If the accused does not wish to make a statement, the single judge or the president of the chamber shall, of his or her own motion, present it or may, on the motion of the prosecutor, the accused or the defence, read out or have the court reporter read out the substance of the statement made by the accused during the investigation and at the preparatory hearing.4 According to Szalai, it is also tactically inappropriate for the accused to wait until the last minute to make a statement, as all the evidence will presumably have been known by then.5 In my opinion, however, this is of no significance, as the accused cannot influence the number or significance of the evidence anyway. As I indicated earlier, it is much more appropriate for the defence lawyer to exercise his procedural rights on a continuous basis.

Cséka notes that “the more effective application of the principle of defence […] is undermined by the fact that the accused’s statement made during the investigation can be read out, even though he does not wish to testify at the trial. The basic legal right of the accused to refuse to make a statement at any time during the interrogation is guaranteed by law, and the indirect (documentary) evidence made possible renders it irrelevant.”6 I cannot agree with this point of view, because the refusal to make a statement does not necessarily mean that the accused wishes to make a statement with a different content from the previous statement. If this is the case, he (may) choose between two options: (1) to make a new confession or (2) to withdraw his previous confession without making a new confession. In my view, the reading of a statement made during the investigation does not therefore indirectly infringe the right to an effective defence. It is a different matter that the court must, in the course of the evidentiary procedure, make every effort to clarify the reasons for the discrepancy.7

If the accused wishes to make a statement, the single judge or the chairman of the chamber shall ask the accused whether he pleads guilty. In this respect, incriminating statements can be categorised as follows:

At this stage, the confession can only be taken into account as a mitigating circumstance in determining the subsequent sanction, it has no simplifying function. It should be noted that, even in the case of a full, revealing confessions, it may not be pointless to conduct a full evidentiary hearing, since from this point onwards the court must examine whether the confession is based on true or false statements.9 Furthermore, I consider the court’s formulation of the question of admission of guilt to be unconstitutional, since it involves a hypothesis which infringes the presumption of innocence. By formulating this question, the court – necessarily – forces the accused to defend himself, whereas the burden of proof lies solely with the prosecution.

With regard to the pertactical aspects of changing the confession, I would point out that if the accused has made a confession during the investigation phase and the available evidence undoubtedly supports his criminal responsibility, it may be counterproductive to withdraw this confession or to deny it afterwards. However, the atmosphere of a trial is of course different from that of an investigative interview. The courtroom can have such an effect on the accused that, even after the most thorough lecture, he or she may still turn to his or her defence with uncertainty. 10

The guarantee rules for taking a statement from the accused are as follows:

Of course, it is also possible that the defendant only wishes to comment on his personal circumstances, but not on the merits of the case. It is also advisable to state this fact separately in the record, but it is incorrect practice to state a general refusal to testify in such cases.

Interesting questions arise in situations where there is a change in the accused’s testimony at trial compared to the suspect’s testimony during the investigation phase. There are two main reasons for this: (1) the accused deliberately intends to make a different confession (e.g. admits or denies a confession compared to their a previous confession), (2) the accused carelessly contradicts his previous confession. Either way, neither of these scenarios is preferable; inconsistent defences generally strengthen the prosecution’s case. Although the right to change the confession is given to the accused to an unlimited extent, this right can be seen as symbolic rather than effective, and changed confessions lead to the failure of the defence rather than the effectiveness of the defence.

The general rule remains that if the accused’s testimony differs from his or her previous testimony, the reason for this must be clarified. However, the law does not give any guidance on how to resolve the conflict, so the court’s “attempts” may be stuck at the level of general, template-like questioning, which ultimately leads to no result. It should be noted that in the reasons for conviction, the court often does not accept the (modified) trial testimony because the defendant has not explained the reasons for the discrepancy.

Also, withdrawing confessions at trial seems pointless, especially if the accused does not even give the court an explanation of the reasons for the withdrawal. In such cases, the court will usually take the previous confession into account.

And if the accused has confessed at earlier stages of the proceedings and refuses to confess at trial, then in my view it is always appropriate to take into account the confession made earlier.

The question also arises whether the (consistent) silence of the accused can be assessed to his/her detriment. Obviously not, as (1) this would violate a number of procedural principles, and (2) silence is not an admission. However, in the reasons for conviction, there is often a reference to “an innocent person confessing”, suggesting that the accused should have confessed earlier.13 This is, of course, not an acceptable judicial argument.