11.9.2. The defence
Jegyzet elhelyezéséhez, kérjük, lépj be.!
Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p1 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p1)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p1)
There are no legal provisions on the content and structure of the defence, which is a fundamental principle arising from the principle of the freedom of defence. In other respects, the role of the defence counsel is just as important for the defence as the court’s decision on the case.1 It should also be noted at the outset that the closing argument of the defence is addressed not only to the accused and the court, but also to the audience present (either in person or virtually, by following the media coverage of the case). It could be said, therefore, that in most cases the closing argumentgenerates a kind of complex responsibility on the part of the defence. According to Traytler, the closing argumentis nothing more than a final and binding motion by the defender before sentencing, in which he or she states what decision he or she considers appropriate and why.2
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Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p2 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p2)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p2)
As I mentioned earlier, the closing speech is the culmination of the defender’s role in the trial. For this reason, it is often the case that lawyers try to squeeze into this statement a factual or legal position that is unknown to the court.3 This is not, in my view, a useful defence tactic, as such final submissions tend to be swept off the table by judges, especially at this final stage of the proceedings, in order to protect the integrity of their pre-established conceptions. Nor is it an acceptable way of working for the defence if the defence closing ends up in mere conjecture, citing fabricated evidence pulled out of the blue, but if there is only one piece of evidence, it must of course be referred to.
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Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p3 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p3)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p3)
Under the current legislation, the right to give the defence oral argument is primarily vested in the defence counsel present.4 This is essentially an expression of the legislature’s wish to prevent the court from placing the accused in the same position as the lawyer present and possibly from hearing contradictory closing statements in parallel, which could have an impact on the factual and legal assessment of the case. The accused may therefore only make a defence statement if the defence counsel is not present.5 On the other hand, the court may, in principle, allow a “double” closing argument – by the accused and the defence respectively – but in such cases the accused should confine himself to stating the facts of the case and the defence to stating the legal arguments which crystallise from them.
Jegyzet elhelyezéséhez, kérjük, lépj be.!
Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p4 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p4)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p4)
However, I myself believe that it is correct that the accused has, as a rule, only the right to speak in the presence of the defence.6 Otherwise, the victim would be able to make a statement in place of the prosecutor present, which would – in terms of content and form – probably undermine the professionalism of the process and, at the same time, presumably complicate the judicial decision-making process.7
Jegyzet elhelyezéséhez, kérjük, lépj be.!
Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p5 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p5)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p5)
With regard to the way in which the defence speeches are delivered, the following should be highlighted:
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Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p6 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p6)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p6)
- The defence must have the power to persuade, and in particular to convincethe court. This requires an attitude which differs from the general way a lawyer communicates with clients and the public. The defence speech is not a political rhetoric, not a lofty sermon, but a precise legal text. The style of presentation must therefore be adapted to this, and must be solid but sufficiently firm, well structured, calm in tone and slower in pace. At the same time, the defender’s personality cannot, of course, be “restricted”, and therefore in many cases the various hand gestures, facial expressions, dynamics, etc., which are used to make a strong impression, have a personal, convincing effect.
- The defence speech may be read out or recited from memory. However, I do not consider either to be a perfect solution, as the first can make the presentation too formal and the second has the potential for various errors.8
- The disadvantage of a pre-written defence speech is that it focuses only on the facts and data that have emerged before the trial. At any time, however, a change can occur – immediately before the speech (e.g. a witness withdraws his or her testimony) that requires an immediate amendment.
- Performing “by heart”, from memory, shows great courage, but in my view it is not an acceptable way of working even in the most “insignificant” criminal cases. I maintain this position even in cases which are of a simpler nature (even if the defender is otherwise well aware of the facts of the case). The work and preparation of the defender must be visible at the trial, and one of the best ways of doing this is for the lawyer to have at least the file or part of the file in front of him or her. A lack of documents always proves the opposite, or suggests an obnoxious overconfidence.
- I think the best solution is for the defender to write the defence speech during the trial – except, of course, when only the speeches and sentencing take place on the day of the trial.9
- I think it is important for the defence lawyer to constantly demand the court’s attention during the speech. This can be easily achieved with a short, attention-grabbing, mid-sentence pause or even small coughs.10 It is a common experience that the single judge or the chairman of the chamber reads the previous case file or completely avoids eye contact with the defence during the speech.11 In such cases, the defender must expressly indicate to the court, even by interrupting his speech, that he considers the court’s conduct to be unethical (for example, when a member of the court uses urgent or disapproving facial expressions).
