Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.3. Objective and subjective criteria of impartiality
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4.3.2. The impartiality of the courts as a necessary criterion of the proceedings

4.3.2. The impartiality of the courts as a necessary criterion of the proceedings

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the case of judicial attitudes, impartiality is a particularly sensitive issue.1 Courts in a democratic society must inspire confidence in society, the primary marker of which is the conduct of the accused in criminal proceedings.2 “The judge must not forget for a moment that the presumption of innocence is not a mere theoretical constraint during the trial, but a practice of conduct which must be enforced minute by minute and which must be expressed in words and gestures.”3 Thus, even indirectly, he may not make expressions that could lead to the presumption of the guilt of the accused, otherwise the defence must make a mandatory motion of bias against the single judge (jury). 4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Fenyvesi draws attention to the following in relation to this problem: “The document, which contains mostly incriminating data generated during the thorough investigation, is given to the impartial examiner together with the accusation. A judge should be on his feet if he strives to avoid the weight of the incriminating evidence presented to him and conduct an objective investigation by doubting and questioning it. Above all, an effective defence, including a professional, skilled defence, can weaken the presumption of guilt from the file and strengthen the presumption of not guilty.”5 (This does not, of course, exclude the possibility of the person being prosecuted defending himself. “The rules of criminal procedure are in conformity with the Constitution if they provide the accused with the means of defence which he may lawfully use and with the right to choose freely the means of defence. The accused may not be restricted in this even by his defence counsel, or, where appropriate, by an ex officio appointed defence counsel.”6)

Jegyzet elhelyezéséhez, kérjük, lépj be.!

No dislike, no sympathy, no previous acquaintance with a colleague, nor any judgement on any personal characteristic of the offender should play any part in the judge’s work. “This is a difficult test of moral fibre. It is even more so if we add that it is not enough to clarify these matters internally, but the judge must also ensure that those present in the courtroom […] see and perceive this impartiality […].”7

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Judicial impartiality must be fully respected not only in the interpretation of substantive criminal law, but also in the exercise of procedural rights, in particular in the conduct of trials and the maintenance of order. As regards the conduct of the trial (maintenance of order), the court is empowered by the Code of Criminal Procedure to apply the sanctions provided for therein, including, where appropriate, those imposed on the prosecutor and the defence.8 This is on the basis of reasonable grounds that no one’s actions should knowingly obstruct the proceedings or lead to an abuse of rights.9 Gyürky writes: “The proper conduct of a trial is of paramount importance because it promotes a prompt and correct decision on the merits, enhances the authority of the court and strengthens confidence in the administration of justice.” 10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I should note that the prohibition of abuse of rights also applies to the courts. There are also written and unwritten ethical rules for the judiciary, under which forcefulness must not lead to arbitrariness. “The conduct of a vigorous trial should be a listening style that gets to the heart of the matter, humanly inquisitive, which can create an atmosphere of trust that encourages [participants] to genuinely tell the story of what happened. What is needed is not professionalism, but a high level ofinterpersonal skills, a way of dealing with people and a method of making the necessary contacts.”11
1 This does not, of course, exclude the possibility that the judge may have certain preconceptions about the facts or the legal classification.
2 1993/7. 553; 1995/8. 637. In: Czine–Szabó–Villányi–Baka (2008) ibid. 224.
3 Csaba Kabódi: Igazságszolgáltatás – szolgáltatás? [Justice – a service?] In Mihály Tóth (2003) ibid. 366.
4 In a domestic case, the first defendant and his defence filed a motion of bias against the then Pest County Court’s presiding judge, because the judge had qualified the documents produced during the evidentiary proceedings by stating that “now comes the exciting part” and had found a telephone number to be unloaded without providing an expert report, thus “quasi-biased”. The accused claimed bias because, according to him, the judge had presented as evidence a photograph in connection with the charge in question which had not been taken at the place mentioned in the charge, but the judge, when showing the photograph, had stated that the accused himself was in the photograph.
5 Fenyvesi: A védői tevékenység alkotmányos és alapelvi vonatkozásai. [The constitutional and principled aspects of defender activity.] In Mihály Tóth (2003) ibid. 168.
6 Á. Farkas – G. Pap: Alkotmányosság és büntetőeljárás. [Constitutionality and Criminal Procedure.] In Fenyvesi: A védői tevékenység alkotmányos és alapelvi vonatkozásai. [The constitutional and principled aspects of defender activity.] In Mihály Tóth (2003) ibid. 164.
7 Kabódi (2003) ibid. 367.
8 In this area, there are generally two models of regulation in the field of substantive law: in the continental model, the chairman of the board not only directs or supervises the taking of evidence but also carries it out himself; while in the Anglo-Saxon system of trial, the interrogations are not within his powers because they are carried out by the parties. Ervin Cséka: A büntetőtárgyalási rendszer. [The criminal trial system.] In Mihály Tóth (2003) ibid. 349.
9 Fenyvesi: The constitutional and principled aspects of defender activity ibid. 165.
10 István Gyürky: Negotiation conduct through the eyes of the judge. Hungarian Law, 1975/3–4. 193.
11 The author adds: “Serious consideration must be given to the fact that many people are first-time visitors to court, do not and cannot know the required forms of behaviour, behave inappropriately in their embarrassment […], or are primitive persons whose daily manner of interacting may be disrespectful in court. It is for the judge to choose the correct conduct which will dissolve these inhibitions.” In Gyürky (1975) ibid. 193.
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