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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7.4. International perspective on the degrees of certainty and the specificities of evidence systems

7.4. International perspective on the degrees of certainty and the specificities of evidence systems

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There are substantial differences between European countries in the levels of certainty required for administrative (judicial) decisions in criminal matters, even for the same families of law. Although legal literature has mainly interpreted this issue from the point of view of the courts, it should be noted that the level of proof required is a relevant factor of analysis not only for these bodies, but also for investigating authorities and prosecutors’ offices. The latter authorities may also take decisions which have a decisive influence on the outcome of the proceedings (e.g. the suspension or termination of an investigation). However, the level of certainty required is the most important issue in terms of the level of judicial conviction.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The highest level of certainty is required in German and Austrian court proceedings. In essence, the judge has to reach a level of certainty that can be verified in practice and is beyond doubt as a result of the evidentiary procedures. However, this level is only to be achieved in relation to the court and cannot be regarded as a general requirement in relation to other procedural subjects. Courts base their decisions on probability as a value category only if the result can be mathematically justified by a probability calculation.1 It should be noted that the judge is not bound by any rule in the selection, assessment, weighing and use of evidence, and therefore resolves any conflict of evidence on the basis of his own conviction, logic, sense of proportion and sense of justice.2
  2. The full level of certainty required by Croatian evidentiary law must also be based on the judge’s internal subjective circumstances, and there is a general expectation that the facts of a decision should not be based on mere probability indicators.3
  3. The French model makes a distinction between absolute and semi-certainty: the former includes written evidence, the latter includes witness statements and other presumptions. It can be concluded that in this model the law already has a minimal “influence” on the interpretation of the level of certainty required for a conviction.4
  4. In the Anglo-Saxon legal system, it is already sufficient to reach the level of “overwhelming probability”, which imposes the obligation to choose the most probable alternative. On this basis, in order to facilitate proceedings, the court accepts the facts of the party (prosecutor, defendant, defence) who presents the strongest evidence to support his claim. It is typical of the procedures that, if the evidence leads the judge to the conclusion that the existence of a fact to be proved is more probable than not, the party has met its burden of proof in relation to the alleged fact. The logical consequence of this is that a fact cannot be considered proven if both or possibly several alternatives appear to have the same probability.5
    To reach the required level of proof, any evidence is admissible that is relevant to the case and its use is not impeded. Evidence is assessed according to its reliability, credibility and consistency with other evidence. In this system, greater emphasis is placed on oral means of proof, which must be corroborated by oath or other affirmation.6
  5. In the Scandinavian families of law, too, “overwhelming probability” is sufficient (it is not necessary to aim for absolute certainty), but the legal system is familiar with the normative possibility of a law specifying in a precise way the degree of proof required for a fact. 7
1 Flower (2014) ibid. 18.
2 Theoretical and practical issues of certainty of judgement. Summary Opinion (2017) ibid. 34.
3 Flowers ibid. 18.
4 Theoretical and practical issues of certainty of judgement. Summary opinion ibid. 34.
5 For example, in Ireland, the desirable level is also based on (substantial) probability, which is based on the discretion of the court to consider which of two possible outcomes is more likely. The parties therefore do not need to go beyond reasonable doubt here. In Virág ibid. 18.
6 Theoretical and practical issues of certainty of judgement. Summary Opinion (2017) ibid. 34.
7 Flower (2014) ibid. 18.
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