Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.5. Basic rights of trial
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11.5.2. Nature and content of the right to comment

11.5.2. Nature and content of the right to comment

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The Act grants the right to comment to the prosecution, the accused, the defence, the victim and, in the area of his or her interest, the interested party and other interested parties.1 From an evidentiary point of view, it is obvious that in this context, the accused, the defence or the prosecutor most often exercise this procedural right.

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A comment is a verbal or writtenremark2 on a question of fact or law that:

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  • typically arises in the context of an evidentiary proceeding (usually relating to statements of knowledge or intent, legal opinions or scientific findings);3
  • is mostly improvisational in nature;
  • in terms of length, it can be a brief statement of facts (e.g. drawing attention to contradictions in testimony) or a more extensive analysis (e.g. a preliminary statement of opinion on the qualifications of the prosecution case).4
 

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Obviously, the submission of proper observations requires a thorough knowledge of the case, but it is important to note that this procedural right is neither a motion for evidence nor a plea. In the former case, the claimant is asking the court to investigate something, whereas in the latter case it is a matter of presenting a summary legal opinion, which must be complete. Nevertheless, the right to submit observations is not open to any procedural actor, including the court.

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Comments may be made in particular (1) on the whole case5 (2) on the motions, observations and remedies of the opposing party (prosecutor, victim, co-defendant, etc.), and (3) on the individual means of evidence. It should be noted that none of the rightholders knowingly exercises this right, as it is most often triggered by unexpected situations.6

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The quality expectations for the comments are summarised below:

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  • they have their place not only in the defence or in the appeal, but are an integral part of the necessary, general and ongoing criticism of the work of the courts;
  • have a specific relevance and content (e.g. in relation to the historical facts or an applicable legal provision);7
  • can only be effective if they are recorded in proper (legal) language; therefore, the commentator should take special care to ensure that his/her opinion is recorded in the correct wording and legal terminology.
 

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In legal literature, the usefulness of the function of the commentsis emphasised, especially on the side of the defence: “it is an important link in the chain of the defence, both in the legal assistance of the party and in the assistance to be given to the court, because it is capable of illuminating its line of conduct and of drawing the court’s attention to it specifically and repeatedly.”8 “The importance of comments as a means of defence cannot be underestimated. It is in the form of the submission of comments that the defence may present its first coherent analysis of the case and the opinion based on it. Comments may also take the form of a final position. The comments, which constitute a factual and legal analysis of the case, sometimes serve as the basis for the submission of a motion. The submission of comments is therefore not an incidental activity of the defence, especially if its thoroughness and quality are such as to convince the court.”9

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With regard to the defence, it should be noted that the Criminal Code directly mentions this right only in relation to the accused, but it is obvious that in this case it is a mere legal imprecision, not a deliberate narrowing of the rights of the defence.10 This legislative superficiality is perhaps due to the misconception that it is primarily the responsibility of the accused to comment. However, this is clearly refutable, especially based onexpert and documentary evidence.11

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Commenting is of course only a right, not an obligation. Its practice is primarily a matter of litigation, but there are some glaring cases in which it is almost obligatory to record a comment (e.g. there is a contradiction in the content of the testimony of the same witness, the expert opinion suffers from some obvious error of content, the conduct of the opposing party in a confrontation raises doubts as to the veracity of his testimony).12

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The exercise of this right should not be hindered by the court’s conduct of the trial, in particular if the single judge or the president of the chamber does not “like” continuous comments. All right-holders, as well as the court, must bear in mind that the comment is not an exceptional measure, but a fundamental procedural right which is integrally linked to the whole of the hearing and its “rhythm”. On this basis, the court is not only obliged to tolerate the exercise of this right, but in many cases it must expressly invite the persons entitled (interested parties) to make reasoned comments (e.g. at the end of a given hearing, in relation to possible comments on the testimony). It is another matter that there are also unwritten rules on the exercise of this right, and therefore the right-holder should at least indicate by a show of hands if he has something to say to the court.

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Importantly, the exercise of this right should never lead to a lengthy argument between the commentator and the court. The comment may usually be a one-off raising of a particular issue, but the court is always legally and ethically bound to put this on the record. It is also often the case that the single judge or the president of the chamber prevents or stops the comment. In this case, the fact that this is done must also be recorded in the minutes, with the requirement that the right-holder must then refrain from making the same observation again.13 If the commentrejected by the court is manifestly well founded, the substance of the observation or the objections to the conduct of the court may be returned to at the next hearing.

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The Court found a breach of the Convention:

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  • in “nideröst-Huber v. Switzerland” (1996), as the applicant had not been informed that the Cantonal Court of Schwyz had submitted observations to the Federal Court and could not comment on them before the Federal Court’s judgment;14
  • in Vacher v. France (1996), because the applicant was not even notified of the date of the hearing in the proceedings before the French Court of Cassation, thus depriving him of the possibility of an effective and efficient defence, i.e. indirectly of makingcomments;15
  • in “van Orshoven v. Belgium” (1997), because in the disciplinary proceedings before the Court of Cassation the applicant had not had the opportunity to reflect on the prosecutor’s motion through his lawyer;16
  • in the case of “K.D.B. v. Netherlands” (1998), because the applicant was not given the opportunity to comment on the Prosecutor General’s application in the proceedings before the Court of Cassation.17
 

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In the context of the exercise of the right to comment, I would also like to address the problem of the freedom of expression of lawyers and the restrictions on it. In examining this issue, we must first of all start from the fact that, under the Fundamental Law, the lawyer cannot be held liable for opinions expressed in the course of the defence.18 However, there have been a number of recent cases in which not only the procedural rights of the defender – in the narrow sense – have been at the centre of the issue, but also the limits of the ‘expression of defender’s opinion’.

