Criminal Trial Systems

I. Classification of research theme

 

Criminal procedure is the legal order of ascertaining criminal liability.[1] It can be construed as the row of actions performed by authorities entitled by law as well as by other people, and it aims to establish whether a crime did happen in the given case, who was its perpetrator, and it also purports to apply criminal law to the specific case.[2] Therefore, criminal procedure is the part of state activity, precisely one of the main branches of jurisdiction.

Trial of the court of first instance is deemed as the most important part of criminal procedure, trial is the „backbone” of criminal procedure. Trial is the scene where the task of jurisdiction is implemented: namely the decision of criminal liability in the specific case. According to Act 19 of 1998 ’only the court is authorized to determine anyone’s criminal liability for comitting a crime and by reason of this to impose punishment on him.’ Concerning the so called main criminal law questions: being guilty and imposing punishment, even the independent court is authorized to decide only on trial,[3] therefore constitutional principles, insuring the protection of personal freedom and generally the rights of citizen, can prevail on trial [Apart from trial, these questions can be decided only in extraordinary cases allowed by law. (eg. In special procedures as abandonment of trial or waiver of trial)]

During the development of law two forms of criminal trial systems have evolved: the continental and the Anglo-Saxon trial system.

Concerning their attributes, the continental (inquisitorial) trial system – prevailing in our country – strives to recon the material, objective truth. It stands up for ex officio procedure; court is the trustee of implementing evidence procedure. The legal status of the defendant is two-faced: His confession is the mean of evidence, however at the same time he is a client having the same rights with his accuser.

As one of the effects and remains of the investigating principle, such a rule has emerged that the leading of evidence procedure during the trial is vested in the chairman; he is the one who actively questions – in the order determined by him – the witnesses and the experts. After questioning by the chairman is finished, other members of the court, and the parties – sometimes directly, sometimes indirectly by the chairman – can make questions.

In contrast, in the Anglo-Saxon trial system, the implementation of evidence procedure is the task of the parties. Cross-questioning system – which derives from the appropriate principle that proving the facts is not the task of the judge, but it belongs to the parties – can be characterised by the fact that the witness of the charge is questioned by the accusing party, the witness of the defence is questioned by the accuser and the defence counsel. Following the proving party, the adverse party issues his cross-questions, however the proving party is authorized to requestion concerning the facts that emerged during contra-questioning. The same rule implies to experts.

The task of the court is duplex during cross-qustioning: supplementary and controlling. Supplementary in a way, that after cross-questioning the chairman and the judges can make some questions – held necessary –, and this way they can accomplish the material defence of the defendant standing without a defence counsel, which everywhere and always constitues the’nobile officium’ of the judge; according to the English proverb „The judge is the counsel of the prisoner.” Controlling in a way means that the chairman may prohibit the captiosus, suggestive, quizing question or the ones not concerning the topic.

Though the benefits of cross-questioning are generally acknowledged, mainly because of the fact – apart from several reasons - that it insures the chairman to be absolutely impartial, it can force its way only very slowly in the continental criminal procedure system. Statutes enable cross-questioning on the condition of the agreement of the parties or at least one of them has to motion for it, though its application depends on the discretion of the judge.

 

II. Determination of aims

 

In order to make criminal procedure more effective and to decrease the length of criminal cases, the application strives to realise the next aims:

- comprehensive theoretic processing of trial systems;

- the overwiew of the national and foreign law practices;

- presenting the regulation of ICTY and ICC being soon established

- sketching promptly applicable guidlines for the de lege ferenda legislation

 

III. Precedents of the research theme

 

III.1. Foreign literature

 

Regulation concerning trial systems is a fundamental question in foreign literature. Scientific processing is significant, therefore the number of publications in literature is ample[4] It is worth to emphasize that acceleration of implementing criminal procedure – both in member states of the European Union and in the United States – is the fundemantal condition of the functioning of jurisdiction, thus the theoretical and practical specialists of the profession make not little efforts to develop an effective trial system.

