Ervin Belovics argues in favour of the pursuit of material justice, who says that the discovery of material truth is “a fundamental basis, the rejection of which would deprive justice itself of its most important characteristic, like […] if we demanded that basketball players fight without a ball in the game.”2 It is a different matter that in many cases it is not possible to establish the true facts and that courts find the accused criminally liable on the basis of circumstantial evidence alone.3

According to Károly Bárd, the free system of evidence characteristic of continental models essentially reflects the “arrogance” of the “enlightenment type of man”, an attitude that is also fundamental to the adjudicatory forums of today’s continental systems. The legislators of these systems start from the hypothesis that the judiciary, during its socialization, necessarily masters the methods of fact-finding, and therefore the creation of formal rules is only necessary to a minimal extent.4 In these systems, he argues, “the sole function of the criminal justice system is to establish a ‘historical fact’ and to judge it in accordance with the law. The system is open to this sole function: if it can obtain information from sources other than the criminal procedure which may help to establish the facts, it will accept it without hesitation. This is served by the system of free acquisition and use of evidence, i.e. it does not matter that the information was obtained by methods alien to the rules of criminal procedure, nor is the use of the information precluded by the fact that the use of the method in question is prohibited in the criminal procedure itself. The point is to ensure that the decision-maker has all the relevant information.”5

Frank calls these systems “justice theory”6 models, Lensing refers to them as “law enforcement”7 models. Nevertheless, Erdei argues that “the view that identifies the continental mixed system with the inquisitorial one, accusing it of being indifferent to procedural guarantees, is false.”8 In essence, this is the position taken by the Court of Justice, which in the so-called ‘Kruslin’ decision stated that “it would be a mistake to exaggerate the distinction between common law countries and continental countries […]. The law is, of course, equally important in common law countries. Case law, on the other hand, traditionally plays a major role in continental countries, since positive law is mainly the result of decisions of the courts.”9

According to Hermann, in a continental legal system, there is no doubt that the evidence led by the judge is comprehensive in nature, since the judge must not only take evidence, but also check whether and to what extent the answers of witnesses, experts and defendants are true.10

It should be noted that there are also significant differences between the continental systems, and the cultural, legal and taxonomic contexts must always be taken into account in the analysis.11 The common features of these systems are summarised below: