The role of the trial judge in the search for the truth in criminal procedure. A comparative study of Belgian, French and Dutch law.

Both the doctrine and jurisprudence in Belgium, as developments in neighbouring countries show that there is uncertainty about the role of the trial judge. More specifically, the question is what role he should have in the search for the truth. Must he occupy a passive role, or an active one? Does he depends on the evidence given by parties? The court merely assess then whether the facts presented by the parties constitute evidence of the alleged facts? Or does a court assumes an own responsibility for the completeness of the fact finding process? Has the court a right of initiative to complete evidence gathered or presented by the parties? What actions can the Belgian criminal court order by itself? What form should the further investigation take? Is the court obliged to follow the initiatives of the parties and accept the evidence offered by the parties? Does it have to respond to their requests for additional investigation?

This study provides trough a comparative study of Belgian, French and Dutch law an answer to the question which role the trial judge in basic criminal procedure have and which one he should have. The study is supplemented with elements from English and German law as a framework. After the study of the arguments for and against, a proposal for an moderate active role of the trial judge is introduced. The necessary tools should be provided therefore. The court would also have to rule more generously on requests from parties for additional research. The study concludes with a draft for legislative reform.

Publication year:2011

Keywords:criminal procedure, criminal evidence, comparative criminal procedure