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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8.8.6. Prohibitions on evidence in case-by-case decisions

8.8.6. Prohibitions on evidence in case-by-case decisions

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Hungarian practice in relation to illegally obtained evidence generally focuses on the unlawful method of obtaining it.1 It can also be noted that Hungarian judicial practice is moving towards the establishment of the strictest possible prohibitions on the taking of evidence.2 The question is, of course, to what extent this is compatible with the principle of the freedom of evidence. The trend can be outlined on the basis of a number of case law decisions:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • It is an essential procedural violation to interrogate the accused’s child relatives without the consent of a legal representative,3 or a non-Hungarian native speaker without an interpreter – or with an inadequate interpreter,4 and therefore the facts from the evidence obtained in this way cannot be considered as evidence.
  • In the case of a mandatory defence, the failure of the investigating authority to appoint a defence counsel constitutes a substantial restriction of the rights of the accused, and therefore his or her testimony during the interrogation conducted in the absence of such a defence cannot be considered as evidence,5 and the same applies to the interrogation of the accused in custody as a witness in the same case.6
  • The statement made by the drug user during the investigation after he was caught during the police operation, while still under the influence of the drug, cannot be considered as evidence.7
  • A document which is the result of an evidentiary procedure contrary to the rules of criminal procedure may not be taken into account as evidence.8
  • The presence of two official witnesses is compulsory for the reading of the record of the interrogation in Hungarian of a foreign native speaker who speaks Hungarian but cannot read or write, except in the case of an unavoidable obstacle; in the absence of such presence, the statement shall not be taken into account as evidence.9
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In contrast:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • Evidence derived from testimony obtained in the proceedings of a non-designated judge cannot, for that reason alone, be considered evidence obtained by illicit means or by substantial impairment of the procedural rights of the participants, and therefore cannot be excluded from being considered as evidence.10
  • Nor does evidence obtained by (possible) civil infringement – causing personal injury – infringe the prohibition of admissibility.11 This is in line with the case law that it is in the public interest to ensure justice in proceedings before a court or other authority and that the purpose of taking evidence is to achieve this objective. Therefore, the use of a sound or visual recording cannot be considered as misuse if it is done in order to prove an infringement against the user of the recording.12
  • If the investigating authority commits formal irregularities in connection with the recording of the record of the interrogation of a suspect which cannot be linked to the rights of the defence of the person under investigation and which fall within the scope of the administration of justice, this does not preclude the admissibility of the content of the statement contained therein as evidence and cannot be considered a procedural violation which substantially influenced the decision. The result of the evidence taken in criminal proceedings and, in this context, the suspect’s statements made during the investigation may be excluded as evidence only if they were contrary to the provisions of procedural law, such as coercion to confess by force, threats or other similar means.13
  • Evidence cannot be excluded due to a technical infringement if no fundamental right is infringed.14
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In 2010, the Supreme Court of Hungary, acting as a court of third instance, ruled in its decision on the so-called. In the case of the Court of First Instance, in the case of a trial court: “the incriminating confession does not make the evidence thus obtained unlawful and does not exclude the assessment of the otherwise lawfully obtained evidence which is a further consequence of the obtaining of the unlawful evidence […]. [T]he fact that the secret collection of information – in a given case – cannot be used as evidence does not make it fabricated evidence, so that it cannot be said that the incriminated person was induced to confess ‘by means of a crime’ or ‘by other prohibited means’ […].”15 In other words, the Supreme Court in 2010 implicitly ruled on the Hungarian rejection of the main rule of the ‘fruit of the poisonous tree’ doctrine on the issue of exclusion of so-called secondary evidence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Between January 1, 2014 and January 30, 2015, the Szeged Court of Appeal handed down three decisions in which the panel invoked the fruit of the poisonous tree doctrine – its denial – as a justification for the admissibility of evidence. In other words, while before the three decisions mentioned above, Hungarian jurisprudence (at least in the reasons given for court decisions) did not use the doctrine, which is well-established in the Anglo-Saxon criminal procedure system, 2014 marked a turning point: it seems that from now on, in Hungarian criminal proceedings, the legal practitioners will use the American terminology.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is also worth highlighting that in the codification of the new CPC , the preparatory workbook for the law, in the section on the evaluation of illegally obtained evidence, highlighted as a motto the principle used in Hudson v. Michigan,16 that “exclusion of evidence is our last resort, not our first reaction.”17
1 In Anglo-Saxon procedures, as a general rule, the exclusion of these is only provided for if the infringement was committed by a member of the investigating authority or by the complainant.
2 Cf. Lőrinczy (1998) ibid. 219.
3 BH 2005.385., BH 2005.204.
4 BH 2015.213.
5 BH 2007.42.I.
6 BH 2007.217.
7 BH.1996/353.
8 Metropolitan Court of Budapest, 1995/10.
9 BH.1996/353.
10 BH 2008.237.
11 EBH 2000.296.
12 BH 1985.57.III., BH 2000.485.)
13 BH. 1996/246.
14 BH 1996. 246.
15 Bhar.I.777/2009/9.
16 547 U.S. 586 (2006): In: Gácsi (2015) ibid. 25.
17 The preparatory working document for the codification of the new Code of Criminal Procedure, Evidence 32.
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