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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1.6. The general structure of continental legal systems in Europe (civil age)

1.6. The general structure of continental legal systems in Europe (civil age)

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The trial structure of the civil era for continental states with a legal order can be divided into 6 stages: investigative, inquiry, interlocutory, trial, appeal and enforcement.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. During the investigation phase, the main role was played by the law enforcement agencies (police and gendarmerie), as they were responsible for obtaining the information necessary to bring charges. Proceedings could then only be initiated on the basis of reasonable suspicion, which was a matter for the prosecutor.
  2. At the investigation stage, the court (investigating judge) decided whether, on the basis of the evidence gathered so far, it was possible to hold a trial at all or whether the proceedings should be terminated. In this case, therefore, the courts were still responsible for supervising the legality of investigations, unlike today.1 Typical procedural acts in this area were the examination of charges, witnesses and experts.
  3. The intermediate stage was the indictment: this took place before the so-called prosecution councils, the purpose of which was to decide whether the charge was well-founded. The indictment was examined by the prosecution in a meeting held in the presence of the prosecutor, which resulted in the indictment or the termination of the proceedings. The sessions were characterised by unilateral decision-making and the absence of an adversarial procedure (see the absence of the accused and the defence counsel at the procedural act).2
  4. The trial began with the taking of the roll, followed by the presentation of the charges, the questioning of the accused and the taking of evidence. The primary means of evidence were witnesses, experts and exhibits, and the most common form of evidence was confrontation. This was followed by the prosecution or defence case, after which the accused had the right to have the last word. The court then retired for a decision and finally pronounced the verdict.
  5. The appeal stage was initiated by parties who considered the court’s decision to be unlawful or contrary to substantive justice. The appeals were aimed at annulling or changing the decisions. Typical remedies used were the following:
    • appeal: in the case of orders made in the course of proceedings, which are not final;
    • appeals: for final decisions;
    • an appeal for annulment: in the case of a final decision that could not be appealed but was vitiated by a substantive or procedural defect that justified review by the higher courts;3
    • legal remedy for the sake of unity of the law: the head of the prosecution service could initiate an appeal against a final decision of any criminal court, before the highest judicial forum, without time limit;
    • reopening of the case: where new facts or information have subsequently come to light, the prior knowledge of which could have materially affected the outcome of the main proceedings;
    • the enforcement stage: the enforcement was the responsibility of a court-appointed enforcement body (e.g. corporal punishment, custodial sentences).4
1 This is now typically the responsibility of prosecutors.
2 In Austria (1873) and Hungary (1896), the indictment – i.e. the intermediate stage – was optional, since it was only used if the accused raised some formal or substantive objection to the indictment. In all other cases, the accused was summoned directly to trial. In Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz ibid. 461.
3 Essentially corresponds to the institution of the current review.
4 Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz (2002) ibid. 461–463.
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