in my view, the court of appeal may only refrain from obtaining evidence if it would otherwise support the prosecution’s case (and the court may not even invite the prosecutor to obtain it, as this would violate the principle of “separation of functions”);

at the same time, the position is also acceptable, that the difference in competence between first and second instance proceedings means that there is no possibility of reviewing the first instance facts in such cases.12

Factual unfoundedness13 is due to the following reasons:

Complete failure to establish the facts: in this – obviously rare – case, the decision of the first instance does not contain any substantive facts about the act that are the subject of the accusation, neither in its operative part nor in its reasoning, so the court does not reflect on the merits of the accusation.

Inconsistency of the file: in this case, the findings of the first instance decision – due to some simple administrative error – are manifestly contradictory to the facts and data contained in the previous case file (e.g. the statement of reasons for the decision wrongly refers to a particular witness statement).

Incorrect factual conclusion: in this case, the court accepts only one possible position, but this finding is wrong.14 The reason why this logical operation is on shaky ground is that the court assumes the existence of other facts, because of the existence of certain facts already established,15 but this is only a hypothesis, which can be open to attack by the defence and the prosecution (it is no coincidence that it is one of the most common grounds of appeal). “Factual inference is an admissible method of establishing facts only if it is based on strict logical rules. In inferring from a fact or facts established beyond reasonable doubt to further facts, there must be a (usually causal) connection between the facts proved and the facts established by inference which makes it logically clear and evident that the fact proved also occurred or, on the contrary, that the occurrence of the fact not proved but alleged is excluded. In other words, a factual conclusion is correct if, from facts which have been clearly, indisputably and conclusively proved, there is a basis for logically concluding, to the exclusion of all other possibilities, that the only conclusion that can be drawn is that the fact for which the court has not taken evidence or in respect of which the evidence has not led to a result has also occurred.”16

Undetected: in this case, for reasons beyond the control of the authorities, the court does not have the necessary data to reach a verdict, or the findings of fact are based on incomplete data.17 This circumstance cannot be established, however, if the necessary data are unavailable in the first place (e.g. the only “witness” has disappeared).

Errors of assessment: in its assessment, the court examines and evaluates the evidence individually and as a whole, on the basis of the principle of impartiality, and decides on its own21 conviction as to its existence or relevance. The term assesment is therefore a way of drawing the attention of the prosecution and the defence to the fact that the court’s decision may be challenged.22 It should be noted that decision-making in the context of deliberation is more likely to occur in the case of defendants in denial.

Failure to state reasons: in this case, the statement of reasons for the decision at first instance is incomplete or contradicts the operative part of the decision or the decision itself in terms of content and logic. In this case, therefore, it is possible that there was no error in the taking of evidence, but the decision at first instance must nevertheless be annulled because it is not possible to determine the role played by the evidence in the process of reaching a conviction. The case law is clear that this circumstance may constitute a procedural irregularity if the contested decision is so incomplete that it is impossible to ascertain on what foundation the court based its decision, thereby depriving the court of the possibility of reviewing the merits.27 Moreover, the failure to state reasons, which renders the judgment inadmissible, requires the judgment to be set aside and the court before which the case was brought to be reheard if the facts established do not contain all the material facts in relation to the classification in the operative part of the judgment, so that, in addition to a correct finding of guilt, it is not possible to rule on the question whether the classification of the offence and the penalty imposed are lawful.28

In the case of a qualitative error, the court (1) misapplies the statutory rules on acquittal for lack of proof of the offence, guilt or innocence, or (2) fails to find the defendant criminally liable for the offence that would be justified on the facts.

In the case of a quantitative error, the court incorrectly determines the basic, qualified or privileged elements of the relevant statutory offence.

In Pakelli v Germany, the Court found a violation of the principle of “equality of arms” because the Federal Supreme Court refused to appoint a defence counsel ex officio for a cassation hearing involving the accused. As it turned out, that judicial forum would not have held a hearing in the case, and the Federal Public Prosecutor’s Office would have formulated its position in writing, which would then have been duly transmitted to the complainant (who would then have had the opportunity to study the case file and make his substantive reactions to it). However, by preventing him from being assigned a defence counsel at the oral stage of the proceedings, the Federal Supreme Court deprived him of the opportunity to influence the outcome of the case, which would have been possible if the proceedings had been conducted entirely in writing.”41

In Belziuk v Poland (1998), the Court also found a violation of the Convention, as the applicant was not allowed to attend the appeal hearing, despite his request, and no formal defence was appointed, while the prosecutor exercised his right to be present. According to the Court, this unequal situation would not have been helped by the applicant’s written observations to the local court – given that the prosecutor was present at the hearing.42

In Kampanis v Greece (1995), the Court found that the applicant’s right to liberty and security had been violated because he had not been allowed to participate in person in the appeal procedure which had decided on his provisional arrest. The decision stressed that the requirements of a fair trial must also be enforced in proceedings against remand in custody, not only at the main (trial) stage. The accused or his lawyer must therefore be given the opportunity to respond to the prosecution’s case at this stage of the proceedings.43

In Boner v. United Kingdom (1994), the Court held that Scotland had breached the Convention by failing to provide free legal aid in criminal appeal proceedings because the appellant, who had appealed at the appeal hearing by challenging a complex question of law and fact as to guilt, did not have sufficient expertise to bring the appeal. The Court therefore held that the failure to appoint a lawyer constituted a violation of the Convention.44

Returning to the Hungarian practice: the requirement of “equality of arms” is of course also applied in Hungary in the appeal proceedings, but I believe that there are a number of concerns about the exercise of the right to be present at the appeal hearing, especially from the defence side. One reason for this is that if the defence is merely notified, it tends to trivialise the case. The other problem is linked to defendants who (1) see the current stage of the proceedings as a decision made over their heads and consequently do not feel the need for substantive intervention or (2) are simply tired of going to court. This, however, is a sign of a high degree of procedural inconsistency and the defender should in all circumstances seek to change such or similar attitudes.45