Fenyvesi Csaba

Constitutional principles in the light of the defensive position



The Hungarian fundamental statute of the defensive position – beyond doubt – is the Constitution.[1] As the highest order statute, it also contains regulations for criminal proceedings. At the same time the most important constitutional rights can also be found among the fundamental principles of criminal proceedings. The Constitution of the Republic of Hungary highlights four basic rules of just criminal proceedings; defence is distinctly emphasized beside presumption of innocence, respect for freedom and legal remedy. The objective of this study is to survey and analyse these “dual” principles in the light of the defensive position.



The defender and the presumption of innocence


The accused is entitled to the demand for the presumption of innocence in the regularization of almost every constitutional state according to international recommendations and agreements.[2] This basic principle is in close relationship with defence, especially the defender’s activity, since “the right to be defended is such a personal right that can be originated from the constitutionally declared principle of the presumption of innocence”.[3] The accused, that cannot be obligated to choose a defender or to defend himself, can also disclaim this right. At the same time the fundamental principles of constitutionality and legal security demand the just and lawful practice of vindictive power of the state. Therefore on every occasion the participation of a defender in the proceedings is obligatory without regard to the defendant’s will when it is judged necessary by law because of the importance of the case, the personality or the exposed situation of the defendant, or the actions of the public prosecutor. In this case the issue is not the right to be defended but the right to a defender, i.e. the obligation to provide a defender from the other side, the authorities’ point of view.


The presumption of innocence principle was stated as a fundamental principle for the first time in the French Declaration of the Rights of Man and Citizen (declaration des droits de l’homme et du citoyen) in 1789: “Every human must be presumed innocent until he is found guilty.” (présomption de l’innocence).  In the Universal Declaration of Human Rights, published by the UN, the right of defence also appears in the presumption of innocence: “Everyone must be presumed innocent until he is sentenced in proceedings where he can assure his defence”.


Both the Constitution and the code of criminal procedure contains the fundamental principle which is also present in article No. 2 of paragraph No. 6 of the European Convention on Human Rights on fair proceedings: everyone must be presumed innocent until he is found guilty unequivocally by the concerned court of last resort in its sentence passed after a fair trial. According to the European Commission on Human Rights the presumption of innocence prevents anyone from being treated officially guilty in any form without a sentence.[4]


Before the declaration of this principle the suspect was “quite naturally” presumed guilty merely because he was accused in such a way that he was burdened with the production of evidence to prove his innocence in all possible ways including the cruellest ones (p. e. ordeal by fire, “legal” torture), which was convincing in the last resort inasmuch as the guilt of the defendant was judged based on his endurance for bad physical treatment and pain tests.


The requirement of the presumption of innocence, as István Szikinger says[5], is related to the whole criminal procedure. Nevertheless it as also an accepted literary point of view that the risk of incorrect decisions is more significant, actually it is more “natural” in the hidden and precipitate course of criminal investigations than at the end of a calm and public bilateral judicial proceeding. Therefore the most fundamental public opinion lays emphasis on the presumption of innocence, a presumption that is currently present in almost all legal systems[6] of the European Council’s states.[7]


There are three commonly accepted elements of the presumption of innocence: these are the bona-fide practice of law (preasumptio boni viri)[8], the issue of the burden of proof (onus probandi), and the principle of in dubio pro reo (for favour in doubt).


The “hidden presumption of guilt” – as Ákos Farkas aptly said –, found in practice in the circles of the authorities, is almost opposed to the presumption of innocence, especially the bona-fide practice of law.[9] This derives from the fact that the interests within the organisational structures are contrary to that of the accused or his innocence.

Namely the interests of

-       the police is to improve and increase the detection index;

-       the public prosecution is the highest accusatorial effectiveness;

-       the court is the greatest number of closed cases and a fewest successful appeals;

-       the penal institution is the smoothest serving of sentences.

These goals are contradictory to each other and in many cases even to the object of the law. The authorities try to reserve the highest possibility for themselves to intervene in individual rights in order to reach their goals.

In the eyes of the investigating authorities those cases are considered to be successful which are closed with accusation in the investigational phase and with holding the accused responsible in the judicial proceedings. In the case of an already convict person after the final judgement it is even harder to presume “innocence” during the law enforcement procedures. In the spirit of this approach the collection of evidences shows a bias towards incriminating and aggravating circumstances. The judge bound to impartiality gets the documents together with the accusation, which contains mostly incriminating data disclosed during a thorough investigation. The judge should be a “judge indeed” who can keep away from the burden of the revealed incriminating evidences and who can impartially examine the facts questioning them doubtfully. The “presumption of guilt” radiating from the files can mainly be weakened and also the guiltlessness can be strengthened by an effective defence, especially by a professional, expert defender. With his motions, comments, collection of evidences and pleadings the defender can and must declare (it is not only his right but his obligation as well) his standpoint and arguments to the authorities against the other possible authority (prosecutor, investigation authority) in every phase of the proceedings.


Highlighted from the American literature, which deals with the above-mentioned theoretical and practical problem of the presumption of innocence and the role of the defender, Jerome H. Skolnick says: “Contrary to the presumption of innocence the police try to keep to a kind of routine, which is in fact the presumption of guilt. When the police arrest and suspect someone they presume that the suspect has committed that crime. They think that they can make a difference between guiltiness and innocence simply because they are criminal experts.” The idea behind their approach is that a policeman “does not accuse innocent people”. Therefore the police also consider itself as the merciful servants of jurisdiction.

This professional practice has an effect on all participants of the system – defenders, judges and jurors -, although to different extents. Arthur Train said aptly about the essence of professional routine:

People generally do not accuse each other of groundless crimes. First of all the law generates a contradiction when it says that the person accused of a crime should be presumed innocent. Actually be it any kinds of presumption (depending on the circumstances), it works inversely and depends more or less on the standpoints and experiences of the individual (proceeding authority). In practical criminal law the presumption of routine is the most obvious and simple presumption. Actually this is the rational presumption that educated people do work well. In order to understand the importance of this presumption, we only have to take a look at the great number of “voir dire” file examinations of the jurors of criminal cases, where the defender interprets to the jurors in all cases the accuseds right to the presumption of innocence, or the burden of proof on the prosecution, or the fact that the accusation must be proven undoubtedly. The prosecutors prefer to try a case with experienced jurors and defenders than newcomers as they believe that the more experienced a juror is, the jurisdictional presumption of routine prevails more possibly over the accused’s presumption of innocence.

