Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.11. Judicial discretion depending on the outcome of the evidence
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11.11.1. Assessment of certain sentencing factors in the reasons for sentencing

11.11.1. Assessment of certain sentencing factors in the reasons for sentencing

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to the BK Opinion No 56 on the factors to be taken into account in sentencing, the following may be regarded as a mitigating circumstance in the grounds of the sentence:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Regretful behaviour: this requires honesty, which can be established by a court, but is a rather subjective category of values. For this reason, the substantive consideration of sincere regret in the decision-making process is completely unpredictable. I would like to highlight two typical positions in legal literature in this respect:
    • According to Gáll, “the judge, when imposing a sentence, must consider not only the material gravity of the offence but also the whole personality of the offender […]; the lack of remorse may lead to a different sentence or a change in the nature of the punishment.”
    • For my part, I can identify with the latter position, since repentance can only be given meaning if the court finds it sincere and real. In any case, the one-time utterance of the sentence “I am very sorry!” cannot be sufficient in itself, its effective relevance requires the (personal) intuitions of the judge, i.e. the ability to gaugethe sincerity of the statement.
    However, I do not consider it a matter of concern if the defender induces or directly instructs the already confessing defendant to express more regretful behaviour. On the contrary, in my view, this is a fundamental tactical option within the scope of the legal obligations of the defence.
    I would like to quote the lines of Judge Istvánné Gáll recalling her own jurisprudence: “I have applied in many cases […] that ‘look, you have the right to deny under the law, so you cannot suffer any harm, but a human is different from an animal in that he can assess the consequences of his actions. And that’s where humanity really begins. If I’ve done something, I should have the courage, the backbone, to say: I’ve done this and that, and I’ll take responsibility.’” The judge goes on to say: “What I have learned from many years of experience is that not only did they not find it offensive, but they appreciated my advice, because they sensed that I was challenging them to an act of moral courage – that is, of superior humanity – and that I believed they were capable of living up to that expectation.”1
    I would like to note that the following observations can be made in relation to the judicial assessment of confessions: (1) acquittal in case of confession of the accused is rare;2 (2) a first denial and then confession can often be a more emphatic mitigating circumstance than an immediate confession;3 (3) in the case of multiple defendants, less probative value is attributed to a confession if the accused are close, e.g. friends or relatives (see the possibility of “false confessions”).
  2. Criminal record: judiciary has differing interpretations on the relevance of whether the accused is a first offender or has a criminal record. So much so that this dichotomy cannot be applied in the context of certain persons, such as: (1) juveniles, (2) young adults, and (3) persons who committed the offence using a position for which an impunity is a basic condition for application (e.g. In addition, it is only partially relevant (1) in the case of persons accused in an official capacity, since it can only be taken into account in their favour if there is no connection with the commission of the offence in that capacity, and (2) in the case of persons who have committed a series of offences over a long period of time.)
    In the context of the interpretation of criminal record, the BKv. no. 56 also mentions a special case where the convicted person has not yet received a final conviction, but commits a new offence during the criminal proceedings. This should also be considered as an aggravating circumstance, although in my view it cannot be given the same weight as a criminal record, since in the latter case criminal liability has indeed been finally and definitely established.4
  3. The age of the victim: this can be explained by physical and mental decline and a decrease in tolerance. But is there room for counter-evidence in relation to this presumption? In my view, there is, for example, room for a motion from the prosecution to prove the contrary of the presumed disadvantage of the offender (e.g. if the elderly offender carries out the violent act with extreme brutality, with force “disproportionate to his age”). The court may, of course, accept such motions and include them in the grounds of its judgment.
  4. Dependants: the mitigating effect of this circumstance stems from the recognition that the conviction also affects – to some extent – the persons in the offender’s immediate environment. The Hungarian practice rightly attaches importance only to the direct effect, i.e. the impact of the decision on persons whose way of life, whether financial or otherwise, is largely determined by the convicted person. In US jurisprudence, however, the jury may already consider whether the offender is a “family person”, i.e. whether the conviction indirectly affects relatives who would otherwise not need to be supported or educated.
  5. Low education of the perpetrator: as a rule, the practice is to consider as low-educated a person who has not completed the so-called "8th grade” education in the primary school system of Hungary. In other words, the offender may have fulfilled his compulsory education up to the age of 16 (compulsory primary education), but it is by no means certain that he has obtained the certificates of successful completion, i.e. he should be considered as a person with a low level of education. Note: it is very difficult for the courts to assess for which offences this circumstance may be relevant. Although BKv. No. 56 mentions a few offences, it is clearly not possible to give an exhaustive list of these offences. In many cases, however, there is no correlation between intellectual level and level of education, just as total lack of education cannot be equated with even the slightest degree of reduced capacity to pay. The point remains that if the perpetrator is aware of the illegality of his or her act, educational background should not mitigate his or her criminal responsibility.