Jegyzet elhelyezéséhez, kérjük, lépj be.!
Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p8 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p8)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p8)
Of course, the way in which the defender’s speech is delivered and the stylistic aspects of it are greatly influenced by the size of the audience, the presence of the press and the way the trial is broadcast to the public. In such cases, however, the defender may not depart from the logical and stylistic framework which follows from the rules of the Code of Civil Procedure and the basic ethical norms of the trial. On the other hand, the defender must not be intimidated by the power of public opinion, the multitude of cameras and journalists cannot evoke ‘stage fright’ or turn him into a ‘blabbermouth’.12 If he does have such a personality, he should, at the outset, pass the buck to a colleague who is in a position to take on the case in all its aspects. The (authorised) lawyer must therefore be aware of his own personal qualities in this respect.
Jegyzet elhelyezéséhez, kérjük, lépj be.!
Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p9 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p9)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p9)
As regards the content of the closing argument, the following should be highlighted:
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Hivatkozások
Válaszd ki a számodra megfelelő hivatkozásformátumot:
Harvard
Bérces Viktor (2024): Evidence in Criminal Proceedings. : Akadémiai Kiadó.
https://doi.org/10.1556/9789636640477 Letöltve: https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p10 (2025. 01. 29.)
Chicago
Bérces Viktor. 2024. Evidence in Criminal Proceedings. : Akadémiai Kiadó. https://doi.org/10.1556/9789636640477 (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p10)
APA
Bérces V. (2024). Evidence in Criminal Proceedings. Akadémiai Kiadó. https://doi.org/10.1556/9789636640477. (Letöltve: 2025. 01. 29. https://mersz.hu/dokumentum/m1199eicp__194/#m1199eicp_192_p10)
- It is the sole right of the defender to determine the content of his or her speech. He can therefore, as a rule, rely exclusively on his own general professional experience, his knowledge of the law and his personal views on the specific case.The defender is only fully confronted with the expectations regarding the content of the defence speech during the course of the trial. It is therefore not possible to prepare for this task in a planned manner from the very beginning of the investigation, as there are countless unexpected developments that can occur during the proceedings. The possibility cannot, of course, be ruled out that the defence lawyer – either in his head or in writing – will define a logical framework beyond which no substantive defence is effectively possible (e.g. if the accused has made a revealing confession, there is little likelihood of a final argument of acquittal). This logical framework can, however, only be filled with relevant, concrete content later, on the basis of the evidentiary outcome of the court hearings.
- The defence must comply with the aforementioned legal and ethical criteria to a large extent. In the latter context, it is a fundamental rule that the defence counsel should avoid deliberately misleading references to the court,13 references to the documents, making general value judgementsabout the participants in the proceedings (e.g. insinuations about the prosecutor’s lack of professionalism), or delivering unnecessarily long speeches concentrating on the presentation of facts already known, in fact with the intention of stalling for time.14 It should be noted that, in accordance with the case law of the Court of Justice, the right to a fair trial is not infringed if the judge interrupts the defence several times during the defence speech.15
- The defence speech usually consists of an introduction, a main body and a conclusion. The introduction usually begins by addressing the court according to its jurisdiction (e.g. the Metropolitan Court). The rest of the speech is then either (1) a reference to the charge or (2) a direct statement of the defence’s position on the charge.For my part, I consider the practice under point 2 to be appropriate, since in my view it is unnecessary to recall the factual elements already presented – several times – by the prosecution and not contested by the defence (i.e. the new charge). I therefore consider in medias res type defence solutions to be adequate, and the citation of certain parts of the facts of the indictment to be justified only if the defence is able to refute certain events by means of different evidence or by relying on the lack of sufficient evidence.
- In the defence speech, it is not necessary to recite the legislation referred to verbatim, but it is sufficient to recall the relevant passages by alluding to them.
