Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VIII. The basic features of the Hungarian evidence system • The means of evidence in general
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8.2. General rules of witness evidence in Hungarian practice

8.2. General rules of witness evidence in Hungarian practice

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Testimony is often referred to as the “crown of evidence”. “Undoubtedly, only the confession of the accused is of greater value than the testimony of the witness, and in terms of frequency, this means of proof is necessarily the most important," writes Róth.1 The requirement of objectivity of witness statements is based on the fact that the witness’s fundamental obligation is limited to the disclosure of what he or she observes, and that the statements do not therefore include the expression of an opinion on the facts. Of course, it is not forbidden for a witness to express an opinion, but only the statement of facts can be taken into account for the purposes of proof. On this basis, therefore, it is for the authority to distinguish between the witness’s testimony based on his perceptions and his personal conclusions.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Hungarian jurisprudence is already fundamentally influenced by international principles of witness hearings. In this context, reference should be made in particular to the “minimum standards” contained in Recommendation No. R (97) 13 of the Council of Europe and the Recommendation of the Committee of Experts on the Intimidation of Witnesses and the Rights of the Defence, which:

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  • Guarantee the right to testify freely and free from intimidation;
  • Impose a duty on the State to protect witnesses;
  • Criminalise witness intimidation and provides rules on the procedural consequences (i.e. exclusion of witnesses);
  • Impose a general obligation on witnesses to testify;
  • Regulate special possibilities for giving evidence (e.g. the possibility of using audiovisual means);
  • Establish a training system for those responsible for conducting witness evidence.3
 

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Effective witness testimony requires not only legal but also psychological knowledge. In the universal development of law, the laws of this discipline only became known in the 17th century, and in Hungary only at the beginning of the 19th century, for which Katona provides the following explanation: “Neither the principles of evidence in trials nor the low cultural and professional standards of the legal services made it possible to apply these laws consciously.”4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to Beccaria, “a notable part of all good lawmaking is the standard determination of the credibility of witnesses […]. A witness may be any man of common sense, that is to say, a man who thinks in a certain context and perceives in the same way as others. The only proper measure of his credibility is whether he has an interest in telling the truth or not […]. The credibility of a witness is now the less the greater his enmity or friendship with the accused, or the closer his relationship to him. It takes more than one witness, because if one man asserts and another denies, there is no certainty and a presumption of innocence arises, which may be invoked by all […].”5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The above quote from the author covers essentially all the investigative aspects of witness evidence that could potentially arise as issues in a scientific analysis: (1) What is the procedural position of the witness? (2) What are the basic rules of interrogation?

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(1): It has long been a controversial issue in the Hungarian legal literature whether a witness should be defined as a separate procedural subject or as a personal means of evidence. According to Lajos Nagy, “we consider the content of the testimony itself as a fact, and the witness itself as a means of proof.”6 Székely, on the other hand, says that “it is a more accurate terminology if we do not refer to the person (witness, expert) as the means of proof, but to the statement made by him in the proceedings, all the more so because the persons in question are the subjects of the criminal proceedings.”7 The same position is taken by Lajos Kiss, who says that “a witness is a subject in the proceedings in any case, even if the CPC does not list [them] […] among the persons participating in the proceedings.”8

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I, for my part, believe that witnesses – like the accused, the defender, the victim – should be considered as independent procedural subjects, and accordingly I consider any scientific position or legal solution that examines or regulates witnesses solely within the framework of evidence to be incorrect. It clearly follows from the grammatical interpretation of the term ‘witness’ that in the case of a witness it is a natural person and therefore cannot be regarded as an instrument, object, thing, etc. Therefore, I consider it problematic from a taxonomic point of view that the current CPC does not deal with the rules on the status of witnesses in the third part entitled ‘Persons participating in criminal proceedings’, but only in the general rules of evidence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

(2): According to the CPC , a witness may be examined as a witness who may have knowledge of the fact to be proved.9 As a general rule, persons summoned in this capacity are under an obligation to appear, to testify, to tell the truth and to cooperate under the subpoena.10 Although the obligation to appear is not specifically mentioned in the CPC , this is unnecessary, since the law provides for a general obligation to testify in the case of a subpoena. The obligation to cooperate means that the witness is obliged to (1) provide the authority (court), at its request, with all material means of evidence (documents) in his possession; (2) submit to the necessary medical examination.11

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Witnesses must be examined one by one,12 during which

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  • the identity of the witness must be established;
  • possible obstacles to testifying must be clarified,13 as well as circumstances indicating the witness’s bias or interest in the case (the witness must answer questions asked in this context, even if there is an obstacle to testifying or the witness claims that there is one);14
  • the witness must be given testimonial warningand of his or her rights in relation to the interrogation;15
  • the witness gives his or her evidence, preferably in a coherent manner;
  • the witness answers questions put to him.
 