 

 

III.2. Hungarian literature

 

Generally it can be said that the topic of criminal trial systems did not evoke the interest of the Hungarian literature in its complexity. Concerning the topic – otherwise on extremely high quality – some partial questions were discussed, [5] and some analysing works have been published.[6]

Concerning literature does not analyse the current situation of jurisdiction, and it does not offer an alternative to make some improvements.

 

III.3. Hungarian legislative status

 

In Hungary, interrogation by the parties is facultatively used by Act 19 of 1998 as the tame version of cross-questioning. Government regulation 2002/1994 (I.17.), defining the concept of the new Act of Criminal Procedure declared that „such a procedure should be created in which – at least regarding the basic procedure – such a theory prevails that the question of criminal liability is decided on trial, respecting the principle of immediacy, and in which the principle of contradictory, and especially the right of action of the parties is more forcefully managed compared to the present-day.” According to the original concept, questioning of witnesses and experts was to be obligatory implemented with the active contribution of the parties.

However, Act 19 of 1998. did not consistently carry out those principles laid down in government regulation of 2002/1994. Furthermore, obligatory application of interrogation by the parties was withdrawn by Act 1 of 2001. In order to ensure the right of action of the parties in an increased way and the impartial decision of the judges, the Hungarian legislator decided upon the facultative introduction of the interrogation by the parties.

Practical use of this institution is very rare in spite of the fact that according to our point of view section 295 of Act of Criminal Procedure, being in effect, has provided the parties with such an instrument by the facultative introduction of cross-questioning which is worth to use. Application of client litigation entails that either the prosecutor or the defence has to prepare for the trial more thoroughly. It abolishes that improper practice of Official Solicitiors summoned to the courtroom in the last moment according to which they join criminal procedure without knowing the party and the case. [On the other side: It occurs as well among prosecutors that the colleege, working on the indictment goes to maternity leave or applies to become a judge or an attorney, etc., therefore he is not the one who represents the charge in which he has already made the more hundred-page files.]

Besides these factors, when parties impose questions in a proper way during client litigation, the disclosure of true facts might be more successful. Namely, the witness rather dares to disclose the case to such a person with whom he has already met before the trial, therefore it can be avoided that important questions about the facts, and relating to the merits of the case „remain in the witness” Furthermore, the court may ask at any time his questions deemed necessary.

If the prosecutor and the defendant as well want and dare to work at the trial, and they do not wait for the decision of the court choosing the comfortable state of passivity, the hanging of trial length does not necessarily inhere intrrogation by the parties. Namely, prosecutors and defence counsels with a more-year of practice must issue questions in a better way than their newly appointed judge college of first instance.

A radical change of view would be necessary in the practice of Hungarian criminal procedure in order to open the way for the intrrrogation by the parties. Its only reason is not the fact that the Act of Criminal Procedure declares the principle of contradictory, and it puts the burden of proof on the shoulder of the prosecutor in its section 4. Evidence procedure should not be construed as the ex officio task of the judge. Besides the more active cooperation of the parties in evidence procedure, the court could order further procedural actions held necessary, in other aspects its role would be confined to jurisdiction. egyebekben feladata az igazság-, illetve szolgáltatásra korlátozódna. And this task mentioned at last is not pettiness.

 

IV. Specification of research topic

 

Research program consists of the following parts:

- comparative law element: widespread overwiew of criminal trial systems. Thorough explanation of specific institutions and examination of adaptability into domestic circumstances. Theoretic analysis of the characteristics the Anglo-Saxon and continental trial systems, their disclosure of functioning in practice with special regard to institutions helping to accelerate the trial phase of the criminal procedure. At this point, we touch upon the trial regulations of ICTY and ICC soon to be established.