In the circles of criminal experts the above-mentioned facts differentiate between “accusation-minded” and “defence-minded” lawyers. The accusation-minded lawyer interprets the judgement of guiltiness as a rational professional task and strongly trusts in the experts who deal with criminals by profession. On the other hand, the defence-minded lawyer puts the emphasis on the intervention in the human personal freedom. Such lawyers believe that the ignorance of the presumption of innocence is dangerous under the circumstances of quite strict sanctions. Besides, a lawyer with such an orientation is worried about the possible arbitrariness of the police, which could lead to promoting their interests and not the social demand for jurisdiction. This results in the opinion of the police that the intervention in their work is bigger than it would be desirable in a rationally operating system (under today’s circumstances it is also a deep and inevitable source of tension). Therefore the police feel that the criminal proceedings were unjustly turned against them. The official point of view of the police is that any provision emphasising the accused’s disadvantageous position is in favour of the accused and not the state. For the police it is hard to understand and represent such a system that on the one hand expects the police to be more and more intelligent and competent both in general and in areas requiring special police knowledge, and on the other hand apparently invalidates all their efforts introducing seemingly irrational requirements and procedure delays.[10]


In spite of the fact that the bona-fide practice of law and the presumption of innocence are in favour of and concerning the accused, in my opinion the bona-fide practice of law also concerns the defender since the accused employs a defender to enforce his rights. However, in the case of the defender the way of the practice of law does not derive from this presumption but the ethical and legal regulations of the defending counsel’ profession (act of lawyers, penal code, code of criminal procedure).


The European Commission on Human Rights classifies the observation of the presumption of innocence including the enforcement of “boni viri” as a requirement of fair proceedings. In several resolutions the committee has stated the violation of this regulation by the authorities (courts or other authorities).[11] Among them in the Allenet de Ribemont contra France case (in the verdict dated 25th February 1995), since the Minister of the Interior made statements on the guiltiness of the detainee on his press conference[12].[13] This violated the accused’s good reputation”, “respect” of his innocence by the authorities.[14]


Concerning the presumption of innocence – as it can be seen from the case above – we can also mention the effect of the press, although the presumption of innocence can only be violated by the authorities and not by the press, as the freedom of speech cannot be restricted in this issue. The media can be both useful and harmful in criminal proceedings. Harmful, because they publish the data of a criminal procedure driven by a certain (not always objective) concept, thus effecting public opinion, which can influence the judgement. Two defensive methods are recommended against this effect: either the freedom of the press should be limited in such cases, or the case should be withdrawn from the attention of the local authorities and public opinion by passing to another court (the latter can hardly be applied in small countries and in cases of national interests). I do not find the third method acceptable, – especially on defending counsel’s ethical basis – which has already appeared recently in Hungary, namely that the defender also gives a press release, a press conference as a counterpole, thus rendering the procedure contradictory.

Imre Kertész who similarly finds an interview with the accused disquieting, also analyses the connection between the press and the presumption of innocence. “Especially in the absence of members of the proceeding authority or the defender . The accused can mention facts or circumstances on this occasion which were missing from his statement. On later interrogations concerning these data he is more or less bound by his published declaration, he does not want to contradict himself, therefore he may insist on his words published in the newspapers despite his firm belief.” The situation becomes even more complicated and the evaluation of evidences more difficult when the interview is also broadcast on television.

“Nevertheless it cannot be recommended that the publishing of the interview with the accused should be avoided in all cases. Publicity is the best remedy against the abuse of authority, in this way the press can contribute to fair judgements. The report can also ease the accused’s situation by e.g. drawing the attention to the circumstances mitigating criminal responsibility.”

In order to avoid the “hidden presumption of guilt” – as Imre Kertész also says –“the court had better start the evaluation of evidences with the total lack of previous knowledge concerning the case. This is not even imaginable in the great majority of the cases, but the possible prejudicial effects of press releases can be consciously neutralized by careful consideration of circumstances.”[15]

The presumption of innocence, as I have already mentioned, is closely related to the principle of fair trial and also to the requirement of proportionality. Therefore, e.g. the judge cannot give any information to the press before passing the sentence, since guiltiness is not proven yet. At the same time whatever the judge’s subjective inner conviction on the guilt of the accused may be, it cannot justify his application of means beyond the necessary and suitable measures.

The Hungarian practice often departs from these favours; the fact that the court on a trial merely tries to reproduce the investigation materials refers to the hidden presumption of guilt. E.g. it does not accept a different statement of the defendant in case he modifies (incorrectly: withdraws) his confession made during the investigation, but considers the former confession determinate in respect of the evidence. Another sign is that the court tries to restrict the principle of “in dubio pro reo” (see details below), which means the absolute limit of free evaluation of evidences, to the narrowest circle. That means the court occasionally involves facts in the evaluation that are not proven undoubtedly. In many cases it also considers evidences unequally during giving the reasons for the judgement. It is rather inclined to attach greater importance to facts promoting the establishment of guiltiness, and often ignores or discriminates the attenuating and mitigating circumstances emphasized by the defence.