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The question is whether or not the recording of personal data is in itself part of the interrogation. This is particularly important because the person being questioned declares his or her interest in the case and his or her bias, i.e. whether he or she is “suing, resentful or related” to the defendant or the victim. Given that the warnings about the rights and obligations of the witness are given only afterwards, the process of establishing the identity of the witness is, in my view, not yet part of the examination of the witness. Nevertheless, the witness is obliged to answer these questions even if he or she might otherwise refuse to testify.

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As regards the conduct of interviews as outlined above, in particular the instruction by the authority on the rights and obligations of the witness is a matter of guarantees. There have been serious inconsistencies in the application of Hungarian law (over the last 25-30 years) regarding the necessary frequency of this in a given procedure, as illustrated by the following contradictory court decisions: in one case, the court could only take into account the investigative statements of the accused if they were preceded in each case by a warning of his rights;16 whereas in another case, the following wording was used: “the required warning need only be given once at each stage of the proceedings, at the beginning of the questioning.”17 It should also be noted that, prior to the taking of a statement, the court cannot, even independently, decide not to question a witness even if the witness’s right to immunity is clearly established.18 In any event, the witness must be interviewed again and again.19 The competent authorities must always inform the witness that he or she may request protection of his or her personal data. If the witness requests the confidentiality of his/her personal data, the authorities should not normally refuse to do so.20

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The content of the testimony is necessarily subjective and therefore may differ to a greater or lesser extent from the facts. The situation is complicated by the fact that, as regards personal evidence, and in particular witness statements, “we do not yet have any reliable method of investigating the truth.”21 Factors influencing discrepancies may include:

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  • Accuracy of perception: this can be influenced in particular by “image association”,22 physical distance, weather and visual conditions, physical and mental state, and observational ability. In this context, the direct or indirect nature of the perception should also be assessed, since the testimony of a witness who is present in person at an event is usually considered as more emphatic evidence.
  • Memory and recollection.
  • Time lapse: in some cases, several years may have elapsed between the commission of the offence and the first interviews with witnesses.
  • Emotional involvement: this involvement may be conscious or unconscious, but it can never result in intentional perjury. In this context, “emotional identification” with the victim in particular can be dangerous. On the basis of possible sympathy, the witness unconsciously interprets and groups the facts in a way that is appropriate to his or her emotional attitude. It is also necessary to consider the situation in which the witness experiences the interrogation as a trauma and his or her degree of coping affects his or her willingness to testify and to interpret what has happened.
  • Interpretation: this can be influenced by, among other things, education, mindset, world view, the nature of external influences and events that have occurred over time.
  • Arbitrary factors: these may include the witness’s personal or economic interests in the case, hatred of the defendant, or a desire for revenge.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Because of the potential for these circumstances to arise, it is essential to clarify the witness’s relationship with the parties, its duration and intensity, at the outset of the interview. 23

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The witness should then be given the opportunity to give his/her statement in a coherent manner (without interruptions). In practice, of course, this is not fully applied at any stage of the procedure, since the interrogator clearly directs the procedural steps in question, which are usually based on continuous questioning. It is not by chance that the CPC refers specifically to aspects relating to the exercise of questioning. On this basis, the member of the proceeding authority (court) must clarify (1) how the witness has obtained knowledge of what he has said and (2) the reason why the witness’s testimony differs from his previous testimony.24 The latter problem is a common one, especially in the investigative or trial phase. According to the rules of the CPC , in such cases the court must clarify the reason for the contradiction, although this is not usually difficult for the single judge or the president of the chamber. To the question “Did you remember better then?” obviously, the answer “yes” is given by the witnesses, so it is usually the investigative testimony that is evaluated. 25

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In the case of so-called “eyewitnesses”, I agree with the position that direct knowledge is not possible even in the case of such procedural subjects – even if the witness sees and hears the events from the beginning of the first movement to the last (full perception). I agree with Tremmel26 that such testimony can only be considered by the prosecution as secondary evidence which necessarily involves variations in subjective thinking. “The exclusion of opinion from the testimony is an absurd requirement […] the person questioned must not only reproduce in his memory an image of his past experience, but must also verbalise this reproduction.”27 Moreover, the Court gives the Member States a free hand to ascertain the reliability of the content of the testimony, to ensure thatthe rejection of testimony based on hearsay (where appropriate) is not contrary to the Convention.28

