Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XII. The evidentiary features of juridical proceedings in each of the special procedures
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12.3. Evidentiary issues in military criminal proceedings

12.3. Evidentiary issues in military criminal proceedings

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The evidentiary characteristics of military criminal proceedings are summarised below:

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  • Investigations are not carried out by general authorities but by specialised authorities (military investigative authorities and military prosecutors), and evidence is ultimately taken by military councils in designated courts (only military courts can be approached to take evidence outside the trial).1
  • Other participants in the proceedings are usually persons (e.g. witnesses, victims) who are soldiers in the criminal sense or who have some connection with military life.2
  • Specific principles, such as the principle of strengthening discipline, the principle of expeditiousness, the principle of professionalism and the principle of confidentiality, should apply to the whole evidentiary procedure.3
 

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The requirement of professionalism must be met first and foremost by the specialised authorities and military tribunals, while the obligation of confidentiality may be required of all other participants in the proceedings. Thus, for example, the (unauthorised) disclosure of information to the public by a military witness may give rise not only to criminal but also to military disciplinary liability4of that person.

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  1. The principle of expeditiousness is primarily aimed at maintaining and preserving military order and discipline and implies the requirement that proceedings should be conducted as quickly as possible, even faster than the general (reasonable) procedural time limit. This principle is supported, inter alia, by the rule that
    • after one month from the date of the command investigation, if the competent commander (leader) has not completed the investigation, the military prosecutor must examine the file; 5
    • in the case of criminal offences of a simple factual and legal nature (including in particular military offences), the investigation of which is being conducted by the military prosecutor, shall be completed, if possible within thirty days of the order.6
    Hautzinger points out that “despite the general investigation deadlines in military criminal proceedings, the authorities (mainly the regional military prosecutors) complete their investigations within the two-month time limit in more than four fifths of cases, going back many years. Investigations beyond six months account for only 1% of cases, and there have been no examples of investigations against a specific person having to be closed because they exceeded the two-year time limit.”7
  2. With regard to the principle of professionalism, the current status of expert evidence in particular requires clarification. In the past, expert advice was obtained through the use of “military forensic experts”, but this system has now been justifiably discontinued, as the legislator has recognised that the provision of this special status is of no relevance to the advancement of evidence.8 It should be noted that the appointment of military experts used to be based on a special list of military forensic experts who could be used in proceedings in military courts, according to their jurisdiction. The list included, in particular, (1) medical experts, (2) motor vehicle experts and (3) other experts with specialised knowledge whose services were more frequently called upon in such proceedings.9
    The secondment of experts currently follows the general rules, and secondment decisions usually address issues that arise in general procedures. The abolition of the status of military experts does not mean, however, that experts seconded in military criminal proceedings should not, where appropriate, have specific expertise – military or related to the law enforcement organisation concerned – “going beyond” the general expert questions. Obviously, only an expert with sufficient expertise in matters such as the soldier’s service relationship or the specific rules governing the functioning of the military organisation concerned can be appointed to deal with such specialised questions.10 In the field of expert evidence, the responsibility of the competent authority (the court) in choosing the expert is therefore even greater than usual. However, the Regulation does not make any reference to the obligation of the appointing authority (court) to choose the expert with due care in certain specialist matters.11
 

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According to Hautzinger, it would be appropriate to regulate the concepts of “military witness” at the level of the law, and to make specific reference to the special rights of “military witnesses” (e.g. the right to remain in service, the right to a qualified defence counsel, the duty of cooperation and tolerance). In addition, specific witness protection rules should be defined which could have a significant impact on the credibility of witness testimonies.12

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Compared to the legislation on juveniles, the Criminal Code does not refer to any special means of evidence that would necessarily have to be obtained in these proceedings. Means of evidence such as documents proving age or the content of a background study can only be considered evidence in a broader sense, since they do not refer to a fact relevant to criminal law in these proceedings, but only to the criminal history or financial situation of the accused.13

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Nevertheless, there are lower legal standards under which certain documents cannot be dispensed with, in particular with regard to the general personal circumstances of the accused. For example, pursuant to Military Instruction No. 15/2003 (O.C. 7) on the tasks of the military prosecution in criminal proceedings in relation to the preparation of charges, the supervision of the legality of investigations and the investigation and indictment of criminal cases by the military prosecution (hereinafter: Military Instruction No. 15/2003), which states that:

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  • the investigation should obtain various service records (e.g. commendations or rewards, disciplinary actions, results of psychological fitness tests, commanders’ characterisations, ratings);14
  • in the event of a prosecution, if the accused is liable to a fine, a statement of the last 6 months’ salary and any documents that may clarify his or her financial situation must be obtained.15
 

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As for the types of evidence, there are no specific rules either. In particular, the way in which they are carried out may seem specific when they are carried out in the premises of a military or law enforcement agency. Together with this:

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  • In the event of the detection of offences within their jurisdiction which are suitable for on-site inspection, the territorial military prosecution authorities shall carry out the urgent investigative acts within their own jurisdiction, and the military prosecutor shall immediately take over the direction of the on-site inspection or other investigative acts initiated by another investigative authority as an urgent investigative act in military criminal proceedings.16
  • In the case of a confrontation, it may be a concern if the persons involved have different positions or ranks. One of the explicit shortcomings of the Be. is that it does not contain any guidance in this respect, for example on the mandatory non-confrontation or the requirements relating to the identity of the participants. It is obvious that the mere presence of a superior can influence a subordinate person, even if this hierarchical relationship does not directly apply (e.g. persons assigned to different posts). Therefore, in such cases, the confrontation cannot fulfil its evidential function. Nevertheless, it is clear that this act of taking evidence cannot be excluded from military criminal proceedings by law, but it would be justified to lay down a rule that it can only be ordered if the persons involved are of the same military rank.
1 Sándor Kardos: A magyar katonai büntetőjog múltja és jelene. [The Past and Present of Hungarian Military Criminal Law.] PhD thesis, Miskolc, 2003. 234.
2 A soldier is a member of the Hungarian Defence Forces, the police, the Parliamentary Guard, the penitentiary organisation, the professional disaster management organisation and the civilian national security services (CC 127. §).
3 Flórián Tremmel: A katonai igazságszolgáltatás tricentenáriumi vetületei. [Tricentenary aspects of military justice.] In Gyula Bögöly – Zoltán Hautzinger (eds): Az önálló katonai büntető kodifikáció tricentenáriuma. [The Tricentenary of Independent Military Criminal Codification.] Pécs, Kódex Nyomda, 2007. 243.
4 I would like to note that in disciplinary proceedings, too, the facts must be clarified, and it is necessary to establish the circumstances in favour of and against the accused, but the fundamental difference compared to the evidence taken in criminal proceedings is that other documents or other evidence from official or judicial proceedings may be used, and that it is sufficient to prepare a report of the inspection. In: Bögöly–Hautzinger (2007) ibid. 244.
5 Instruction No. 15/2003 (ÜK. 7.) LÜ (§ 49/A.) on the tasks of the military prosecution in criminal proceedings concerning the preparation of charges, the supervision of the legality of investigations and the investigation and indictment of criminal cases by the military prosecution (§ 49/A.) In: Bögöly–Hautzinger (2007) ibid. 244.
6 Joint Chief Prosecutor’s Circular No. 3/2008 (O.C. 4) on the development of uniform document management and case management practices in the military prosecution organisation, para. In: Bögöly–Hautzinger (2007) ibid. 245.
7 Antal Ettig: A katonai ügyészi szervezetről. [On the organisation of the military prosecutor.] Ügyészek Lapja, 2006/6. 10.
8 Bögöly–Hautzinger (2007) ibid. 245.
9 Károly Szíjártó – György Korda: A katonai büntetőeljárás általános szabályai. [General Rules of Military Criminal Procedure.] In György Rudas (ed.): Büntető eljárás-jog.[Criminal procedure law.] Belügyminisztérium, Budapest, 1974. 569.
10 In the past, such matters included military, financial, clandestine administration or, for example, motor vehicle knowledge. In János Székely (1967) ibid. 220.
11 Zoltán Hautzinger: A katonai büntetőjog rendszertana. [The taxonomy of military criminal law.] Pécs, 2010. 35.
12 Hautzinger (2010) ibid. 37.
13 Hautzinger (2010) ibid. 44.
14 Art. 49/C (3) para.
15 Art. 49/C (5) para.
16 Joint Chief Prosecutor’s Circular No. 3/2008 (O.C. 4) on the development of uniform document management and case management practices in the military prosecution organisation, para. In: Hautzinger ibid.
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