According to the internationally accepted part-principle of the burden of proof (onus probandi) the proceeding authorities bear the burden of proving the guilt in criminal cases. The accused cannot be obliged to prove his innocence. The requirement is closely related to the defender’s activity, since in fact the point at issue is the obligation of proof, where the final question is who takes the possible consequences of prooflessness. Based on the principle of officiality, these can never be taken by the defence including the defender, but only the authorities.[16] However, the defence is not excluded from collecting evidences and presenting them to the party obligated to prove. The defender is also obliged to this; as that is what he took the oath to, he was entrusted with and assigned to.[17] His position, as well as the accused’s, is harder than the authority’s obligated to prove, since the theoretical principle of evidence prevails that it is more possible to prove positive facts while, negatives can hardly be prove or not at all. Therefore it is almost impossible for the accused or the defender to prove the non-participation, the non-doing, in a crime, since there are hardly any traces of it in the sense of criminalistics. Whereas, the investigating authorities get to the evidences through “traces” (material or personal), which will prove the perpetration of the crime of the accused.


A trend can be noticed in the criminal regulation of the countries[18] that they try to ease, lighten the burden of proof on the authorities by turning it over and inserting a presumption of guilt.[19] (E.g. in France in case of finding customable goods within the country the accused enduring the distraint has to prove that the product entered into his possession after regular customs clearance (paying the duties). Failing this, the authority considers the goods as smuggled and holds the possessor responsible.


In this sense, agreeing with László Blutman, even the practice of the ECHR is not consistent, certain favours can be traced. For example they did not criticize the provision of Holland law that in case of traffic crimes the owner of the vehicle has to prove that it was used by someone else while committing the crime.[20]


The issue of the burden of proof is also present concerning the coercive measures, especially the detention restricting personal freedom (remandment). The special legal conditions – as in the regulation of the states – are opposed to the presumption of innocence and require the accused (his defender) to prove that he will not escape, counteract the procedure and commit more crimes. I mentioned above that it is rather impossible to prove negative facts, it is time in connection with the past as well. It is even more undemandable that someone tries to exclude future negative facts, the accused or his defender in this case.[21] Nobody has proven the reality of this on evidential theoretical level. Therefore the burden of proof cannot and must not be turned over.

During the interpretation of paragraph No. 5 of the European Convention, the Hungarian Constitution and the Code of criminal procedure it has to be considered that the freedom is rule and the detention is exception. The detention before the judgement cannot even temporarily damage the presumption of innocence.


The right of “silence” is also in connection with the burden of proof since this cannot be brought up against the accused (despite the strong contrary English influential attempts). It does not change the requirement that the prosecutor is burdened with proving the guilt. In this respect the ECHR consistently acknowledges the right of silence and only considers the voluntary confessions as observable.[22]

The part-principle of “in dubio pro reo” (in favour in doubt) is a “favor defensionis” institution, i.e. a favour of the defence regarding its extent. “The fact which is not proven undoubtedly cannot be brought up against the accused” says the Code of criminal procedure (article No. 4 of par No. 61), which would be more explicit with positive wording, e.g. only undoubtedly proven facts can be brought up against the accused. It may only seen clearly from the negative wording that the authority takes the consequences of prooflessness. Actually this part-principle is also dealing with the possible “damages”, failures resulting from the above-detailed “onus probandi”, i.e. the burden of proof. In other words, in case the authorities do not succeed to prove the guiltiness of the accused, he will remain “innocent”, as he was treated before. He was innocent, he must be treated innocent and he remained so since the result of evidence is doubtful. It is the favour of the defence, including the accusee (defender), that  questioning the facts, that is uncertainty is enough for them. In my opinion this can be interpreted as a compensation or “return” given to the defence for the above-mentioned contradictory evidential possibilities (or rather impossibilities) of negative facts. The subjects of the defence would be doubly afflicted if we also brought up uncertainty against them, besides the negative burden of proof.. The latter is nothing more than a ground for suspicion or a group of iudicia, which is enough for a strong or well-founded suspicion but by no means for certainty. In addition to the above (beyond the examination of the issues of fact) as a restriction, based on Flórián Tremmel’s arguments[23], the defence, including the defender, can only make a well-grounded reference to this principle before the non-appealable peremptory judgement is given in order to influence it and only after exhausting all legal evidential possibilities.

It is also important to mention concerning this part-principle that there are no such cases in the practice of the courts of human rights, since the ECHR does not deal with the examination of issues of facts in connection with criminal responsibility. If they did not comply with this rule, they would become a forum of appeal and unduly intervene in the criminal procedure system of the countries of which they are not a part of and never can be. Therefore such counsel initiations could not be successful. It can only be challenged at most if the proceeding authorities, eventually the proceeding court did not take the presumption of innocence as a basis but the presumption of guilt and held the accused responsible arbitrarily without evidences, which is against the requirement of fair proceedings.

It can be seen from the above details that the presumption of innocence is one of the most important, manifold, wide-ranging fundamental principle of criminal proceedings. Detlef Krauss throws the light on its significance outstandingly accurately and briefly when he says: “The presumption of innocence is the maximum of today’s criminal law.”[24]



The defender and the guarantee of personal freedom


The French “model” of fundamental principles dating back to two hundred years[25] has been living on modified country by country, so as in the German-Austrian area of law and in Hungary as well.[26] These altering principles include the one indicated (abbreviated) in the title, which according to the Code of criminal procedure “must be respected and can only be restricted in cases and by means determined by the present law. During the proceedings the authorities must ensure the legality of coercive measures restricting citizen rights. The authorities are obliged to inform the participants of the proceedings about their rights and remind them of their obligations.”

The legality of coercive measures has two elements: namely the cases and means of their application. The conditions have to be regulated in the Code of criminal procedure in detail and the proceeding authorities must comply fully with these regulations. In my opinion this is where the defender of the accused bears a part, who is in fact a “guard” of observing the law. It is the right and obligation of the defender to recognize the existence of possible negative conditions and informing the authorities of them, and at the same time to question and doubt the positive conditions.

Besides the conditions of coercive measures the defender also has a guaranteeing role concerning the means of application, because he can control if the measures were taken and maintained by the authorized body, if the decision meets the legal formal requirements, if it contains the reasons, if the duration of application does not exceed the period determined by law, and finally if it was effectuated in the way determined by law. The examination of these by the defender can conduce to a result that the requirements of proportionality, necessity, equity or contradictorium were not taken into consideration during the application of the coercive measures. In border-cases the decision was not made in favour of the person enduring the coercive measures, the advantage of substitution was not taken (a stricter measure was applied although there was a possibility of a lighter one), the measure was effectuated without mercy (the out-of-turn principle were not applied, inhuman treatment was introduced), or the practice of law by the authorities was soulless-bureaucratic-mechanic- protracted. Raising all these is a right and obligation of the defender. During the whole procedure (including law enforcement) he can observe, motion, petition for release, and he can lodge a complaint[27] or an appeal as a legal remedy.

