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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7.7. The phenomenon of under-proofing

7.7. The phenomenon of under-proofing

Jegyzet elhelyezéséhez, kérjük, lépj be.!

“Under-proof” means that the competent authorities (courts), in order to establish the factual and legal basis of the case, (1) do not obtain the evidence or carry out the acts of proof necessary to reach the level of proof beyond reasonable doubt, or (2) weigh the evidence erroneously or without justification. The practical reasons for this phenomenon are generally the following:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The court disregards evidence without giving reasons on the merits:1
    • in case 523/2006 of the Hajdú-Bihar County Court, the court did not accept the testimony of one of the witnesses, but it is not clear from the reasoning why not;
    • the Bács-Kiskun County Court in case No. 3022/2005, the court considered the unanimous testimony of the accused and one of the ambulance witnesses “insufficient” to refute the victim’s testimony;
    • we also do not know from the judgments of the Borsod-Abaúj-Zemplén County Court No 1559/2008 and the Győr-Moson-Sopron County Court No 201/2006 why the court did not accept the consistent testimony of the witnesses who were rescuing the victims;
    • we also do not know from the PKKB judgment 3503/2003 why it accepts the testimony of the victim who gave a completely different statement about the stolen valuables and the damage caused by the crime during the investigation and the trial.
  2. No questioning of potential witnesses:
    • in case 376/2007 (Békés county), the court did not examine the witness proposed by the defence on the grounds that he could not testify whether the accused was at home at the time of the crime;
    • a further example of the rejection of evidentiary motions leading to a result potentially contrary to the court’s factual conviction is the judgment of the Baranya County Court No 52/2008: the court made the rejection so far that it could not refute the established facts.
  3. The relative acceptability of the “one witness is no witness” principle: in this respect, I would note that, already on the basis of previous commentaries, the accused could only be found guilty if he admitted to the commission of the offence or if guilt was proved unanimously by at least two witnesses who were generally recognised by law or practice as being competent to testify.2 The principle that courts cannot convict on the basis of the testimony of a single witness is also valid on the basis of current research.3
  4. There are no evidentiary recordings for certain parts of the facts:
    • In the Tolna County Court case No 95/2007, the court proved in detail that the accused knew about the large amount of drugs in his car. The qualifying circumstance that the drugs were obtained for the purpose of marketing was based solely on the fact that the quantity of drugs was significant. On this basis, the court ruled out the possibility that the defendant had obtained the drug merely for his “own consumption”, but did not examine whether other conduct giving rise to the lesser charge (e.g. “transporting the drug across the country”) could have been involved.
    • A similar problem of reasoning can be seen in the reasoning of the Békés County Court’s judgment No. 3/2007, in which the court, in the course of the evidence, came to the conclusion that the money from the bribe could not have reached the accused in the way he claims (he accidentally “rolled” it into the newspaper), but it did not clarify how the money actually reached him and whether he actually accepted the amount he was not entitled to.
    • In the case of acquittals, we can also find this type of reasoning errors: the Tolna County Court acquitted the accused of the charge of coercive assault committed as a (psychological) accomplice in case No. 30/2007, on the grounds that the presence of the accused did not have an effect on his partner even as an intention reinforcer, but did not answer which signs of intention reinforcement were not proved by the court and why not.
    • In case 371/2009 (Somogy county), the court’s evidence went as far as clarifying that there is no evidence that someone other than the accused could have been at the place of the crime, but we do not know what proves that the accused did commit the act.
  5. Lack of obligation to state reasons for the assessment of evidence: e.g. the Mezőtúr City Court in case No. 79/2001 did not even record what each witness had said, it only mentioned that they had made incriminating statements about the accused.
  6. The assessment of confessions made during the investigation phase but withdrawn at trial: following Bencze’s study, almost 70% of the judges interviewed said that they would take into account the confession made during the investigation. “it seems therefore that the view that the evidence taken during the investigation is the essential evidence, and that it is only the credibility of the evidence obtained in this way that is examined at trial, continues to prevail. The majority of judges do not claim the primary fact-finding role that the principle of immediacy implies. As one of the judges interviewed described it: the current workload makes him happy to get rid of the file as soon as possible, and it would be more time-consuming to review the investigative evidence than to judge on it. Nevertheless, a significant number of judges are very uncomfortable in the role of being the master of evidence and would prefer to hand over this task to the prosecution.”4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would like to note that, according to the decisions of the Court of Justice, the procedure is unfair (1) if the court does not deal with the merits of the case by not even hearing the accused, not even taking evidence, but only by issuing a two-word judgment and not even ensuring its delivery;5 (2) if the president of the court with jurisdiction orders a retrial in the absence of any new facts or evidence, merely because of personal dissatisfaction with the final judgment.6
1 The most common reason is that the evidence in question contradicts other evidence.
2 Bp. 487.
3 According to data collected by Mátyás Bencze, only 25% of judges said they would do so on the basis of a single confession. In Bencze (2018) ibid. 28.
4 Bencze (2018) ibid. 29.
5 In a Russian case, the applicant was beaten by police officers and sentenced to 5 days in detention for “resisting the police”. Menesheva v. Russia judgment of 9 March 2006, no. 59261/00. In: Grád–Weller (2011) ibid. 360.
6 Savinsky v. Ukraine judgment of 28 February 2006, no. 6965/02. In: Grád–Weller (2011) ibid. 360.
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