- national law element: after the overwiev of the development of the inquisitorial trial system, we analyse thoroughly the rules of the present criminal procedure. We point out the positive and negative sides of legislative attempts affecting the acceleration of the trial phase of criminal procedure, and the reasons why they can and cannot be implemented in practice. After examining a number of closed files of courts in several counties, we make a proposal for de lege ferenda changes of legislature.

 

V. Methodology

 

We apply the usual research methods used in the field of criminal procedure and comparative law. Basically, the processing of foreign and national literature and law practice is determinative. The presentation of national regulation history requires historical aspects, the processing of regulation in effect claims for dogmatic methods. The critical working-up of law practice sometimes requires the supplying of statistical data. In this aspect, we contact the courts in order to examine closed cases. The procesing of ICTY trial practice happens with direct contact and the analysis of its practice.

The Criminal and Criminal Procedure Law Department of theUniversity of Szeged gives a significant part for the infrastructure of the research. However, in order to process the court cases on the scene, a laptop is required.

 

VI. Expected results of the research and its possibilities of use

VI.1. In legislature

The monography written in the last year of the application must give useful data for the acceleration of „the machinery of jurisdiction” and for making it more flexible. Such proposals will be laid down which can make the work of the national legislator easier.

 

VI.2. In law practice

Principles uttered in the monography can help the evaluation of the unified jurisdictional practice.

 

VI.3. In university tution

A special course can be organized upon the theme of the research either in the field of criminal law disciplines or in the field of comparative law.

 

VI. 4. Social use

The faith of the members of society in criminal jurisdiction seems to be overwhelmed today. One of its main reasons is that the length of trials have increased, trials have become more unplannable. By simplifying criminal procedures, not only tial economy would step forward (which is the interest of every tax paying citizens) but the members of society woul regain their faith in criminal jurisdiction.

 

Szeged, 2008. február 7.

 

Dr. Fantoly Zsanett

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[1] Herke Csongor: Büntető eljárásjog. Dialóg Campus Kiadó. Pécs, 2001.11.p.

[2] Király Tibor: Büntetőeljárási Jog. Osiris Kiadó. Budapest, 2003. 13.p.

[3] Cséka Ervin-Fantoly Zsanett- Hegedűs István-Kovács Judit- Maráz Vilmosné: A büntetőeljárási jog alapvonalai II. Bába Kiadó. Szeged, 2004. 69.p.

[4] It is impossible to present the complexity of literature, therfore I mention some impotant works: Joshua Dressler: Understanding Criminal Procedure. LexisNexis. SanFrancisco, 2002. 595-685.p.,; Lawrence M. Friedman: American Law. W.W.Norton & Company. New York, 2002. 75-127.p., 181-206.p.; Francis L. Wellman: The Art of Cross-Examination. Simon&Schuster. New York, 1997.; Stuart G. Bugg-Heike Simon: Langenscheid Alpman Fachwörterbuch Kompakt Recht Englisch. Berlin, 2007. 50-72.p.

[5] Without the demand of being complete: Cséka Ervin: A büntető tárgyalási rendszer. Acta Universitatis Szegediensis de Attila József Nominate. Acta Jur. et Pol. Tomus LV. Fasc. 7.; Badó Attila: Az angolszász típusú esküdtszék kritikai elemzése. Acta Universitatis Szegediensis de Attila József Nominate. Acta Jur. et Pol. Tomus L. Fasc. 5.; Badó Attila: A francia esküdtszékekkel kapcsolatos dilemmák. Acta Universitatis Szegediensis de Attila József Nominate. Acta Jur. et Pol. Tomus LVII. Fasc. 1.; Badó Attila-Bencze Mátyás: Betekintés a jogrendszerek világába. Studio Batiq. Szeged, 2007. 87-89.p.; Farkas Ákos: Az esküdtszéki tárgyalás alkonya az USA-ban. Ügysézségi értesítő. 1991/2. 10-14.p.

[6] Réka Végvári: Towards the Real Cross-Examination Criminal Procedure in Hungary. Acta Juridica Hungarica. 2000 41Nos 3-4, 213-223.p.