Viktor Bérces: Evidence in Criminal Proceedings
›
Concluding thoughts

Concluding thoughts

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I consider the biggest advantage of Act XC of 2017 to be the changes in the coordination of the evidentiary procedure. This is more than just the introduction of some ancillary legal measures (e.g. special treatment) or the introduction of new special procedures (e.g. procedures for border-related offences), which are essentially applicable to peripheral situations. The legislator has modified the role and general function of the persons involved in the whole process of taking evidence, thereby – wittingly or unwittingly – moving our system of taking evidence, which has traditionally been characterised by continental features, towards the Anglo-Saxon system.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In addition, there has been a particular focus on the various possibilities of cooperation on the charge, which aim to induce the offender to confess and to shorten proceedings and minimise their costs. However, these detailed rules appear rather “scattered” throughout the law (e.g. preparatory meeting, plea bagrainingprocedure), and it would therefore be appropriate to introduce a separate chapter in which these rules are placed in a uniform way, for example under the heading “possibilities of cooperation in relation to the offender”.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The above tendencies can be observed at all procedural stages: the introduction of the investigation as a separate stage (distinct from detection) in the investigation is essentially a preparatory stage for the use of simplifying procedures, during which the prosecutor seeks the possibility of consensual processes such as mediation or conciliation/plea bargaining, which are typical of the Anglo-Saxon type. This fundamentally reduces the hitherto classical role of the investigation, since if the conditions for these procedures are met, further investigative acts become pointless.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The prosecutorial (intermediate) stage has become the main stage for simplified or expeditedprocedures. The filing of an indictment, as a classic prosecutorial function, has become an alternative when the law allows for the use of other procedural options. This approach is also supported by the way in which the Be. is drafted, since the law discusses all other procedural options – diversionary or simplifying – before the rules on the indictment or the charge sheet.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The biggest paradigm shift has been in the principles of the evidentiary procedure followed by the courts of first instance. The most important consequence of this is that the court is no longer obliged to obtain evidence ex officio, but that the law makes it an obligation of the parties. This means that, again following the Anglo-Saxon model, the “trial of the accused” has become the main rule, under which evidence must be primarily directed by the prosecution and the new material generated in the trial must be the result of the evidentiary motions of the accuser, the defence and the accused.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that in some EU Member States there is now a clear mix of elements of the continental and Anglo-Saxon systems. In particular, the criminal justice systems of countries that have been based on continental legal traditions are gradually adopting the procedural constructs of the US and the UK, mainly with a view to simplifying criminal proceedings. There is no doubt that the role of evidence is diminishing, and the need to establish substantive (material) justice is becoming secondary.1 However, as Nelken puts it, it is simply a matter of understanding the underlying meaning of the different legal institutions and being able to move beyond the rigid framework of our current thinking.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The main question is how long and to what extent the Hungarian judiciary will be able to adapt to this change in approach. Will judges continue to demand ex officio evidence? If it is assumed that the legislator continues to regard the truthful establishment of the facts as a general obligation of the courts, it is difficult to reconcile the concept of “litigation in the case of a client” with this expectation. It should also be borne in mind that the law continues to provide for a very wide range of possibilities for setting aside decisions of the court of first instance on the grounds that they are unfounded. A particular question is also what approach will be passed on to future generations of judges in the ongoing and compulsory training of court draftsmen, court secretaries and judges already appointed.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In conclusion, I believe that preserving and improving the quality of evidence in criminal proceedings is a shared responsibility of investigating authorities, prosecution services and courts, and therefore scientific analysis of the context of evidence in investigations, prosecution and court proceedings is warranted in the near future.
1 Thus, Petra Bárd’s approach suggests that the “suspicion” and fear of each other is diminishing. This is a major step forward, given that the US Supreme Court in the 1960s, in its decisions on the prohibition of self-incrimination and the right to remain silent, saw the continental tradition as a clear negative example. See Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436 (1966) In: P. Bárd (2014) ibid. 42.
2 Nelken, David: Comparative criminal justice: making sense of difference. London, Sage, 2010. 43. In: Bárd (2014) ibid. 43.
chevron_left
chevron_right
Tartalomjegyzék navigate_next
Keresés a kiadványban navigate_next
A kereséshez, kérjük, lépj be!
Könyvjelzőim navigate_next
A könyvjelzők használatához
be kell jelentkezned.
Jegyzeteim navigate_next
Jegyzetek létrehozásához
be kell jelentkezned.
    Kiemeléseim navigate_next
    Mutasd a szövegben:
    Szűrés:
    Kiemelések létrehozásához
    MeRSZ+ előfizetés szükséges.
      Útmutató elindítása
      delete
      Kivonat
      fullscreenclose
      printsave