Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.12. The appeal as the basis for the second instance evidence

11.12. The appeal as the basis for the second instance evidence

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The concept of judicial discretion is essentially a reminder to the prosecution and the defence that the decision of the court of first instance is not necessarily final.1 On this basis, an appeal against the first instance court’s final decision can be lodged with the court of appeal, a right exercised by the accused, the prosecution and the defence.2 Appeals may be lodged on points of law and fact, against any provision of the judgment and against the grounds of the judgment.3

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The principles of appeal as defined by the Be. and elaborated in practice are the following:

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  1. A new fact may be alleged or new evidence relied on in an appeal only if the appellant establishes a prima facie case that the fact or evidence on which the appeal is based arose after the judgment was delivered or came to his knowledge after the judgment was delivered through no fault of his own. 4
    Such references can be particularly effective when they involve completely unknown facts. For this reason, these appeals – as a rule – do not contain references to either unfoundedness or an error of assessment,5 and I would note that the latter are typically not necessary. The novelty of the evidence or facts creates a stalemate in which neither the prosecution nor the sentencing court can engage in a dispute, as the allegations made cannot be refuted at the time. The new fact or evidence can, of course, be put forward at the time of the lodging of the appeal (orally), without the need for a written submission with reasons.
  2. The appeal may also request evidence that was rejected by the court of first instance.6
  3. If there is even the slightest reason to appeal, it is, in my view, not only a right, but a legal obligation, for prosecutors and defenders alike, 7 to do so. 8 In particular, the legal assistance which the defendant receives from the lawyer in the formulation of the appeal may prove to be of considerable value to the accused. “The position of the defender is made special by the fact that he is not called upon to formulate his position on the basis of the often confused, uncertain and complex presentation of the client, but rather to act at a stage of the case when the court has not only established the facts of the case by following the appropriate procedure, but has also assessed them in legal terms.”9
  4. In the case of oral appeals, rightholders should bear in mind that they are not presenting their appeal to the public present. Therefore, they should not present a private opinion’ but a statement based on general professional standards (e.g. a reference to the unfounded nature of the decision). Moreover, there is no statutory requirement as to the wording of the statement on the judgment, in practice the phrases “I take note” or “I appeal” are both used.10 I would add that it is essential to make it clear to the accused before the oral statement that acknowledgement expresses acceptance of the decision. I would point out, however, that I do not consider this to be a correct formulation, since in principle it should simply mean that the person making the statement acknowledges that he or she considers the decision to be legitimate and therefore accepts the jurisdiction of the court; it would therefore be appropriate for those entitled to do so to use the phrases “I have taken note and I intend to appeal” or “I have taken note and I do not intend to appeal”.
  5. The basic requirements for written appeals are:
    • the appellant should indicate, if possible, that his submission reflects only his own views and should not be considered as a successful motion;
    • these submissions must be logically coherent, well-founded and – usually – well reasoned;11 note that, of course, failure to meet these conditions is not a bar to an appeal being considered;12
    • the prosecution and the defence, in expressing their views on the appeal, must start from the premise that a judicial decision can never be unjust, only wrong;13 there is therefore no room in these submissions for trivial, general sentiments that are outside the legal language;14
    • there is no room for prejudice in the appeal, i.e. predictions about the likely decision of the Court of Appeal;
    • the appeal must contain the decision expected from the appellate forum in a clearly defined manner; factual and legal consistency is also expected in the appeal, but this does not preclude the prosecution and the defence from making alternative submissions;15
    • the prosecution counsel or defence counsel should endeavour not to file an unnecessary appeal (e.g. a motion for acquittal in a state of full discovery and confession); however, there is no concern if the grounds of appeal are entirely different from the appellant’s oral statement;16
    • a general reference to the “innocence of the accused”, “procedural errors” or “breach of the rights of the defence” is not admissible, but a reference to wrongful conviction, the lack of foundation of the facts, wrong classification, the excessively severe penalty or the unjustified rejection of a request for evidence is required as a minimum.
 

