While the simple hearing of a charge or witness can be understood as a process of communication with the authority, in the case of a confrontation a third person (co-defendant, witness or victim-witness) enters, who does not only listen to the other party’s statements, but also – usually – refutes them. The moral and psychological impact of confrontation should be emphasised, since this procedural act clearly serves the purpose of ensuring that the person being prosecuted reveals the material truth as fully as possible in the presence of the other (opposing) party.

It should be noted that the personal presence at the confrontation – against summons or in case of production – is mandatory, but beyond that the person confronted has no active obligation (to make a statement). It is therefore primarily a question of defence tactics whether the person to be confronted makes a meaningful statement and, if so, in what form and with what content.

Options for confrontation can be categorised through the following dichotomies:

The reasons for inefficiency may include:

In the light of the above, it is a much debated tactical question at which stage of the procedure it is appropriate to order the confrontation.12 For my part, I believe that in the present case it is an evidentiary act which should be used several times in the same proceedings in respect of the same persons. In essence, it is designed to ensure that the joint presence of the persons to be confronted produces an effect on the persons concerned which is capable of changing their statements by their own volition. These psychological circumstances must therefore be given the opportunity to prevail on several occasions, taking into account the principles established by law and judicial practice (e.g. no confrontation with a child or a person suffering from an intellectual disability ). Since confrontation can cause serious psychological and emotional harm to many procedural participants (e.g. because of the nature of the offence or their age), it is a rule of law that, if the protection or welfare of the witness or the accused so requires, confrontation of these persons should be avoided.13

Complaints may be lodged against the ordering of a confrontation, the failure to order it or the manner in which it is carried out. These are filed in the first instance by the accused or the defender .14

The primary reason for filing a complaint is if the accused (suspect) has already announced in advance – e.g. during his/her interrogation – that he/she does not wish to appear at this evidentiary hearing or to make a statement on the merits. It should be noted that the person to be confronted may still be obliged to appear at a later stage, but is of course not obliged to make a statement (in my view, it is no longer appropriate to summon or produce him in such cases). 15

If the defence expressly requests a confrontation, it is considered a request for evidence which is granted or rejected by the competent authority (court) by written decision. There is, of course, also the possibility to lodge a complaint against these decisions.

Complaints about the enforcement methods do not have suspensive effect, so the investigating authority (court) will carry out the act of proof and only then decide on this appeal.

Complaints usually complain about the behaviour of the person in charge (e.g. impartial, humiliating, influential, abusive).16

According to Fenyvesi’s study, on average half of the legal practitioners are satisfied with the legal provisions on confrontation, with prosecutors standing out. At the same time, “only one third of the respondents would prefer confrontation to the investigative branch, but the average is the same for the judicial branch and for both branches. “In other words, there is no marked dominance among law enforcement officers on the question ‘where to apply confrontation’ […]”.17 It should be noted that, according to the author’s empirical research data from 2005 to 2007, confrontation was conducted in an average of one out of every two cases, but the effectiveness of this evidentiary act was only 12-14% in the period under study.18

From the point of view of the future of this traditional act of evidence, it should be noted that its use is opposed by the ever-increasing protection of witnesses (see the growing need for special treatment), the ever-developing tools of criminal technology and computerisation.19 Nevertheless, even after many decades, this act of evidence may still be able to provide information on the merits of the allegations made by the subjects of the proceedings.20