Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VIII. The basic features of the Hungarian evidence system • The means of evidence in general
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8.1. General features of the Hungarian evidence system

8.1. General features of the Hungarian evidence system

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As regards the regulatory method of Hungarian criminal procedure laws, it can be noted that they have always included a list of means of proof. If the list was exemplificatory, the legislator referred to it by using the phrase “in particular”. It could therefore be concluded that the legislator did not wish to exclude the use of other means of proof from the proceedings.

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This flexible regulatory principle has often been supplemented by some of the authors who have argued that the range of possible means of proof can be classified in any of the regulated types.

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  • Király specifically highlights this approach with regard to the various technical means, and also considers it unlikely that “in the foreseeable future, there will be any detection or introduction of evidence or procedures that do not fall into one of the known categories.”1 The author also adds that “the possible sources of knowledge are already known and cannot be extended at will.”2
  • In contrast, Herke, Fenyvesi and Tremmel point out that more and more methods of proof are emerging that can only be legalised through “sui generis procedural regulation.”3
  • According to Farkas, the selection of means of proof “evolves and changes according to the expediency, suitability and efficiency criteria determined by social, economic and cultural conditions, prevailing ideologies and the degree of technical development.”4 In addition, “the lawfulness of evidence implies the definition of the list of means of proof and the rules for their application.”5
 

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For my part, I believe that the list of means of proof can only ever be exemplary, as the general circumstances of life, the nature of the offences committed and the rules of the current procedural code are constantly changing (expanding), and some rules may be expressly applicable only to a specific means of proof, but in fact to a very specific set (e.g. electronic data).

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What is certain is that before Act XIX of 1998, the legislator did not distinguish between means of proof and acts/procedures of proof, but these legal instruments were collectively included in the category of “means of proof”. In this process, the following provisions should be highlighted:

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  1. In Act XXXIII of 1896 on the Code of Criminal Procedure, there are provisions on the examination of witnesses and the accused, expert opinions and judicial inspection.
  2. According to Act III of 1951, the means of evidence are in particular the personal statements of the accused, the testimonies of witnesses, expert opinions, inspection, documents and other material evidence.
  3. Decree No. 8 of 1962 did not list means of evidence, but evidence, including witness statements, expert opinions, material evidence, documents, inspection and the testimony of the accused.
  4. According to Act I of 1973, the means of evidence are, in particular, witness testimony, expert opinion, physical evidence, documentary evidence, inspection, attempted evidence, presentation for examination and the testimony of the accused (this list was supplemented in 1987 by the so-called “forensic examination”).
  5. Act XIX of 1998 listed the means of proof not in an exemplificatory but in a taxative manner, so the legislator did not see any further possibility to expand the set of means of proof. This was assessed by the legal commentary of the time as follows.
  6. One of the main innovations of the Act is that it distinguished between means of evidence and evidentiary procedures, and then specifically mentioned the parallel hearing of experts and the on-the-spot examination of experts in the context of evidentiary procedures (see LI of 2006) as a specific form of inspection. Under the Act, the means of proof were – exclusively – the testimony of witnesses, expert opinion, material evidence, documentary evidence and the testimony of the accused. It should be noted that in 2003,6 the opinion of the probation officer was also included in the legislation, but the legislator did not explicitly intend to classify it as an independent means of evidence.
 

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Under the heading of evidentiary procedures, the legislator has regulated the legal institution of inspection, on-the-spot questioning, attempted evidence, presentation for examination, confrontation and parallel hearing of experts.

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Hungarian criminal procedural law is based on the principle of a mixed system of evidence, which is characterised by both “bound” and “free” evidence: 7

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  1. Elements typical of bound evidence:
    • the law lists the means of proof and the acts of proof that may be used;
    • the use of certain means of evidence is expressly provided for by law – in exceptional cases (e.g. cases where the use of an expert is mandatory) or excluded (e.g. absolute obstacles to testimony);
  2. Elements typical of free evidence:
    • as a general rule, the court and the prosecutor are free to decide whether to use the means of proof or the measures of inquiry provided for by law;
    • evidence which has come to light through certain means of proof or acts of proof does not have a specific probative value; its assessment depends on the court’s internal conviction.8
 

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Especially in the case of incriminating statements, it is important to point out, however, that (1) uncontradicted and consistent substantive testimony is usually preferable to silence (refusal to testify is usually considered by practice to be to the detriment of the incriminated); (2) in cases involving several defendants, the court will accept the self-incriminating confession of the accused over the denials of his or her accomplices; (3) the weight of a first denial and then confession is also stronger than if a confession had been made immediately; (4) the probative value of a confession made in the presence of a defence lawyer is greater.9 I will analyse in more detail the weighing aspects of this later.

