Viktor Bérces: Evidence in Criminal Proceedings
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Chapter III. Basic concepts of evidence
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3.2. Procedural system – system of evidence

3.2. Procedural system – system of evidence

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A system of evidence is a coherent set of principles that relate to the task, subject, acts, means and results of evidence. These systems are adapted to the nature of the procedural system as a whole. Since litigation is relevant to the subject matter of our study, we must accordingly start from a narrower concept of procedural system: a procedural system is the set of operational and structural principles of litigation that determine the main functions of the processes and the rights and obligations of the subjects of the proceedings. Historically, two categories of procedural systems have emerged:

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  1. The accusatorial system of procedure, in which:
    • proceedings are typically initiated following a complaint;
    • the parties are responsible for providing evidence to the court (service of process);
    • the procedural functions (prosecution – defence – judgement) are separate, so that the powers relating to each are exercised by separate persons or bodies;
    • the accused has the same rights as the accuser;
    • it is not the court’s task to establish the true facts, but merely to decide on the parties’ requests for evidence (formal truth);
    • the negotiations are based on the principles of publicity, immediacy, informality and adversarial procedure;
    • the parties’ rights of disposition (e.g. as regards the determination of the end of the proceedings) are recognized in a very broad sense.1
    This procedural model developed in classical Roman law and characterised the judicial practice of most European states until around the 15th century. In Hungary, it was most typical between the 11th and 13th centuries.2 Erdei traces the development of this system back to the institution of the so-called ‘travelling judges’, who could not know what acts had been committed in their absence and were therefore unable to perform the function of prosecutor.3
     
  2. The inquisitorial (investigative or interrogative) system of procedure, in which:
    • proceedings are typically ex officio;
    • the procedural functions are not separated, but the investigator (inquirens) is responsible for gathering evidence, drawing up the minutes, submitting them to the court and participating in the adjudicative activity;
    • the accused is not the subject but the “object” of the proceedings, and accordingly his rights are not enshrined in an institutional legal framework; nevertheless, his testimony constitutes the “primary evidence”;
    • there is less sensitivity to evidentiary violations or procedural violations by the authorities;4
    • it is the task of the courts to establish the facts as accurately as possible (material or substantive truth);
    • negotiations are based on the principles of confidentiality and written confidentiality, with no substantive legal argumentation;
    • torture (to extract a confession) is a typical method of evidence.
    This procedural model characterised the practice of most European states in the late feudal and modern periods, and was the dominant form of litigation in Hungary until the 13th and 19th centuries.5
     
  3. The mixed procedural systems developed as a result of the codification wave of the Great French Revolution and the Napoleonic Code d’ instruction criminelle (1808), with the investigative section being inquisitorial and the judicial section accusatorial. The role of the judge is active in the trial, his aim being to establish the substantive truth. Most of today’s codes of criminal procedure follow this system. 6
    Petra Bárd argues that “much has changed in continental criminal procedure since the abolition of torture, although the break with the inquisitorial process has been an extremely slow process, taking centuries.”7 The systems of evidence based on the continental tradition are, however, generally considered to be characterised by a predominantly inquisitorial approach. According to some authors in legal literature, the procedural systems of no European state can be described as either purely inquisitorial or as an accusatorial system, but in each case a mixed type seems to be an acceptable category. The views of the following authors are noteworthy in this respect:
    • According to Nijboer, the Netherlands is considered the “most inquisitive” country, while England and Wales are the “most acquisitive.”8 Sweden, Germany and Hungary, on the other hand, are described as a “halfway house” between the two systems.
    • According to Damaska, the most basic differences can be classified into one of the two models above, with certain basic institutions (e.g. presumption of innocence, right to representation or confrontation, etc.) being found in both systems.9
    • According to Van Koppen, an accusatorial system is a dispute between equals, in which the contest is real if it is conducted in a fair procedural framework and the participants are formally equal. The system involves a jury trial, which, however, raises the possibility of errors of assessment. A further feature of this system is that the role of the adjudicator is limited to determining the scope of admissible evidence.10 In contrast, the inquisitorial system includes a “thorough and formal investigation” capable of establishing the true facts. The mutual agreement of the parties must not limit the work of the specialised court, so that once the case has reached the trial stage, the court has the (sole) responsibility for establishing the truth.11
 

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Whichever of these features or differences is taken as a basis, this tripartite division (accusatorial–inquisitorial–mixed) is still used in criminal jurisprudence. However, this has been the subject of much criticism in recent legal literature, mainly because of the “shallowness” of the classification. Summers sees it as “legal chauvinism” that contemporary legal scholars persist in repeating these categories, rather than aiming to describe and characterise their own legal system as precisely as possible. According to the author, this is mainly due to indifference and mistrust of foreign legal systems. 12

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The phenomenon is exemplified by Spencer’s view that “one (and probably the only) thing the average Englishman knows about a French criminal trial is that the accused is presumed guilty.”13 On the other side, Hodgson summarises the words of the former French foreign minister in the Senate, who said that the accusatorial (Anglo-Saxon) system is inherently unfair because it favours only the wealthy who can afford lawyers. The final conclusion of the minister is that the French system, with its inquisitorial features, is preferable both in terms of efficiency and individual rights.14
 

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The general categories of evidence systems determined by procedural systems are:

