Those states where the accused’s statements are subject to significant legal consequences – positive or negative – by law or judicial practice, start from the principle that the accused has the most direct information about the circumstances of the crime, so that all his statements must be given priority and taken into account as evidence.

According to Somogyi, “no one can know the material truth concerning his own conduct better than the person himself; it can hardly be supposed that the state, through any court or other authority, can discover a material truth concerning a past event closer to that which is based on the voluntary admission of a person of sound mind.” 1 Nevertheless, it says much about the weight of the defendant’s testimony

The first substantive provisions on the right to silence were contained in Act I of 1973. However, according to Mihály Tóth’s recollections, “the practice stubbornly forbade the introduction of this right [to the accused], fearing the effectiveness of investigations, confusing lecturing with encouraging silence, or referring to the interests of the accused contrary to silence, emphasising that only the confession made can force the performance of procedural acts that may produce evidence favourable to the accused.”5 Accordingly, the “Miranda Principles” were transposed into Hungarian law only in 1989,6 as a result of which the following provisions were added to the Hungarian legislation: the accused must be warned at the beginning of his interrogation that the statements made by the accused may be used as evidence in the case at further stages of the proceedings. (Failure to do so may result in the accused’s statement not being taken into account as evidence.). I would note that the application of the “Miranda rule” would be complete if it were also stated in the warnings that the accused’s previous statement could be used as evidence in the event of his subsequent denial or silence. Procedural errors in violation of the principle are, moreover, a “regular occurrence” in Hungarian jurisprudence, for example, in a case in 2013, the court in the case was asked to declare the accused guilty of not having warned him of his right to remain silent, without having warned him that he understood the charge or admitted his guilt. This took place only after the accused had made a statement, and the court of appeal objected on the merits.7

The first interrogation of the accused takes place during the investigation, after the report of the reasonable suspicion, and its purpose is already then to (1) to find out the facts relevant to the establishment of criminal responsibility, and (2) to establish the personal circumstances of the accused. The timing of this can be of paramount importance from a tactical criminal point of view, but it is only justified if the prosecuting authority has evidence of the accused’s identity, not only hypotheses, but evidence based on concrete facts and legally obtained.8 For this reason, the following points are considered to be standard practice for authorities in almost all jurisdictions (with the exception of summary proceedings):

The use of violence or threats by the authorities during interrogations, in whatever form, is an offence under all modern criminal laws (see forced interrogation).11 This is supplemented by ethical rules prohibiting any conduct by authorities which contains illegal promises or which is likely to mislead the accused. However, I agree with Háger that in the case of a tactical bluff, even a breach of ethical rules cannot be invoked as an excuse.12 For example, it could be considered as such when the authorities falsely claim that the accused’s accomplices have already confessed, that the accused’s fingerprints have already been found at the scene, etc. On the other hand, it is obviously not unethical to warn the accused that cooperation with the authorities or confession is a mitigating circumstance in the assessment of a possible subsequent judicial sanction.13 In any event, it can be concluded that the primary objective of the investigating authorities is, as always, to obtain a confession from the accused.14 According to Mihály Tóth, in instances where it is not the facts of the case that are in dispute but only the legal classification, the accused more often confesses, but where the factual basis of the case is unclear, the accused more often exercises their right to remain silent.15

The right to remain silent and – in parallel – the prohibition of self-incrimination have become an indispensable guarantee of a fair trial. The current legislation of the Criminal Code meets these requirements, as it provides that the accused must be informed of his rights before the start of the interrogation and warned that he is not obliged to make a statement, that he may refuse to make a statement or to answer certain questions at any time during the interrogation, but may also decide to make a statement at any time (even if he has previously refused to do so). 16

If the accused wishes to make a statement, after the charge has been served, the accused shall be asked about his or her occupation, employment, education, family circumstances, health, income, property, military rank and decorations. As a basic rule, the accused must be given the opportunity to present his or her statement in context and questions may be put to him or her only afterwards. If the accused’s testimony differs from his previous testimony, the reason for this must be clarified, as in the case of witness testimony.17 A question may not be put to the accused which (1) implies an answer or contains instructions for an answer, (2) contains a promise inconsistent with the law, or (3) contains an untrue statement of fact. If the accused makes a statement after refusing to confess, he may be questioned.18

A statement made by the accused as a witness in a previous case or in another case may be used as evidence if the testimonial record clearly shows the testimonial warning and the answer given. A statement made by the accused in another case may be used as evidence if the statement record clearly indicates the charge and the answer given.19

There is now a partial uniformity of practice regarding the timing of the taking of incriminating statements, thanks to decisions of the courts of appeal.20 On this basis, minor procedural irregularities (e.g. failure to give certain warnings) do not in themselves constitute errors of such gravity that these statements cannot be assessed. This was essentially the position taken by the court decision which held that the failure to instruct the accused on the legal consequences of a false accusation or to record his answers to such an accusation did not (necessarily) exclude his statement from the evidence.21 However, in relation to this decision, I also share Háger’s view that, if the necessary warnings are not given with regard to the fundamental rights of the defence (e.g. the right to question, comment, make a motion), this already infringes the right of defence to such an extent that the accused’s statement cannot be included in the scope of judicial assessment in the future.22 (I would note that this rule should also apply fully during the discovery and investigation.)

Practical problems with the evaluation of incriminating statements arise mainly when the accused (1) does not testify at the investigative stage but does testify at the trial stage, or (2) withdraws or modifies his testimony at the investigative stage at the trial stage. In these cases, it is only possible to check and compare these statements in court, which can make it much more difficult and lengthy to prove the case at trial. I therefore agree with Belovics’ view that

I would like to note that, unfortunately, the Act still does not resolve the inconsistent regulatory technique of Act XIX of 1998, which is manifested in the different regulation of incriminating statements made during the investigation phase and the court phase. In Háger’s view, this creates difficulties in the application of the law and could be the source of numerous procedural irregularities.25 I agree with the author that the rules on the admission of incriminating statements should be clarified in the CPC. In my opinion, it would be necessary to regulate the rules on the taking of evidence in the General Part of the Act within the same chapter, which would then apply to all procedural sections. However, I will also deal with other rules on the taking of incriminating statements in the analysis of the investigative and judicial phases.

On the whole, it can be stated that the Criminal Code still attaches paramount importance to the testimony of the accused, as in many cases it does not require the obtaining of further evidence in case of confession (see confession made at a preparatory hearing). This leads to the conclusion that (1) the recognition of the confession as an emphatic mitigating circumstance is being revived as an old-new rule of thumb in criminal proceedings, and (2) the recognition that the accused is not the object but the subject of the proceedings has been reinforced. In addition, the accused may make other ‘statements’ (e.g. comments, speeches) during the proceedings, which may also be taken into account as evidence.