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Comment by jacobr | Hacker News Reader

Sweden actually has a similar problem even without the bail system. Most people get released awaiting trial, depending on severity of the crime, risk of influencing the case, etc. The ones who don't end up incarcerated with way worse conditions than regular prisons while waiting for the trial. You might end up with a sentence of 1 year after already spending most of it in an insitution with limited visitation rights, none of the rehabilitation, education and leisure available in regular prisons.

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All European countries have a system that is sort-of a "reverse bail" problem. You can become a "civil party" to a complaint that you submit to the police. If you have money, you can force that complaint to get before a criminal judge, who is forced to ask you (the civil party) why you want this person criminally punished (e.g. jail), and listen to your response.

So poor people cannot complain about things like government excess or police brutality, since those complaints get thrown out. Nor can they effectively get police help, except in very severe cases.

But a rich person can drag you in front of a criminal court for not wiping the pavement in front of your apartment often enough.

This is a bail system. The money you put down, you get back if the person gets convicted. Additionally, in some countries the defendant, if convicted, will need to pay your lawyer expenses (again, if they are convicted).

Pretty much all of Europe.

> All European countries

> criminal judge

Almost all of Europe uses civil law, where there is no distinction between civil and criminal courts.

> But a rich person can drag you in front of a criminal court for not wiping the pavement in front of your apartment often enough.

> This is a bail system. The money you put down, you get back if the person gets convicted.

This is far removed from reality as far as I am aware. Please provide sources.

> Almost all of Europe uses civil law, where there is no distinction between civil and criminal courts.

Obviously not true. In fact, this is so obviously wrong I don't know where to start.

Differences between civil and criminal courts:

* different hierarchy

* different powers (criminal court can, say, order imprisonment)

* different judges

* different parties (defendant vs prosecution for criminal, defendant vs complainant for civil court)

* different standards of proof

* different rights (e.g. the right to a jury trial in some countries)

Even this barely scratches the surface of the differences.

> This is far removed from reality as far as I am aware. Please provide sources.

Start reading here, it describes part of the procedure:

https://fr.wikipedia.org/wiki/Partie_civile_en_France

Google suggests this as an English alternative:

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230....

(note there is "partie civile" and "action civile". They are NOT the same, aren't directly related. Specifically it is NOT the case that the "partie civile" is the complainant in an "action civile", as one might think. Keep reading)

The procedure is, generally speaking:

1) complain to the police, get a record or the complaint

2) with the record (which is a number), go to an "investigation judge" (no need to prove anything or ...), declare your intent to become "partie civile", register your lawyer, etc. He will tell you the amount of the "bail" for the case (which is going to be ~1000 euro. It differs from case to case, but not much)

3) pay the "bail" to the "griffe" (sort-of-kind-of the secretary of the court, they have an office in every courthouse) and register it

4) take said registration back to the judge you registered with, judge writes an order

5) write the prosecutor to deliver the order of the investigative judge

Now, the prosecutor is forced to bring the case before criminal court within a certain amount of time, and is forced to demand a nonzero punishment for whatever the complaint is (in fact this is one of the ways they get out from under it: they demand ridiculous punishments so the judge will rule against them).

The non-obvious and terrible thing for the victims of this system is misjudging the motivation of the police/prosecution (technically there is a distinction between the police and the people that do this, but it's essentially a different department of the same organization...). You might think the police will try to punish the guilty party, if there is one. That's technically true, but only in the following sense : they will try to get a conviction, and with this procedure REGARDLESS of their judgement there is a guilty party. If they think they can get a conviction, odds are VERY good they'll pursue seriously. Things that do NOT influence whether they pursue (and therefore do not influence whether you get convicted) include reasonableness, whether you're nice to the police, whether there's significant damages, whether anyone else was involved, whether the police promised not to do that (which they do, frankly almost always, then bring the case anyway and get the conviction), ...

An evil way to get ahead in elections in France: use this system to get your niece to complain against your competition, then point out (perfectly accurately) that your opponent is under investigation for terrible crime X. They will go free, eventually (or maybe not), but by that time it has long since stopped mattering.

As the article you've linked points out, the fact you _can_ theoretically do this in England doesn't mean it will actually work.

There are private prosecutions in England, but they almost all happen under the tacit approval of the state, e.g. rather than spend government money prosecuting people who mistreat their pets the government doesn't stop the RSCPA (a charity) from prosecuting them privately with donated money.

If instead a rich person has just decided to try to prosecute someone they don't like, it is almost certain that the state will intervene, and indeed it is legally required to do so once it's told this is going on, by a judge, a newspaper article, a law clerk who realises what's happening, almost anybody.

