The Modification of New Hungarian Criminal Procedure Code

By Csongor Herke

 

 

 

I. The Codification of Hungarian Criminal Procedure

 

Until now five different Criminal Procedure Codes existed in Hungary[1]. The first Criminal Procedure Code, the Criminal Procedure Act XXXIII of  1986 was in force for more than 50 years. This was followed by the first socialist Criminal Procedure Act III of 1951. There were other two consecutive acts during socialism (Law Decree 8 of 1962, and the one which is presently in force Act I of 1973).

 

Following the democratic transformation an urging need emerged for a new criminal procedure act, which can cope with the requirements of rule of law. The provisions of the Act I of 1973 were changed on more occasions before and after the democratic transformation of the 1990's, still it became inevitable to make a conceptionally also new code. This happened in 1998 with the Act XIX of 1998 (from now on referred to: The New Code) which, compared to the Code which is presently in force with 407 articles, consists of 607 articles.

According to TREMMEL[2] this attempted to cope with three criteria:

-         the continuation of Hungarian legal traditions

-         the closing up to international standards

-         the fulfillment of the requirements set up by the society.

 

In accordance with this, the New Code significantly differs from the Actual Code as far as it’s structure is concerned as well and it was made in a way so that the international requirements were also taken into consideration (primarily human rights and fundamental liberties on the basis of Treaty of Rome, furthermore the practice of Human Rights Court of Strasbourg).

On the other hand a problem arose, namely, when making the act, the codifiers did not take into consideration properly the Hungarian legal traditions (e.g. the introduction of cross examination) what is more, there were some contrary opinions expressed by judges and public prosecutors (e.g. the changing of the system of remedies). Another problem was the lack of structural conditions, which hindered the enforcement of the New Code in 2000 (e.g. the setting up of the Regional Courts did not take place, still the New Code prescribed a four instance system of legal remedies. As a consequence of these factors the Act CX of 1999 changed the enforcement date of the New Code to 1 January 2003, at the same time many provisions of the New Code (similarly to the LXXXVIII of 1998) were incorporated in the presently in force Criminal Procedure Act 1973(referred to as the Actual Code).

 

The Act I of 2002 in order to eliminate these defects changed 309 articles of the New Code which is, however, still not in force. This modification means that half of the articles that make up the New Code will not come in force at all, the other half of them will come in force, but already in a modified form. This thoughtless codification consists of three basic modifications compared to the original conception:

-         it upholds the system of judicial hearing/ interrogation (this is presently in force) as compared to hearing by the parties (with the amendment that after the judicial hearing the public prosecutor, the accused, and the counsel for the defense may ask questions – this is also in accordance with the presently in force Code

-         instead of a two instance local remedial system, the present one instance local remedy will remain (still appeal against the decisions of the county court will be dealt with by the Regional Court, and not the Supreme Court)

-         at last, compared to the presently in force Code the chances of irregular (that is: not local) remedies are also widened (there would be a possibility for review even against decisions that became non-appealable on first instance).

 

 

 

II. The Structure of the New Code

 

 

The New Criminal Procedure Code unified with the modification of 2002 is made up of six parts and thirty chapters.

-         Part One: Chapter I: General Provisions [1-11§]; Chapter II: The Court [12-27§]; Chapter III: The public prosecutor [28-34§]; Chapter IV: The investigating authority [35-41§]; Chapter V: The persons involved in criminal procedure [42-59§]; Chapter VI: The provisions on procedural acts [60-74§]; Chapter VII: The proving [75-125§]; Chapter VIII: The forced measures/means of coercion [126-163§];

-         Part Two: Chapter IX: The investigation [164-215§]; Chapter X: The accusation [216-233§];

-         Part Three: Chapter XI: General rule of judicial procedure [234-262§]; Chapter XII: Preparation of trial [263-280§]; Chapter XIII: The first instance trial [281-344§]; Chapter XIV: The second instance trial [345-384§]; Chapter XV: The renewed process/Renewal of the trial [385-391§];

-         Part Four: Chapter XVI: Reopening of the case [392-404§]; Chapter XVII: The review [405-429§]; Chapter XVIII: Remedy in favour of legality [430-438§]; Chapter XIX: Unity of law procedure [439-445§];

-         Part Five: Chapter XX: Criminal procedure against juveniles [446-468§]; Chapter XXI: Military criminal procedure [469-492§]; Chapter XXII: Private accusation procedure [493-515§]; Chapter XXIII: Arraignment [516-525§]; Chapter XXIV: Procedure against the absent accused [526-532§]; Chapter XXV: Renouncement of the trial [533-542§]; Chapter XXVI: The omission of a trial [543-550§]; Chapter XXVII: Procedure against persons who have immunity [551-554§];

-         Part Six: Chapter XXVIII: Specific procedures [555-587§]; Chapter XXXIX: The execution of decisions/verdicts [588-599§]; Chapter XXX: Closing provisions [600-607§];

 

The original structure that was accepted in 1998 is more or less the same, the formerly existing chapters (with greatly modified content) remained, with the exception of the third instance procedure (because of the causes mentioned before). As a consequence of the length limits of an essay there is not a possibility to examine the detailed questions of every chapter, therefore only some basic characteristics are highlighted[3].

