Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.1. About the investigative phase in general

9.1. About the investigative phase in general

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Investigation is an official activity aimed at gathering and organising evidence relevant to the establishment of criminal responsibility, with the direct aim of ensuring the validity of the accusation and the indirect aim of preparing the judicial proceedings. It should be noted at the outset that the investigating authority can only conduct a planned and targeted investigation if it has a clear definition of the subject matter of the evidence. This is also a prerequisite for the structure of the investigative tactics and the setting up of the various investigative versions.1

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According to the general view in the post-regime change procedural law and criminological literature, due to the new legal rules, investigations became equal to court proceedings, and quasi cases are decided on their merits at this stage of the process.2 In many cases, this is still true, since the “investigative bureaucracy” and the “over-proofing” that characterises the investigative phase mean that court hearings at first instance are essentially limited to the presentation of the investigation reports and other documents, sometimes accompanied by a further (formal) questioning of the accused or witnesses.

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According to Bócz, “investigation, in the criminological sense, is nothing more than a method of finding out about the relevant past event that is the subject of the proceedings, which consists of the acquisition and processing of data necessary for the establishment of the facts (of the event) and the tasks to be performed in order to successfully conduct the proceedings, as well as the taking of evidence to support the decisions to be taken in the course of the proceedings (as a whole). With regard to the latter, it is clearly stated that evidence in the context of a criminal investigation in the criminal sense is to be understood as the procedural activity of obtaining the facts and evidence necessary for the assessment of the case in question, and the appropriate logical processing of the facts established.”3

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In the investigation, the consequence of the crime is always the first to be known, in chronological order. Its objective manifestations are the clues that can lead back to the antecedents (cause).4

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Act XIX of 1998 satisfied the existence of a mere suspicion of a criminal offence as a positive condition for the opening of an investigation. The direct effect of this was that many more cases were investigated.

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The necessary condition for the opening of an investigation is suspicion under the current Criminal Code, but the law – justifiably – already requires the existence of reasonable suspicion as a prerequisite for the following procedural steps:

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  • interception,
  • subpoena for questioning of a suspect,
  • production,
  • pitting,
  • arrest warrant.5
 

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According to Bócz, “experience shows that the majority of crimes – or suspicious incidents – are reported by individuals who feel they have been wronged.”6 First of all, therefore, we need to clarify the concept of suspicion, which, according to the author cited, has four important components: knowledge acquired through direct perception; assumptions based on everyday experience or natural laws; the probability of the truth of the ideas about the facts; and the probability of illegality.7

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In the system of the CPC , some legal provisions merely provide for “suspicion”, while in other norms we can read about “well-founded suspicion”.8 However, the concept of reasonable suspicion is still not defined.9 It is therefore up to the legal practitioners and legal scholars to define it:

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  • According to Cséka, the investigator has to be satisfied with the probability at the beginning of the fact-finding process, but this should not be based on subjective but objective data;10
  • According to Balog, the investigating authorities are obliged to establish the objective truth at the end of the investigation, because this is a positive condition for an indictment (but of course this does not bind the court);11
  • According to Bócz, a reasonable suspicion is necessary to order an investigation, which exists “if there is a prospect of proof of all elements of the alleged event which relate to the objective aspect of the legal facts under consideration and which are descriptive;"12
  • According to Jármai, reasonable suspicion is the “second stage” of the investigating authorities’ or the prosecutor’s cognitive activity, which already expresses that a crime has probably been committed and the identity of the probable perpetrator is already known; this is a low degree of probability, but it can be further strengthened by the results of the evidentiary acts carried out during the investigation.13
 

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For my part, I consider it sufficient and necessary, on the whole, to require reasonable suspicion merely as a prerequisite for the imposition of coercive measures restricting personal liberty subject to judicial authorisation and for the questioning of suspects.

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The communication of suspicions by the authorities is only possible in cases of reasonable suspicion. However, there are two important prerequisites: (1) there are reasonable grounds for believing that the act is a criminal offence (2) there is a reasonable presumption that the offence was committed in whole or in part by the accused.

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The criterion of justification is, of course, also required for the indictment: according to Sléder, it requires a well-founded suspicion of a crime, a well-founded suspicion of a specific person(s), the absence of impediments to criminal liability, the completion of the investigation, the prosecutor’s internal conviction that the prosecution is necessary, and the existence of evidence of guilt obtained during the investigation and supporting it.14

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It should be noted that the date of disclosure of suspicions is considered to be of great importance in legal literature for a number of reasons:

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  • according to some authors, this is the time at which the person subject to the proceedings becomes liable;
  • According to Bócz, Erdész, Király and Tóth, this can be considered as the starting date of the creation of the defendant’s status;15
  • According to Bócz, “the communication of a suspicion is the procedural act by which the proceedings, which until then were only in rem, i.e. proceedings against a suspected offender, become in personam, i.e. proceedings against a specific person.16

9.1.1. Views on the possibilities of not investigating

9.1.2. Is there evidence at the investigation stage?

9.1.3. The importance of investigative interviews

9.1.4. Expectations regarding the time limit for the investigation

1 However, Gödöny argues that “the investigation must also establish the objective reality. The objective reality can only be clarified if all the circumstances of the case are fully explored and established.” In Gödöny (1968) ibid. 172.
2 According to Jármai, however, “the evidentiary procedure in court proceedings is not merely a formal repetition of the evidence taken in the preliminary investigation procedure, but substantive differences serve as a basis for the court’s decision. This is confirmed […] by the not insignificant legal circumstance that the court must state in the reasons for its judgment […] what evidence it has taken into account in reaching its decision. The basis of reference here is not the evidence discovered during the investigation, but the evidence directly established and weighed up in many respects at the trial.” Jármai (2007) ibid. 64.
3 Bócz–Lakatos (2008) ibid. 28.
4 Ervin Cséka: Theoretical foundations of fact-finding in criminal proceedings. Criminological Studies II, Budapest, 1963. 67–68.
5 § 38 (3) para.
6 Bócz: “Justification” and investigation. Domestic Affairs Review, 2012/12. 8.
7 Bócz ibid. 8.
8 For example, in the rules on detention.
9 The theoretical examination of this issue was also dealt with by the Court of Justice in its decision in which it pointed out that reasonable suspicion must be corroborated by objective evidence in addition to indirect testimony. This rule applies in particular where the subject-matter of the proceedings is the prolongation of the arrest. ECHR 1997/2, p. 60. In: Czine–Szabó–Villányi–Baka (2008) ibid. p. 261.
10 Cséka (1963) ibid. 303–304.
11 János Balog: Az igazság a büntetőeljárásban. [Justice in criminal proceedings.] Jogtudományi Közlöny, 1965/7. 266.
12 “A mere suspicion of a criminal offence can be said to exist when the public perception is that there is not necessarily a possibility of a criminal offence, but in the specific case it cannot be excluded.” Endre Bócz: Gondolatok az alapos gyanú fogalmáról. [Reflections on the concept of reasonable suspicion.] Rendőrségi Szemle, 1962/11. 1044–1045.
13 Jármai (2007) ibid. 59.
14 Sléder (2010) ibid. 148.
15 Fenyvesi (2002) ibid. 149.
16 Bócz (2012) ibid. 21.
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