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  1. The basic characteristic of a bound (formal) system of evidence is that the law specifically defines the types of evidence that can be evaluated in the proceedings, their probative value and what must or cannot be considered as evidence. According to Jenő Balogh, in the case of this system, “it is not the judge in concreto but the source of law in abstracto that must determine what may and must be considered as evidence, namely, if a certain amount of evidence, as defined by law or practice, cannot be obtained in respect of a disputed factual circumstance, then that fact cannot be taken as evidence by the court, in particular, the guilt of the accused must not be established, but if a sufficient number of items of evidence, whether laid down by law or accepted in practice, are available, the fact must be taken as proved and the accused must be convicted if guilt is proved.”15 In the words of Móra, it can therefore be said that, in this system, the legislature assumes part of the responsibility of the courts.16
    Two types of evidence-binding systems have evolved:
    • in the positive evidence system, conviction is mandatory in certain cases, regardless of the judge’s internal convictions (e.g. in the case of a confession); these systems are now clearly not typical; in these systems, therefore, “the law has determined what must be taken as true, the quantity and quality of evidence necessary to convict the accused.” 17
    • in the negative-bound system (from the 19th century), the accused may be convicted only on the basis of certain evidence, but is not obliged to be convicted; in this system, therefore, “the law has laid down what must not be considered true, what the minimum amount of evidence on the basis of which the judge may give a conviction is.”18
  2. Under the free system of evidence, it is entirely at the discretion of the authorities (courts) to decide what is admissible as evidence in criminal proceedings. The need for free evidence is (1) derived by some authors from the realisation that the probative value of certain evidence is too “context-dependent”19 to be determined in advance;20 (2) according to other authors, it has emerged as a result of the elimination of the inefficiencies of the bound evidence system.21 "Today’s legislation does not expose the free system of evidence to the arbitrariness of the judiciary or the authorities, but sets limits by establishing legal norms for the taking of evidence and the acquisition of means of proof. It usually does so by listing, exhaustively or not, the means of proof; by regulating the manner of obtaining them […]; by laying down prohibitions on proof. The law, however, leaves intact the freedom of the judge’s discretion, does not determine the value of evidence; the judge evaluates it […] individually and as a whole according to his conviction and subject only to the law and his conscience.”22
  3. Finally, the so-called mixed systems of evidence can take different forms: (1) the means of proof are based on law, but their discretion is completely free; (2) the means of proof are only partially regulated, but their discretion is completely free; (3) the means of proof are only partially regulated, but there are minimal restrictions on their discretion; (4) the means of proof are partially regulated, or some evidence may have a predetermined probative value.23
1 To take a modern example, this is the institution of plea bargaining.
2 Mezey–Pomogyi (2001) ibid. 357.
3 Árpád Erdei: Mi az igazság? [What is the truth?] In: Erdei (2010) ibid.13.
4 Zsanett Fantoly: Akkuzatórius vagy inkvizitórius büntetőeljárást? (Versengő rendszerek). [Accusatorial or inquisitorial criminal procedure (Competing systems)]. In: Ferenc Nagy (ed.): Tudományos előadóülés a Bűnügyi Oktatók Országos Találkozóján. [Scientific Lecture Session at the National Meeting of Criminal Justice Educators.] Szeged, 2009. 36.
5 Mezey–Pomogyi (2001) ibid. 358.
6 Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz (2002) ibid. 450.
7 P. Bárd (2014) ibid. 35.
8 Nijboer, J. F.: The Significance of Comparative Legal Studies, in Nijboer, J. F. – Sprangers, W. J. J. M: Harmonisation in Forensic Expertise: An Inquiry into the Desirability of and Opprtunities for International Standards, Amsterdam, Thela Thesis, 2000, pp. 399–410, in Fantoly (2009) ibid. 33.
9 Damaska, Mirjan R.: The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, New Heaven, CT, Yale University Press, 1986, in Fantoly (2009) ibid. 33.
10 Van Koppen, Peter J. – Penrod, Steven D.: Adversarial or Inquisitorial: Comparing Systems. In: Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems. In: Perspectives in Law and Psychology. volume 17. 2–12. ibid.
11 Van Koppen ibid. 2–3. ibid.
12 Summers, Sarah J.: Fair trials: the European Criminal Pocedural Tradition and the European Court of Human Rights. Oxford, Hart Publishing, 2007. In Bárd–Hack–Holé (eds.): Pusztai László emlékére. [Memory of László Pusztai.] (1993) ibid. 23.
13 Spencer, John R.: French and English Criminal Procedure – A Brief Comparison. In Markesinis, Basil S. (ed.): The Gradual Convergence. Oxford, Oxford University Press, 1994. In P. Bárd (2014) ibid. 24.
14 Hodgson, Jacqueline: Suspects, Defendants, and Victims in the French Criminal Process: the context of Recent Reform, International and Comparative Law Quarterly, 2002/51, 785.
15 Bp. 487. p.
16 Móra–Kocsis (1961) ibid. 258.
17 Be. Com. (1967) 63.
18 Be. Com. (1967) 63.
19 See ad hoc.
20 Károly Bárd: Bizonyítási rendszerek és az igazság kiderítése büntetőügyekben. [Evidence systems and the establishment of the truth in criminal cases.] Budapest, Magyar Büntetőjogi Társaság, 2011. 31.
21 “This could not be a completely arbitrary ruling either, it is just that there is no legal limit to the obtaining and evaluation of evidence, and there is no predetermined probative value of the evidence.” Lőrinczy (2017) ibid. 217.
22 Be. Com. (1967) 63.
23 Belovics–Tóth (2020) ibid. 161.
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