 

 

1. The static rules

 

 

Part One of the New Code comprises the static rules. The General Provisions are made up primarily of the basic principles. The New Code, however, does not situate all basic principles in the General Provisions Chapter, instead there are some in other chapters (e.g. right of legal remedy, principle of respecting human rights, principle of verbality, principle of publicity) furthermore this New Code does not contain for instance the principle of directness at all. Apart from these we can find new principles, that became independent from others: right to judicial procedure, burden of proof (onus probandi), right against self-incrimination. By the way the majority of basic principles (with slightly changed content) is the same with those of the presently in force Criminal Procedure Code.

Regarding the subjects of criminal procedure the most significant changes in the New Code affect the public prosecutor. The public prosecutor will become the main leader of the investigation either through his personal investigation or through somebody else!s investigation but on the order of the public prosecutor. The decisive change as far as the courts are concerned is the introduction of “investigator judge”, whose authority covers the fulfillment of those duties that emerge during the investigation and must not be done by anybody else but a judge (e.g. the ordering of forced measures, the permission of secret informationgathering, interrogation of a protected witness, decisions on remedies). According to the previously stated there will be a four instance judicial system (local courts, county courts, Regional Courts, Supreme Court). Out of the rules on participants in a criminal procedure the following has to be highlighted: restriction of the right of the counsel for the defense in relation to his/her presence during the investigation (he may not be present during the investigation of every witness, only in those cases is he/she permitted to be there if he/she or the accused initiated the interrogation of that particular witness) [4]. New subjects of the procedure are: the counsel of the witness, and the additional private accuser.

            A very crucial modification regarding the proofs is that the Actual (presently in force) Code has an exemplary list on nine proofs, the New Code, on the other hand, lists only five means of evidence (testimony of the witness advisement, exhibit, document, testimony of the accused), and in a separate subsection five proving procedures are mentioned (survey, attempt of proving, presentation for recognition, confrontation, concurrent hearing of experts). TREMMEL does agree in his above mentioned work neither with the separation of means of evidence and proving procedures nor with the detailed rules (this is evidently supported by the right against self-incrimination).

The New Code would have introduced important changes regarding forced measures, but prior to this the modification of 2002 changed other, more decisive new rules. According to the original text almost all forced measures could have been ordered only by the court (possibly the state attorney’s office), taking this right from the investigating authorities, however, with the modification of 2002 the provisions of the Actual Code were smuggled back in the final text of the New Code. The court consequently has exclusive authority only when ordering forced measures that limit one’s personal freedom. Any other forced measure (depending on the phase of procedure) may be ordered by the investigating authorities or state attorney’s office as well[5]. This is not however the most important drawing back, but the fact that the enactment of the Chapter on bail of the New Code was delayed and it was stated that a separate act is to enact this chapter in question.

 

 

 

2. The investigation, the arraignment and the judicial procedure

 

 

The New Code regulates three new institutions regarding the investigation: the inquiry/sounding (other information gathering activities of the investigating authorities), the investigator judge and making general the postponement of accusation. Out of these three only the investigator judge will be totally new institution for the lawpractice because the other two institutions have been already incorporated in the Actual Code following a modification in 1998.

In relation to the judicial procedure the hearing by the parties would have been a major change. As we have stated earlier as a consequence of the 2002 modification this provision did not slip into the final version (?). The improvement of the system of legal remedies does reflect none of the original conceptions. It is very interesting that besides a four instance judicial system, the system of appeal is only monodont. As a consequence of this regulation the Supreme Court does not decide on local remedies. Those cases that on first instance belong to a local court are decided by the county court, and those that an first instance belong to a county court are decided by the Regional Court.

Therefore it can be stated that the Supreme Court will have a “conceptional directive function” (unity of law procedure, remedy in favour of legality) and will also decide on the review petitions as an irregular legal remedy possibility.

The number of specific procedures grew, although out of these eight specific procedures seven are mentioned in the Actual Code already, since compared to the originally existing only five specific procedures, in the course of events two more were introduced: renouncement of the trial and procedure against the absent accused. All in all it can be claimed that only the procedure against persons who have immunity will be a totally new procedure. Out of these specific procedures the Chapter an arraignment was significantly modified, but these modifications have been already introduced[6]. The renouncement of the trial is a new Hungarian attempt at the introduction of “accusation bargain” (agreement with the perpetrator was earlier introduced with not much success), but it has so severe and improperly regulated conditions, that from its introduction till nowadays (one and a half year) it was applied in less than ten cases in the whole country.

 

All in all it can be asserted: the New Code consists of pointing ahead and rule of law-conform changes. However, vocational disputes, consultations and arguments, and other factors (e.g. economic, structural, political) forced the legislator to enforce the New Code with three years delay compared to the plans and with quite modified content. The question inevitably arises: will the New Code in its present form stand the test of time? The answer obviously will only come with time from the practice of courts and legal profession.