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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7.6. Cases of excessive evidence in criminal proceedings

7.6. Cases of excessive evidence in criminal proceedings

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The concept of “excessive evidence” refers to the fact that the competent authorities (courts), in order to establish the factual and legal basis of the case, obtain evidence or carry out acts of proof which are no longer necessary or irrelevant for the decision to be taken.

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This problem is of course closely related to the phenomenon of material truth-seeking. Although there is now a general desire in criminal proceedings to bring cases to a speedy conclusion and to minimise the costs of proceedings, there is still a perception that there is nothing worse than an unfounded or, in some cases, wrongful conviction. It is also important to ensure the “good quality” of judgments, which was the general objective of the former Supreme Court in an earlier decision, which stated that a finding of guilt can only be made if the evidence is of such a strength of proof as to exclude the possibility that the offence was committed by another person.1

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The phenomenon of “excessive evidence” is also sought to be eliminated by the new regulatory principles of the Be:

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  • the court may disregard evidence in respect of facts accepted as true by the prosecutor, the accused and the defence, or in respect of an offence which, apart from the more serious offence charged, is not relevant to the conviction;2
  • if the guilty plea is accepted by the court, no further evidence can be taken on the merits of the charge and the question of guilt.3
 

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The problem of excessive evidence cannot, however, be limited to the judicial sector alone, and our analysis is complete only if we start from the investigative stage.4 It is well known that the various stages of the procedure – in terms of evidence – operate on the basis of the principle of interdependence, since errors made in the investigative phase, or in the prosecution phase, in relation to evidence must be remedied in the judicial procedure, and the margin of manoeuvre of the judicial procedure is decisively influenced by the complexity of the data and information gathered in the course of previous procedural acts, or their logical interrelationships.

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The fundamental question is what interpretative schemes and means courts use to arrive at the level of certainty they consider necessary and sufficient to reach a reassuring decision on the criminal liability of the accused(s).

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According to Katona, the judge closes the evidentiary procedure if the facts to be proved are proved according to his personal, subjective internal conviction. If guilt is certain, a professional, objective court will find guilt. The author construes the scope of this as follows:

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  1. According to the grammatical interpretation, the word ‘persuasion’ is an action or process (gaining certainty) expressed by the verb ‘to persuade’. Persuasion is a kind of cognitive activity. Such an activity is carried out by the judge, since his task is to reconstruct a past event, to prove it, to establish the facts.
  2. According to the taxonomic interpretation, the area of judicial persuasion is the assessment of evidence. According to the author, judicial persuasion is a firm commitment to a free system of evidence. The domain of persuasion is the scope of evidence, not a general principle of judgement. The real guiding principle is submission to the rule of law. “Judicial conviction cannot therefore prevail ‘contra legem’. Even if, for example, the judge were convinced that the statutory time limit was not sufficient for a truly reasoned appeal, he could not fail to confirm the judgment after the time limit had expired, but accept the appeal lodged after the time limit had expired. Even in the field of evidence, he cannot, at all costs, and in the interests of the primacy of his convictions, take into account evidence excluded by law, such as the testimony of a relative who has not been informed of his right to immunity.”5
 

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Lajos Nagy emphasises that the factual basis of judicial decisions is the objective reality, the material world, which the judge observed and examined in the course of the evidentiary procedure in criminal proceedings, in accordance with the provisions of the Criminal Procedure Code. All findings of fact must be based on evidence. The relevant facts can be established by inference, and the formation of a judgment is a thought process, which is bounded by a legal framework.

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Judicial persuasion is also referred to in the literature as internal persuasion, as we have already mentioned. Mihály Tóth points out the superfluousness of this, since “the conviction influenced by a system of external circumstances, however complex, can only be internal, there is no such thing as an external conviction.”6

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Balázs Elek paints a very accurate picture of today’s Hungarian criminal justice system when he writes: “what makes the judgement of a criminal court effective may not be the truthfulness of the judgement, but the fact that […] it is produced in the framework of a regulated procedure, and it is indeed remarkable that in the midst of enormous difficulties it sometimes manages to achieve some accuracy at all.” 7

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The above opinions seem to indicate that this is a procedural problem that has not yet been solved either in law or in practice.

7.6.1. Regulatory and practical errors that can lead to excessive evidence

1 BJD. 7648.
2 § 519 (4) para.
3 § 521 (1) para.
4 It should be noted that this phenomenon occurs mainly in the area of activity of courts of first instance.
5 Géza Katona: Bizonyítási eszközök a XVIII–XIX. században. A kriminalisztika magyarországi előzményei. [Evidence in the 18–19th centuries. The history of criminology in Hungary.] Budapest, KJK, 1977. 25.
6 Mihály Tóth: Csemegi Károly és a magyar büntető eljárásjog fejlődése.[Károly Csemegi and the development of Hungarian criminal procedure law.] In: Mihály Tóth (2003) ibid. 75.
7 Balázs Elek (2009) ibid. 14.
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