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
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11.15.1. Possible directions for the renewal of the lawsuit

11.15.1. Possible directions for the renewal of the lawsuit

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Motions to reopen proceedings are usually submitted by the prosecutor or the defence, but the Act of Obligations – for reasons of guarantee – naturally defines the scope of the persons entitled to file such motions more broadly. The renewal of proceedings may be in favour of or against the accused.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Common rules on motions against the accused:
    • can only be filed by the public prosecutor’s office,1 and the right to file a private prosecution is only available to a substitute private prosecutor and a private prosecutor if the accused has been acquitted or the proceedings have been terminated by a final judgment; 2
    • can only be filed during the life of the debtor and only within the limitation period.3
  2. The common rules for motions in favour of the accused: in addition to the prosecution, the accused, the defence counsel, the legal representative of the accused, the spouse or partner of the accused (against the order of compulsory medical treatment), the lineal relative, brother, sister, spouse or partner of the accused after the death of the accused; after the death of the accused, if more than fifty years have passed since then, a lateral relative may also file a motion for a retrial.4
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In both cases, the motion for a new trial may be withdrawn until the start of the hearing of the court of appeal on the admissibility of the new trial.5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

One of the important innovations in the definition of the persons entitled to bring a motion is that the defender may exercise this option against the will of the accused, while the accused may, as a rule, withdraw a motion for a new trial brought by another party in his favour.6 I do not agree with the possibility of withdrawal, as regards motions for a new trial brought by the defence, as the elimination of evidentiary errors is a technical issue that should not be linked to the will of the accused.7 Grounds for retrial are typically linked to some miscarriage of justice, a criminal offence or some serious procedural error, and as such, in my view, preclude ab ovo the possibility that their correction may depend on the attitude of a lay person, for instance the accused.8 The interests of the stability and legality of sentencing also have a social aspect, which must take precedence over the right of self-determination of the accused.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to general practice, in previous decades, persons with final convictions usually invoked inadmissible reasons (e.g. “procedural trauma”) when prohibiting their lawyers from presenting the motion, and they were allowed to do so even if the power of attorney was signed by an adult relative instead of them.9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The decision to initiate a retrial creates serious legal liability, especially on the part of the prosecution or the defence. For this reason, both parties should endeavour to avoid bringing to court facts that are considered probable but which, because of the length of time that has elapsed, are difficult to prove or irrelevant to the outcome of the main proceedings.10 However, the subjective factors involved in the performance of the defence’s duties are more complex, which means:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The defender should be more flexible in assessing the novelty or relevance of the evidence, on the basis of which, if there is even the slightest indication that the evidentiary procedure needs to be reopened,11 he or she should seriously consider making such a request.12 On the other hand, if the accused himself requests the defence counsel to represent him in the retrial, he should carefully consider the existence of the new circumstance indicated and its likely legal consequences when accepting the request.
  2. The defender must ensure that if a former witness (victim) or expert slips up in a private conversation and says that he or she has given false testimony or a false expert opinion in the main proceedings, the first duty of the defender is to draw the attention of that person to the legal consequences of the earlier false testimony.13 However, if, after this warning, such a witness or expert insists on disclosing the present circumstances to the authorities, even for reasons of conscience, the lawyer can no longer prevent him from doing so, and his ethical duty therefore goes in the opposite direction and he must now act solely in the interests of the prosecution;
  3. It is an important principle that in these proceedings the defender is no longer “defending” against the prosecution but the principal conviction.14 This creates a much more delicate situation, which can have a major impact on the overall professional image of the defender. It is a mistake to think that the lawyer can approach these motions on an all-or-nothing basis, since the retrial involves a criticism of the entire judicial process, which is a serious issue15 and raises the possibility of miscarriages of justice even if new evidence actually emerges in the case which the decision-maker could not have detected even with the greatest care.
1 If the victim or a relative of the deceased victim submits a motion against the accused, the prosecution must decide whether it considers the motion to be well-founded. If so, it may file a motion for a new trial in its own right, otherwise it must inform the defendants of the obstacles to filing. In Belovics–Tóth (2020) ibid. 555.
2 § 639 (1) para.
3 § 638 (2) para.
4 639. §
5 § 640 (1) para.
6 Unless it is submitted a) by the public prosecutor’s office, or b) against an order for compulsory medical treatment [§ 640 (2) para.].
7 § 639 (2) (c)
8 According to Cséka, however, “after the law has become final, it would not be justified to give the defender a right to bring the accused, against his will, before a court.” In Cséka (1985) ibid. 165.
9 According to Fenyvesi, however, the emergence of a new fact may in many cases entail further, lengthy investigations or court proceedings, which can be truly exhausting and “harassing” for the accused. In such cases, the author therefore considers the possibility of a charging order to be appropriate. In Fenyvesi: A védőügyvéd [The defence lawyer.] ibid. 324.
10 For example, the fact that the convicted person became incapable of work as a result of an accident following the final decision. In Bolgár–Kárpáti–Traytler (1962) ibid. 402.
11 For example, because a randomly obtained witness statement suggests that the person convicted of murder acted in a legitimate defence, etc.
12 The difference between grounds for appeal and grounds for rehearing is well illustrated by Traytler when he writes that in the case of a rehearing “unfoundedness may be pleaded, but this at most only supports the order.” In Bolgár–Kárpáti–Traytler (1962) ibid. 399.
13 Even against the encouragement of your client, you cannot fail to give such a warning, which is primarily for ethical reasons.
14 Bolgár–Kárpáti–Traytler (1962) ibid. 414.
15 The same is true for the review procedure.
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