Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.10. The principle of collegiality. Ethics of evidence

4.10. The principle of collegiality. Ethics of evidence

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A “fair trial” is a basic requirement not only in the relationship between the accused and the authority (court), but also in the relationship between the defender and the authority (court). This is not primarily a legal but an ethical norm, which creates different obligations and expectations on the part of the authority (court) and the defence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. On the official (judicial) side, the level of collegiality can be measured primarily in the nature of communication and decisions on requests for evidence. Nevertheless, it can be a cardinal issue:
    • timely notification by the investigating authority to the defence of the hearing of the accused (to ensure adequate preparation time);
    • the choice of the substitute defender by the public authority, its criteria (the practice of systematic or “ad hoc” assignment of the same defenders);
    • the court’s ruling – favourable or unfavourable – on one’s request for a postponement, etc.
  2. On the defender’s side, collegiality requires first and foremost that his or her activities do not aim at delaying proceedings in bad faith or avoiding conduct that is clearly misleading to the court (e.g., references to the wrong documents).
  3. The possibility of “lying in defence” means that no ethical requirements can be expected of the debtor. It is important to note, however, that he is obliged to show due respect towards the authorities (courts) in charge of the proceedings throughout the whole spectrum of the procedure. Beyond that, there is no obligation to cooperate, except in so far as he is obliged to be present at the procedural steps as a general rule.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • The Court of Justice recognises the right of national criminal courts to impose disciplinary sanctions on participants in proceedings. The classic form of sanction is disciplinary sanction, which may, however, be imposed only in justified cases. In one case, the judge, in a decision rejecting a request for exclusion, imposed the maximum fine on a defendant who had claimed to have had an intimate relationship with him, on the grounds that he had libeled the court by making false statements, the sole purpose of which was to delay the proceedings. In the present case, therefore, the reason for the sanction was not directly the conduct of the defendant, but the fact of defamation of the court as a legal person.1
  • With regard to ethical expectations, it is of course impossible to regulate in a comprehensive manner; onlyvery broadly interpreted obligations can be formulated. Moreover, “ethical conduct” relates not only to the conduct of the proceedings but also to the professional approach to the criminal case in question. For example, the issue of the ‘work ethic of the defence’ is coming to the fore, particularly in the context of court hearings. This is mainly the result of a legislative concept which, throughout Europe, has shifted the main tasks of taking evidence in court from the court to the parties, leaving the single judge (the presiding judge) with only ancillary powers in relation to the questioning.2
  • The defence counsel
    • must keep the defendant informed of the current status of the case (evidence) and its expected outcome;
    • must be familiar with the most important aspects of the case file (to avoid the extremely awkward situation when the defence constantly asks questions about the merits of the case, or underlines important parts of the minutes while the prosecutor is already giving the prosecution speech, etc.).
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

However, this expectation does not mean that the defender has to play the role of “big brother”. Even if the defendant is a close friend of the accused, he must bear in mind that the courtroom is not a world of emotions, there is no room for sentimentality, impulsiveness, or an “i-will-defend-you-with-my-life-if-I-have-to” attitude. A defender with such a temperament will sooner or later become antipathetic to the court, and such behaviour is therefore more harmful than likely to elicit any sympathy from the judge. From the point of view of general ethics of the defence, I also consider it essential that, when arguing in court, the defence lawyer should refer primarily to the concrete facts that arise, rather than to his personal experience and to the theoretical propositions that come from everyday routine. This is, if you like, a requirement of the ‘positivisation’ of the work of the defence, which is not at all at odds with the principle of the freedom of the defence.
1 “Chmelir v. Czech Republic” case, 7 June 2005. In Czine–Szabó–Villányi–Baka (2008) ibid. 285.
2 It is a different matter that this tendency is not yet very much in evidence in Hungarian criminal proceedings.
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