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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8.6. The material means of evidence. Doctrinal issues relating to the classification of deeds and documents
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8.6.1. Basic documents of documentary evidence. Dogmatic issues

8.6.1. Basic documents of documentary evidence. Dogmatic issues

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In general, Hungarian case law considers the document as a supplementary means of proof. It can also be noted that the court usually examines these documents from the point of view of their content (not form), which, from the perspective of the evidence as a whole, usually has a complementary function, and in many cases serves only to establish the personal circumstances of the accused (e.g. employer’s statements, statements of the head of an educational institution, etc.). At the same time, there are of course facts and matters which can only be assessed by documentary evidence.

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The first essential question is to clarify whether there is a difference between the substantive and procedural concepts of a document and whether this has any relevance for the purposes of proof. Our answer to the first question is that there is a difference. On the one hand, substantive law attaches importance to criteria such as the identifiability of the issuer or the authenticity and validity of the document. In procedural law, on the other hand, any document is a document which contains some form of written expression of ideas and from which it is possible to infer some fact to be proved. 1

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However, substantive law distinguishes between public and private documents, but this distinction is also irrelevant for the purposes of proof, since both documents are evidence. Thus, for example, a personal note or a diary entry, which does not meet the criteria of either an authentic or a private document, may be an instrument of evidence. It is another matter that, in the context of the court’s assessment and evaluation activities, a document duly drawn up by a notary may, in a given case, obviously carry more weight as an instrument of proof than a private document written and signed by a private individual, on the basis of which it is only possible to establish with doubt the original intention of the author or the authenticity of the handwriting. Therefore, if the document is authentic and genuine, its importance may contribute even more to the certainty of the judgment.

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There is no consensus in procedural literature on the doctrinal classification of the instrument:

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  • According to Farkas, a document is both an object of inspection (material evidence) and a statement of a person (testimony). The author concludes that “a document is an evidentiary instrument situated between testimony and material evidence.”2
  • According to Kertész, a document can be both an object of inspection and a written instrument of proof: it depends on whether the statement in the document or the material properties of the document are relevant in the proceedings.3
  • According to Bócz and Miklós, a document cannot be considered as an independent means of evidence, but must be classified under the category of material means of evidence. Their argument is based on the following: “an instrument of material evidence […] is a document which is the object or instrument of the commission of the offence, e.g. Finally, a document which bears traces of the commission of the offence or otherwise bears evidence of a fact relevant to the assessment of the offence […] but which, in criminal proceedings, does not have the evidential value to testify by its content to a fact outside its scope.” 4
 

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The court is, of course, free to treat the document as an instrument on the borderline between written and physical evidence and to apply the rules of inspection as an act of evidence in matters relating to the appearance of the document. The most important documentary evidence is, of course, the criminal record (case file), including the record of individual charges and witness statements.5

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With regard to documentary evidence, special emphasis should be placed on the important role played by the minutes or notes of the investigation phase and the decisions taken by the investigating authority or the prosecution in the evidence.

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  1. The record is a public document issued by the competent authority (court) which contains
    • the prosecuting or investigating authority and the case number,
    • the name of the offence on which the proceedings are based and the name of the suspect or an identifiable reference to the suspect,
    • the place and time of the procedural act,
    • the names of the prosecutor, the member of the investigating authority, the court reporter and the interpreter,
    • the name of the witness and expert heard,
    • other personal data as defined in the Be,
    • the names of the other persons present at the procedural step and their capacity to be present at the procedural step,
    • the course of the procedural act, what happened during it and any other circumstances relevant to the taking of evidence, so that the record can also be used to establish whether procedural rules have been observed,
    • the statements of the suspect and the witness, and the expert’s opinion,
    • whether the means of evidence have been produced and their content was relevant to the proceedings,
    • motions and observations made during the procedural steps, or
    • measures taken in the course of maintaining the order of the proceedings and decisions taken by the prosecution or investigating authority in the course of the procedural act.6
       
