Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.6. The in dubio pro reo principle

4.6. The in dubio pro reo principle

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This principle sets out the requirement to prove guilt beyond reasonable doubt, which creates obligations – direct and indirect – for the investigating authority, the public (or private) prosecutor and the court. It should be noted that the assessment of the minimum level of proof is a highly subjective smatter. Nevertheless, there are some decision-making principles, mainly developed in judicial practice, which serve as a “lifeline” for the legal practitioner in doubtful situations, such as:

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  • “One witness is no witness.”
  • “We do not disagree with expert opinion.”
  • “Testimony is the crown of evidence.”
  • “In a case when one accusation is in conflict with another accusation, the former shall prevail.”
 

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However, certain criteria are given, which the court will use as a basis for its judgement, such as “common sense”, documentary evidence, logic, life experience or the relevance of the facts. It is important, however, that these factors should only play a subsidiary role and should never hinder the development of legal reasoning (adversarial procedure).

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In the area of judicial practice, I would highlight the following case law:

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  • the court can only take a position on the question of the accused’s mental state and his sanity by assessing the doubt in favour of the accused, if a scientifically sound and accurate determination of the accused’s sanity – which is a record of the pathology – is not possible on the basis of forensic medical expert opinions containing contradictions that cannot be resolved even by the review opinion of the Judicial Committee of the Health Scientific Council;1
  • if there is no direct evidence pointing to guilt in the case, and the available circumstantial incriminating evidence merely points to the possibility that the accused could have committed the offence, but the incriminating evidence does not refute the accused’s denial and no further evidence can be obtained: the accused must be acquitted of the charges against them for lack of evidence;2
  • if the circumstantial evidence clearly does not provide a basis for a factual conclusion that the accused was the perpetrator of the offence: in the absence of proof, an acquittal order may be made.3
 

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The principle of in dubio pro reo does not simplify the proof, but only determines its direction.4 Its flexibility, however, gives the defence a wide field of argument, which lawyers very often use, from their remarks at the first questioning of the suspect, through defence speeches, to appeals on the grounds that the conviction is unfounded.

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With regard to the proof beyond reasonable doubt, the CPC states that “a fact not proved beyond reasonable doubt cannot be assessed against the accused.”5 Advocate General Trstenjak expresses his view on the principle of in dubio pro reo as follows. “It does not tell the judge when he should have doubts, but only how he should decide when he has doubts. If in a criminal trial it is not possible to ascertain with the requisite certainty whether the accused has committed a particular offence, his innocence must be presumed in his favour.”6

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According to Tremmel, the principle of in dubio pro reo can only be invoked immediately before the court decision, after the defence has exhausted all its possibilities of proof.7 In my view, however, the defence counsel must constantly indicate to the competent authority (the court) which facts he considers to be in doubt. The best means of doing so is constant, objective commentary. This practice is particularly justified when the defence has no means of proof at all and the only way to defend itself is for the lawyer to constantly question the credibility of the evidence presented by the prosecution.
1 EBH 2002.793., BH 2003.393.
2 BH2003. 145.
3 BH 1977.484.
4 As opposed, for example, to the principle of the statutory charge, which explicitly states what the charge must contain and the court’s discretion to decide on the basis of that information.
5 7. § (4) para.
6 C-62/06 Fazenda Pública In: Karsai–Katona (2010) ibid. 174.
7 Tremmel (2001) ibid. 87.
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