Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VIII. The basic features of the Hungarian evidence system • The means of evidence in general
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8.8. Prohibitions on evidence
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8.8.2. Prohibitions on giving evidence

8.8.2. Prohibitions on giving evidence

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The CPC mentions the prohibition or (lawful) refusal to testify as obstacles to the testimony of a witness.1 These circumstances must also be taken into account if they exist at the time of the commission of the offence or at the time of the interrogation. 2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

As a general rule, the witness should not be asked any question that would

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • include the answer or instructions for the answer,
  • contain a promise that is incompatible with the law, or
  • involve the statement of an untrue fact. 3
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The testimony of a witness who has been interrogated in violation of the provisions on the impediments to testifying may not be taken into account as evidence, with the exception of the exception provided for in the CPC.4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Absolute grounds for exclusion exclude a person from being called as a witness if they:
    • are the defender with information he or she has learned in his or her capacity as defender or has communicated to the defendant in his or her capacity as defender,
    • a member of a church and a member of an organisation exercising religious activity who is performing a religious rite by profession and who is bound by a duty of confidentiality by virtue of his or her profession,
    • who, because of his or her physical or mental condition, obviously cannot be expected to make a correct confession,
    • a person in possession of classified information who has not been released from the obligation of confidentiality.
    The general rule of prohibition on patron-client or confessional secrecy continues to apply even after the relationship on which it is based has ended. In such a case, the witness may not be questioned on the fact to be proved which falls within the scope of his obligation of confidentiality.5 In the case of classified data, the classifier defined in the Act on the Protection of Classified Data shall decide on the granting of exemption or the maintenance of the obligation of confidentiality at the request of the court, the prosecution or the investigating authority. 6
  2. Relative grounds for exclusion include the possibility of refusing to testify. This right may be exercised by:
    • a relative of the debtor, or
    • a person who would accuse himself or a relative of having committed a crime: the weight of witness statements is indicated by the recent legal solution which defines the circumstances in which, even in such cases, witness statements may not be refused7 (it is a different matter that the continuation of the proceedings that have been discontinued cannot be ordered because of the crime reported in such a statement and the statement cannot be considered as new evidence for the purposes of retrial ),8
    • who is bound by professional secrecy or public authority, except in the case of confidentiality of classified information, and who would breach his or her duty of confidentiality by giving evidence,9
    • the media content provider and any person employed or otherwise engaged in an employment or service relationship with the media content provider, if the identity of the person who has provided information to the media content provider in connection with the media content provider’s activities would be disclosed by the testimony of the witness.10
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The legality of the refusal to testify is decided by the court, prosecutor’s office or investigating authority.11 If the witness has lawfully refused to testify, no further questions may be put to him or her and the witness may not be confronted unless he or she decides to testify.12 A witness shall be warned at the time of his first interview during the investigation and during the first instance and appeal court proceedings that he may refuse to testify if the circumstances justifying it exist at the time of the interview or the commission of the offence. 13

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Note that the witness’s testimony in the case, whether given earlier or in another case, may be used as evidence even if the witness later refuses to testify. This is on condition that the record of the testimony clearly shows the testimonial warning was given, which was acknowledged by the witness.14 If the witness has been previously examined as an accused in the case or in another case, his statement as an accused may be used as evidence if the statement record clearly shows the inculpatory warning and the answer given.15
1 § 169 (1) para.
2 § 169 (2) para.
3 § 180 (4) para.
4 § 169 (3) para.
5 § 170 (2) para.
6 The request for exemption shall indicate in an identifiable manner the matters for which exemption is requested.
7 Thus, the testimony of a witness may not be refused if: a) the witness, by answering the question, would only accuse himself of having committed a crime in connection with the investigation of which he is considered to be a cooperating defendant and the complaint against him was rejected solely for this reason b) the prosecution terminated the proceedings against such a person because (1) the act is not a crime (2) he did not commit the crime (3) the available data and means of evidence do not establish the commission of a crime (4) the offender’s criminal liability or the impunity of the act cannot be established (5) the criminal liability has expired due to the statute of limitations or pardon (6) the act has already been finally adjudicated (7) the denunciation or the decision of the public prosecutor to initiate proceedings is missing (8) the private prosecution is missing and can no longer be replaced by law (9) the act is not a public offence (10) the case is not subject to Hungarian criminal jurisdiction (11) it cannot be established on the basis of the available data or means of proof that the offence was committed by him or her (12) the transfer of the criminal proceedings or the result of the consultation procedure provided for in the Act on Criminal Cooperation with the Member States of the European Union is the basis for the criminal proceedings to be conducted by the authority of another State (13) his or her criminal liability has been terminated as a result of active repentance, the conduct required under the conditional suspension of the prosecutor or the effective expiry of the period of conditional suspension of the prosecutor or for any other reason provided for by law (14) the prosecutor’s office has issued a reprimand (15) the proceedings are pending for an offence which, apart from the more serious substantive offence committed, is of no relevance for the prosecution of the offender (16) he or she is a co-operating offender (17) the Criminal Code has been amended to include the offence of “criminal offence” (18) he or she has entered into an agreement on the basis of which he or she cooperates to a significant extent with the prosecution or the investigating authority in order to contribute to the proof of the case or other criminal case (19) he or she has been subject to mediation proceedings, conditional suspension by the prosecutor or – in view of his or her cooperation – the termination of the proceedings [§ 172 (1)–(2)].
8 This provision shall also apply to an offence revealed by the testimony of a witness which was not the subject of a previous criminal prosecution against the witness, but which would be grounds for dismissing the complaint, investigation or proceedings for any reason whatsoever in the case of an offence revealed by the testimony of a witness. [§ 172 (3) para.]
9 Unless, as provided by law, a) it has been exempted from this obligation by the person entitled to receive it, or b) the transmission of data subject to the obligation of professional secrecy is mandatory for the body requested in the context of a data request, on the basis of a request by a court, a prosecutor’s office or an investigative authority. (§ 173)
10 Unless the court has ordered the disclosure of the identity of the person who provided the information. (Art. 174)
11 § 175 (1) para.
12 § 175 (3) para.
13 § 176 (1) (a)
14 § 177 (4) para.
15 § 177 (5) para.
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