  6. Compensation and reparation for the damage caused by the offence: reparation by the offender and compensation for the damage caused independently of the offender are usually considered as mitigating circumstances, irrespective of the type of offence. However, a careful distinction must be made between the actual compensation for the damage and the offender’s expression of willingness to pay (the latter is not considered a mitigating circumstance in judicial practice). However, the provision of assistance to the victim, an attempt to help, subsequent reparation, remorse and conduct approaching voluntary withdrawal or voluntary abandonment may also be assessed as mitigating circumstances, especially in cases of non-material damage (BJD 2430).
    According to BK 154.II/11 and Directive 15, point IV/8, the offender’s repentant behaviour and his action to avoid the result are mitigating circumstances (however, according to Rendeki, repentance alone cannot be assessed in favour of the offender).5 With regard to voluntary compensation for damage by the offender, the practice is consistent in assessing this as a mitigating circumstance, particularly if it is made before the offence is reported (BJD No 2656). Partial compensation for the damage caused by the offence is also a mitigating circumstance.6 According to Földvári, the fact that the damage caused has been partly compensated in the course of the proceedings and that a promise to pay for the damage not yet compensated is made is assessed as such.7
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that the legitimacy of certain mitigating or aggravating circumstances is – in my view – highly questionable. The first problem I see is that in judicial practice it is considered an aggravating circumstance if the offender has no means of subsistence and leads a vagabond lifestyle – according to the BKv. cited, this increases the risk that the offender will satisfy his needs illegally, possibly by committing a crime. For my part, I consider this to be a mere hypothesis, an unfounded prejudice. On the other hand, the Hungarian penal system is rather poor and does not provide any alternative to a sanction of the same severity as a fine to deal with similar situations. The procedure in such cases is usually that the court avoids imposing a fine as far as possible and instead opts for another solution, which in many cases consists – unacceptably – of applying a more severe legal penalty (e.g. community service). In essence, therefore, it is a case of the penal system’s shortcomings that, in such cases, a more severe sanction than is justified must be imposed simply because of personal circumstances for which the offender cannot normally be held responsible.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The cited BKv. mentions mental illness or disability as a mitigating circumstance even if the Hungarian Act C of 2012 on the Criminal Code (hereinafter: CC) – i.e. the application of the pathological state of mind as a statutory ground for unlimited mitigation of the sentence – is otherwise not possible. It follows, therefore, from the grammatical interpretation of these guidelines that the court is entitled to draw factual conclusions as to the insanity of the accused without a medical opinion. This is an unacceptable practice from a procedural point of view and, in my view, the application of this mitigating circumstance should not be envisaged in any event.
1 These lines reflect judicial attitudes that are absolutely worth considering. At the same time, the importance of expressing confidence in the defendant should be particularly valid from the defender’s side. I say this despite the fact that, in my view, the work of the defence should not be influenced in any way by whether or not the lawyer believes in the innocence of his client or by his other private opinions about the perpetrator. However, from the moment he becomes a client, he can also make himself responsible for steering the personality of the accused – if possible – in a good or better direction. But I would emphasize that only if he has this intention and if the debtor is a “taker”. Otherwise, there is no need to say anything, and the process of case management can continue as “business as usual” without concern. What Istvánné Gáll writes about, then, is a “trench” somewhere between illusion and the need to socialise the administration of justice. The principle of compelling the accused to be honest cannot be a general principle, but it should be pursued as far as possible, depending on the personality traits experienced and the ability to persuade with objective arguments. In Istvánné Gáll: Hozzászólás dr. Bócz Endre: “A büntetőtárgyaláson tanusított magatatrás etikája” c. cikkéhez. [Comment to the article by Dr. Endre Bócz: “The ethics of self-incrimination in criminal trials.”] Magyar Jog, 1975/2, 87.
2 Beáta Aladits – Mátyás Bencze: A bírói érvelés problémái és az ártatlanság vélelmének érvényesülése. [The problems of judicial reasoning and the presumption of innocence.] Jogelméleti Szemle, 2012/1. 3.
3 Szalai (2016) ibid.
4 I would note that in English law, the jury is not informed of the defendant’s criminal record, as this may prejudice the jury in their opinion of the accused. In the Netherlands, however, the accused’s criminal record is known to the professional judge from the outset, since the criminal record is relevant to the imposition of sentence, not to the determination of guilt.
5 Sándor Rendeki: A büntetés kiszabása. Enyhítő és súlyosító körülmények. [The imposition of punishment. Mitigating and aggravating circumstances.] Budapest, KJK, 1976. 246.
6 A Büntető Törvénykönyv kommentárja. [Commentary on the Criminal Code.] Budapest, KJK, 1968. 352. and BK 154. on the factors to be assessed in the imposition of sentences, III/9.
7 Földvári (1970) ibid. 377.
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