Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.14. Evidence in repeated proceedings

11.14. Evidence in repeated proceedings

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A retrial is preceded by an order of the court of second or third instance quashing the decision and ordering a new trial. On this basis, the Be. deals separately with the rules governing the repetition of proceedings at first instance and at second instance.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It should be noted that these procedures are not among the “most popular” processes, especially among judges at first instance. This is due to a number of factors, including: (1) the court of appeal could have ruled on the merits instead of setting aside; (2) the grounds for setting aside are highly contested; (3) the caseload of the court of first instance increases. However, in many cases, the accused may benefit from a delay in the proceedings, as there is a greater chance that the passage of time can be invoked as a mitigating circumstance.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The number of retrials is therefore a function of the annulment practice of the courts of second and third instance. In particular, as regards the interpretation of procedural violations, the following comparative example by Varga is illustrative: failure to record warnings of witness rights was considered by some courts of appeal as an absolute ground for quashing and led to retrials, while other courts (1) summoned the witness again, (2) gave him a lecture in accordance with the law, (3) recorded this in the minutes and (4) dismissed the witness after recording a statement that the witness had previously testified. However, there was also a practice whereby a witness was allowed to make a written statement in the second instance, by being sent a questionnaire with questions, which he had to fill in and return in the appropriate manner.1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Irrespective of the practice of annulment, I believe that as long as a criminal case can be decided in the ordinary procedure – i.e. without recourse to extraordinary legal remedies – the procedure should be kept in this general framework, and the rules of the Criminal Code, according to which the courts of appeal can order the judicial forums that have previously tried the case to repeat the procedure, provide a good basis for this. In this section, I will of course only deal with retrials ordered by the courts of appeal, since only in such cases can evidentiary issues arise (see retrials ordered by the third instance only for procedural violations, e.g. for breach of the prohibition of weighting).

11.14.1. The retrial at first instance

1 Varga (2009) ibid. 47.
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