Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.4. The specific principles and framework of evidence at first instance. Criticisms of the current rules

11.4. The specific principles and framework of evidence at first instance. Criticisms of the current rules

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As the most complete evidence is taken at the trial in the court of first instance, it is necessary to analyse the specific principles of evidence that are relevant particularlyat this stage.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Evidence is not only relevant for the purposes of criminal law and criminal procedure, but can also be used to investigate facts relevant to the determination of ancillary issues relating to the proceedings.1 The question is, of course, whether (1) the legislator had in mind ancillary questions which are of less importance for the application of the law, and whether (2) this rule does not conflict with the classical function of evidence, which is to examine the merits (of guilt).
    However, the establishment of facts relevant to the application of the law involves a special cognitive process, in which the judge becomes aware of the events and happenings in the outside world that involve the realisation of the relevant facts. The basic requirement for this process of discovery is that the facts discovered in the course of it must correspond to reality in a manner that can be proved by scientific means.2
  2. For reasons of continental legal tradition, the court should continue to seek to base its decision on a true and fair factual basis,3 which is why the court still has a full fact-finding obligation. However, Somogyi points out that, on the basis of this (modern) text, the general objective of the substantive search for the truth has been “moderated”, since the facts to be proved must no longer be true but merely faithful to reality. This in turn only places a requirement on the courts that the facts established must not be contrary to reality, but must correspond to it in their essential aspects.4 However, I do not believe that this distinction is relevant either to the usual judicial attitudes or to the practice of taking evidence, since there are no clearly distinguishable levels of fact-finding in the context of the general objective of seeking substantive truth.
    The main problem, as I see it, is that the pursuit of material justice as a general objective leads to a logical contradiction between many provisions of the law. These rules are:
    • the court, in the course of clarifying the facts, will, as a general rule, only obtain evidence on the basis of an express motion to that effect;
    • in the absence of a motion, the court is not obliged to obtain and examine evidence;
    • it is not necessary to prove facts the reality of which is accepted jointly by the accuser, the accused and the defence in the case (the reason for the joint acceptance of a fact is irrelevant – it can be e.g. a plea bargain).5
    With the introduction of these Anglo-Saxon elements, the legislator has made the role of judges of first instance uncertain, since it imposes on the courts the obligation to establish the facts – in accordance with substantive truth – while no longer requiring ex officio evidence. These two obligations go hand in hand, however, and the ex officio verification is a necessary element in the substantive search for truth. Moreover, the law moves in the direction of “litigation in the forum” by making the subject matter of the evidence subject to the common consent of the parties.
    According to Somogyi, “the process leading to the prevalence of procedural truth in the legal regulation of Hungarian criminal procedure is manifested in the fact that while the aim and declared requirements of evidence are the – seemingly unshakable – need to discover and prove material reality, the individual, detailed rules increasingly elevate the procedural reality, sometimes even openly, to the idealistic concept of material truth.”6
    This regulatory discrepancy could be resolved in two ways: (1) by not pursuing the substantive objective of seeking the truth as a general objective, and (2) by imposing on the courts an ex officio obligation to take evidence where necessary and justified to establish a true and fair view of the facts. Both solutions can be argued for and against, but I believe that the particularities of the investigative and prosecutorial phases of the investigation and prosecution process in the country still justify the maintenance of a substantive search for the truth.7
    In addition to this position, there is of course still justification for the rules according to which: (1) facts which are common knowledge or (2) of which the court has official knowledge need not be proved.8 However, the concept of such facts is not defined in the Be.
    • As regards facts of common knowledge, legal theory distinguishes between two categories: (1) historical facts (e.g. the date of a historical event) and (2) facts based on common experience (e.g. it is dark at night). Of course, in judicial practice, there are also case law decisions which seem to outline this problem: for example, it is a well-known fact that alcohol has a negative effect on the human body in terms of perception, concentration and the sense of danger, and therefore does not require any specific proof.9 It is important to note, however, that the judge’s private knowledge (e.g. the defendant’s drinking habits), which may be well-founded, cannot be a matter of common knowledge.10
    • Facts which have come to light in the course of official proceedings must be facts about which it can be established with certainty that they were obtained by the court in the course of its official activities, and the source from which the information was obtained (e.g. data from other litigation, data handled in the course of court proceedings).
    It is also not necessary to prove the facts on which the presumptions set out in the Criminal Code are based: such as (1) the irrebuttable presumption that a person under the age of 12 is always considered to be incapable of defending himself/herself against the commission of sexual violence;11 (2) the case of “situational legitimate defence”, the situations in which the unlawful attack is considered to have been intended to take the life of the defendant.12 In such cases, therefore, only the general concept of unlawful attack is to be examined, and if this criterion, which is always manifested in active conduct, can be established, there is no need to examine the specific intent of the attacker, and the defender’s act is not necessarily punishable even when it is committed.13
  3. The principle of the prosecution’s case remains applicable, according to which the court may only adduce evidence of the facts of the case.14 The following case law should be highlighted in this context:
    • There is no violation of the principle of impeachment if the court records the conduct of the accused named in the indictment and, within the framework of the identity of the offence, establishes the identity of the victim differently from that stated in the indictment; nor is there a violation of the principle of impeachment if the court establishes that the offence described and judged in the indictment has not one but several victims.15
    • The requirement of a legal accusation is not violated if the court’s verdict of guilt – in derogation from the legal assessment of the accusation – imposes a sentence on a perpetrator of a criminal organisation, if the factual basis for this is among the facts described in the accusation; notwithstanding this, the court may, within the limits of the identity of the offence, establish the fact of the organisation of the offence and impose the sentence accordingly, even if the elements of the organisation of the offence are not established in the indictment but have only come to light following the pre-trial evidentiary proceedings.16
    • The clarification of the facts within the framework of the prosecution as to the manner of the offence does not violate the principle of impeachment.17
    • It does not constitute an overcharge if the court departs from the prosecution’s case in certain circumstances in order to clarify the facts fully.18
    • It is not a violation of the principle of indictment if the facts established by the court in its decision in the case do not fully cover the facts described in the indictment, but correspond to the facts constituting the essential elements of the statutory elements of the offence and therefore remain identical to the facts to an appropriate degree. In the case of a finding of facts within the scope of the offence, it does not violate the principle of the indictment if the court finds a theft charge to be a theft by stealing or other offence against property.19
    • Nor can it be regarded as a lack of a legal accusation and an overreach of the accusation if, without changing the identity of the perpetrator and the essence of the conduct of the offence, the court also establishes a fact not described in the indictment – e.g. a result forming part of the legal elements of another offence – and assesses the act in the light of this.20
    • It is not a breach of the principle of the accusation if the amount of the pecuniary loss (damage) charged is changed as a result of evidence in court.21
    • The indictment does not require full historical identity between the facts of the charge and the facts of the conviction. The court must seek to clarify the facts of the case in the course of its examination of the evidence; the facts of the conviction may differ from the facts of the indictment in several respects (such as place, time, manner, means, motive, result, etc.) without this being prejudicial to the principle of indictment. Therefore, a clarification of the facts within the framework of the charge as to the manner of the offence does not violate the principle of impeachment.22
    • The fact that the principle of indictmentis linked to the charge implies the necessity of facts, i.e. the judgment must contain facts relating to the act described in the indictment. The court may also record facts in its judgment which are not contained in the facts of the indictment. It is not a breach of the principle of indictment if the court also finds details in relation to the historical facts which were not contained in the indictment; nor is it a breach of the principle of indictment if the facts set out in the court’s decision do not cover the facts set out in the indictment but correspond to them as regards the facts constituting the essential element of the offence.23

