Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XII. The evidentiary features of juridical proceedings in each of the special procedures
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12.7. The judicial phase of private prosecutions

12.7. The judicial phase of private prosecutions

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the case of a private prosecution conducted in the offence in question (light assault, invasion of privacy, invasion of correspondence, defamation, libel, or making a false audio or video recording suitable for defamation),1 the law gives the victim the right to decide on the prosecution, with the prosecutor being allowed to represent the accused once during the proceedings, as a rule.2 In these proceedings, the accusation is contained in the victim’s complaint, which also includes the private complaint previously lodged.3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Therefore, if the victim makes a complaint, he or she also has the rights of representation as a private prosecutor.4 This means that they become the “master of the evidence”, since they are now responsible for providing the material for the proceedings, including the examination of witnesses, the request for expert opinions or the production of the necessary material evidence. It should be noted that in many cases there is only a conflict between a private prosecution allegation and a denial of the charge, which is not a sufficient condition for a conviction. Thus, for example, in the case of slight assault, it may be necessary to produce a medical report or a video recording, in the case of defamation on the Internet, a printout of the entry in question, etc.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A private prosecution is initiated by a complaint to the court5 made either by the complainant or by his or her legal representative and lodged with the court having jurisdiction. Of course, it may happen that the complainant, for reasons of lack of information, submits this declaration of intention at the police station, in which case the authority must send the complaint to the competent court and it must be considered as having been submitted in the appropriate place, for the purposes of continuing the procedure.6

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The denunciation can be made not only in writing but also orally: the latter is done by the denouncer appearing in court at half-time and stating his or her wishes on the record.7 In such a case, the record must contain the statements made by the complainant in such a way as to be suitable for examination by the court or as a basis for subsequent evidence, if any. It should be noted that the denunciation on the record is already made by a judicial person, and therefore its wording is obviously more specific than that of the pleadings submitted by the party.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The complaint must state against whom the victim is requesting criminal proceedings, for what offence and on the basis of what evidence.8 However, this does not mean that the person charged must be specifically named, so a private prosecution can be brought against an unknown person. Furthermore, it is not necessary to qualify the act in terms of the Criminal Code, as it is sufficient if the facts of the case can be clearly established from the complaint.9 However, in the event of obvious deficiencies (e.g. lack of details of the facts), the court will send its questions in the form of an order calling for the facts to be rectified, to which the victim may respond in a further submission.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

After receiving a complaint, the court may take the following measures:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • send the complaint and the case file to the prosecutor’s office if it appears that the case has been charged with an offence which falls in the authority of the prosecutor’s office (e.g. serious assault or aggravated assault instead of minor assault);10
  • send the complaint and the case file to the prosecution if it considers it necessary for the prosecution to consider taking over representation (e.g. the facts of a private prosecution are complex),
  • may invite the victim to clarify the denunciation in writing if the denunciation does not identify the person or the offence, or
  • order an investigation on the basis of a complaint (e.g. the perpetrator’s details are completely unknown; the subject of the complaint is defamation on the internet under a “pseudonym”).11

12.7.1. Personal interview as a specific case of trial preparation

12.7.2. Special rules governing the trial at first instance

1 CPC § 53 (1) para.
2 CPC § 764 (2) para.
3 The private petition is not bound to a form, but it must be clear from the petition that the victim wishes the perpetrator to be held criminally liable (BH 1975.603.).
4 CPC § 762 (3) para.
5 If the victim does not file the complaint in the court with jurisdiction, the court must transfer the complaint to the competent court. The court in whose territory the defendant has his or her domicile or current residence is also competent. However, in private prosecution proceedings, the rule that the accuser may also bring proceedings in the court of the victim’s domicile does not apply (RO 2020.135).
6 BH 2020.7.
7 Belovics–Tóth (2020) ibid. 637.
8 § 765 (1)–(2) para.
9 Belovics–Tóth (2020) ibid. 636.
10 If the prosecutor concludes that a public offence has been committed, he or she will prosecute. However, if he terminates the investigation, he must inform the victim, who can then reappear as a private prosecutor.
11 § 766 (1) para.
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