What will happen is that a very bored junior barrister from the Crown Prosecution Service will show up (this could happen as early as pre-trial discussions), they will inform the court that the CPS would like this case assigned to them, they're privileged to do this without giving any reason. Then, having been granted control of your prosecution, the barrister will inform the judge that they're not offering any evidence, the judge will accordingly declare the defendant isn't guilty as no evidence has been presented against them. You have now spent a lot of money and achieved nothing except to annoy a judge and the prosecutor, which seems like a bad idea.

If you've got a dubious case, maybe the defendant was caught red-handed stealing something from your store and you're trying to prosecute them to ruin their reputation after police decided a formal warning was sufficient - the CPS can demand all your paperwork, take over the case and then having read your evidence decide to take that evidence to court or offer no evidence on the same basis they'd have used if the police sent them the case (a "full code test").

> Differences between civil and criminal courts:

I spoke too broadly - apparently, some countries (including France, Spain, Poland and Italy) do have different courts for civil and criminal matters. Other countries do not (including Germany, Sweden, Hungary and Slovakia) [0].

> https://fr.wikipedia.org/wiki/Partie_civile_en_France

> Google suggests this as an English alternative:

> https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.....

> (note there is "partie civile" and "action civile". They are NOT the same, aren't directly related. Specifically it is NOT the case that the "partie civile" is the complainant in an "action civile", as one might think. Keep reading)

I have only read briefly, but noted two things to start with: the document in English clearly states that it only describes the French system (even though other countries are mentioned at times), and it is also 60 years old. But even so:

> This problem was whether the juge d’instruction was bound to direct his investigations against the individual accused in the plaint, or whether he could exercise discretion as to the persons against whom he proceeded. The question was answered in 1925 in favour of the partie civile. The Chambre criminelle held that the juge d’instruction was not master of the proceedings. He was seised in personam in respect of the person accused and not in rem in respect of the charge as a whole. He was therefore without discretion as to whom he inquired against.

This reads similar to what you are describing about the prosecutor being forced to bring the case forward. However:

> The law of July 2, 1931, was passed in an attempt to remedy some of the foregoing abuses.

> ...

> The purpose of this reform was to avoid the infliction of the moral damage which usually followed merely from being publicly accused of certain crimes. No accusation would now be made unless the juge d'instruction were satisfied that there were adequate grounds for it.

The second-to-last paragraph of your post is also not substantiated by that source.

If this is as common as you claim, it should not be difficult to find recent sources which support it.

0: https://e-justice.europa.eu/content_ordinary_courts-18-en.do

> I spoke too broadly - apparently, some countries (including France, Spain, Poland and Italy) do have different courts for civil and criminal matters. Other countries do not (including Germany, Sweden, Hungary and Slovakia) [0].

Not "some countries" ... All countries have different criminal and civil codes, and therefore courts, and judges, and lawyers, and ... all different. I'm pretty interested which country, exactly, only has a single system across criminal and civil law. Common law has the separation, Napoleonic code has the separation, see next paragraph for explanation why that's pretty much enough to declare it true for the entire world.

> I have only read briefly, but noted two things to start with: the document in English clearly states that it only describes the French system (even though other countries are mentioned at times), and it is also 60 years old. But even so:

I feel like, again, I need to quote a bit, not even of "law 101", but the basic explanation they give when they have someone tour the law faculty. There are 2 modern law "systems" that pretty much all other law is based upon. One is Common law, the other is the law introduced by Napoleon, in 1804, referred to in English as the Napoleonic code, and adopted in all countries he conquered. To a rough approximation you could say that any country that was not a colony of Britain has the Napoleonic code as a legal basis (including countries that claim different for one reason or another, like Saudi Arabia that claims to have Sharia, but upon even cursory examination that will strike you as a very hollow claim)

The "partie civil" process is a part of Napoleonic code (references for this, obviously, are in French legalese).

https://en.wikipedia.org/wiki/Napoleonic_Code (note the separation between civil and criminal courts in a very old document, which is why it's so widely used) and ... given the mistakes you make ... perhaps you might consider speaking with a bit less authority ?

> If this is as common as you claim, it should not be difficult to find recent sources which support it.

And the resources I pointed out do describe this, and yes, I get it. It's law ... the sources where law is condensed are not free, and cannot be linked to, ancient books that do describe it are more-or-less in Google books, but they're still pretty technical and long-winded.

Also, for obvious reasons, most "intro to law" for any particular Napoleonic code is not in English. The good ones are in French.

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