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Among the additional safeguards for the interrogation, the following should be highlighted:

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  1. at the request of the witness, parts of his statement shall be taken verbatim;29
  2. a lawyer acting on behalf of the witness may be present at all times during the taking of the statement and may advise the witness of his or her rights (but may not take any other action or influence the statement);
  3. the lawyer acting on behalf of the witness may consult the transcript of the testimony after the hearing and submit written and oral comments.30
 

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In connection with the recording of witness statements, Decision 1646/B/1991 AB is noteworthy, where the petitioner, (the accused) objected to the provisions of Act XIX of 1998, which allowed the investigating authority to prepare a report on the interrogation of a witness instead of a record in misdemeanour proceedings.31 In the petitioner’s view, this rule was unconstitutional as it allowed the investigating authority to deviate in its report (abbreviated note) from the content of the minutes taken on the spot. However, in the AB’s view, this rule of law could not be considered to be of concern, since the report could not directly serve as the basis for a court decision that would definitively decide on the question of criminal liability. The judicial body saw the function of the report as merely to provide the basis for a decision on the conclusion of the investigation or on the proposal for a charge or the termination of the proceedings.32

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A constantly discussed investigative factor in relation to witness evidence is the possibility of, or obstacles to, the principle of impartiality. In the latter cases, the general problem is that there is no opportunity to question the witness directly or to comment on his or her testimony immediately. Among the obstacles I would refer to the following:

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  1. In Hungary, after or even instead of oral questioning, it is also possible to submit a witness statement in writing, which can be authorised by the court, the prosecution or the investigating authority.33 This “general rule” is somewhat mitigated by the fact that the witness may subsequently be summoned (again) by the court, prosecution or investigating authority for questioning, if necessary.34
  2. In many cases, the court is forced to rely on witness statements made during the investigation phase. However, the use of such evidence is not in itself a violation of the Convention, since it does not necessarily require the witness to be (re-)examined in contradictory circumstances.35 On the basis of Strasbourg case law, however, the principle of a fair trial requires that the interests of the defence must be balanced against the interests of the witness or victim who is required to give evidence, and it is for the national legislatures to ensure that this is the case in order to ensure that the rights of the defence are not violated.36 I would note that in a significant number of cases brought before the Court of Justice, the complaint is that witnesses do not attend court at all, but only read out their statements to the police. According to the Court of Justice, “It is not in itself an infringement if a witness does not appear in person at the trial and his statement is read into evidence. However, a statement read out can only be taken into account by the court if the accused or his representative has had an adequate opportunity to question the witness at an earlier stage of the proceedings (e.g. the investigation stage). If there was no such opportunity, or only a limited right to questioning, the principle of a fair trial is violated.”37
 

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In the case of a motion to call witnesses, the “picture” of the investigative and trial phases is quite different as regards the inclusion of witnesses proposed by the defence. In the former case, most of the defence’s requests for evidence are rejected, forcing the defence to reintroduce them at the trial. In my personal experience as a defence lawyer, (1) judges generally grant (witness) requests for evidence if they are not completely unfounded, (2) a lot depends on the judge and whether the prosecution agrees with the defence’s request (if it does, the court almost always grants it).

