Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.8. Evidence in the course of first instance proceedings
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11.8.1. Special features of the interrogation of the accused at first instance

11.8.1. Special features of the interrogation of the accused at first instance

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The evidentiary procedure starts with the questioning of the accused.1 The rules of guarantee are summarised below:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the accused should normally be questioned in the absence of his or her co-defendants who have not yet been questioned;2
  • the accused may confer with his defence counsel during the trial without disturbing the order of the trial, but may do so only with the permission of the single judge or the president of the chamber during the hearing;
  • in addition to the charge, the court shall also warn the accused that he or she may put questions to those questioned during the taking of evidence, or make motions and observations; this warning shall also include the possibility of the substance of his or her previous statement as an accused being explained or read out if the accused does not give evidence.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The judge then asks the defendant three basic questions: (1) whether he understands the charge; (2) whether he admits guilt; (3) whether he wishes to confess. It is appropriate to answer yes to the first question – even if the accused does not otherwise admit his or her guilt. In this context, it is important for the defence to explain to the defendant the substance of the charge and its possible legal consequences before the trial. 3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the accused does not wish to make a statement, the single judge or the president of the chamber shall, of his or her own motion, present it or may, on the motion of the prosecutor, the accused or the defence, read out or have the court reporter read out the substance of the statement made by the accused during the investigation and at the preparatory hearing.4 According to Szalai, it is also tactically inappropriate for the accused to wait until the last minute to make a statement, as all the evidence will presumably have been known by then.5 In my opinion, however, this is of no significance, as the accused cannot influence the number or significance of the evidence anyway. As I indicated earlier, it is much more appropriate for the defence lawyer to exercise his procedural rights on a continuous basis.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Cséka notes that “the more effective application of the principle of defence […] is undermined by the fact that the accused’s statement made during the investigation can be read out, even though he does not wish to testify at the trial. The basic legal right of the accused to refuse to make a statement at any time during the interrogation is guaranteed by law, and the indirect (documentary) evidence made possible renders it irrelevant.”6 I cannot agree with this point of view, because the refusal to make a statement does not necessarily mean that the accused wishes to make a statement with a different content from the previous statement. If this is the case, he (may) choose between two options: (1) to make a new confession or (2) to withdraw his previous confession without making a new confession. In my view, the reading of a statement made during the investigation does not therefore indirectly infringe the right to an effective defence. It is a different matter that the court must, in the course of the evidentiary procedure, make every effort to clarify the reasons for the discrepancy.7

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the accused wishes to make a statement, the single judge or the chairman of the chamber shall ask the accused whether he pleads guilty. In this respect, incriminating statements can be categorised as follows:

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  1. a full, revealing, factual confession;
  2. a full, revealing, factual and guilty plea;
  3. a partial, but factual, revealing confession as to the facts admitted;
  4. a partial, but factual and revealing admission of guilt as to the facts admitted;
  5. a full, but non-revealing, factual confession;
  6. a full, but non-revealing, confession of fact and guilt;
  7. a partial, but non-revealing, factual confession;
  8. a partial, but non-revealing, confession of fact and guilt;
  9. denial.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Statements falling under points a) to h) are usually taken into account as mitigating circumstances, but with different weight, and a denial is usually of weaker probative value. It is important, in my view, that the defence should not prevent a confession being made, especially if the accused has a clear intention to establish the facts of the case. In the case of a denial, the defendant’s task is merely to draw his client’s attention to the mitigating effect of the confession, but he cannot force him to make it. In other words: the appropriate attitude in relation to the “admission-denial” is, in my view, for the defender to be fully aligned with the burden of the will.8

Jegyzet elhelyezéséhez, kérjük, lépj be.!

At this stage, the confession can only be taken into account as a mitigating circumstance in determining the subsequent sanction, it has no simplifying function. It should be noted that, even in the case of a full, revealing confessions, it may not be pointless to conduct a full evidentiary hearing, since from this point onwards the court must examine whether the confession is based on true or false statements.9 Furthermore, I consider the court’s formulation of the question of admission of guilt to be unconstitutional, since it involves a hypothesis which infringes the presumption of innocence. By formulating this question, the court – necessarily – forces the accused to defend himself, whereas the burden of proof lies solely with the prosecution.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