- The defence speech may contain trivial language – going beyond its legal content – only to a minimum extent. There may of course be room for the use of various proverbs, platitudes, metaphors and quotations, but not for vulgar jokes.16 The latter attitudes inevitably detract from the dignity of the trial and the quality of judicial work. “Those who expect leniency have nothing to mock,"17 writes Traytler. Even in the case of a blatantly false testimony or unsubstantiated expert opinion, there is no room for this type of expression, not to mention the fact that a lawyer cannot ridicule a person acting on behalf of the court or a representative of the prosecution in a trial.Nor do I consider it desirable when some colleagues – who may otherwise have considerable expertise in the field of jurisprudence – give dogmatic lectures of a pedagogical nature (e.g. referring to the findings of previous authors). In this context, it may be particularly inappropriate, or even distasteful, to arbitrarily list the theses of various terminus technicians or academic schools, as this may give the impression that the lawyer is seeking to fulfil a duty to instruct the court.18 On the other hand, it is expressly desirable to refer to judicial practice where there is a case law governing the case in question. It should not be feared that the court will resent this type of argumentation, but rather that the defender’s role is the right one if he considers himself, where appropriate, to be assisting the court in its legal classification of the facts and in determining the sanction.
- The defence closing must necessarily be a biased,19 unilateral motion. Szitás writes: “The lawyer should not say in the defence that the accused is guilty, as this is the prosecutor’s job. Whereas the prosecutor cannot be biased in favour of the victim, let alone against the accused, the defence lawyer can. In fact, he should be biased in favour of his client, but this should not be unprincipled, since the defence case is not only heard by the accused, but also by an impartial and unbiased court. Indeed, the court is the primary addressee.”20In many cases, however, the defence lawyer must not necessarily present his or her own legal convictions, but the factual or legal argument that is most favourable to the accused.21 The most optimal case is of course one in which the defence counsel is himself convinced of the correctness of the defence statement, but even in the absence of this, at least the appearance of personal conviction should be sought. I also consider it necessary for the defence not to refer frequently to the facts supporting the prosecution’s case, as this would only reinforce the prosecution’s position. In conclusion, I believe that, as far as possible, a short, to the point defence speech is the only way to make the court consider what the defence has to say.
- In the case of a final application for acquittal, the defence may mention three circumstances, in the following order: (1) the absence of an offence (e.g. there is a ground for not prosecuting), (2) the absence of guilt (e.g. the accused is not even negligent in the case of a road traffic accident), or (3) the absence of evidence.I would note that I disagree with the position that does not distinguish between the grounds for acquittal, such as guilt and lack of evidence, according to weight. On the one hand, it is possible to cite a number of legal rules in other branches of law in which the legislator attaches different legal consequences to these forms of acquittal.22 If, on the other hand, other rules of law attach importance to this difference, the Code of Criminal Procedure should make it even more possible to appeal not only against judgments with completely contradictory content, but also against acquittals.The assessment of points 1 and 2 requires a more in-depth study of the current rules of the Criminal Code and the current principles of judicial practice. In this context, I would like to make the following practical comments:
- In the case of an insanity defence, the defender can hardly challenge the validity or professionalism of the opinion, as he or she is usually not competent to judge the issue himself or herself. 23
- When invoking a legitimate defence, it is worth drawing the court’s attention to the age of the accused, the time and place of the offence and the means of committing it. It should be noted that the relevant rules of the Criminal Code – as it stands at present – primarily favour the defence, since (1) a person who exceeds the necessary degree of defence out of fright or excusable provocation cannot be punished; (2) the person attacked is not obliged to evade an unlawful attack.24
- When invoking necessity, the defence must bear in mind that the defendant’s fright or excusable excitement as a factor limiting the ability to cognise – unlike a legitimate defence – is not a ground for acquittal, but only a circumstance allowing unlimited mitigation of the sentence.25 It is also important to note that the defence can only rely on the necessity defence if its vitality can be clearly demonstrated (e.g. a person who steals because he has nothing to eat cannot be considered to be in serious danger; nor can a person who is in danger solely through no fault of his own and then saves his own life at the cost of another’s life).26
- In the case of an allegation of coercion or threat, it must be proved that the defendant was influenced decisively by this circumstance in carrying out the act.27 Under the Criminal Code, however, it is not unimportant whether these circumstances excluded or limited the defendant’s capacity to act at will, since in the first case there is the possibility of acquittal, and in the second case that of unlimited mitigation.28 It should be noted that in these cases it is more difficult to retroactively assess the willfulness of the offender at the time of the offence (although the personality and physical characteristics of the offender may of course be of great importance).