Within the coercive measures – based on the requirements of criminal proceedings and criminalistics – the requirement of “equality of arms” cannot be mentioned. At the same time the necessity of the controlling role of the defence including the professional defending counsel cannot be ignored besides the legality supervision of the public prosecutor, especially in the area of the strictest coercive measures (custody, temporary forced medication). The correct but not sufficient regulation of the Code of criminal procedure on the compulsory defence is in accordance with the above. This should be ensured from the beginning of the custody (i.e. the detaining coercive measure temporarily restraining personal freedom), and the defender should – compulsorily – “control ” it from the first moment of this strict coercive measure. He would have a legal guaranteeing role. Within these frames he can observe and at his discretion initiate the challenging of authority members taking actions contravening the penal code (e.g. breach of personal freedom, breach of domicile, violence during official proceedings, maladministration, defamation, etc.).

Due to the requirement of quickness, which is emphasized and demanded so frequently in criminalistics (erster Angriff – first strike), the authorities (correctly) often take non-postponable actions of investigation including coercive measures, which can influence personal freedom or other citizen rights (inviolability of domicile or privacy, etc.). In these cases the conformation to contradictional proceedings cannot be expected. This condition would make the investigation and the work of the investigating authorities impossible, it would not serve the exposure of facts and the social interest of the pursuit of crimes. At the same time a tendency can be felt that in case of the above-mentioned postponable strictest coercive measures under the court’s cognizance the contradictional procedure is not an exaggerating wish and recommendation, where the defender can react, oppose and remark on the initiating prosecutor’s arguments (evidences and data), then lodge an appeal if necessary and discretionary, which will be judged by a higher (devolutivi) forum.

Since the fundamental principles act as bridges between the codifiers and the administrants of the law, the defender can feel the regulatory imperfectness, contradictions or even unconstitutionality of them. Due to the regulation conflicting with the dual-featured fundamental principles, the defender – as well as the proceeding authority – can appeal to the Constitutional Court of the Republic of Hungary referring to unconstitutionality.[28]

The defence, including the defender, also has a possibility to appeal to international forums in certain cases after exhausting all domestic legal remedies. Among others to the European Commission on Human Rights since par No. 5 of the European Convention contains the right to freedom and security, or to the Human Rights Committee of the UN since par No. 9 of the International Covenant on Civil and Political Rights contains the right to personal freedom, and par No. 10 contains the right to humane treatment with persons under arrest.

I also consider the question concerning the topical fundamental principle to be connected with the defender whether the authorities are bound to give legal information to the participants of the proceedings, including the accused, if he has a defender, especially a defending counsel. In many cases the second turn of the legal paragraph can only be detected in practice, e.g. the warning of obligations. That is inevitable, in spite of the legal information,[29] which starts at the first meeting with the accused, or rather the person enduring the coercive measure (that is not sure to be an accused, because no well-grounded suspicion has been announced to him yet), for example at perquisition, arrest or custody. In my opinion one of the basic characteristics of principled regulation is that it cannot be weakened, “softened” by the authorities. It has to be totally obeyed even when the accused does not want to exercise any of his rights and he announces it in advance. Even the presence, rights and obligations of the defending counsel do not make it unnecessary. The content and frames of the information given by the authorities is different from that of the defending expert. The defending counsel is not more than the control and not the executor of this fundamental principle. He is not obliged by the principle; the source of his information and authorization is his oath, the ethical code and other regulations of the Code of criminal procedure.



The defender and legal remedies


There are no jurisdictional systems without malfunctions. This is not a problem in itself, only when they cannot be remedied. The purpose of the right of appeal is the correction of defective criminal decisions and measures of the authorities. This right can not only be applied to correct active actions of the authorities but also in case of violations of the law by the authorities in a form of possible defaults.[30]

The actual administrant persons and cases are always defined by the Code of criminal procedure.[31] Generally we can say that the right of appeal is a tool also available for the subjects of the defence (except the cases excluded by law), which can be aimed at the correction of factual (error in facto), procedural (error in procedendo) and substantive law (error in iure) errors. The defender participating in the case can also be found among the subjects of the defence besides the accused, although the regulation of the right of appeal is not equivalent for both subjects. The accused’s right of appeal is wider and in several cases the defender’s remedy is restrained depending on the accused’s will. These are the extraordinary legal remedies: in these cases the defender can only lodge an extraordinary appeal in accordance with the accused’s will or lacking his protest. In my opinion this provision unduly restrains the autonomy of the defender (and consequently the principle of defence) which is still existing in the ordinary procedure, and does not even serve the revelation of substantial truth, which is part of the main purposes of criminal proceedings. Article No. 5 of par No. 57 of the Constitution declares the right to legal remedy as criteria of fair proceedings when it says: “…determined by law everyone has a right to appeal against such a judicial, administrative or other authority’s decision that interferes with his rights of lawful interests.”[32]

The right of appeal of the two subjects of the defence is totally similar in one sense; namely both can only be one-way and in favour of the accused.