      The importance of these documents is reflected in the statutory requirement for the investigating authority or the prosecutor’s office to draw up a written record of all procedural acts, at the same time as the proceedings,7 in which the contents of the record must be briefly described in the necessary detail (although if the exact wording of a question, phrase or statement is significant, it must be recorded verbatim.)8
      The law may also provide for a continuous audio or video recording to be made at the same time as the minutes are drawn up.9 In the case of a continuous audio or video recording, the recording shall be annexed to the case file and10 in such cases, the persons present at the procedural step shall be informed of the time and place at which they may listen to or view the recording, within eight days of the conclusion of the procedural step.11
  2. The content of the records also stands out among the documentary evidence. These are public documents issued by the investigating authority or the public prosecutor’s office which contain:
    • the prosecuting or investigating authority and the case number,
    • the name of the prosecutor or member of the investigating authority present during the measure,
    • the place and time of the measure,
    • the names of the persons concerned by the measure,
    • the names of other persons present during the action and in what capacity they were present,
    • a brief description of the course of action, so that the record can be used to determine whether the procedural rules have been followed,
    • an indication of whether the note was drawn up at the same time as the measure and, if not, the date and circumstances of its drawing up.
    The note is not generally made by the proceeding authority for procedural acts, but for a narrower category of measures (which is not mandatory).12 Alternatively, the prosecutor or a member of the investigating authority may make a note of the procedural act instead of making a record, if the accused, the defence, the witness or the person interested in the property was not present.13
  3. Judgments are written acts in which the procedural authorities establish rights and obligations for the parties. Of course, they are also part of the evidence, since in subsequent court proceedings (e.g. in the case of a decision to close an investigation in certain criminal cases) a previous investigative decision may have a serious relevance. Note that the submission of a decision is mandatory in some cases,14 and optional in others.15
  4. The private expert’s opinion, as the opinion of an expert commissioned by the accused and the defence, is also considered a document, where applicable. I will discuss this in later chapters.
 

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Based on the above, I believe that the CPC should name the category of written evidence as a separate means of proof. This category would include all documents and other records that prove the existence, change or termination of a right or obligation, or the occurrence of a legally significant fact, i.e. that fulfil their evidential function on the basis of their abstract content, by means of written signs. If, on the other hand, the evidential function of a written document is fulfilled solely by its mere physical existence (objectification), it should necessarily be classified as an objective means of proof. From this point of view, therefore, I consider it unnecessary to designate the document as separate legal instruments.

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The practice mistakenly and superficially treats copies of audio and video recordings as documents. However, this position cannot be supported by either physical or functional arguments. In this respect, it is clear that

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  • if the audio or video recording in question is related to the commission of the offence (e.g. a recording with pornographic content), it should be considered as material evidence;
  • in all other cases (e.g. CCTV recordings, video recordings of police interrogations of suspects), these recordings should be named as a separate means of evidence in the law under the heading “audio recording, video recording”.
 

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Let’s not forget that in the near future, we can expect to see more and more criminal cases that the prosecution intends to prove in court using this evidence. Of course, it is obvious that audio and video recordings – in digital form – are also electronic data, but their separate designation cannot be ignored. The identification caused by digitisation could be resolved by replacing the term ‘electronic data’ by the term ‘other electronic data’ (e.g. the content of software, files).
1 Dezső Jászai: A büntető eljárás kommentárja. [Commentary on criminal procedure.] Budapest, 1967. 933.
2 József Farkas (1965) ibid. 165.
3 Kertész (1972) ibid. 105.
4 Endre Bócz – Lajos Miklós: A tárgyi bizonyítékokról. [On material evidence.], Kertész (1972) ibid. 105.
5 A special category of documents also includes written opinions of experts (private experts) invited by the defence but not appointed by the court. In. Summary Opinion (2017) ibid. 101–102.
6 § 359 (1)–(2) para.
7 § 358 (1) para.
8 § 359 (3) para.
9 § 358 (1)–(2) para.
10 § 360 (5) para.
11 § 360 (7) para.
12 See. The prosecutor or member of the investigating authority may make a record of his or her action [§361 (1)].
13 § 361 (6) para.
14 For example, the designation of the prosecutor’s office or investigating authority, the disqualification of a member of the prosecutor’s office or investigating authority, etc. (Art.)
15 The public prosecutor’s office or the investigating authority may also include other decisions or measures in a decision.[§ 362 (2) para.]
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