- In the case of an allegation of error – according to the rules of the Criminal Code – first of all the error of fact and secondly the error of law can be considered. However, the latter seems to be more problematic, since ignorance of the law does not, as a general rule, exempt from criminal liability. In the latter case, therefore, the defence can only argue that the accused had no opportunity whatsoever to become acquainted with the law in question for some unavoidable reason.
Obviously, a defence closing is more general and informal, as the defence is free to weigh the evidence. However, this should not be a justification for a ‘shallow’ defence speech which merely shows that everyone is telling untruths and only the accused is telling the truth.In the case of pleas for acquittal, it can be said that it is the fundamental ethical duty of the defence to make them, even if the evidence proves beyond reasonable doubt the guilt of the accused.29 It is another matter that in such cases, the closing argument also contains alternative motions – with regard to the qualification or sanction in the possible conviction. However, I agree with Szitás that more than one alternative motion can render the defence speech frivolous.30If the application for acquittal has a legal or factual basis, all three grounds for acquittal may be indicated, with the defence counsel having to proceed from the most objectively assessable circumstance (e.g. lack of competence) to the most subjective aspect (e.g. lack of proof beyond reasonable doubt). - If there is a ground for dismissal, the defence lawyer must be careful not to request the acquittal of the accused in the defence speech, but the dismissal of the proceedings.
- If the defender does not contest the commission of the offence charged and its qualification as charged, he or she can make a motion for a sentence right away. He can even join the prosecutor’s motion without any concerns, if the sanction contained therein – e.g. probation – is acceptable to the defence.The other possibility is when the defender does not contest the commission of the offence in question, but does contest its classification according to the indictment (e.g. with regard to the form of the offence).31 I think it is important to emphasise that the defender can also point out the shortcomings of judicial practice in such cases, especially in cases where the applicable supreme court disicion (hereinafter: BKv.), or individual court dicision (hereinafter: BH), etc. is not clear or the need for a change has been widely discussed within the field of legal profession.32 Let us not forget: the shapers of general judicial practice are not only judges, but also prosecutors and defence lawyers. Moreover, the trial can also develop into an academic seminar, in most cases, on real doctrinal issues.33In some instances, it may also seem unnecessary for the defence to ask for a lighter sentence, as this could easily lead the court to consider another offence with the same penalty as the offence charged.
- A motion for a sentence is usually filed when the finding of criminal liability of the accused can be avoided with certainty (e.g. in the case of a confession and repentance) or with a high probability (e.g. due to the multiplicity of material evidence of the prosecution). In such cases, the defence will – most often – file alternative motions for a sentence, unless the sanction indicated by the prosecution is also acceptable to the defence (e.g. in the case of a juvenile accused, a reprimand, probation).As it is well- known, most punishment systems – including the Hungarian one – are based on the principle of gradualism. The so-called “mitigating stage” is often referred to in the defender’s motion for a sentence, the applicability of which is primarily determined by the purpose of the sentence.34 In my opinion, therefore, such a reference cannot be considered to be ‘excessive’ even if the aggravating circumstances predominate.The graduated nature of the penalty system gives the defence relatively wide room for manoeuvre. In the case of several possible variations, the defender must always propose the sanction which, according to the letter of the law, is still possible, while at the same time having the least possible criminal significance.35
- In the case of an offence punishable by imprisonment, a suspended sentence of imprisonment should always be proposed, if there is a legal possibility. A conditional sentence is not an exceptional measure – the only exceptional measure is a reasonable excuse which the defence tries to bring to the attention of the court. These circumstances can often be assessed immediately (e.g. full compensation for the damage, repentance, no criminal record).36 However, the fact that the defendant has already been sentenced to imprisonment does not prevent the defence from requesting a suspended sentence.37 There is no rule, either in law or in practice, which excludes the possibility of applying a suspended sentence to ex-prisoners. Although the legal practitioner generally starts from the assumption that if the previous sentence was not a deterrent, the suspended one will not be either, it is possible that it is the fairness of the sentence that will make the offender more reasonable.38 Such possibilities should also be considered by the judge, but any reference to them should be emphasised in the defence.