I consider the right of appeal[33] as a fundamental principle valid for all phases of criminal proceedings, thus for the investigation, the intermediate, the judicial and the law enforcement phases. In the investigation phase, including the prosecutor’s intermediate procedure, the defender has a possibility to lodge a complaint against the decisions, actions or default of actions of the authorities. In the preparation procedure of the trial, on the trial and in the law enforcement phase he can exercise his right to appeal[34] and to initiate extraordinary legal remedies. At the same time we can state that this right is not so univocal and consistent in practice. For example, the defender can only appeal against default during the investigation; this is irrational for later decisions and procedure actions. The same concerns the measures, which also arise rationally in the investigation; their characteristics in the judicial phase and measures is that they cannot even be regarded as suit-conducting orders, therefore the possibility of legal remedies is out of question. With regard to the many exceptions – that basically weaken the rule – and agreeing with Flórián Tremmel “a more qualified wording would be more real and manageable. E.g. a separate remedy lies against peremptory decisions. The law exceptionally allows legal remedy against certain actions and decisions (or the default of them), if they violate citizen rights or principles of criminal proceedings.”[35]



The defender and the defence


As I mentioned above, the sources or roots of the fourth dual-based – constitutional and criminal procedural – principle, reach back to the universal principle of the presumption of innocence. The accused has the right to defence and a defender because the criminal law enforcement would only be fair[36] (impartial and just) and total if its purpose is not only the detection and the ascertainment of  crimes and the offender but also the complete enforcement of the accused’s rights and the protection of the non-guilty and their rights. The defender joins to the observation of the substantial truth as a guarantee element, especially the professional defending counsel, with his skills[37] and experience, who is a counterpole in some degree to the investigation and prosecution authorities. In some degree, because the total equity – even being aware of the authorities’ material defending obligation – is out of question, due to the many means (secret or open investigation actions, coercive measures, etc.) of the authorities, which cannot be found at the disposal of the defence of defender. Based on the acceptance of the dominance of the prosecution, the codifier embodies some favor defensionis[38] rules as a compensation, which are the favours of the defence in the phases of criminal proceedings, especially during the trial. However, the defence itself is never a kind of favour but the natural right of the accused. Therefore it must be ensured in any ways by a defender.

The predominance of the institution of defence is not only ensured by international, constitutional norms and provisions directly referring to the accused and the defender, but also the constitutional criminal procedural system in itself. This includes:

       the division of procedure tasks, including the recognition of the defence as an independent procedural function. This shows that the accused is not an object but a subject of the procedure. In accordance with this he obtains duly adequate rights to defend himself personally on the one hand, and on the other hand by a defender that proceeds in favour of the accused but exercises his rights independently (technical or formal defence)[39],

       the presumption of innocence, since the prosecutor has to prove the guiltiness and not the accused his innocence,

       on the basis of the principle of officiality, the authorities are also obliged to reveal the material defence, the attenuating and mitigating circumstances (par No. 5 of the Code of criminal procedure)[40],

       in the frames of fair proceedings the contradictorium comes to the fore in the trial phase, where the accused and the prosecutor has similar rights during the proof[41] under the aegis of the equality of arms.


At the same time there is a tension between the regulations of the Constitution and the Code of criminal procedure[42], because the Constitution speaks of the “person under procedure”, while the Code that of the “entitled to defence”. “The accused has the right to defence. The authorities must ensure that the person, which is under the procedure, could defend himself in the way determined by the current law.[43] A defender can proceed in favour of the accused in any phases of the procedure. The accused can choose a defender from the beginning of the procedure.”

The fact that there is a person under procedure before the adjudication to being on accused is the basis of the tension. There is a person, against whom the proceedings are taken from the beginning, denominated by name, seen also from the decision ordering an investigation. However, the entry of the defender is only valid from the real action of the adjudication to being an accused, before this he cannot exercise his rights by today’s interpretation of legal force. In my opinion the Constitution as a fundamental statute must be standard, it should be the bases for procedures and interpretation. The other solution would be the clarification of the Constitution by using the expression “accused”.[44]

The regulation does not give unambiguous answers to many questions besides the indefinitude of the circle of subject. These are:

       Does the right of defence include the right to choose a defender?

       Would the core of the right of defence exactly be the defending by a defender, opposed to the accused’s personal defence?

       Does only the accused have a right to defence, and not the defender or only by originating from the former?

       Is the employment or provision of a defender (the defender for the technical defence) free of charge; in other words is the right of defence a right to a free of charge defender?

I am going to give my answers below to these questions on the bases of literary and legal interpretations.

The constitutional right of defence manifests itself firstly in the own procedural rights of the person under criminal procedure; secondly in the right to employ a defender; thirdly in the legal position of the defender; and finally in the obligations of the authorities, which ensure that the person under procedure can learn the criminal claims against him, define his position, advance his arguments against the claim, make his comments and motions concerning the activities of the authorities, in brief exercise his accused rights.

The function of the defence is apparently secondary to the function of the prosecution. The only core of this appearance is that the procedure is not initiated by the defence and it focuses on the attenuation and the annihilation of the accusation, therefore it must adjust itself to the prosecution. The primary subject of the defence, the accused, has the right to defend himself and also to employ a defender of his choice (whose charges have to be borne by the state in certain cases). The evaluation of the constitutional right of defence is only possible based on the joint consideration of the accused’s and defender’s rights.[45] At the same time the two persons are separated from each other according to their rights, although not sharply. The independent practice of law by the defender is not in doubt either,[46] which ranges on a tighter to a wider procedural scale on different occasions (e.g. tighter in the right of appeal, wider in the right of presence). Mihály Tóth considers and deals with the accused’s right to defence (practised personally) as an independent phenomenon within the right of defence in broad sense.[47] Since a defender is employed only in few cases, he indicates as an explanation for the difference between “defence” and “defending”, that in the cases of the other accused it is only correct to speak about personal defending, which can be established on the right of defence. The right to defending emerges in a form of actual procedural rights on the level of “individual” in philosophical sense. However, this does not exclude us from considering it as the totality of accused’s rights on the “particular” level and as the projection of universal human – and not civil – rights in general, on the level of principles.

The accused has the right to choose his defender under any circumstances.[48] No lawyer can be enforced on anybody from outside.[49] However, his decision is limited to the extent that in certain cases he cannot abdicate the participation of a defender for any reasons. These are the cases determined by law (compulsorily defender cases). In this case the compulsory (non-abdicable) participation of the defender ensures impartiality, fair procedure and judgement. Should the accused decide within his freedom of defence that he will not choose a defender, the authorities assign a counsel for him; he has no means to prevent or appeal against this, since this guarantee ensured by the state is originated from the presumption of innocence and not from the right of defence or the autonomy of the accused. The participation of a defender in the proceedings is obligatory without regard to the defendant’s will on every occasion when it is necessary because of the importance of the case, the personality or the exposed situation of the defendant, or the actions of the public prosecutor. In these cases opposed to the current regularisation  the state should ensure at least the persons in need a trained defender (defending counsel) free of charge.[50] We should not be content with a simple advancing, because this is required by state – public will – interests concerning the just, impartial and fair proceedings and decisions.[51] This public defence and its efficiency must be guaranteed and also financed by the state.[52]

[1] Act No. 20 of 1949


[2] Tibor Király has already stated his criticism on this denomination four decades ago, that is we cannot speak about “innocence” (non-guiltiness at the most) and neither presumption for lack of a presumptive fact but “quasi presumption” at the most. Nevertheless all international agreements and recommendations use this technical term. He also referred to the fact (based on the Hungarian regularization that still has not changed) that actually this principle is related to the accused in the circle of subject and not everyone (“no one” according to the law), and the matter is the prohibition of “treating” as guilty and not “considering” as guilty. Tibor Király: The Defence and the Defender in Criminal Cases. KJK Budapest, 1962., pp 11-48. László Vargha has analysed the same issue and came to similar conclusions. See László Vargha: The New Regularization of Fundamental Principles of Criminal Proceedings. Jubilee Yearbook, University of Pécs ÁJK, 1975., pp. 219-236.


[3] See the dissent of János Zlinszky constitutional judge in Resolution 1320/B/1993. sz. AB.


[4] European Commission on Human Rights 6650/70. 5 Rec. p.58.


[5] “The presumption of innocence is a constitutional principle and not a principle of a branch of law, which has to be phrased that it should prevail in all proceedings where the task is the statement of individual chargeability. Therefore the range of this principle should be extended in any case to contraventional and disciplinary procedures.” István Szikinger: The Presumption of Innocence is a Constitutional Principle. Interior Review 1989/3. p.8.


[6] The only exception to the consequent representation of the principle is the Turkish regularisation, which says that a person accused with a crime is “not innocent and not guilty”. Mirjam Berg: Waiting for Justice. 1985 September. Part 2. p.3.


[7] Parliamentary Assembly of the European Committee, Fokofyllos, Greece: Report on the Detention of Persons Pending Trial.


[8] The first Hungarian scholarly criminal trial lawyer, Mátyás Vuchetich, also stated a standpoint resembling to the”preasumptio boni viri” of Roman Law: “…everyone enjoys a high reputation by his congenital and natural right, and based on this he must  be considered innocent (true) until his guiltiness is proven.” Flórián Tremmel: Hungarian Criminal Proceedings. Dialóg-Campus, Budapest-Vienna, 2001. p.84.


[9] Ákos Farkas: The Effectiveness of Criminal Proceedings. Ph.D. Dissertation, Miskolc, 1996. p.119.


[10] Jerome H. Skolnick: Justice Without Trial. New York, 1994. pp. 112-113.


[11] Private persons outside of the authorities, non-state organisations or the press can not violate the presumption of innocence according to the resolutions of ECHR as well. See ECHR 9212/80. 2.D. No. 720. Resolution.


[12] In Hungary according to the Ministry of Justice - Ministry of the Interior Common Decree No. 10/1986. (IX.) on criminal and justice information it is the obligation of the authorities to give “authentic, exact and prompt information to the press. It also pronounces that the information cannot violate the presumption of innocence and the personal rights of the citizens, and cannot contain any statement that can endanger the objective decision.

Additionally to my experiences the increasing number of trials on the violation of personal rights against high-positioned – mainly police – leaders refers to the fact the observation of the presumption of innocence is not consistent by the investigating authorities.


[13] Summary on the Judgment of ECHR dated 25th February 1995. Judicial Decisions annex 1996/2. pp. 18-19.


[14] The Austrian Press Law threatens anyone with a fine equal to 180 days who “discusses the possible outcome of the criminal proceedings or the value of any evidences before passing a sentence by the court of first instance in a way that is suitable to influence the judgement”. The English law also penalizes the publication of such press releases on cases not decided yet by the court, which can harmfully influence the objective trial of the case. Katalin Imreh: The New Austrian Press Law. Hungarian Law, 1982/12. p.29.


[15] Imre Kertész: Criminal Reports and the Defence of Personal Rights. Interior Review 1990/11. p.14.


[16] As Waltos phrases: “the practice of the right to defence does not absolve the authorities from the obligation of proof, and the obtaining of evidences on the trial cannot violate any fundamental citizen rights”. Stanislaw Waltos: The accusee’s Procedural Position in the Criminal Proceedings of the Republic of Poland. Hungarian Law 1974/12. p.736.


[17] The frequent (mostly ethical) question of the laity is loosely related to the presumption of innocence. Should the defender defend the accused when he knows that he is guilty, i.e. not innocent? The answer accepted also by me can be found among others in the Australian literature: “The lawyer generally “does not know” whether the accused committed the crime or not. It is very rarely that the offender confesses his crime, even to his defender. Anyway, it is not the task of the lawyer to decide whether the suspect is guilty or innocent; the task of the lawyer is to do his best to represent the standpoint of his client on the trial. It would be against the presumption of innocence as an essential principle if anyone branded the suspect with guiltiness before passing the sentence by the court, because it would be the violation of this principle.” I would add that it would not only violate this principle but the defender’s ethics and obligations. See Jan Beven: The Macguarie. Easy Guide to Australian Law, Australia, 1994. p.339.


[18] In today’s law the presumption of innocence is sometimes broken: in France and Great Britain there are already presumptions of guilt, the only requirement is that they must be controvertible and must not encroach on the right to defense. Gyula Borbély: Memoirs of Siracusa. Prosecutors’ Journal 1998/3. p.67.


