Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.8. The principle of “due process” and its sub-principles
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4.8.1. The principle of “equality of arms”

4.8.1. The principle of “equality of arms”

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On this basis, the prosecution and the defence must have an equal opportunity to express their views on questions of fact and law.1 It should be noted that this does not necessarily imply that the prosecution and the defence have the same legal powers, but “it does require that the defence has powers of comparable weight to those of the prosecution” [6/1998 (11. III.) AB 6]. 2

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At the level of evidence, this expresses the requirement that the accuser, the accused and his or her defence must be given the same opportunity to prove their case. Therefore, each of these procedural subjects has the right to be present, to ask questions, to comment, to make submissions and to seek redress. This principle is, of course, far from being fully respected in practice. Several AB decisions and commentaries on them have tried to “refine” this practice, which often appears to be problematic and also affects evidence:

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  1. the principle can only be applied with restrictions during the investigation phase, in order to ensure the feasibility of the investigation;
  2. "equality of arms is not numerical equality, but rather emphasises the right of access to information (documents) and thus the right to meaningful participation in procedural acts and the importance of meaningful preparation of the accused and the defence.”3
 

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Of course, there have also been AB decisions that have emphasised the importance of the principle under discussion: in one such decision, the “bench” ruled that if the public defender is not notified of the place and time of the hearing in a verifiable manner and in a timely manner, so as to enable him to participate in the hearing and exercise his rights under the law, this is not in accordance with the Fundamental Law, and the statement thus taken cannot be evaluated as evidence.4

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Some authors argue that in the case of countries following the continental legal system, it would be more appropriate to use the term “equality of arms”, as this terminology “better expresses the characteristics of continental criminal procedural systems […]: a more active judicial involvement and a relatively more passive participation of the parties, as opposed to the term equality of arms, which is more closely identified with the Anglo-Saxon trial system that paints a picture of a client battle.”5 I do not agree with this position, as the burden of proof entails significant legal restrictions which preclude the possibility of placing the procedural actors on an equal footing, and the rights and legitimate interests of the defender are not directly affected by the case. The term ‘client’ is, moreover, a civil law category and as such refers to the relationship of coexistence of the parties. In the relationship between the accused and the prosecuting authorities, however, this is obviously out of the question, even though the procedural rights of the accused are similar to those of the defence.

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The principle of “equality of arms” is applied in a rather deceptive way in the majority of procedural rights, since it can only be literally discussed in the evidentiary part of the trial or in the exercise of the right of appeal. This is also a natural state of affairs, since full equality cannot be expected either in the investigative or in the prosecution phase (after all, the latter is precisely the function of bringing a case to court with the minimisation of the possibilities of defence on the merits). In Hungary, too, the investigative phase is dominated by elements of inquisitorialism, two prime examples of which are the time limitations on the exercise of the right to be present at procedural acts and the possibility of access to documents. In relation to the irregularities of certain procedural stages, the Court found a violation of the Convention when:

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  • the detained suspect was not allowed to have a defence lawyer present during his initial interview and was not warned by the authorities that he was not obliged to charge himself with a crime;6
  • in a case for damages before the Finnish Supreme Court, the applicant, acting without a lawyer, was not allowed to examine the file; the decision was that the main rules of due process apply not only in criminal proceedings, since fundamental human rights are “independent of the proceedings”; and that this principle applies before any level of court – whether it be a court of first instance, second instance or third instance;7
  • access was denied to the criminal fileas well as documents relating to the applicant in the summary proceedings before the police court;8
  • the prosecution did not provide important evidence to the defence on the grounds of public interest, without the knowledge and consent of the trial judge; 9
  • at the hearing before the Constitutional Court, the applicants were not given the opportunity to acquaint themselves with the written evidence on which the decision on the merits was based and to submit their observations on its content, relevance and credibility;10
  • the proceedings before the court were unexpected, before a new authority and away from the place where the evidence was located;11
  • the accused or his or her defence counsel were not allowed to inspect certain documents forming part of the prosecution case file or to obtain copies of certain essential documents;12
  • the prosecutor made a submission to the court in such a way that the defence was not aware of it and therefore had no opportunity to react;13
  • the report of the prosecutor’s rapporteur reached the representative of the prosecution, but the defence was not informed of its contents;14
  • the accused could not have been aware of the prosecutor’s submission and could not react to its findings;15
  • the determining authorities did not provide the person in pre-trial detention and his lawyer with the possibility to consult the documents for prolonging the detention;16
  • the court only notified certain material circumstances to the defendants with legal representation.17
 

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The Court did not find a breach of the Convention when

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  • the person concerned was unable to respond to the prosecutor’s oral argument;18
  • certain relevant documents were only made available to the parties concerned during the appeal procedure.19
 