With regard to the pertactical aspects of changing the confession, I would point out that if the accused has made a confession during the investigation phase and the available evidence undoubtedly supports his criminal responsibility, it may be counterproductive to withdraw this confession or to deny it afterwards. However, the atmosphere of a trial is of course different from that of an investigative interview. The courtroom can have such an effect on the accused that, even after the most thorough lecture, he or she may still turn to his or her defence with uncertainty. 10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The guarantee rules for taking a statement from the accused are as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The accused may give his or her statement on the charge, including his or her defence, in context: in this respect, I would note that in many cases the court will interrupt the charge on the grounds that the information contained therein does not relate to the merits of the case. However, these judicial measures should be carefully considered, as it is possible that the accused will then no longer dare to provide information on the merits which could have been decisive in a particular case.
  2. During the interrogation, after the members of the court, the prosecutor, the defence, the victim and, in the area of his/her interest, the interested party and the expert may, in that order, put questions to the accused: in this respect, I would note that the court is obliged to prohibit the answer if the question is prohibited by the Code of Criminal Procedure, or may prohibit it if it is repeatedly directed to the same fact. However, the court is obliged to ensure that the manner of questioning does not even indirectly violate the human dignity of the accused.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that as a defence lawyer myself, I can report cases where the accused, after legal warnings, clearly refused to confess, but the court nevertheless asked further questions about the personal circumstances and, in most cases, the merits of the case. This is a fundamental breach of the legality of the evidence, since if the accused does not wish to make a statement, then, in my view, it is no longer possible to make a statement on his personal circumstances.11 However, ifthe intentions are not independently recorded in the record, this practice constitutes a procedural violation which should result in the subsequent annulment of the decision to close the case. On the other hand, if the accused makes a statement in the form of a comment, the court is under no such obligation to keep a record, so no procedural violation is committed. 12

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Of course, it is also possible that the defendant only wishes to comment on his personal circumstances, but not on the merits of the case. It is also advisable to state this fact separately in the record, but it is incorrect practice to state a general refusal to testify in such cases.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Interesting questions arise in situations where there is a change in the accused’s testimony at trial compared to the suspect’s testimony during the investigation phase. There are two main reasons for this: (1) the accused deliberately intends to make a different confession (e.g. admits or denies a confession compared to their a previous confession), (2) the accused carelessly contradicts his previous confession. Either way, neither of these scenarios is preferable; inconsistent defences generally strengthen the prosecution’s case. Although the right to change the confession is given to the accused to an unlimited extent, this right can be seen as symbolic rather than effective, and changed confessions lead to the failure of the defence rather than the effectiveness of the defence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The general rule remains that if the accused’s testimony differs from his or her previous testimony, the reason for this must be clarified. However, the law does not give any guidance on how to resolve the conflict, so the court’s “attempts” may be stuck at the level of general, template-like questioning, which ultimately leads to no result. It should be noted that in the reasons for conviction, the court often does not accept the (modified) trial testimony because the defendant has not explained the reasons for the discrepancy.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Also, withdrawing confessions at trial seems pointless, especially if the accused does not even give the court an explanation of the reasons for the withdrawal. In such cases, the court will usually take the previous confession into account.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

And if the accused has confessed at earlier stages of the proceedings and refuses to confess at trial, then in my view it is always appropriate to take into account the confession made earlier.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The question also arises whether the (consistent) silence of the accused can be assessed to his/her detriment. Obviously not, as (1) this would violate a number of procedural principles, and (2) silence is not an admission. However, in the reasons for conviction, there is often a reference to “an innocent person confessing”, suggesting that the accused should have confessed earlier.13 This is, of course, not an acceptable judicial argument.
1 If the accused has confessed at the preparatory hearing, his/her interrogation may be waived [Art.522 (1) of the Criminal Code].
2 The single judge or the president of the chamber shall, of his own motion, or at the request of the accused, and for the protection of the prosecutor or the accused, remove from the courtroom, for the duration of the hearing of the accused, any co-accused already being heard whose presence would disturb the accused during his examination.
3 For example, the accused should be informed before the trial that the distinction in the indictment according to the order (see I, II, III, etc.) does not mean a ranking according to the gravity of the offence.
4 § 525 (1) para.
5 Szalai (2016) ibid.
6 Ervin Cséka: Megjegyzések az új büntetőeljárási törvény koncepciójához. [Comments on the concept of the new Code of Criminal Procedure.] Szeged, Acta Juridica et Politica, 1998. 28.
7 "Practising lawyers often encounter cases in the courtroom where defendants or witnesses give statements that differ from their testimony during the investigation. The judge must be very careful in trying to clarify which statements are in accordance with the facts and the reasons for the discrepancy […]. The requirement to ascertain the truth, to evaluate the evidence on which the conscientious judge’s decision is based, and to avoid the appearance that the court is deciding solely and exclusively on the basis of the evidence found by the investigating bodies, must be met.” In Gyürky (1975) ibid. 194.
8 Note that the defence counsel should consult with the defendant immediately if he intends to give evidence in an unarranged way. The court should also not deny the possibility for the defence lawyer to “invite” the defendant to clarify the reasons for this change.
9 Moreover, the function of the trial is not only to decide on guilt in general, but also to evaluate with due care the reasons for the commission of the offence, the circumstances of the commission and the specific factors inherent in the person of the offender.
10 What can a lawyer do in such cases? He or she can give a head nod or, if necessary, consult with the defendant and explain that denial is inappropriate. However, it is also not advisable to go into legal reasoning when giving such a lecture, but simply to reassure the accused that all relevant mitigating circumstances will be explored later.
11 Accordingly, the court would not be able to take into account such recorded incriminating statements when imposing a sentence, but could instead only rely on documentary evidence to establish the personal circumstances of the accused. It is another matter that such a procedural violation should not be unfounded.
12 Háger: Gondolatok a bizonyításról. [Reflections on evidence.] ibid. https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/gondolatok_a_bizonyitasrol_ht_0.pdf
13 Szalai (2016) ibid.
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