Viktor Bérces: Evidence in Criminal Proceedings
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Chapter I. Paradigm shifts in the development of evidence in universal law
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1.5. The history of the development of Germanic law
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1.5.1. The beginnings

1.5.1. The beginnings

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In early Germanic law (between the 3rd and 5th centuries), rules of conduct enforceable by public authority existed only in the form of customary law. There were two levels of adjudication: (1) the assembly of the people for behaviour that was detrimental to the interests of the tribe as a whole; (2) the chief of the clan adjudicated against the perpetrators of offences within the community.

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The need to put customary law into writing first appeared in the Frankish period (5th century), in Latin. These written norms included the method of litigation, the penalties for breaching certain customs, and the rules of court procedure.1 In addition to the customary law, the ‘capitulare’, which was already a structured law (law) divided into chapters, was also an important source of law.

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The organisational structure of the judiciary was as follows:

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  • The most important judicial forum was the royal court, and the king was assisted in his judicial activity by magistrates. This division of powers later allowed for the creation of appeal courts, as a result of canon law, since the decisions of lower courts could be appealed to the court dignitaries. Judgments were based primarily on testimony and documentary evidence.
  • The forum for local justice was the district court, which met at fixed intervals. Proceedings were initiated on the basis of an oral complaint by the victim, who was called upon by the so-called captain to lodge a complaint. The accused was then given the opportunity to respond to the accusation, but his absence could have serious consequences. The accused had only two days to object, failing which he would be declared “at peace”. This meant that he became an outlaw and anyone could kill him with impunity. The sentence was passed by an occasionally elected body of 4-8 members, the so-called rachimburgs. If it was necessary to prove the innocence or guilt of the accused, the rachimburgs tried to decide on the basis of divine judgment.2
 

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The main features of the procedures were:

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  1. In the process of proving the guilt of the accused person, neither the victim (the complainant), nor the members of the community, nor other persons who contributed to the proceedings, but on the contrary: the accused himself had to prove his own innocence by irrational methods (e.g. fire-iron, hot-water, crumb-testing). Since the principle of “in dubio pro reo” was unknown, failure to prove it was coupled with a presumption of guilt. It should be noted that, although the Church distanced itself from the use of these methods of proof relatively early on (see the Fourth Lateran Council of 1215, which banned them), they continued to be present in this area of law for a long time.
  2. The aim of the lawsuits was not retribution or prevention, but reparation. Accordingly, it was up to the victim to (1) initiate proceedings and (2) enforce the judgment. The parties dominated the case, with the court only enforcing the procedural rules.3
1 For example, the Lex Salica (507–511), a collection of Latin customary laws, set out in detail the procedural rules to be followed and the reparation system to replace revenge. In Miskolcziné (2015) ibid. 26.
2 Gönczi–Horváth–Stipta–Zlinszky (1997) ibid. 167–169.
3 Gönczi–Horváth–Stipta–Zlinszky ibid. 167–169.
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