Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.15. Interpretation of “novum” and the particularities of proof in the case of a retrial

11.15. Interpretation of “novum” and the particularities of proof in the case of a retrial

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A review is a non-appealable, extraordinary remedy against a final decision on a case, which may only be used within the scope defined by the Be.1 Since the main purpose of a review is to correct factual issues, it usually involves evidentiary issues.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that the rule of law requirement of the principle of legal certainty expresses that if a final judgment has already been handed down in a case, no new criminal proceedings can be brought against the same defendant on the basis of the same facts and evidence. According to Elek, res judicata ensures the stability of the legal order and the enforcement of the will of the State and the law. If the criminal convictions of the courts could be challenged indefinitely, this would undermine the enforcement of the law, the will of the state, confidence in legal certainty, and the meaning of the proceedings of state bodies. By the legal force of a decision we also mean the property by virtue of which it is irreversible, irrefutable by both the court and the parties.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Király captures the essence of res judicata in the finality of the decision,3 which means for the convicted person that it can no longer be changed to their detriment, is binding, enforceable and has evidentiary value.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Of course, no civilised legal system can question the possibility of challenging final decisions, since res judicata is not a symbol of judicial infallibility, but the sole means of bringing proceedings to a necessary conclusion.4 For my part, I believe that a judgment can never be entirely acceptable to all concerned. Procedural ‘scepticism’ must therefore be an intrinsic and constant element of criminal proceedings. This does not mean, of course, that the rightful claimants must seek an extraordinary remedy for every final decision, but: (1) the frequency of prosecutorial and lawyer activity in this area tends to be negligible;5 (2). the dignity and case management methods of these professions should not be undermined by hastily produced motions.6

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The grounds for renewal of proceedings relevant to the taking of evidence are:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Novum: new fact or evidence that makes it likely that
    • the suspect must be acquitted, a substantially lighter sentence must be imposed, a measure must be taken instead of a penalty or the criminal proceedings must be terminated, or
    • the guilt of the accused must be established, a substantially more severe penalty must be imposed, a penalty must be imposed instead of a measure, or a measure substantially more severe than the measure applied instead of a penalty must be applied.7
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is important to note that (1) the new statement of facts can only lead to the order of a retrial if it is accompanied by new evidence,8 and (2) the new evidence must be probative of the new facts, so the court – when deciding on the admissibility of evidence – can only examine whether the evidence, if it is genuine and competent, would justify a retrial (it cannot therefore assess the strength of the evidence indicated in the motion).9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A motion for reconsideration may concern:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The issue of guilt: in this context, new evidence may make it likely that the conviction or acquittal of the accused was wrongly made. “Thus, for example, the acquittal of the accused is likely to be based on the testimony of a witness who was not known at the trial of the main case and therefore not questioned, and who, in support of the defence of the accused, can state that the victim clearly acted in an aggressive manner and that the accused only hit the victim in order to prevent an unlawful attack […]. Of course, the reverse may also be the case, with the result that the accused is likely to be found guilty.”10
  2. The question of sanction: in this area, the new evidence concerns the type or level of sanction. In this case, the new evidence must be likely to lead to the imposition of a substantially more severe or less severe sanction, and the possibility of a minor modification of the sanction should not lead to the initiation of proceedings.11 Thus, for example, the statutory penalties for the offences of assault causing danger to life and death are the same, but a retrial is not excluded in the event that after the conviction has become final, the victim dies as a consequence of the assault and this fact, which has subsequently become known, makes it likely that the change in the classification will lead to a substantially more severe penalty being imposed on the victim.12
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

First of all, the court must consider the novelty of the subject matter of the nova, for example, the testimony of a person who refused to testify in the main case by exercising his or her right to immunity.13 On the other hand, the testimony of a witness (1) who, by answering the question, would accuse himself of having committed an offence for which a complaint against him was previously dismissed, (2) against whom the proceedings against were terminated, (3) who is not liable to prosecution because of his cooperation with the authorities, (4) who has entered into a settlement, or (5) against whom the prosecution has issued a decision or taken action pursuant to Section 404 (2) a) of the Criminal Code, cannot be considered new evidence. 14

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The novelty of the evidence referred to in a motion for a new trial is easier to establish if it did not arise at all in the main proceedings, i.e. if it was not brought to the attention of the court in any form. The practical difficulties usually arise when the application for revision relies on facts, data or other circumstances that were already known to the court in the main proceedings. 15