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In order to prepare any evidence at second instance, the President of the Chamber of the Court of Appeal may, if necessary

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  • take steps to fill gaps, complete files, obtain new files or obtain information from the court of first instance;17
  • send the grounds of appeal of the accused or defence counsel to the public prosecutor’s office attached to the court of appeal, if they were submitted before the court of appeal and have not yet been sent directly to it;18
  • order evidence to be taken before the hearing and take the necessary measures to that end.19
1 It should be noted that decision-making in the context of a balancing exercise is more likely to occur in the case of defendants in denial.
2 The right of appeal against the judgment of the court of first instance is available a) to the accused, b) to the prosecution, c) to the defence, even without the consent of the accused, d) to the heir of the accused against the order granting the civil claim, e) to the spouse or partner of the accused against the order of compulsory medical treatment, even without the consent of the accused, f) to a private party against the order ruling on the merits of the civil claim, g) to a person interested in property against the order concerning him (581. §). It should be noted that the Court of Justice has dealt with complaints of breach of the right of appeal in a number of decisions, finding a violation of the Convention in cases where, inter alia, there was no possibility of appeal to a higher court against a judgment rendered in the absence of the accused. “Krombach v. France, 13 February 2001, ECHR 2002/1. 14. In Czine–Szabó–Villányi–Baka (2008) ibid. 315.
3 § 583 (1)–(2) para.
4 § 584 (5) para.
5 Bolgár–Kárpáti–Traytler (1962) ibid. 373.
6 § 584 (5) para.
7 The requirement that the appeal must be definite is expressed in the fact that it must refer to specific legal provisions or (where applicable) to previous judicial decisions. However, the scope of substantive relief may be even broader than that of the arguments in defence, since the decision on appeal at second instance is a review of the whole of the previous proceedings, and the courts of appeal have sufficient time to formulate it.
8 The decision of the defender to appeal, or to influence the decision of the accused to do so, is one of the largest responsibilitiescarried by the legal professionals, primarily because there is clearly no guarantee of a more favourable decision by the appellate forum, while failure to appeal can easily lead to wrongful execution.
9 Accordingly, just as the lawyer is referred to as the “first judge of the case” at the time of the appointment of the defence, in relation to the appeal he or she is in fact the court of appeal, and in this context he or she is also the first to examine the extent to which the proceedings conducted by the court and the resulting decision comply with the legal requirements. In Hegyháti–Révai (1962) ibid. 310.
10 “Acknowledgement is only an affirmationthat the court has ruled in this way, which does not reflect approval of or agreement with the decision. Everyone must take note of the judgment, but is not obliged to accept it. If the person concerned has taken note of the judgment – he or she can appeal against it.” In Bolgár–Kárpáti–Traytler (1962) ibid. 356.
11 Mainly because the defence and the oral appeal are not accurately recorded at the first instance hearing.
12 Furthermore, it is not necessary for the defender to state the correct ground of appeal, as the court of appeal will review the first instance proceedings in their entirety. In Bolgár–Kárpáti–Traytler (1962) ibid. 381.
13 Bolgár–Kárpáti–Traytler (1962) ibid. 353.
14 The defender’s “opinion should not go beyond legal criticism and the conduct necessary to understand it. It may legally say that the judgment is good, bad, wrong, mild or severe. But it should refrain from such and similar language as being biased, partisan, or unfair. In Bolgár–Kárpáti–Traytler (1962) ibid. 354.
15 The diligence required for an appeal to be well-founded does not, of course, mean that an appeal can only be made if the defender is fully satisfied that it will succeed. In the present case, therefore, it can also be said that the obligations of the defender to cooperate with the court are reduced, and indeed in many cases the motivation for an appeal is not that the court of first instance has made the wrong decision, but that the defender simply expects a more favourable decision from another judicial forum.
16 The question has arisen in the literature whether the defender may deviate from the position taken in the appeal against the first instance judgment and its detailed reasoning at an earlier stage of the case. “It is possible that the position taken by the defence at first instance is wrong, and that this error can necessarily be corrected by the lawyer in the appeal proceedings, with sufficient supporting evidence.” J.I. Stecovsky: A védő álláspontjának kialakulása a büntetőeljárásban. [The formation of the defence position in criminal proceedings.] Magyar Jog, 1970/3. 103.
17 § 596 (1) (a)
18 § 596 (1) (d); I should note that there have been Strasbourg decisions already in relation to the preparation of the appeal proceedings: one of these decisions held that it is a violation of the Convention if the prosecution’s appeal is not first brought to the attention of the defendant. “Case Voisine v. France, 8 February 2000, ECHR 2001/1.13. In Czine–Szabó–Villányi–Baka (2008) ibid. 315.
19 § 596 (3) para.
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