Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VII. The material and formal concept of truth • The concept and practical problems of the level of certainty
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7.1. The distinction between truth and certainty
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7.1.2. The internal conviction of the judge as a prerequisite for certainty

7.1.2. The internal conviction of the judge as a prerequisite for certainty

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The “internal conviction” of the judge, as a necessary element, is an artificially created subjective factor which is the specific legitimation basis for the adjudicative decisions. The use of this concept and its representation in law are based on the following insights:

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  1. The process of judicial cognition is a logical activity in the field of social sciences, including jurisprudence, and is therefore based not only on rationality, which is typical of natural scientific thinking, but also on elements beyond these rational factors, such as the personality, socialisation pattern, state of mind and sympathies of the judge. Judicial cognition thus goes beyond the formal-logical framework, i.e. it necessarily involves a multi-factorial, broader process.
  2. Judicial cognition is limited in space and time, since the judge does not directly experience the act that is the subject of the case.
  3. The results and conclusions of legal cognition cannot be verified or justified by natural scientific means, and social phenomena are – like themselves – irreproducible.1
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

On the basis of these insights, there is no alternative but to rely on the inner conviction of the judge. It is a different matter that normative regulation of this state of affairs is both impossible and forbidden. Judicial conviction is a matter which concerns the independent, free, internal sphere of the judge and in respect of which, in my view, the legislature cannot prescribe even the most minimal detailed rules. It is true that, in systems of proof – which are now rare – where the law lists in exhaustive form the means of proof which may be used and their probative value, this ‘judicial sovereignty’ may be infringed. I believe, however, that in these systems, judicial independence is not infringed, provided that the constitutional provisions governing the personal and organisational independence of judges are respected (e.g. the prohibition on instructing judges in individual cases).

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Conviction “is undoubtedly subjective in that it is formed in the mind of the practitioner, but it cannot be subjectivism because it has objective conditions and determinants.”2 The process of the formation of an internal judicial conviction can be described as follows:

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  • assessing the evidence separately;
  • comparing the evidence (resolving any inconsistencies between the evidence);
  • assessing the evidence as a whole, including its interrelationship, interdependence and coherence;
  • consideration of the whole procedure.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

During this logical process, the judge also performs higher level abstractive thought operations, whereby the known and relevant data necessarily “meet” the judge’s inner subject. This process also involves the general life experience of the decision-maker, without which the chances of the decision being realisticare linearly reduced. 3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The following factors may play a role in the process of forming internal beliefs:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Subjective factors inherent in the judge’s personality:
    • Judges’ attitudes towards the person of the accused: in this context, we can talk about dislike, neutrality or even regret. It is obvious that the judge first – necessarily – compares the facts of the case with his own life experiences and outlook on life, as a result of which he develops a general preconception of the personality and character of the accused. However, this has no concrete legal implications. The judge’s personality, his or her outlook on life, his or her knowledge of human nature, his or her sympathy or dislike are only a necessary concomitant of the proceedings, and do not affect the substance of the decision (see the question of guilt and classification). It should be remembered that the object and function of the evidence is ultimately well defined and that the legal provisions in any case limit the court’s room for manoeuvre.
    • At the same time, a judge in all legal systems can argue that, for some reason, he or she cannot be expected to give an impartial judgment on the case.4 This decision must also be based on the subjective discretion of the judge, and I therefore consider any statutory regulation of the content of a declaration of bias to be unjustified. In my view, the legislator can at most use an exemplificatory list (e.g. previous acquaintance with the accused, religious convictions).
  2. External subjective factors: the practice of the Court of Appeal, especially in annulling judgments, and the moral expectations of the public. However, these factors must be disregarded by the judge, even though there may be a risk of reversal, annulment or “public anger.”5
1 Theoretical and practical issues of certainty of judgement. Summary Opinion (2017) ibid. 17.
2 Imre Szabó: A szocialista jog. [Socialist Law.] Budapest, 1963. 314. In Kertész (1972) ibid. 412.
3 Theoretical and practical issues of certainty of judgement. Summary Opinion (2017) ibid. 18.
4 I will not, of course, refer to the rules on the disqualification of judges in this context, since they are based on strict, precisely prescribed norms (objective factors).
5 Theoretical and practical issues of certainty of judgement. Summary opinion ibid. 19.
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