- If the execution of the imprisonment is unavoidable under the law, the defender must also submit a request for a definitive decision on the degree of the sentence, if its preliminary mitigation is possible under the Criminal Code.
- However, for all sentencing motions, the defence must take into account any mitigating circumstances. These are an important cornerstone of almost all defence speeches, since in most cases the likelihood of a successful acquittal is very low (e.g. there is clear material evidence). It is another matter that the listing of these circumstances does not – usually – have the effect of novelty, since a significant part of them was already mentioned in the speech and, moreover, the court was able to establish them clearly before the trial. Nevertheless, it is not possible to predict precisely in advance whether these circumstances will “reappear” in the final decision. If all this could be predicted, it would not be possible to make personalised (individualised) decisions.39
1 Hegyháti–Révai (1962) ibid. 269.
2 Bolgár–Kárpáti–Traytler (1962) ibid. 216.
3 This is especially the case when the defence does not make any evidentiary motion at all, does not exercise its right to questioning, and at the same time wishes to keep the jury (single judge) in complete uncertainty in order to establish the “punch line” of the closing speech.
4 § 541 (1) para.
5 § 541 (3) para.
6 § 541 (2) para.
7 On the contrary, Fenyvesi says: “In my view, not only the defender but also the accused has the right to make a defence, which can also be called ‘self-defence’. My argument is supported by the fact that in trials without a defence (in about 65-70% of local court cases) there is also a need for a defence speech, as a kind of summary and synthesis of arguments and comments. This is not a substitute for the right to have the last word. This is also referred to in the statutory regulation of the appeal hearing, which states that the appellant is the first to speak. Since the accused may also be an appellant, it follows that he (also) has the right to speak at the trial.” In Fenyvesi (2002) ibid. 263.
8 "It is wrong to think that it is right to improvise the speech. It is true that improvisation generally captures what appears to the defender to be the most important aspect of the outcome of the trial, but at the same time its irregularity and the fact that it may leave out potentially decisive moments give rise to the conviction that improvisation is not precisely appropriate to the responsibility with which the plea must be presented. In Hegyháti–Révai (1962) ibid. 270.
9 “The closing argument must reflect the position taken as a result of the trial, and this is excluded if the defence starts the trial with a ready-made pleading. At most, he may formulate parts of the speech in advance, but he does not present it by reading it out either, because reading it out is incompatible with the liveliness of the trial and makes the argument ineffective to a certain extent.” In Hegyháti–Révai (1962) ibid. 270.
10 If this does not lead to a result, I do not consider it objectionable for the defender to invite the court to take note of the statement in a live speech. This is not disrespectful to the court, but it is a permissible means of eliminating disrespect for the defence.
11 Of course, the most optimal way is for the judge to take a personal note of the defence speech at the same time.
12 I believe it is of fundamental importance that the merits of the defence cannot be affected in any way by the general public perception of the case.
13 Horváth notes, however, that “imagination is part of the defender’s way of working. However, it is only effective if it is attached to daily life experience and its occurrence is likely. If, however, the imagination strays into the realm of mystification, a situation of confusion is created, which does not lead to effective defence.” In Horváth (1975) ibid. 195.
14 Based on my personal experience, some colleagues provoke the interruption of the defence by the court by irrationally delaying this statement in time. Some lawyers do this in order to have the court’s decision overturned on the grounds of procedural irregularity in the appeal proceedings.
15 “C.G. v. United Kingdom”, 19 December 2001, ECHR 2002/2.24. In Czine-Szabó-Villányi–Baka (2008) ibid. 306.
16 However, I am not concerned if the defender recalls the facts using idioms or colloquialism (e.g. “My client’s bent out of shape!”). This does not violate the dignity of the trial, but makes the facts accepted by the defence more ordinary and thus more understandable and “tangible” for those present.
17 Bolgár–Kárpáti–Traytler (1962) ibid. 226.
18 Such a backward situation is created, for example, when the defender describes the turning points in the legal literature debate on the conceptual definition of the crime, which goes back several decades.
19 Fenyvesi: Védői jogok az elsőfokú bírósági tárgyaláson. [Defenders’ rights in the trial at first instance.] http://jesz.ajk.elte.hu/fenyvesi8.html
20 Benedek Szitás ibid. https://jogaszvilag.hu/eletmod/jog-es-retorika-kulonos-tekintettel-a-perbeszedek-szerepere/
21 This “loyalty of the defender” must, moreover, be evident not only from the closing argument, but also from the entire procedural conduct and actions of the defender.
22 Thus, for example, under Act CL of 2016 on the General Administrative Procedure, a decision must be annulled or revoked and, if necessary, a new procedure must be conducted if its content was influenced by a criminal offence, provided that the commission of the offence was established by a final decision on the case or the making of such a decision is not precluded by the lack of evidence [§123 (1) (d)].
23 I would note that even if a lawyer is competent,he or she should not contest it, as he or she is not participating in the proceedings as an expert but as a defender. In this context, therefore, the most that can be done is to request the appointment of another expert, to submit a motion for a direction or to obtain a private expert’s opinion.
24 CC § 29 (2) –(3) para.
25 CC 30 § (3) para.
26 Bolgár–Kárpáti–Traytler (1962) ibid. 275.
27 Bolgár–Kárpáti–Traytler (1962) ibid. 275.
28 CC § 26.
29 At the same time, the defender may, for example for reasons of conscience, terminate the mandate even immediately before the speeches. “Just as a lawyer is not obliged to undertake the defence, he is not obliged, but only entitled, to request the acquittal of a client who has confessed to the offence, but only if the request is justified by the outcome of the proceedings and the evidentiary procedure in the main hearing.” In Schuppich (1980) ibid. 931.
30 “The defender must, of course, use good judgment, since the persuasive force of the argument is discredited if the alternative contains more than two elements. A lackadaisical ranking does more harm than a lack of rigour.” In: Szitás ibid. https://jogaszvilag.hu/eletmod/jog-es-retorika-kulonos-tekintettel-a-perbeszedek-szerepere/
31 In the present case, moreover,the classification must be challenged even if it is irrelevant to the range of the penalty. It makes a difference whether someone is considered a “simple” thief or an embezzler. “Even in such cases, the defender cannot remain silent, as the interests of justice thus require.” In Bolgár–Kárpáti–Traytler (1962) ibid. 279.
32 Bolgár–Kárpáti–Traytler (1962) ibid. 279.
33 It is a different matter that many judges are reluctant to engage in dogmatic argumentation at trial – on the one hand because they already have their own position on classification, and on the other because the lawyer plays professor when arguing or foregrounding a delimitation issue. Admittedly, the latter is a rather distasteful behaviour, and there is nothing to prevent the judge from disregarding the defence counsel’s presentation for this reason alone.
34 A lighter penalty may be imposed if the minimum penalty would be too severe in the light of the principles governing the imposition of sentences. On this basis, if the lower limit of the penalty is a) imprisonment for a term of ten years, a term of imprisonment of at least five years may be imposed instead, b) imprisonment for a term of five years, a term of imprisonment of at least two years may be imposed instead, c) imprisonment for a term of two years, a term of imprisonment of at least one year may be imposed instead, d) imprisonment for a term of one year, a shorter term of imprisonment may be imposed instead (CC 82. §).
35 The defender may not take into account the wishes of the accused or his or her relatives when choosing this. Thus, for example, if community service and a fine can be imposed, but the accused tells his or her lawyer that he or she “does not want to pay”, the lawyer should not consider this as a guideline. In all cases, he or she should seek the lightest possible sanction in the graduated system of criminal sanctions.
36 However, practice is reluctant to use suspension for certain offences, even though there is in principle a legal possibility. The reason for the sentence to be executed is usually derived from the significant material gravity of the offence.
37 Bolgár–Kárpáti–Traytler (1962) ibid. 326.
38 Bolgár–Kárpáti–Traytler (1962) ibid. 326.
39 “We are well aware that, although the individualisation of punishment, the consideration of the offence and the defendant’s danger to society, the various aggravating and mitigating circumstances are mentioned in the literature and in court decisions, in reality the imposition of sentences is rather uniform. It could hardly be otherwise, because if the punishment differs significantly from the punishment for a given offence in the light of a few standardised circumstances, there is already a valid ground for appeal […].” In Erdei (1991) ibid. 213.