Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.2. Presumption of innocence in evidence

4.2. Presumption of innocence in evidence

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Everyone must be presumed innocent until clearly proved guilty by the court of last instance, following a fair trial.1 The presumption of innocence is a “conditio sine qua non” of civil legal certainty,2 writes Angyal. According to Király, this determines the relationship between the parties to the proceedings, which in fact is not a presumption but a “provisional truth”: “there is no presumption of innocence (no fact indicating innocence is required for the presumption of innocence to exist).”3

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As pointed out by the Constitutional Court in its decision 9/1992 (I. 30.) AB, “the risk of failure of law enforcement is borne by the state. The constitutional guarantee of the presumption of innocence […] expresses this risk-sharing as a specific rule.” It should be noted that the presumption of innocence in criminal proceedings should also imply that the accused will be acquitted for lack of a criminal offence as a result of his unrefuted confession. However, judicial practice is different, because acquittals are made in the absence of evidence, thus maintaining the appearance of guilt.4

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Evidence is the part of the procedure where the presumption of innocence is most “at risk”. However, the presumption of innocence is binding on not only the courts, but also the investigating authorities and the prosecuting authorities. Examples from Hungarian practice:

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  1. those that do not infringe this presumption include
    • blood tests for suspected drink-driving offenders;5
    • psychiatric forensic practice, which is based on the assumption that the accused has committed the offence charged.6
  2. those that violate this presumption are:
    • making statements at a press conference about the guilt of a person in custody;7
    • if the accused is sanctioned for not answering certain questions during the proceedings.8
 

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Following the decisions of the Court of Justice, this presumption is not infringed by the Court’s reasoning that the income of persons convicted of drug trafficking offences in the six years preceding their conviction must be considered to be the proceeds of the offence.9 However, the Court found a violation of the Convention where

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  • after the acquittal of the accused on the basis of the principle of in dubio pro reo, they made findings that the suspicion against the applicant still existed;10
  • the Belgian examining magistrate, at the end of the investigative phase of the proceedings, compared the accused to notorious serial killers in response to his provocation, a statement which was essentially intended to create the impression of guilt in the public mind and to anticipate the decision of the court hearing the case;11
  • in the decision to terminate the proceedings, partly for lack of evidence and partly because of the statute of limitations for negligence, the court used expressions which clearly indicated that the accused was presumed guilty.12
 

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In Hungarian jurisprudence, the practice of imposing and maintaining coercive measures restricting personal liberty is particularly problematic in principle, since these procedural acts are carried out without the accused’s criminal liability having been established.13 The use of arrest seems to be the most worrying of these,14 but in many cases there is no alternative, particularly in the interests of the investigation. At most, legal limits can be set as to the scope of application, but the possibility of ordering it cannot be excluded for offences (e.g. participation in a criminal organisation) where effective investigation cannot be ensured otherwise.

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There is also a view that the burden of proof is in fact reversed in the case of the imposition of various coercive measures, and that the burden of proof is squarely on the defender or defendant to prove that there are no grounds for the imposition. However, I consider this view to be erroneous in the light of current judicial practice in Hungary, since, unfortunately, the courts do not conduct any substantive evidentiary proceedings in the case of decisions on such matters, so that the arguments relating to the burden of proof are also irrelevant.

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On the whole, I believe that the existence of coercive measures does not stem from the presumed guilt of the accused, but from the requirement of the success of the proceedings. And if this requires deprivation of liberty or restriction of liberty, this can be done in exceptional cases, as defined by law.15

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There is also widespread criticism of the application of the law in Hungary, where courts – especially the courts of appeal – are reluctant to grant acquittals and necessarily presume the guilt of the accused in their decision-making. Of course, clear and far-reaching conclusions can never be drawn on this issue. However, a number of empirical studies have been carried out recently, which have revealed judicial opinions that the low number of acquittals can be explained by the necessarily more detailed obligation to state reasons. The results of a court study carried out in 2006 confirmed this assertion, finding that courts of appeal overturn acquittals at first instance at a much higher rate than convictions at second instance (presumably this trend is the reason why the prosecution efficiency rate in Hungary is around 95%). However, the prosecution efficiency rate is explained by the prosecution authority as being a result of the fact that it only prosecutes cases where the evidence is beyond doubt. 16
1 European Convention on Human Rights, Article 6, point 2.
2 Pál Angyal: Az egyéni jogok biztosításának elve. [The principle of guaranteeing individual rights.] In Mihály Tóth (2003) ibid, 44.
3 Király (2003) ibid. 125.
4 Krisztina Karsai – Tibor Katona: Az ártatlanság vélelme és a vádlott meg nem cáfolt védekezése. [The presumption of innocence and the unrebutted defence of the accused.] Jogtudományi Közlöny, 2010/4. 179.
5 BH 1996/5 No 394.
6 BH 1993/3 No 233.
7 EFJ 1997/3 No 54.
8 BH 2002/4. no. 317. In: Ágnes Czine – Sándor Szabó – József Villányi – András Baka: Strasbourgi ítéletek a magyar büntetőeljárásban. [Strasbourg judgments in Hungarian criminal proceedings.] Budapest, HVG-ORAC, 2008. 220.
9 “Phillips vs. United Kingdom” case In: Czine–Szabó–Villányi–Baka (2008) ibid. 221.
10 “Lamanna vs. Austria” In Czine–Szabó–Villányi–Baka (2008) ibid. 221.
11 “Pándy vs. Belgium” case In: Czine–Szabó–Villányi–Baka (2008) ibid. 222.
12 “Grabschuk vs. Ukraine” case In: Czine–Szabó–Villányi–Baka (2008) ibid. 222.
13 “It is reasonable to assume […] that the validity of the principle is questionable in criminal proceedings, since the treatment of suspects as suspects, the use of coercive measures against a person ‘presumed innocent’ would hardly be permissible. However, it must be stressed that these measures do not affect the presumption of innocence, do not weaken it and cannot encourage the prosecuting authority to assume guilt at all costs. In fact, the principle would in itself be little more than a mere dictum, and its real content would be given by the additional principles concerning the evidence.” Karsai–Katona (2010) ibid. 174.
14 See the ECtHR judgment in Peers v. Greece (19 April 2001), which found that the conditions of the pre-trial detention violated the applicant’s human dignity, since they created a sense of hopelessness and inferiority which broke the physical and psychological resistance of the accused and placed him in a humiliating situation. The Court held that the Greek authorities had thus violated Article 3 of the Convention (prohibition of torture). ECHR, 2002/1 No 26. In: Czine–Szabó–Villányi–Baka (2008) ibid. 221.
15 Recommendation No R (80) 11 of the Committee of Ministers of the Council of Europe, adopted in 1980, draws attention to the requirements of necessity and proportionality: “even a person accused of a crime presumed innocent until proved guilty may be detained pending trial only if the circumstances make it absolutely necessary. Pre-conviction detention should therefore be considered an exceptional measure, should never be mandatory and should not be used for punitive purposes”.
16 The right to an effective defence and access to justice in the European Union. Country Report – Hungary. https://www.helsinki.hu/a-hatekony-vedelemhez-valo-jog-es-a-kirendelt-vedoi-rendszer-reformja-2007-2009/
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