[19] See in details: László Blutman: The Range of the Presumption of Innocence in the European Fundamental Rights. In: András Szabó Memorials, Szeged, 1998. pp. 57-75., L. Pernell: The Reign of the Queen of Hearts: the Declining Significance of the Presumption of Innocence. Cleveland State Law Review, Vol. 37. 1989. pp. 393-415., J. C. Smith: The Presumption of Innocence. Northern Ireland Legal Quarterly, Vol. 38. 1987. pp. 223-243., R. Mahoney: The Presumption of Innocence: a New Era. The Canadian Bar Review, Vol. 67. 1988. pp. 1-56.


[20] László Blutman: The Range of the Presumption of Innocence in the European Fundamental Rights. In: András Szabó Memorials, Szeged, 1998. p.74.


[21] This is one of the explanation of the high defender inefficiency on hearings before custody as a special procedure. Even theoretically the defender is not in the position to contradict special future committal reasons by proving negative facts. Therefore the contradictorium also promoted by myself is already precluded from the aegis of the “equality of arms” due to the unbalanced regularization.


[22] See among the ECHR Resolutions: 788/60. 6 Yb. 784., 5523/72. 17Yb 330., 9370/81. 35 DR 79., 8239/78. 16 DR 184.


[23] See Flórián Tremmel: Im. p.87.


[24] Detlef Krauss: Der Grundsatz der Unschuldvermutung im Strafverfahren. In: Müller-Dietz (Hrsg.): Strafrechtsdogmatik und Kriminalpolitik. Carl Heymann’s Verlag, Köln, 1971. p.153.


[25] The fundamental principles appeared for the first time in the period of 1791-1793 of the French revolutionary legislation and the Napoleon Code of Procedure of 1808.


[26] Ervin Cséka: Developing Fundamental Principles in Criminal Proceedings. András Szabó Memorials, Szeged, 1998. p.103.



[27] Flórián Tremmel mentions the less satisfactory regularization of the complaints during investigation, since the prosecutor judges the defensive legal remedies in the case of most coercive measures. The prosecutor “is hardly separated organisationally and his close connection with the investigating authorities does not ensure the totally objective judgement.” Flórián Tremmel: Im. p.292. This insecurity can be diminished by the introduction of the new institution of the investigation judge.


[28] The Constitutional Court has decided on the anti-constitutionality of the regulations of coercive measures constraining personal freedom in some of its resolutions. (e.g. regarding custody: 19/1999. (VI. 25.)., 26/1999. (IX. 8.). AB Resolutions).


[29] Concerning the Miranda-case István Szikinger also mentions the American defects of police (investigating authority) information: “The policemen acknowledged on the judicial trial that they had not warn the accused of his right that he could contact a defender, but – according to them – he himself had not claim the presence of the defender during the interrogation.” István Szikinger: The Miranda-case. Interior Review 1990/3. p.111.


[30] Above its guaranteeing significance the possibility of legal remedies also incites the investigating authorities (prosecutor) and the court to accuracy. They bring their decisions knowing that they can be reviewed and revised.


[31] Ervin Cséka refers to the tradition of causistic regularization when he says: “As in the old Hungarian law, during investigation (examination) the typical regularization method is the occasional – and not general – denomination of the persons having the right of appeal. … In the investigation (examination) phase although the casuistic regularization of the persons having the right of appeal and their related right of appeal can emphasize the most important controvertible decisions, measures and the role of the persons having the primary right of appeal, but at the same time this regularization method means a considerable limitation to the right of appeal against other investigation (examination) decisions, including the persons having such a right. (E.g. in old Hungarian law no appeal lies against the cessation of the investigation.)” Ervin Cséka: Basic Doctrines of Criminal Legal Remedies. Budapest, 1985. pp. 146-147.


[32] In spite of this the regularization was not found anti-constitutional by the Constitutional Court in its Resolution No. 1320/B/1993. sz. AB.


[33] I believe that the defensive right of appeal in a wider sense includes certificates (plea for certificate) available in all phases of the procedure, and special legal remedies like plea for trial, caveat, “inspectorial complaint” (acc. to Attorney General).


[34] The ECHR case of Diana v. Italy refers to the right of appeal in the law enforcement phase, where the Court stated the violation of Par. 13 of ECHR (right to effective legal remedy), based on the fact that no appeal lied against the decision of the law enforcement judge ordering the inspection, merely the judge itself bringing the decision could be petitioned for the revision of the disposition in a plea for equity. (Par. 13 – Right to effective legal remedy: Any persons, whose rights and freedom determined by the present Convention were breached, have the right to petition the domestic authorities for effective remedy of the injury even when these rights were breached by persons proceeding in their official capacity.) Summary of the Sentence dated 15th November 1996. Judicial Decisions 1997/10. pp. 795-796.


[35] Flórián Tremmel: Im. p.466. I would add that the new Code of criminal procedure does not even establish the principle of the right to appeal in the fundamental principles, the possibility of legal remedies is only given in the detailed regularization to the subjects of the defence, among others, in certain cases.


[36] According to Article 3/c. of Par. 6 of ECHR: “Every person suspect of a crime has the right – at least – to defend himself personally or with the help of a defender selected by him, and should he have no means at his disposal to remunerate the defender, a counsel must be officially assigned to him free of charge, if it is required by the interests of jurisdiction.” In the Hungarian Code of criminal procedure the “paid” assigned defender does not meet this requirement.


[37] Géza Katona refers to the significance of defender skills when he says: “It is not doubtful that nowadays not only the law practisers are not able to perform the evaluation by mathematical means but also the interested persons in the trial (accusee, defender, offended party, etc.) are not able to review and control it. Maybe in the future general education will also include this mathematical knowledge, but hopefully the professional conditions of the application of these probability theory methods on trials will be created earlier.” “Not only the proceeding authorities but also e.g. the defence should be able to evaluate the evidences…” Géza Katona: Real or Unreal? Evaluation in the Proof on Criminal Trials. KJK, Budapest, 1990. pp. 96 and 304.


