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

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

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As a consequence of the thesis of the free system of evidence, the rules of evidence and the standards for the evaluation of evidence by the court should be contained in the substantive law only at a minimum level. The majority of procedural codes meet this requirement, in principle, by stating that the means of proof and the evidence do not have a predetermined probative value, and that the court and the prosecutor are free to assess the evidence individually and as a whole and to determine the result of the evidence according to their convictions. The probable reasons for the possible “overproof” in the practice of the courts of first instance are mainly due to legislative errors, such as:

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  1. The relevant procedural code does not clarify which procedural subject bears the burden of proof: it is a fundamental requirement for procedural codes to make a clear distinction between the burden of proof on the courts to establish the facts and the burden of proof on the prosecution.1 While this is done under the current CPC rules, there are further logical problems with the court’s obligation to seek to establish the true facts. It is also an interesting question of interpretation to decide whether there is any difference at all between the duty to establish the facts and the duty to prove. In my view, the burden of proof is ultimately part of the obligation to establish the facts, and the legitimacy of the court’s ex officio examination of evidence is therefore difficult to question.
  2. The grounds for annulling first instance decisions are too broadly and imprecisely defined: such errors of law lead to numerous orders annulling first instance decisions and ordering the courts of first instance to conduct new proceedings, which prolong proceedings and the passage of time inevitably negatively influences the quality of judicial activity.

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  • I should note that the Curia has dealt with this problem in several cases, in which it has, on the one hand, defined the relevant criteria that can be considered as grounds for annulment. However, following investigations carried out in 2012 into the practice of the courts in relation to annulment, the Supreme Judicial Forum has called for an amendment to the Code of Criminal Procedure which could reduce the number of annulments. The summary opinion of the inquiry suggested that the following could be a means of doing so:
    • narrowing the grounds for repeal;
    • the removal of the absolute ground for annulment for breach of the duty to state reasons, and;
    • the possibility of an appeal against an order of annulment on the grounds of unfoundedness, which would fall within the competence of the Curia in the case of all lower courts.2
 

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According to the current rules of the Code of Civil Procedure, the court of second instance – by a non-appealable order – sets aside the judgment of the court of first instance and orders the court of first instance to start new proceedings if:

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  1. The court was not legally constituted, or the members of the council were not always present at the trial.
  2. A judge disqualified by law took part in the judgment.
  3. The court exceeded its jurisdiction by trying a case that fell within the exclusive jurisdiction of a military criminal court or another court.
  4. The hearing was held in the absence of a person whose presence is required by law: (1) if the court of second instance finds that the presence of a defence counsel was mandatory at the trial at first instance because of a change in the classification of the offence, the judgment shall be set aside only if the prosecution originally charged the offence for which the law provides a sentence of imprisonment of up to five years or more, or if the court of first instance found that a more serious classification other than that of the charge was possible; (2) the judgment shall not be set aside for the lack of the presence of the defence counsel if the court of first instance erroneously classified the offence as an offence punishable by imprisonment for a term of five years or more; (3) the acquittal or termination of proceedings provision of the judgment shall not be set aside if the court of first instance rendered the judgment in the absence of the accused or the defence counsel;
  5. The court has terminated the proceedings on the grounds of a finding that a statutory ground has been infringed.
  6. The grounds of the judgment of the Court of First Instance are entirely at variance with the operative part.
  7. The factual elements of the oral and written judgments differ to the extent that they affect the classification of the offence.
  8. At the preparatory hearing, the court of first instance accepted the guilty plea in the absence of legal requirements.
  9. The facts of the written judgment differ from the facts of the indictment to the extent that they affect the classification of the offence.
  10. In the proceedings at second instance, there was no remediable procedural irregularity which had a material impact on the conduct of the proceedings, the determination of guilt, the classification of the offence, the imposition of the penalty or the application of the measure. Such a procedural irregularity shall be deemed to have occurred in particular if
    • the provisions on the legality of evidence were breached after the indictment,
    • the persons involved in the criminal proceedings could not exercise their legal rights after the indictment or were restricted in exercising them,
    • the public has been excluded from the hearing without a legitimate reason, or
    • the court of first instance did not or only partially complied with its obligation to state reasons with regard to the finding of guilt, the acquittal, the termination of the proceedings, the classification of the offence under the Criminal Code or the imposition of the sentence or the application of the measure.
  11. If the first instance decision is completely unfounded.3
 

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On the basis of the above provisions, it can be concluded that the legislator has not made the situation of the courts of first instance any easier, nor has it eased the system of possibilities for setting aside the decision. From the point of view of the conduct of the evidentiary procedure, the observance of the legality of the procedure (e.g. during the questioning of the accused, the examination of the witness, the keeping of records) is a particularly sensitive issue, in the course of which the court of first instance may make frequent mistakes that are “easy to commit”, even if only out of carelessness. The case of total lack of foundation can also be interpreted very broadly by the court of second instance.4 These possibilities are hanging over the head of first instance judges, who will therefore inevitably continue to carry out evidentiary acts or grant evidentiary motions that are still irrelevant to the merits of the case, for fear of being overturned.

