Viktor Bérces: Evidence in Criminal Proceedings
›
Chapter II. Paradigm shifts in the development of evidence in Hungarian law
›
2.3. The rise of the inquisitorial form of procedure in Hungary

2.3. The rise of the inquisitorial form of procedure in Hungary

Jegyzet elhelyezéséhez, kérjük, lépj be.!

From the 14th century onwards, the process of state-building began, which also influenced the development of litigation. This trend led to the spread of the inquisitorial form of procedure:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the central figure in the proceedings was the so-called “inquirens”, who performed the functions of investigation, prosecution and defence (and often judgement) in one person; his decisions had a significant influence on the outcome of the trial;
  • the aim of the trial was to establish the material truth (i.e.: to establish the historical facts as accurately as possible);
  • the system of evidence has become fixed, i.e. the range of possible evidence has been predetermined by legislation or judicial practice;1
  • in many cases, the accused was not informed of the grounds for suspicion2 ; no public hearing was held, the public was only allowed to be present when the verdicts were delivered (secret proceedings);
  • records (minutes) were kept of the proceedings; documents (deeds) were used as the typical means of evidence, which also required the identification of authentic places; investigative files were used as the basis for judgments – also in the second and third instance (written form).3
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is important to note that in this period, a distinction was made between a judgment on evidence and a final judgment: the former was the conclusion and the results of the evidence, the latter the legal consequences applied (e.g. satisfaction to be given, performance).4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The predominance of the written form led over time to a prolongation of the proceedings, which led to the question of simplifying the trials being raised at the Diet of 1397. On the basis of King Matthias’s decree (Decretum Maius), the circumstances that could delay proceedings were limited, the use of the melee was abolished and the rules on the presentation of witness evidence and summonses were reformed. 5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Nevertheless, after the collapse of the national kingdom, the counties were the central organisational units of the judiciary. This led to a decline in legal unity, as different rules of procedure applied in different areas (horizontal legal particularism). Barna Mezey calls this period the age of the so-called “rabulista lawyers” and quotes Endre Varga’s apt words: lawyers of the time “lacking adequate legal knowledge, tried to get the better of their opponents by formal reasoning, empty verbiage and cunning proctorial tricks, or at least to profit from the lawsuit for as long as possible.”6 All this was coupled with the fact that, because of the prevailing social stratification, different material and procedural rules applied to different groups of persons (vertical legal particularism). Accordingly, equality of rights between parties belonging to different estates of the realm (or orders) was not ensured in court proceedings.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Hungarian inquisitorial procedural model was structured as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The preparatory stage was initiated by a suspicion of a criminal offence brought to the attention of the authority in the exercise of its powers or by a complaint.7 This is when the suspect or witnesses were questioned, the inspection was carried out and expert opinions were obtained. It was also at this stage that the suspect was, if necessary, taken into custody (incaptivatio), remanded in custody (incarceratio) or arrested (proscriptio).8
    • In relation to the interrogation of suspects (examen benevolum rei), torture was central, as it could not be used on nobles, children, the mentally ill, the deaf, the dumb, pregnant women and the elderly.9 In essence, the system involved the use of torture methods by the investigating authority to extract the confession of the person under investigation, in a predetermined sequence. According to Géza Katona, “torture through various channels was widespread in the practice of Hungarian courts in the 16th and 17th centuries, and its cruelty exceeded even the degrees of torture regulated by the procedural law.”10 According to Lajos Hajdú’s study, however, “only two of the almost two dozen torture interrogations mentioned in the tables of 1775/76 were successful, in the other cases it was not possible to extract a confession from the suspects.”11
    • Witnesses were examined in two different ways: in the case of an inqusitio simplex, the delegate of the authentic place or a magistrate of the court of record would question the person who might have knowledge of a fact relevant to the case. In the other case (publicquisition v. inquisitio communis)12 it was the trial court itself that ordered the examination of witnesses on request. In both cases, reports of the testimonies given were drawn up and subsequently attached to the case file.
    • Among other evidentiary procedures, confrontation, examination (revisio oculata) and, in the context of expert evidence, certain toxicological tests should be mentioned.
  2. The forensic phase began with the submission of the indictment to the court, written on the basis of the evidence discovered during the preparatory phase. By its nature, it was held orally in the case of minor offences and in writing in other cases. The personal appearance of the accused was mandatory in all cases.
  3. The appeal stage started as a result of an appeal or retrial.
  4. At the enforcement stage, the court of first instance enforced the decisions that had already become final.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the Habsburg era, under Decrees 24-26 and 30-31 of 1723, the types of proceedings were divided into oral (sommas) and written trials.13 This avoided the mixing of oral and written actions within the same procedure.
1 E.g. the confession of the accused or the concurring testimony of two credible witnesses was considered to be fully probative. In Mezey–Pomogyi (2001) ibid.
2 Mezey–Pomogyi (2001) ibid. 362.
3 It should be noted that there were still so-called “sommas” (oral) trials, which were “kept alive” on the basis of customary law traditions, mainly in order to speed up the resolution of cases. According to some research, such trials were even held in disputes between nobles, and often resulted in a judgment within one day. In Mezey–Pomogyi (2001) ibid. 373.
4 Hajnik (1899) ibid. 250.
5 Mezey–Pomogyi (2001) ibid. 360.
6 Mezey–Pomogyi (2001) ibid. 361.
7 In the latter case, however, the whistleblower (delator) no longer faced any negative legal consequences in the event of a false accusation or other forms of misleading the authorities.
8 Mezey–Pomogyi (2001) ibid. 375.
9 However, some contemporary sources of law also support the opposite view. In Mezey–Pomogyi (2001) ibid. 375.
10 Cf. Mezey–Pomogyi (2001) ibid. 376.
11 Mezey–Pomogyi (2001) ibid. 376.
12 Mezey–Pomogyi (2001) ibid. 376.
13 Mezey–Pomogyi (2001) ibid. 362.
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