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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11.15.3. The stages of the renewal of a lawsuit

11.15.3. The stages of the renewal of a lawsuit

Jegyzet elhelyezéséhez, kérjük, lépj be.!

There are two stages in the renewal procedure:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. In court proceedings to decide on the admissibility of a renewal:
    • the application for revision shall be heard (1) by the court law, if the district court ruled at first instance in the main proceedings, (2) the court of appeal, if the court of law ruled at first instance, and (3) the court of appeal, in a deliberation; and accordingly, no evidence shall be taken at this point;
    • the court obtains the case file of the main case after the receipt of the motion for a new trial, if it has not been attached by the prosecution;
    • if a decision on the admissibility of a retrial requires the discovery of evidence, the court will order a retrial investigation (see 9.5.6);
    • if the court finds that the application for revision is well-founded, it orders revision by way of a non-appealable order and, as a general rule, (1) refers the case back to the court of first instance in the main proceedings for a retrial, or (2) refer the application for revision to the court having jurisdiction; if the application for revision is unfounded or is excluded by law, or if it is not made by a person not entitled to it or is out of time, the court shall dismiss it by an order which is not dispositive; if the application for revision is renewed with the same content, the court shall dismiss it without giving any reasons on the merits.
  2. In the renewal procedure:
    • there is no place for a preparatory hearing (however, in my opinion, this rule needs to be reviewed, as the retrial may be based on completely new facts and evidence, which requires the application of the general rules on the preparation of the trial);
    • the court presents the substance of the judgment and the order for reopening the case at the hearing, instead of the indictment (the reopening proceedings are no longer essentially directed against the indictment but against the judgment in the main case);
    • the scope of the evidence is limited: (1) its scope is determined only by the ground (e.g. new testimony) for which the retrial was ordered; (2) no evidence may be ordered that would result in a change in the burden on the accused if the motion for a retrial was filed in the accused’s favour;1
    • decisions taken after a retrial are subject to the general rules on appeals.2
1 The court’s discretion is limited in the interest of the accused by the provision of the law according to which, if the retrial motion has been filed in favour of the accused, the provisions on the prohibition of aggravation shall apply mutatis mutandis when a new decision is rendered. Therefore, if, during a retrial ordered on the basis of a motion for a new trial in favour of the accused, the court imposes a more severe sentence than the one applied in the main case, it will also violate the prohibition of aggravation in addition to the rules on retrial, which will constitute grounds for review (ECHR 2014.B.11).
2 643–647. §§
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