Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.2. Functions and characteristics of preparatory meetings in litigation
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11.2.3. Is there evidence at the preparatory meeting?

11.2.3. Is there evidence at the preparatory meeting?

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is an interesting question to raise whether there is any evidence at all at the preparatory meeting, despite the fact that in principle no evidentiary procedure, examination of evidence or evidentiary acts may take place there. In my view – indirectly – there is, primarily because of the structural characteristics of the procedural act:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • The court interrogates the accused in accordance with the general rules of the Criminal Code, in the course of which it warns him of the specific legal consequences of the confession.
  • After these warnings, the court will ask the accused to plead guilty, after which the members of the court may ask the prosecutor and the accused, among others, further questions.1 Although the questions addressed to the accused may only be aimed at establishing the personal circumstances of the accused (i.e. the circumstances of sentencing), (the court may also ask questions that can be linked, indirectly, to the facts of the case (e.g. the person accused of fraud may be asked about a sudden change in his or her income situation).2
  • The prosecutor’s or the defence’s objections are usually only formal, usually aimed at the acceptance of the “moderate motion” or the confession of the accused.3 However, nothing precludes the possibility that such objections may expressly raise issues relating to the lawfulness or the weighing of the means of proof indicated in the indictment, or even question the lawfulness of the confession (for example, to obtain a psychiatric opinion on the accused).
  • The court may, in the case provided for by law, even give its verdict at the preparatory session, and if the accused does not confess, the marking of the evidence motions “anticipates” the scope of the evidence taken on the trial days, and may therefore give rise to different conclusions.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would like to note that, for the above reasons, I consider it dogmatically wrong that the legislator considers the statements made by the accused as “confession”. Let us not forget that the term ‘confession’ is also used by the court when issuing charge warnings and, moreover, what is said in the course of the interrogation of the accused may be used as evidence later on, if the confession is not accepted.
1 § 502 (1)–(6) para.
2 I would like to add that this judicial practice is not only unethical, but also illegal.
3 I would like to point out that there are serious deficiencies in the regulation of the CPC with regard to trainee lawyers, as it only refers to the fact that such persons are not allowed to speak in court proceedings, but it does not mention whether their right to speak in other realms (?) is restricted. This is problematic because there are clearly two completely different types of statements and it is not clear to what extent, if at all, candidates may make statements at preparatory meetings. On the basis of current experience, there is no such right to speak, but I consider this practice to be unjustified by the minor role of these statements and their mere formality.
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