innocent
until proven otherwise. On the other hand, the defence team will seek to undermine the
prosecution’s allegations and attempt to create doubt as to the defendant’s guilt. This
presumption of innocence is required under Article 6 of the European Convention.
In court, the defence and prosecution will each bring various pieces of evidence and interview
witnesses in order to persuade both the jury and the judge that the defendant is either guilty or
not guilty. The judge acts as umpire, and simply seeks to find out the truth, rather than to find
guilt.
After both sides have presented their arguments, the judge will summarise the case and leave it
to the jury to determine the outcome of the case. In England, 12 ordinary people are selected to
have jury service, and this principle relates back to the Common Law tradition of having a ‘trial
by your peers’. Once the jury have decided the verdict, the judge will determine the sentencing.
Conclusion:
Court proceedings across the world a very similar as they try to achieve the same objective.
They try to resolve legal issues in a fair and orderly process. They follow a general process of a
judicial contest to determine whose legal rights prevail and resolve a legal issue. The main
differences are subtle. General proceedings can differ due to different court structures. For
example the court of first instances differs depending on the issue at hand, which in then in turn
means proceedings can be different. For example Supreme Court proceedings are different to
general court proceedings. Swedish court proceedings are centered on the principles of orality,
immediateness and concentration. These principles today are balanced with practicality and
cost effectiveness. Other jurisdiction such as the England and the Netherlands do not cite the
same principles and base court proceedings more on article 6 of the ECHR – the right to a far
trail. Sweden also must take article 6 of the ECHR into consideration as they are a member of
the European Union.
Evidence is vital in court proceedings to convince the judge and to prove facts. Similarities can
be seen in Sweden and the Netherlands as they both have the principle of free presentation of
evidence meaning most forms of evidence are allowed, except evidence illegally obtained.
Witnesses, experts and hard evidence (for example DNA evidence) are the most common forms
of evidence in all jurisdictions.
In Sweden, the burden of proof in criminal cases is with the prosecutor. Meaning that the
prosecutor must prove beyond any reasonable doubt that the accused committed. This is
because in criminal cases you are innocent until proven guilty. This is the same for Germany,
the Netherlands and the United Kingdom. In civil cases the burden of proof is on the parties.
This is also the same for Germany, the Netherlands and England.
To conclude, the proceedings in both civil and criminal cases in Sweden are very similar in all
countries mentioned yet differ in subtle ways, some of which are mentioned above.