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The current regulatory system of the Code of Criminal Procedure stipulates as a general rule that (1) the burden of establishing the facts necessary to prove the accusation, providing the means of evidence in support of them, or proposing to obtain them lies with the accuser;10 (2) the court shall obtain evidence in the course of clarifying the facts only on the basis of a motion to that effect.11 The new law therefore no longer imposes any obligation on the courts to obtain evidence or examine evidence.12 The motions for evidence can therefore be considered to be motions for evidence by the prosecutor, the accused and the defence. 13

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It should be noted that in the case of the previous drafts of the Draft Act, there were also several instances of legislative intentions to enforce the classical adversarial procedural rules more strongly in the court trial phase. Even then, the judge would only have been able to examine the evidence that the parties had presented to the court. The majority view at the time, however, was that this would have meant a restriction of the free system of evidence, and that a legislative solution which gave the judge a more active role in the process of discovering the truth was more appropriate.14

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Compared to previous laws, the current CPC defines the scope of evidence more broadly. On this basis:

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  • the evidence shall, within the framework of the prosecution, cover the facts which may be considered relevant for the purposes of substantive or procedural criminal law;
  • evidence may also cover facts relevant to the determination of ancillary issues (e.g. the merits of a request for evidence or the exact amount of criminal costs).
 

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Of course, it is questionable to what extent the evidence on collateral issues can be considered to be of an evidentiary nature, since in such cases the courts will hardly ever use the classic tools and actions that are usually used in the examination of the main issues.
 

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The following criteria remain unchanged:

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  1. It is not necessary to take evidence of facts which
    • are common knowledge (e.g. historical facts), or
    • of which the court, prosecutor’s office or investigating authority has official knowledge.15
  2. The general objective of criminal proceedings is to establish the material truth, i.e. to establish the true facts of the case. This is the duty of the authorities (courts), as the Criminal Code requires them to take their decisions in accordance with this principle.16 I would like to note that the law – following the Anglo-Saxon example – goes against this principle with numerous legal constructions (e.g. settlement, mediation, conditional suspension of the prosecutor, etc.), not to mention that in our current system it is no longer mandatory to take evidence even in respect of facts the truth of which is accepted jointly by the accuser, the accused and the defence in the case in question.17 (All this will be discussed later, however.)
  3. The CPC is based on the principle of equality of means of evidence, so there is no predetermined order of precedence of means of evidence either in law or in judicial practice. Although the law lists the means of evidence that may be used in criminal proceedings in a taxative manner, it does not follow that the hands of the competent authorities (courts) are tied in all cases. All the means of proof potentially available in criminal proceedings (e.g. audio recording) can be included in the list of legal instruments, so the taxative list in fact covers a very wide range of evidentiary possibilities. 18
 

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However, the fact that the legislator has further extended the scope of the means of proof can be seen as a regulatory novelty. On this basis, the means of proof named in our current procedural system are the following:

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  • the testimony;
  • the statement of the accused;
  • the expert opinion;
  • the probation officer’s opinion;
  • the physical means of proof, including the documents or documentary evidence, or
  • electronic data.19
 

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On the basis of the above, it can be concluded that the CPC:

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  • in contrast to the previous legislation, mentions the opinion of the probation officer,20 the document,21 and the electronic data,22 as a separate means of evidence, despite the fact that these can be classified as documents, so that it would have been appropriate to maintain the system of Act XIX of 199823 (at the same time, there is also an opinion that the Act should also refer to the minutes of investigative and judicial proceedings );24
  • names the statements of the accused prior to the expert opinion, thus declaring – indirectly – that these statements are of particular importance for the determination of criminal liability and the sanction.
 