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Perhaps the most memorable is the 2006 case in which the liability of Dr. István K., a lawyer, was finally established for the crime of false accusation. The factual basis of the prosecution was that the defendant’s client had expressed serious concerns about the prosecutor’s conduct in several submissions, and had thus linked the prosecutor to, inter alia, the commission of a crime.19 In my view, in this case, the prosecution and the court erred not only in finding that the defender was criminally liable, but also in classifying the text of the pleadings written by the client as statements of fact rather than opinion.20

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There are also case law decisions on the assessment of the right to freedom of expression that differ from the above: a 2004 judgment stated that freedom of expression “requires special protection when it concerns public affairs and the exercise of public authority.”21 Since the prosecution exercises public authority in its proceedings, it is my view that general opinions on the prosecutor’s proceedings – in the form of comments – can be expressed much more widely in both oral and written actions (e.g. pleadings). Fundamental rights must also be fully respected in judicial proceedings, and must not be excluded from the sphere of justice because of its perceived inviolability, nor should they weaken the already low effectiveness of the defence of the prosecution.

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In Schöpfer v. Switzerland (1998), the Court of Justice ruled that there had been no breach of the Convention’s article on freedom of expression in imposing a disciplinary sanction on a lawyer who had publicly criticised the administration of justice (and had, inter alia, alleged serious breaches of the law in the process). In imposing the fine, the Bar Association of Lucerne also noted that the applicant had failed to bring his complaints to the attention of the Public Prosecutor’s Office and the Court of Appeal, which were the supervisory bodies of the prefecture concerned. In other words, he had failed to exercise the discretion expected of lawyers in relation to pending cases and had also infringed the authority of the judicial authorities of the Canton of Lucerne. In its decision, the Court of Justice emphasised that lawyers enjoy a central position in the administration of justice, since they act as intermediaries between citizens and the courts. Given the present situation, the legal profession as a whole can therefore be expected to contribute to the effective functioning of the judiciary.22
1 § 519 (1) para.
2 Tibor Király (1962) ibid. 213.
3 With its help, the prosecutor or the defence can – indirectly – challenge the testimony of witnesses and the assessment of other evidence.
4 I would like to note that the Criminal Code also refers to this procedural right in the rules of the second instance procedure: on the basis of this, the prosecution and the defence are obliged to state the grounds of the appeal in writing, on which the parties concerned may comment until the case files are submitted to the court of first instance, and after the case files are submitted to the court of second instance. [§ 586 (1) para.]
5 “Comments, especially on the whole case, can form a coherent chain of logic and be based on scientific analysis. In this case, the observation is not a simple act, but the result of a complex intellectual work, possibly a voluminous work. Observations made in the course of criminal proceedings may play a significant role in the impact which the parties have on the court or the prosecuting authority. Given the fact that the comment usually presupposes a thorough knowledge of the facts, law and science, it is almost inconceivable that all the accused could make them on their own. Therefore, a legislative position which would exclude the defence from the right to comment would not be justified.” In Király (1962) ibid. 213.
6 In fact, it is particularly true of defence lawyers that, for tactical reasons, they condense into the defence speech comments which they could have made earlier in the form of observations. However, I do not consider such a method desirable for reasons of procedural consistency. Thus, for example, if an expert contradicts himself (his previous written opinion) during the oral hearing, he should immediately make a comment and ask the court to record it.
7 Nevertheless, many colleagues are “wary” of this option because of the potential “judicial retaliation”.
8 Hegyháti–Révai (1964) ibid. 302.
9 Király (1962) ibid. 216.
10 There are, however, rules to support the defence’s comments: for example, the prosecutor’s appeal must be sent to the defence, which is handled by the President of the Appeals Chamber. Likewise, in accordance with the principle of equality of arms and the consistent application of the adversarial principle, the CPC provides that the grounds of the defence appeal must also be sent to the prosecutor.
11 Király, however, draws attention to the following viewpoint: “Arguments can be made that […] only the accused has the right to comment on the witness’s testimony […]. Such an argument would be that only the accused can have direct knowledge of the facts proved (the defence or prosecutor cannot), and can base his comments on them. This argument is not valid. Under such a title as the accused, the victim, private accuser, private party could also make comments […].” In Király (1962) ibid. 213.
12 Not that such circumstances are not noticed by the court, but if this judicial recognition is not brought to the attention of the parties in some form, those entitled to it must comment on it immediately.
13 Instead, the question arises as to whether the defender should be instructed by the court if the facts in his or her observations are based on erroneous data or assumptions. In my view, it would be disrespectful not only to the defender but to the proceedings as a whole for the judge to fail in this ethical duty.
14 The Court of Justice’s position in the case was that the concept of a fair hearing includes the right of the parties to the proceedings to be informed of and to comment on all evidence and observations submitted. The judgment also indicated that the requirements deriving from the right to an adversarial process are the same in both civil and criminal cases. In Fenyvesi (2002) ibid. 105.
15 Fenyvesi (2002) ibid. 105.
16 Fenyvesi (2002) ibid. 106–107.
17 Fenyvesi (2002) ibid. 107.
18 Article XXVIII(3).
19 „Bűnbe esett” ügyvédek. Interjú Dr. Kiss Istvánnal. [“Guilty” lawyers. Interview with Dr. István Kiss.] Ügyvédek Lapja, 2007, I/2. In Fenyvesi (2002) ibid. 111.
20 The offence of false accusation is committed by an authorised defender who claims in his petition to the prosecutor’s office that the prosecutor knowingly brought charges against the defendant he defends on the basis of false facts in order to prevent the prosecution of the criminals who hired him (BH 2009. 39.).
21 19. P. 630. 634/2003/3.
22 Fenyvesi (2002) ibid. 111.
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