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In order to resolve this legal uncertainty, judicial practice has narrowed down the scope of the nova that can be designated in the petition, on the basis of which all the evidence that the court in the main case considered when establishing the facts cannot be considered new evidence for the purposes of the retrial. The main rationale behind this logic is that it is not the means of evidence but the piece of evidence that must be new, and therefore if the same evidence comes from a different source, there is no need for a retrial.16

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The following cannot be considered as new evidence or the basis for a retrial:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the evidence was submitted in the motion to supplement the evidence and was rejected (see the court’s assessment of this in the grounds of its decision to dismiss the case);17
  • the written statement of the co-defendant in the main proceedings denying both his own guilt and the guilt of the other accused, made after the proceedings had been finally concluded, which, in addition to the novelty of this admission, contains the same statement as before, that the other accused in the case did not participate in the commission of the offence, if the court in the main proceedings excluded the same defence of the other accused and the statement of the co-defendant who testified in his favour, by assessing the evidence of contrary content; the newness of the subsequent confession of the co-defendant does not affect the other accused and the previous, but refuted, allegation made in that regard cannot be regarded as new in respect of the convicted person concerned by the retrial; such a retrial motion does not plead a ground for retrial but challenges the discretion of the court;18
  • a reference concerning the personal circumstances of the sentenced person which relates to a fact occurring after the final decision in the main proceedings;19
  • the convicted person’s good conduct during the execution of the sentence, his or her deteriorated state of health;20
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

On the contrary, the following can be used as a basis for new evidence or a retrial:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • testimony relied on in a motion to compel evidence in the main proceedings that was not denied, if the witness was not examined in the main proceedings;21
  • the testimony of a witness who has been called as a witness in the main case and who could not be called solely because of some impediment (being in an unknown place, illness, etc.);22
  • the testimony of a witness who has already been heard in the main case, which relates to other facts not concerned in the main case;23
  • a new opinion of the expert in the main case, different from the previous one;24 the fact that the opinion of the medical experts annexed by the petitioner is not considered as an expert opinion but as documentary evidence does not preclude the renewal of the proceedings;25
  • a new medical certificate for a medical condition which substantially reduces the capacity to bear the penalty and which already existed at the time of the decision;26
  • if the juvenile defendant was convicted as an adult in the main proceedings or if the adult was prosecuted under the provisions applicable to juveniles and a significant change in the sentence is expected as a result.27

11.15.1. Possible directions for the renewal of the lawsuit

11.15.2. Practical problems with the interpretation of the reference to expert opinions as a ground for renewal

11.15.3. The stages of the renewal of a lawsuit

1 § 636 (1) para.
2 Balázs Elek: The force of law in criminal proceedings. University of Debrecen, Faculty of Law, Department of Criminal Procedure, 2012. https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/a-jogero-a-buntetoeljarasban.pdf
3 Tibor Király (2000) ibid. 494.
4 “Res judicata does not therefore imply inadmissibility of the facts, because the possibility of proof is perpetual, subject only to substantially strict conditions.” In Bolgár–Kárpáti–Traytler (1962) ibid. 399.
5 According to Fenyvesi’s empirical research, “11 out of 32 lawyers who responded had never initiated either a retrial or a review, 21 had initiated one, but did so relatively rarely. They almost all agreed that they had had little success. For this, one of them blames the courts, who always think the evidence is fabricated.” In Fenyvesi: A védőügyvéd. [The Defence Lawyer] ibid. 322.
6 The substitute private prosecutor can only bring a motion for a retrial if the accused has been acquitted or the proceedings, except for the indictment, have been terminated. The application for a retrial must be filed in writing or entered in the record before the court competent to decide on the admissibility of the retrial (§ 814).
7 § 637 (1) (a)
8 Belovics–Tóth (2020) ibid. 549.
9 BH 2004. 229.
10 Belovics–Tóth (2020) ibid. 550.
11 Belovics–Tóth (2020) ibid. 550.
12 BH 1984. 443.
13 § 637 (2) para.
14 Belovics–Tóth (2020) ibid. 548.
15 The “facts of the case” are therefore those which formed part of the historical facts. In Belovics–Tóth (2020) ibid. 549.
16 BH 2011.305. and BH 2015. 123.
17 BH 2001.163.
18 EBH 2012.B.33.
19 BH 2009. 353.
20 BJD 376.
21 BH 2001.163.
22 BJD 4571.
23 Belovics–Tóth (2020) ibid. 549.
24 BH 1989. 144.
25 BH 2013. 60.
26 BH 1976. 396.
27 Belovics–Tóth (2020) ibid. 550–551.
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