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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1.5.2. The era of feudal law

1.5.2. The era of feudal law

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In the feudal period, due to the provincial system and the orderly society, there was a complete legal fragmentation, which had different levels: 1. vertical legal rules of substantive and procedural law applied to different social groups (vertical legal particularism)1 , and 2. completely different rules applied within a given province (horizontal legal particularism).

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Until the 15th century, criminal proceedings were always brought on the basis of the accusation of the victim, although in the Carolingian period, because of the high number of crimes, the investigative or inquiry procedure (Rügeverfahren) was often used. Apart from this, another person could only lodge a complaint in exceptional cases (e.g. in the case of robbery or manslaughter, a so-called “public outcry” could be used).

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A novel solution was the so-called Rüge proceedings (introduced by Charlemagne’s decrees), during which the most respectable inhabitants had to declare the perpetrators of crimes – “under faith and on pain of prosecution” – in answer to a question from the royal envoy (missus). Proceedings were based on this declaration (Rüge), so no specific prosecution was necessary.

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There are also traces of simplifying procedures in this period: for example, there was an emergency court (Notgericht) for cases of being caught in the act, however, the perpetrators of such acts could no longer be killed, but only arrested and handed over to the court. The court then acted according to accelerated rather than general procedural rules (sommás procedures).2

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By order of Charles V, the Carolina Penal Code was drafted, which included not only the substantive criminal law but also the rules of criminal procedure. In the code, the elements of the previous prosecutorial procedure almost completely disappeared and were replaced by the rules of investigative procedure. On this basis:

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  • the proceedings were initiated ex officio or following a complaint;
  • it was up to the investigating judge to obtain the evidence;
  • at the investigation stage, the suspect and his lawyer did not have the right to know the case, as in many cases they were unaware of the opening of the proceedings;
  • the suspect was mostly questioned without the presence of a lawyer;
  • the second stage of the trial was based on a written statement by the Royal Commissioner acting as prosecutor;
  • the court made its decision on the basis of documents, in a trial conducted in camera, and at most the accused was heard;3
  • the defendant had the burden of proving his innocence (presumption of guilt);
  • the confession of the accused played a prominent role among the evidence, and its coercion became the main objective of the proceedings; torture continued to be used, which greatly facilitated the decision-making process; however, if the accused maintained his innocence despite torture, he had to be acquitted according to Carolina rules.
 

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Until 1701, different procedural rules were applied in the provinces of the German Empire. After the Prussian state was created, however, Frederick II established a uniform system of appeal procedures and abolished torture. Thereafter, if the accused was presumed guilty but could not be proved guilty, it was possible to impose a so-called ‘suspicion penalty’. This was abolished only in parallel with the procedural principles that were emerging in the civil state.4

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The Code of Criminal Procedure of 1877 already provided for the right of defence in criminal proceedings. It also regulated cases of mandatory defence, such as jury trials and in the case of defendants under the age of 16. However, the shortcoming of this law was that it did not contain guarantees for the order of provisional arrest and the prosecutor’s monopoly on the prosecution (the court could order the main trial without a motion from the prosecutor).5 At the same time, the creation of conditions for lay judges became a fundamental requirement in the Germanic regions during the civil era. In the so-called “Schöffe system”, the lay judges (Schöffe) were not organised into a separate body, but took part in the judging as equal members of a court of 3-5 judges, alongside the specialised judges.6
1 Special rules applied to feudal lords, the so-called ministers employed by the state and the most dependent peasantry. Lehenrecht (feudal law), Dienstrecht (service law), Hofrecht (manorial law) In Gönczi–Horváth–Stipta–Zlinszky ibid. 175.
2 Imre Hajnik: Egyetemes európai jogtörténet a középkor kezdetétől a franczia forradalomig. [A universal history of European law from the beginning of the Middle Ages to the French Revolution.] Budapest, Athenaeum, 1899. 105.
3 Kisteleki–Lővétei–Nagyné Szegvári–Rácz–Schweitzer–Tóth (1998) ibid. 231.
4 Kisteleki–Lővétei–Nagyné Szegvári–Rácz–Schweitzer–Tóth (1998) ibid. 233.
5 Gönczi–Horváth–Stipta–Zlinszky (1997) ibid. 383.
6 Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz (1998) ibid. 452–453.
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