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The primary reason for over-proofing is, of course, the desire to establish the facts. The facts are, on the one hand, the facts established about the personal circumstances of the accused, the information about his previous convictions and, on the other hand, the past historical events relating to the offence charged. At the same time, the fact that the court of second instance may, in a public hearing, determine the incomplete or correct facts of a case in the event of a partial unfoundedness of the first instance court’s judgment, if this is possible by means of the contents of the case file or by factual inference from the evidence taken by the first instance court, is a positive aspect of the CPC. .5

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Tremmel also says that “there are many more erroneous facts than erroneous factual conclusions. In our everyday experience we are often wrong about which way is north and which way is south. Our factual judgements are sometimes based on a loss of memory, on delusion, on a misjudgement of proportions. In comparison, in the case of simple and quick factual inferences, when we think, for example, that a tin of plé on a table is a box of shoe polish […], we are actually correct in our conclusion that there is a box on the table, but we can easily be wrong about what kind of material it contains.”6
 

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Among the practical cases of over-proofing, the following should be highlighted:

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  1. Unnecessary examination of witnesses: here we are talking about witnesses who obviously cannot provide any substantial information in relation to the case in question (Case No 63/2007, Baranya County; Case No 24/2006, Zala County), but since their examination is requested in the indictment, the court summons them to the hearing in order to avoid subsequent annulment. I would like to note that the typical judicial attitude, in line with the opinion of the Criminal Chamber of the Metropolitan Court, is to take the position that “it cannot be decided in advance whether evidence will be able to support or weaken the prosecution, therefore the court is obliged to examine and evaluate all the evidence at its disposal.”
  2. Problems in drafting decisions: the thesis of Zoltán Varga, a judge of the Curia, shows that our procedural law is simply not suitable for young judges to learn the skills of drafting decisions. According to the author, this also “needs to be taught to young colleagues.” The main problems identified in the study are:
    • in many cases, judges do not seek to meet qualitative but quantitative requirements, which is why “monstrous judgments” are common;
    • most of the judgments contain the prosecution’s case in its entirety, despite the fact that the CPC obliges the court to state only the essential facts.7
1 “The court […] does not prove anything, because it does not allege or disprove anything. The court wants to know if what the prosecution or defence is saying is true, so it seeks knowledge of it. And this is true even if the accused and others are questioned by the court itself.” Király: Evidence in the forthcoming Code of Criminal Procedure. Criminological Publications, 1996/4. In M. Tóth (2003) ibid. 208.
2 According to HÁger, “such a procedural tool may indeed be suitable for reducing the number of cassation decisions, but the question must be raised whether such a procedure is compatible with the fundamental principle that the court of appeal is not a court of fact, since the task of establishing the facts lies with the court of first instance.” Tamás Háger: A megalapozatlanság kiküszöböléséhez vezető folyamat a másodfokú büntetőperben. [The process leading to the elimination of unfoundedness in criminal proceedings at second instance]. http://jesz.ajk.elte.hu/hager54.pdf
3 608–610. §§
4 The most common basis for this is when the prosecutor or the defence complains about the omission of a fact from the evidence. This is a case where the court of first instance deliberately failed to grant a motion to reflect on an issue relevant to liability or where the court (and other parties to the proceedings) inadvertently omitted facts and data that could have influenced the judgment.
5 § 599 (2) para.
6 Tremmel (2006) ibid. 30.
7 “It is imperative to avoid the use of the indictment as a textual judgment, especially the literal recitation of certain historical events, which may give the impression that the judgment is essentially an interpretation of the prosecution. Even today, there are judgments whose facts correspond almost word for word to the indictment, which may of course be justified in the main parts of the facts of the judgment, but are likely to be incomplete in the details, because the court evidence usually provides more information on important issues than the investigation.” In Tamás Háger: Gondolatok a bizonyításról. [Reflections on Evidence.] https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/gondolatok_a_bizonyitasrol_ht_0.pdf
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