8.2.1. The system of obstacles to testimony

8.2.2. Issues relating to the examination of particularly protected witnesses

1 Erika Róth: Hogyan és kitől védjük a tanút? [How and from whom do we protect the witness?] In: Kriminálpolitikai válaszok a bűnözés kihívásraira, különös tekintettel a szervezett bűnözésre és a büntetőjogi szankciórendszerre. A IV. Országos Kriminológiai Vándorgyűlés anyaga. [Criminal policy responses to the challenges of crime, with a special focus on organised crime and criminal sanctions. Proceedings of the IV National Criminological Meeting.] Győr, 13–14 October 2000.
2 Csaba Csányi: A tanúvédelem és a szervezett bűnözés összefüggései és a tanúvédelem egyes eszközei. [The Relationship between Witness Protection and Organized Crime and Some Instruments of Witness Protection.] Doctoral thesis. Pécs, 2010. 13. https://ajk.pte.hu/sites/ajk.pte.hu/files/file/doktori-iskola/csanyi-csaba/csanyi-csaba-vedes-ertekezes.pdf
3 Zoltán Varga: A tanú a büntetőeljárásban. [The witness in criminal proceedings.] Budapest, Complex, 2009. 29–30.
4 Géza Katona (1977) ibid. 387–393.
5 Beccaria (1967) ibid. 222.
6 Lajos Nagy (1985) ibid. 48.
7 János Székely: A szakértő szerepe és felelőssége a büntetőeljárásban. [The role and responsibility of the expert in criminal proceedings.] Budapest, 1955. 23.
8 Lajos Kiss: Az írásbeli bizonyíték fogalmának értelmezése a büntető eljárásban. [Interpretation of the concept of written evidence in criminal proceedings.] Magyar Jog, 1970/9. 543–553.
9 Art. 168 (1) para.
10 § 168 (2) para.
11 Varga (2009) ibid. 24.
12 The identity of the witness must be established when the questioning begins. In doing so, the witness must declare the following data: a) name, maiden name, b) place and date of birth, c) mother’s name, d) nationality, e) identity document number, f) address, address for service, actual (=valós) place of residence, g) delivery address, telephone contact, h) occupation. At the same stage of the proceedings, personal data need not be recorded when a witness is questioned again, unless they have changed. [§ 178 (1)–(3)]
13 In Z v Finland, the Court held that the competent authorities had not infringed Article 8 of the Convention by compelling the applicant’s doctors to give evidence, including by seizing medical records and placing them in the investigation file. ECHR 1998/3. In Czine–Szabó–Villányi–Baka (2008) ibid. 249.
14 The witness shall be obliged to answer the questions asked during this process, even if there is an obstacle to testifying or the witness refers to it [§ 179 (1)].
15 § 179 (2) para.
16 BH 1991.463.
17 BH 1994.177.
18 The court cannot do this even if the witness has already exercised his or her right to immunity at an earlier stage of the proceedings.
19 György Berkes: Büntetőeljárási jog. Kommentár a gyakorlat számára. II. kiadás, I. kötet. [Criminal Procedure Law. Commentary for practitioners. Second Edition, Volume I.] Budapest, HVG-ORAC, 2006. pt 336/1.
20 Zoltán Varga (2009) ibid. 109.
21 Schneickert, Hans: Introduction to forensic science. Berlin, 1921. 6. In: Kertész (1972) ibid. 373.
22 The witness compares the events he or she has witnessed with similar experiences in the past and links them to accompanying phenomena that did not take place in reality.
23 Theoretical and practical issues of certainty of judgement. Summary Opinion (2017) ibid. 99.
24 § 180 (1)–(2) para.
25 I would note that the same logic applies to incriminated persons giving evidence. Cf. Endre Bócz, Budapest, Magyar Hivatalos Közlönykiadó, 2006, 155.
26 Cf. Tremmel (2006) ibid. 31.
27 Imre Kertész: Befejezhetetlen háború. [Unfinished War.] Budapest, BM Kiadó, 2000. 271.
28 Grád–Weller (2011) ibid. 370.
29 § 180 (3) para.
30 § 179 (3) para.
31 See § 150 (1) para.
32 Tóth (1995) ibid. 171.
33 In such a case, the witness shall write down and sign his/her statement in his/her own handwriting, or have it signed by a qualified electronic signature or an advanced secure electronic signature based on at least one qualified certificate, or by electronic means of communication, or have it authenticated by a judge, notary or other person specified by law. Such statements must also show in any case that the witness has made the statement in the knowledge of the obstacles to testifying and the testimonial warning.[§ 180 (1)–(4)]
34 § 180 (1)–(4) para.
35 ECHR 2002/1, p. 18 In: Czine–Szabó–Villányi–Baka (2008) ibid. 307.
36 “Doorson v. the Netherlands”, 20 February 1995. In Czine–Szabó–Villányi–Baka (2008) ibid. 296. It is not, however, a violation of the Convention for courts to use testimony given by a co-defendant who has been deported in the meantime in another case, if this is not the only evidence on the basis of which the applicant is convicted. No. 13445/87, Dec. 14. 10. 91, D.R. 71, 84.
37 László Blutman: Az igazságos tárgyalás elve az Európai Emberi Jogi Egyezményben. [The principle of fair trial in the European Convention on Human Rights.] Magyar Jog, 1992/8. 457.
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