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As regards material evidence, it is important to note that it may include evidence obtained by an authority in the course of its statutory functions before the initiation of criminal proceedings (e.g. a suspected murder weapon which is in the possession of the police without the case having been reported).25 However, the basic principles of the prohibition of evidence must also apply to this subsidiary rule.

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As a rule of guarantee, it has been stipulated that the discovery, collection, provision and use of evidence must be carried out in accordance with the provisions of the CPC.26 It may, however, be a matter of concern that lower level legislation (e.g. a government decree) may also provide for a specific way of examining and recording evidence.27 However, in my view, this does not affect the substance of the evidence and therefore there is little scope for objection to this regulatory solution. Investigative methods (e.g. forensic techniques) are necessarily subject to rapid change, which makes it seem unjustified to regulate them by law.
1 Király (2000) ibid. 226.
2 Tibor Király (2000) ibid. 225.
3 Csongor Herke – Csaba Fenyvesi – Flórián Tremmel: A büntető eljárásjog elmélete. [The Theory of Criminal Procedure.] Budapest–Pécs, Dialóg Campus, 2012.
4 Ákos Farkas – Erika Róth (2018) ibid. 199.
5 Farkas–Róth (2018) ibid. 206.
6 Act II of 2003 amending the Criminal Code and certain related acts.
7 See CPC § 167 (1), (3), (4) para.
8 This depends, of course, on the merits of the case and the subjective factors inherent in the judge.
9 Szalai (2016) ibid.
10 § 164 (1) para.
11 § 164 (2) para.
12 Cf. In the absence of a request, the court is not obliged to obtain and examine evidence. [§ 164 (3) para.]
13 For this reason, the legitimacy of the legal rule that – for reasons of procedural economy – the rejection of the prosecution’s and the defence’s evidence cannot be challenged in a separate appeal, but can only be challenged in an appeal against a decision on the merits of the case is questionable.
14 Lőrinczy (1998) ibid. 218.
15 § 163 (4) para.
16 In criminal proceedings, the court, the prosecution and the investigating authority shall base their decision on a true and fair view of the facts.
17 This can be seen as a clear legislative gesture towards the “customer lawsuit”. See § 163 (3) para.
18 An audio recording can be physical evidence, an e-mail can be electronic data.
19 165. §
20 The opinion of the probation officer describes the facts and circumstances characterising the personality and living conditions of the person charged, in particular his/her family circumstances, health, possible harmful addictions, housing conditions, education, skills, employment or, in the absence of employment, income and property, and the relationship between the facts and circumstances revealed and the commission of the offence, the risks of re-offending and the needs of the person charged. In the opinion, the probation officer shall provide information on employment opportunities, health care and social services appropriate to the offender’s circumstances, and may propose specific rules of conduct or obligations for the offender and interventions to mitigate the risk of re-offending. (3) The opinion of the probation officer shall, upon the order of the court or the prosecutor’s office, include whether the offender undertakes and is able to comply with the rules of conduct or obligations imposed on him or her, and whether the victim agrees to the reparation to be made to him or her. [203 (1)–(3) §] The probation officer shall be obliged and entitled to obtain all information necessary for the preparation of the probation officer’s opinion, to consult the case file of the proceedings, to request information from the debtor, the victim, witnesses and other persons involved in the proceedings. If necessary for the performance of his duties, he may request from the public prosecutor’s office or the court further information, documents and information. [202 (4) para.]
21 A document is any tangible means of evidence which records data by technical, chemical or other means, in particular texts, drawings, diagrams, etc., existing as paper or electronic data. [204 (2) para.]
22 Electronic data is any representation of facts, information or concepts in a form suitable for processing by an information system, including a program that ensures the execution of a function by the information system /205 (1) para.
23 The means of proof are the testimony of witnesses, expert opinion, physical evidence, documentary evidence and the testimony of the accused. [§ 76 (1) para.]
24 Gödöny (1983) ibid. 137–138. I would add that the minutes and various notes are one of the most significant parts of the trial material.
25 § 167 (2) para.
26 § 166 (1) para.
27 § 166 (2) para.
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