[38] According to Ervin Hacker: In order to possibly eliminate or at least balance this inequality on trials, the criminal practices of the courts ensure some counts of advantages and favours (favor defensionis) for the accused against the prosecutor especially where exclusive rights are concerned (e.g. last plea).” Ervin Hacker: Short Outline of the Hungarian Criminal Proceedings Law. Miskolc, 1943. p.216. (See: Criminological Publications, 1989. 28. Memoir of Ervin Hacker.)


[39] Rusztem Vámbéry discusses the aimlessness of the distinction between the two forms of defence (formal and material): Handbook of the Code of Criminal Procedure. Budapest, 1916. p.107.


[40] Concerning the material defence Ákos Farkas-Erika Róth co-authors aptly mention that if the authorities – observing the dispositions of the regulation – took their material defensive activity seriously, the defender has no other tasks than to present a “super” pleading. Ákos Farkas-Erika Róth: Witness Protection in Criminal Proceedings. Hungarian Law, 1992/10. p.585.


[41] Ágnes Frech refers to the real situation contrary to the principle when she says: “Let’s examine the equality of clients. It reads as follows: “In the judicial procedure during the proof the prosecutor, the accused and the defender have similar rights.” In reality this is not the case, the inevitable legal disadvantage is far more typical on the side of the person under procedure and the defence. The documents are made in three copies during the investigation, one of which is sent to the prosecutor, the other to the court, and as a counterpole, the suspect or his defender can view the documents, perhaps make notes and photocopy them at his own costs. The person itself, who has the elemental interest to prepare satisfactorily for the defence knowing the evidences against him, is not and can not be in possession of these data.” Ágnes Frech: Dialogue on the Hypocrisy of our Criminal Law. Interior Review 1991/1. p.50.


[42] Flórián Tremmel shows that the situation is even more complicated, because a third kind of regularization of the defence appears in the court organisation law. “The defendant has the right to defence and to choose a defender.” (Par. 9. Point 1.) This threefold regularization can easily induce three different interpretations of law.” Flórián Tremmel: Im. p.88.


[43] Mihály Tóth discussed the defending of the accused in details in his relevant Ph.D. dissertation. (Budapest, 1989). See the recension of the qualifying examination: Endre Bócz: Ph.D. Dissertation on the Right to Defence. Interior Review 1990/3. pp.28-34.


[44] This would be rather necessary because the secret investigations are also against “persons under procedure”.


[45] This approach is in accordance with the ECHR practice on the defence of human rights and essential freedom. (See X.v. Austria, Appl. No. 6185/73. DR. 68: Ensslin and others v. FRG. Appl. Nos. 7572/76, 7586/76, 7587/76. DR. 14, 64)


[46] Also according to the similar adjudgement of the Constitutional Court: “…the defender is an independent person of the criminal procedure, his rights are not transferred rights but autonomous procedural rights serving the objective interests of the person under criminal procedure”. See: Constitutional Court Resolution Nos. 6/1998. (III. 11.), 1320/B/1993 AB, ABH 1995, 683, 685. In the same Resolution the Constitutional Court was not content with ensuring the formal right to defence, but on the one hand demanded its effective prevalence, and on the other hand deliberately extended this right to the adequate preparation of the accused and the defender, and the practice of their rights. Here the Court also referred to the constitutional limitability of the right to defence and that it is not being absolute.


[47] Mihály Tóth: Im. p.219.


[48] According to Ákos Farkas-Gábor Pap co-authors: “The regularization of the Code of criminal procedure turns the right to defence into a right to a defender.” Agreeing their standpoint we can state, “The employment of the defender, his rights and the legal security are only parts of the right to defence. The above-mentioned section of the Constitution clarifies that the right to defence is a right of the accused. He can exercise this right throughout the whole duration of the criminal procedure. The criminal procedural regulations are only in accordance with the Constitution if they ensure the legal defensive means and the right to select them freely for the accused. Even his defender, presently his assigned counsel, cannot limit this right.” Ákos Farkas-Gábor Pap: Constitutionality and Criminal Proceedings. Criminology and Criminalistics Yearbook. Budapest, 1993. p.59.


[49] As Teréz Szabóné Nagy says: “According to the content of the fundamental principle of defence the accused is only entitled to but not obliged to defend himself. The accused cannot be forced to exercise the right to defence and to defending, and he can decide whether he wants to behave himself actively or passively in general during the procedure including the trial phase. The situation is different in the case of the defender: when he represents the interests of the accused during the procedure, he is not only entitled to but – according to the regulations of legal force of the Code of criminal procedure – he is also obliged to exercise the rights necessary for the defence.” Teréz Szabóné Nagy: Simplification of Criminal Proceedings. KJK, Budapest, 1970. p.316.


[50] As György Auer wrote more than sixty years ago: “The ability to practice unobstructedly the legal rights of the accused requires first of all the free prevalence of defence in all procedural phases. Those who believe that the most urgent tasks of the criminal procedural reform is the improvement of the accuseed’s position in the preparation procedure show correctly, that this goal can only be achieved if the proper fulfilment of the defender’s position is ensured institutionally. We provide different rights for the accused in vain if we do not take measures that a professional person advise him on the usage of these rights. The mode of fulfilment of the defender’s position is related to material and professional issues, therefore it would require the establishment of institutions, which are outside of the frames of the Code. The provision of officially assigned counsels and public defenders assigned to the Table main trial by the Code as little solved the question as little the motions until now seem expedient.” György Auer: The Hungarian Criminal Procedure Law. Budapest, 1938. Par.18.


[51] Ákos Farkas-Erika Róth also represents this opinion referring to the European standards: “We believe that in Hungary the State does not, or not sufficiently assures the necessary conditions. The defence must be free of charge from the side of the defendant and not of the defender. As we already mentioned, it is the obligation of the State having the monopoly on criminal jurisdiction to guarantee the provision of resources for jurisdiction.” Ákos Farkas-Erika Róth: Im. p.587.


[52] A separate budget must be established for this (as for other state functions) from the taxes paid by tax-payer citizens as “potential accuseds”.

2002/1. Contents