Viktor Bérces: Evidence in Criminal Proceedings
›
Chapter II. Paradigm shifts in the development of evidence in Hungarian law
›
2.2. Characteristics of the accusatorial evidence procedures (X–XIV c.)

2.2. Characteristics of the accusatorial evidence procedures (X–XIV c.)

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The litigation procedures of feudal law in the 10th–14th centuries were uniform, i.e. they were not differentiated either by persons or by types of case. Accordingly, the terms “plaintiff–defendant” were used in criminal cases. Where the subject of the dispute was a criminal offence, proceedings were conducted according to the accusatorial model. On the basis of these, processes:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • were brought on the basis of a private complaint by the victim, his or her heirs or any citizen;1
  • were public;
  • were characterised by a contest of equals (litigium).
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The evidentiary procedures were formal and their purpose was not to investigate the reality of the acts that took place, but to decide on the evidentiary motions put forward by the parties. This was supported by the common perception that the question of the guilt of the accused was ultimately decided by the Creator, and therefore there was no need to establish the facts. The judge’s role was essentially to record the outcome of the evidence, but his role remained passive. The stages of the proceedings were as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. At the preparatory stage, the applicant summoned the defendant before the competent judge. This was possible by sending a seal,2 citation,3 or evocatio4.
  2. The ex parte phase started when both parties appeared in court. It was during this process that the plaintiff presented his claim, in relation to which the defendant could raise formal objections (exceptiones). If any of these were accepted by the court, this led to the dismissal of the action or to a stay of proceedings. If the defendant made no objection and denied the action in whole or in part, the action was deemed to have been brought by way of an admission and was declared to be lis pendens.5
  3. The allegation phase (evidentiary procedure) was conducted in a formal system, and its purpose was not to reconstruct the historical facts, but to decide on the question of the evidence provided by the parties. The most typical means of proof were the following:
    • Judgment of God (ordalia): any means of proof by which the “judgment” of God was manifested against the debtor was considered to be such. A classic example was the test (judicium), and in our country, in particular, the water and iron test (the latter consisted of the person being tried having to carry a piece of red-hot iron with his bare hands to a distance of about 8-10 metres). The public or the authorities drew conclusions about the will of God from the reactions of the accused, e.g. injuries, the exercise of pardon.6 The Laws of St. Lazarus and St. Clement specifically mentioned cases in which the court was obliged to apply a fiery iron test: such cases included stealing a lead and perjury.7 The place of the trial was designated by the court and the time of appearance by the porosló. In order to carry it out, it was necessary for the person to be in good health and therefore fit to commit the offence in question. As a result of the trial, the person could be justified (justificatus) or convicted (convictus).8
    • After 1279, the iron test was replaced by the duel, in which two opposing parties fought a duel, and the result of the duel, according to the popular belief of the time, was also a manifestation of divine justice. The method of execution was determined by the judge.9
    • Testimony: the use of the construct departed from the essential features of testimony as we understand it today. In this case, the witnesses were called by the litigants themselves in their own interest, and the persons called as witnesses made substantive statements (e.g. credibility) not about the facts of the case but about the general character of the defendants calling them.10
    • Oath (juramentum): a construction similar to the testimony of witnesses, by which persons other than the parties to a lawsuit swear an oath (faith) in the purity of character and honesty of the party they support. Various forms of manifestation have been known, e.g. purification oath, main oath, etc.
    • Documentary evidence: royal charters dominated in this area, mainly because of the rudimentary level of legal culture based on writing. These documents were regarded as public documents, whereas the authenticity of the contents of all other documents had to be proved separately by the porosló present in the proceedings.11
  4. At the final stage, the evidentiary proceedings could be concluded in two ways: by the judge’s decision (sententia), preceded by a hearing of the other judges, or by the conclusion of a settlement, which was always possible at any earlier stage of the trial.
  5. The enforcement phase automatically followed the delivery of the judgment, as the Hungarian accusatorial system did not yet recognise the possibility of appeal at that time. According to the various sources of law, pecuniary sanctions were enforced differently from one territory to another, while corporal punishment was always carried out by the plaintiff who won the case.12
1 In the latter case, if the offence has damaged or endangered a Community interest of greater material gravity.
2 The earliest form of summons was for the bailiff to deliver a stamp bearing the judge’s likeness to the defendant’s address, who was obliged to appear in court on the date specified. In Mezey–Pomogyi (2001) ibid. 370.
3 On this basis, the plaintiff and the porosló appeared together at the defendant’s office and were summoned orally before the court. In Mezey–Pomogyi (2001) ibid.
4 It was based on a document (“summons to appear”) issued by the court, which the plaintiff had to hand over to the defendant in person. In Mezey–Pomogyi (2001) ibid. 370.
5 The legal effect was twofold: (1) the subject-matter of the action could not be changed until the judgment (2) it excluded the possibility for the parties to bring a new action against each other during the time-bar. In Mezey–Pomogyi (2001) ibid. 370.
6 In the 400 iron trials recorded by the Váradi Regestrum between 1208 and 1235, 27 persons were wounded in the first 100 trials, 42 were acquitted, 3 confessed, 4 escaped, 5 did not appear and 18 made a settlement. Mezey–Pomogyi (2001) ibid. 371.
7 Imre Hajnik: A magyar bírósági szervezet és perjog az Árpád-és a vegyes-házi királyok alatt. [The Hungarian court organization and procedural law under the Árpád and mixed kings.] Budapest, Hungarian Academy of Sciences.1899. 252.
8 Hajnik (1899) ibid. 256–257.
9 It was also possible for paid pugilists to fight instead of the plaintiff or defendant. Mezey–Pomogyi (2001) ibid. 371.
10 On the basis of this, the court issued a so-called interim judgment, in which it offered the opportunity to swear to the party whose testimony – supported by witnesses – had proven to be stronger. In Mezey–Pomogyi (2001) ibid. 372.
11 Mezey–Pomogyi (2001) ibid. 372.
12 In the latter case, too, there was always the possibility to pay the corporal punishment in money (composition), the content of which the parties could agree on within 3 days after the judgment was delivered. In Mezey–Pomogyi (2001) ibid. 372.
chevron_left
chevron_right
Tartalomjegyzék navigate_next
Keresés a kiadványban navigate_next
A kereséshez, kérjük, lépj be!
Könyvjelzőim navigate_next
A könyvjelzők használatához
be kell jelentkezned.
Jegyzeteim navigate_next
Jegyzetek létrehozásához
be kell jelentkezned.
    Kiemeléseim navigate_next
    Mutasd a szövegben:
    Szűrés:
    Kiemelések létrehozásához
    MeRSZ+ előfizetés szükséges.
      Útmutató elindítása
      delete
      Kivonat
      fullscreenclose
      printsave