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Recommendation No R (95) 13 of the Committee of Ministers of the Council of Europe, adopted on 11 September 1995, states that “the rights of the defence must be guaranteed throughout the criminal proceedings, including the use of special means. It gives as an example, in the context of witness testimony, that where, in order to protect the identity of the witness, he gives his testimony in the presence of only a representative of the prosecution or his testimony is video-recorded, the defence should be allowed to challenge the witness’s testimony.”20 The source also emphasises as a matter of principle the need to strike a balance between the rights of the defence and the interests of the State in the administration of justice.21

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It should be noted that the requirements of a fair trial are not always met in the negotiation phase. There are a number of cases where the rights of the defence are restricted, such as (1) where the defence’s evidence is not admissible without justification, and the court grants the indictment; (2) where the defendant and the defence are prevented from communicating or the defence is prevented from speaking; (3) where the defence is subjected to disruptive acts in the interests of the trial (e.g. unjustified interruption of the defence), etc.

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However, it is also noticeable that the inquisitorial features of the investigative phase are inadvertently reflected in the trial phase, as the investigative acts are often carried out without the involvement of the defence, so that the court often receives cases “presented with complete clarity”. The consequence of this is that a judge who spends maximum effort studying the case file in detail can easily become a “prisoner of the prosecution” and any defence motion is unlikely to be successful at trial.22 At the same time, no dislike, no sympathy, no previous acquaintance with a colleague, no judgement on any personal characteristic of the offender, can 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 […].”23
1 See 6/1998. (III. 11.) AB has.
2 It should be noted that the Court of Justice applies the principle of “equality of arms” only to the examination of witnesses, and considers “equality of opportunity” issues outside this scope to be – globally – a matter covered by the right to a fair trial. In Grád–Weller ibid. 360.
3 See 8/2013. (III. 1.) AB has.
4 See 8/2013. (III. 1.) AB has.
5 Elisa Toma: The Principle of Equality of Arms – Part of the Right to a Fair Trial, Union of Juries of Romania, 2011/8, 1–3.
6 “Göcmen vs. Turkey” case, 17 October 2006. In Czine–Szabó–Villány–Baka i (2008) ibid. 253.
7 “Kerojärvi vs Finland” case (1995). In Csaba Fenyvesi: A védőügyvéd. A védő büntetőeljárásbeli szerepéről és jogállásáról. [The defence lawyer. On the role and status of the defence counsel in criminal proceedings.] Budapest–Pécs, Dialóg Campus, 2002, 105.
8 “Foucher vs. France” case In: Fenyvesi (2002) ibid. 105.
9 “Arowe and Da Vis vs. United Kingdom” case (2000) In: Fenyvesi (2002) ibid. 105.
10 “Krcmár and others vs Czech Republic” case (2000) In: Fenyvesi (2002) ibid. 105.
11 “Barberá, Meggegué and Jabardo vs. Spain” case In: Czine–Szabó–Villányi–Baka (2008) ibid. 223.
12 Öcalan v. Turkey judgment of 12 March 2003, no. 46221/99. In: Grád–Weller (2011) ibid. 360.
13 Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, p. 346, in Grád–Weller ibid. 360.
14 Reinhardt and Slimane-Kaid v. France judgment of 31 March 1998, Reports 1998-II, p. 640. In: Grád–Weller, (2011) ibid. 360. and Louis v. France judgment of 14 November 2006, no. 44301/02.
15 Meftah and Others v. France judgment of 26 July, 2002, No. 32911/96. In: Grád–Weller ibid. 360.
16 EFJ 2002/1, p. 15. In: Czine–Szabó–Villányi–Baka ibid. p. 259
17 Meftah v. France judgment of 26 April 2001, no. 32911/96. In: Grád–Weller ibid. 361.
18 Stepinska v. France judgment of 15 June 2004, no. 1814/02. In: Grád–Weller ibid. 361.
19 Miailhe v. France judgment of 26 September 1996, Reports 1996-IV, p. 1319. In: Grád–Weller ibid. 362.
20 “However, in all cases where the subject of criminal proceedings is a crime committed by an organised criminal group and the life and liberty of the witness may be at risk, a balance must be struck between the rights of the defence, the rights of the witness and the State’s duty to provide justice.”
21 Fenyvesi (2002) ibid. 96.
22 “Statistics show that it takes more time for a trial to end with an acquittal than a conviction. This may be because it is more difficult for the defence to convince the court of the innocence of the accused or the lack of sufficient evidence to support the accusation than it is for the prosecution to convince the court of guilt.” Ede Theiss (ed.): Statisztika [Statistics.] University note, Budapest, Vol. II, 1959, p. 146.
23 Kabódi (2003) ibid. 367.
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