The subject of evidence is made up of the facts of the case and relevant to the application of the law (collectively: relevant facts), the selection of which is the task of the competent authorities (courts), and the precision of this mechanism is a fundamental determinant of the quality of the administration of justice. The procedural law in question naturally sets out the general framework which must be examined in all cases, for example, with regard to the mandatory content of an indictment or a court decision.

 

According to Háger, “the object of proof is the fact itself, the one-off, essentially unrepeatable, perceptible event or phenomenon. The facts on which the proof is based are artificially extracted from the natural-social processes, from the sequences of human behaviour.” 3

 

I would like to note that the subject matter of the evidence cannot, in my opinion, be considered the same at the investigative, prosecutorial or judicial stage. Gödöny draws attention to a different view, namely that an investigation only really fulfils its true function if the subject-matter of the evidence is already defined at this procedural stage in such a way that there is no need to supplement the evidence in the court proceedings.10 The author thus draws attention to the ‘identity in principle’ of the subject-matter of evidence in relation to the procedural stages. For my part, however, I believe that

 

The starting point for the taking of evidence is, first of all, the determination by the competent authority (investigating authority or prosecutor’s office) of the facts that need to be proved in order to decide the case. This set of facts is a set of a defined number of (relevant) facts. Within this set, some authors emphasise only the importance of the facts to be proved, but there is also a view in the literature that the evidentiary facts are also subject to proof.12 According to Gödöny, it is undeniable that evidentiary facts must also be proved in some form, and therefore become ‘temporarily’ matters to be proved, since without them they would not be capable of establishing the facts which are the subject of the evidence. On the other hand, they do not become ‘long-term’ matters to be proved.13

 

I should note that the case will of course also involve the establishment, wittingly or unwittingly, of a number of facts that have no relevance whatsoever. However, this is not an error on the part of the authorities, but a necessary corollary of the investigation.

 

The above grouping can be a point of orientation for all public authorities (courts) when taking evidence. However, I believe that the examination of these elements is not proportionate to the procedural stages. Investigating the substantive elements is primarily a matter for the investigating authorities, while the subject-matter elements are usually dealt with by the prosecution services and the courts. Nevertheless, the process of proving the substantive elements should, in principle, begin at the investigative stage and then be ‘refined’ at the prosecutorial stage or ‘stalled’ by a procedural decision of the prosecution (e.g. referral to mediation). If there is a court hearing, these elements will be examined again, but at this stage there will be a much more detailed in-depth examination of the substantive law rules, drawing on judicial practice.