Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.3. Preparatory procedure: the process of establishing suspicion of a criminal offence

9.3. Preparatory procedure: the process of establishing suspicion of a criminal offence

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Under the Criminal Code, a preparatory procedure may be conducted if the available information is insufficient to establish suspicion of a criminal offence and there are reasonable grounds to believe that the conduct of the preparatory procedure will enable a decision to be made as to whether a criminal offence is suspected.1 On this basis:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The use of the procedure is not compulsory, but only possible in principle: the reasons for its imposition are mainly related to the nature and material gravity of the offence (e.g. participation in a criminal organisation, drug trafficking, child pornography).
  2. The objective basis for initiating proceedings: any information brought to the attention of the authority (investigating authority, prosecutor’s office), such as information from a complaint, a petition, or a secret collection of information for non-law enforcement purposes.2 If the procedure is initiated by the body which has carried out the collection of classified information, the authority must take a decision within three working days of receipt.3
  3. The subjective basis for initiating proceedings: the potential for suspicion.
  4. The function of the procedure is to screen out cases on substantive or procedural grounds; it may already become apparent at this stage if the act in question is not a criminal offence, if the person who could be charged is not criminally liable for some reason, or if there is some other procedural obstacle.
  5. The bodies entitled to conduct the procedure:
    • the investigating authorities;
    • the internal crime prevention and detection unit of the police;
    • the police counter-terrorism department and
    • the prosecutor’s office.
    The body conducting the preparatory procedure shall carry out the preparatory procedure independently, with the investigating authority, the police body responsible for internal crime prevention and detection and the police body responsible for counter-terrorism: (1) within three working days of the order of the preparatory procedure, with an obligation to inform the public prosecutor’s office of the data justifying the need for the preparatory procedure, the means to be used and the planned procedural acts; (2) informing the public prosecutor’s office every two months of the data obtained during the preparatory procedure and, at the request of the public prosecutor’s office, producing the case files generated during the preparatory procedure.4
    The entire preparatory procedure is also supervised by the public prosecutor’s office in the place where the body is established. If the preparatory procedure is conducted by the public prosecutor’s office,
    • it may order any investigating authority to carry out a procedural act in its area of jurisdiction,
    • a member of the investigating authority may, on the initiative of the Prosecutor General and with the agreement of the National Commander of the investigating authority, be called upon for a limited period of time during the preparatory procedure,
    • at the request of the public prosecutor’s office, the police internal crime prevention and detection body or the police counter-terrorism body in proceedings for an offence under the Police Act shall assist in the performance of the procedural act.5
  6. Methods of proof: because of its function, the procedure will be based exclusively on inquiries and the use of disguised means.
    The Act lists the authorities (e.g. tax authorities) and service providers (e.g. post offices) that may be contacted for information and are obliged to provide the necessary information from the data they hold within the time limit set by the authority.6
    A taxonomy of the applicable disguised assets is set out in the CPC below:
    • the use of a confidential collaborator;
    • collecting and verify information on the offence, while keeping the real purpose of the procedure secret;
    • covert surveillance;
    • covert acquisition of data by technical means (for example to interrupt a criminal act, to identify the perpetrator of a criminal act, to establish the fact of communication by means of an electronic communications network or device or an information system for the purpose of establishing the fact of communication, to identify or locate an electronic communications device or information system for the purpose of establishing the existence of evidence);
    • monitoring payment transactions;
    • fake shopping;
    • the use of undercover investigators, and
    • the use of covert means subject to a specific judicial authorisation (secret surveillance of information systems, secret searches, secret surveillance of premises, secret knowledge of mail, interception of communications).7
  7. For disguised devices subject to judicial authorisation:
    • as an auxiliary rule, their application is not prevented if they inevitably affect a third party;
    • a restrictive rule: (1) may be applied only against a person who is a potential perpetrator of the offence or who is reasonably believed to have a direct or indirect connection with a potential perpetrator of the offence;8 (2) their use is excluded in the case of certain persons who cannot be called as witnesses or who are entitled to refuse to testify (e.g. for the purpose of obtaining confidential information from a person bound by professional, occupational or public secrecy obligations; for the purpose of obtaining classified information from a person who is handling classified information).9
    In the preparatory procedure, a wanted person cannot be issued because there is no person suspected of having committed a criminal offence.
  8. As a rule, the time limit for the procedure is 6 months, in exceptional cases – in the case of offences defined in the Criminal Code (e.g. intentional offences punishable by imprisonment of up to five years or more) – 9 months.
  9. If the information obtained during the preparatory procedure leads to the suspicion of a criminal offence,an investigation must be ordered. In this case: (1) the files and data obtained until then must be handed over without delay to the investigating authority or prosecutor’s office having jurisdiction and if necessary, (2) the further use of the concealed instrument used until then – subject to a judicial or prosecutorial authorisation – may be continued without requesting a new authorisation.
  10. The preparatory procedure shall be terminated by the public prosecutor’s office or the body conducting the preparatory procedure if
    • there is no suspicion of a criminal offence based on the information obtained during the preparatory procedure,
    • no result is expected from the continuation of the preparatory procedure, or
    • the deadline for the preparatory procedure has expired.
  11. If the preparatory procedure is terminated, the data obtained during the preparatory procedure may not be used as evidence in criminal proceedings.
1 § 340 (1)–(2) para.
2 Ervin Belovics – Mihály Tóth: Büntető eljárásjog. [Criminal procedure law.] Budapest, HVG-ORAC, 2020. 267. Preparatory proceedings may be initiated on the basis of information contained in the initiative of the body conducting the secret information collection a) which has come to its knowledge ex officio, b) following the rejection of a complaint, or c) following the collection of secret information pursuant to the Act on Public Prosecution, the Act on the Police, the Act on the National Tax and Customs Administration or the Act on National Security Services. [Article 340 (3)]
3 § 340 (4) para.
4 § 344 (3) para.
5 § 347 (2)–(3) para.
6 § 342 (3) para.
7 341. §
8 § 343 (1) para.
9 § 343 (2) para.
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