11.4.1. Publicity of evidence as a specific principle of the trial

1 § 163 (1) para.
2 Theoretical and practical issues of certainty of judgement. Summary Opinion (2017) 10.
3 § 163 (2) para.
4 Theoretical and practical issues of certainty of judgement. Summary opinion ibid. 64.
5 § 163 (4) para.
6 Somogyi (2017) ibid. 60.
7 This does not, of course, exclude the use of legal instruments (of Anglo-Saxon origin) such as the possibility of cross-examination.
8 § 163 (4) para.
9 In the case on which the present case was based, the defence pleaded that the traffic offence of the accused, more specifically the significant speeding, which resulted in the fatal accident, was not related to his drunkenness (BH 2013.33.). In. Theory and theory of driving disqualifications, theories and jurisprudence, and theories of the legal and administrative consequences of driving disqualifications ibid. 104.
10 Theoretical and practical issues of certainty of judgement. Summary opinion ibid. 104.
11 CC § 197 (2) In Ervin Belovics – Gábor Molnár – Pál Sinku (2015) ibid. 207.
12 CC § 22 (2) para.
13 4/2013. Criminal Jurisdiction Decision
14 § 163 (3) para.
15 EBH 2015.B.13.
16 EBH 2015.B.10.
17 EBH 2005.1199.
18 BH 2014.136.I.
19 BH 2011.245.
20 BH 2009.5.II.
21 BH 2006.42.I.
22 BH 2005.242.
23 BH 2005.7.
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