Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.3. About the trial at first instance in general

11.3. About the trial at first instance in general

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A trial is a form of public court procedure in which evidence is taken to establish the criminal liability of a person or persons accused of a criminal offence, beyond reasonable doubt. The general purpose of trials at first instance is to get to the substance of the case. This is based on:

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  • the results of the selection mechanism in the investigative material,
  • the judge’s general life experience and professional routine, and
  • evidence that came to light at the trial.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would like to note that in more complex cases, irrelevant facts may also be of importance from the point of view of the evidence as a whole, as they form a benchmark for the determination and positioning of the facts to be proved.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The court trial is undoubtedly the most important and prestigious procedural step in criminal proceedings,1 and the most appropriate stage of the proceedings to establish the substantive (material) truth. The primary reason for this is the joint presence of the parties to the proceedings. Szikinger emphasises that the risk of incorrect decisions being taken at trial is considerably lower than at the investigative or prosecution stage.2 According to Cséka, “the trial is a form of conducting and finally assessing a dispute in criminal matters which has a century-old tradition and is still the norm today. The importance of the form and content of the trial justifies the fact that the procedural law regulates the order and conduct of the trial exhaustively, by imposing more and stricter obligations than in the preparatory stage of the proceedings.”3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Among the basic principles of the trial are verbality (i.e. immediacy), the possibility of writing, the requirement of adversarial proceedings and publicity.4 In addition, the trial should be a legal and professional argumentation by professional criminal lawyers, since a decision on criminal liability is only possible with sufficient knowledge of the law and a trial routine. Although in this process the accused has the same evidentiary rights as the prosecutor or the defence, these rights should be seen as a legal formality, since most of the accused cannot ask questions properly, their comments are often inconsistent or completely inadequate in relation to the facts of the case, and they do not exercise their right to make a motion or leave it to the defence. This does not mean, of course, that the accused must silently accept a decision being taken “over his head”. The desired manner and extent of his activity is a difficult question to interpret, but it is certain that in this respect the role of defence training for the trial is most likely to be played by defence coaching.5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Be. connects the concept of trial with the procedure of taking evidence or its recording.6 I would add that this is not by chance, since the most complete form of proof of the facts is the first instance court procedure (trial), during which the courts use the “full range of tools” during proof – according to the law in force.7 This is done primarily in order to ensure that the prosecution’s case is exhausted and that the facts of the conviction are established.8 If the scope and methods of proof are satisfactory, the facts established at first instance are rendered practically incontestable at second instance.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Of course, the methods of proof and the mechanism of their use in the trial and investigative phases cannot be compared, as both procedural phases have different characters and functions. This is also illustrated by the empirical research carried out in the 1980s in Hungary, in which a total of 800 misdemeanour proceedings were examined in the courtroom phase and it was found that no inspection or admission of evidence was ever carried out in the cases examined, and that an attempt to prove was ordered in only three of the 800 cases.9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

There are now a number of internationally accepted principles relating to trials, among which I would highlight Article 6(1) of the Convention, which states that “everyone has the right to a fair, public and impartial hearing by a tribunal established by law, in an independent and impartial manner, within a reasonable time, of his or her civil rights and obligations and of the merits of the criminal charges against him or her.”10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would like to note that I do not feel it is appropriate to use the word „trial” in the law, as this term is primarily associated with an exchange of views between side-by-side actors and the intention to reach a common position. These two factors, however, can hardly be a characteristic of criminal proceedings, since:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • there is a strict subordination between the court and the accused;
  • the content of the prosecution’s or the defence’s motion is manifestly contradictory;
  • a decision that is acceptable to both parties is not the rule, but the exception.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It would therefore be much more appropriate to remove the term “trial” altogether and use instead the term “evidentiary proceedings conducted by the court of first instance”. In this way, the Regulation would also perfectly reflect the fundamental differences in the characteristics of criminal proceedings based on the principle of officiality and civil proceedings based on the principle of the parties’ disposition.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Although there have been many variations in the structure of criminal trials over the course of legal history, there are certain basic features that remain unchanged in both the Anglo-Saxon and Continental systems:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • evidence is based on the cooperation of the parties,
  • the statements of the prosecution and defence representatives must be evaluated by the forum, and
  • it is the court’s obligation to give a ruling.11
1 “In general, only about 25-30% of known crimes are brought before the courts; for various reasons, such as lack of clarity, lack of legal conditions, opportunism, the majority of cases avoid the courts. The success rate of prosecution in first instance court proceedings is over 95%, which seems to be a good result, as it shows that unsubstantiated prosecutions are rare. But it also suggests that the fate of the case is mostly decided at the investigation and indictment stage, and so the defence rarely has a chance of success at trial In: Tibor Király: A büntetőeljárási kódex tervezetének helye a magyar büntető eljárásjog fejlődésében [The place of the draft Code of Criminal Procedure in the development of Hungarian criminal procedural law.] Jogtudományi Közlöny, 1998/4. 119.
2 István Szikinger: Az ártatlanság vélelme – alkotmányos alapelv! [The presumption of innocence – a constitutional principle!] Belügyi Szemle, 1989/3. 8.
3 Ervin Cséka: A büntetőtárgyalási rendszerek. [The criminal justice systems]. In: Mihály Tóth (2003) ibid. 349.
4 In order to legitimise the outcome of the trial, publicity applies not only to the entire evidentiary procedure, but also to the delivery of the judgment (RO 2001/7. 556.) In: Czine–Szabó–Villányi–Baka (2008) ibid. 298.
5 What is certain is that the lawyer must not create fear in the defendant in case he or she does not choose the path suggested by the defence lawyer on fundamental issues that arise during the evidentiary procedure (e.g. giving or refusing to give evidence).
6 The court shall hold a hearing if evidence is taken to establish the criminal responsibility of the accused [§ 234 (1)]
7 Lajos Balla: Részbizonyítás a másodfokú eljárásban. [Partial evidence in the second instance proceedings.] https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/reszbizonyitasamasodfokueljarasban.pdf
8 If the level is sufficient, then – despite the possibilities provided by the CPC – the facts established in the first instance become practically unaffected in the second instance. In Balla ibid. 6.
9 Teréz Szabóné Nagy: A büntető igaszágszolgáltatás hatékonysága. [The Efficiency of the Criminal Justice System.] Budapest, KJK, 1985. 281.
10 Frédéric Edel: The length of civil and criminal proceedings in the case-law of the European Court of Human Rights. Strasbourg, Council of Europe Publishing, 2007. 5.
11 Ervin Cséka: A büntető tárgyalási rendszerek. [The criminal justice systems.] In: Mihály Tóth (2003), ibid. 349.
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