Brunner also argues for the primacy of the attorney-client privilege in this context: “A secret is a secret in order not to be known. If we do not recognise the privileged position of the lawyer in every case, there will always be a legal possibility of knowing the lawyer’s secret, so that the secret will always be a relative secret, and thus its very essence will be lost […] it follows that the obligation to maintain secrecy is a prior interest to the need to prosecute and detect crime, whatever the act.”7

The legislator only requires that, in the case of criminal offences reported to a member of the authority, an official or a public body, the person acting on behalf of the authority or public body must indicate the means of evidence in such basic documents and at the same time ensure the preservation of the traces of the offence, the means of evidence and the property or assets subject to confiscation or seizure.14 I would add that it is obvious that similar formalities and content cannot be expected of private informants.

The report may be submitted: (1) orally; (2) by post (in which case the letter must be sent by registered mail); (3) electronically via the client portal on an e-form, or (4) in an electronic document with an enhanced electronic signature.15

As I pointed out earlier, in the case of public offences, anyone can report a crime, not just the victim of the crime. A report can be made by name or anonymously (i.e. the reporter is not obliged to provide identifying information or contact details).

The following data are of paramount importance for the handling of the denunciations: (1) the place and time of the offence; (2) the identity or description of the offender; and (3) the correct statement of the facts. In addition, evidence should be given where possible, e.g. if there are witnesses to the offence, their names and contact details should be given. In addition to the above, even a legally qualified person cannot be expected to specify the exact nature of the offence, and it remains for the competent authorities to make the classification. The content of the allegation made is of course a matter for the criminal prosecution of the complainant. Incorrectly formulated or unfounded false allegations can have serious consequences for the complainant, which is why it is important to seek professional legal advice.

It should be noted that the majority of reports are in writing and are usually addressed to the police body with jurisdiction. The addressee may be any police station, prosecutor’s office or court, so it is not necessary for the complainant to make his statement before the authority of his place of residence. They are typically drafted by a lawyer and may be drawn up on a one-off, ad hoc basis. However, in the case of an authorised representative or legal representative, a document proving the right of representation must always be attached.

It is understood that in the case of oral complaints, registration may take several hours due to the possible backlog of the investigating authority. In such cases, the complainant should come prepared and think in advance about the facts, data and information that he or she wishes to provide to the authority and the documents that he or she wishes to submit when making the complaint. This is also important because the whistleblower is likely to have to answer questions from the investigating authority in order to initiate proceedings.16

In the case of electronic filing, the report can be made either through the so-called ÁNYK form (the application supporting the filling in of this form can be downloaded from the website of the National Tax and Customs Administration) or through the e-Paper form (the individual case types are available on the Police website or directly on the e-Paper service website at https://epapir.gov.hu/).

A rule that contributes to the efficiency and speed of proceedings is that a complaint can still be lodged with any prosecution or investigating authority, but must be received by other authorities and the court (and sent to the investigating authority or, if the investigation falls ex lege under the prosecution’s jurisdiction, to the prosecution).17 It should be noted that the public prosecutor’s office or the investigating authority is obliged to register the complaint immediately, even if it does not have jurisdiction or competence.18

If a complaint is made in person, the prosecution or investigating authority will warn the complainant of the consequences of making a false accusation and misleading the authority. In addition, a person of age indicated by the complainant may be present during a personal complaint, unless this would be prejudicial to the interests of the proceedings.19

Within three working days of receiving the complaint, the prosecution or investigating authority must examine whether the case should be investigated, supplemented, rejected or transferred.20 When taking these decisions, the investigating authority may only examine the facts contained in the complaint or the evidence attached to it. The public prosecutor’s office or the investigating authority may take into account facts which are known to the public or of which it has official knowledge when dealing with a complaint.21

A supplement to a complaint is ordered if the prosecution or the investigating authority cannot decide to order an investigation or reject the complaint on the basis of the available information.23 I would like to note that the former Resolution No 246/a of the Prosecutor General’s Office allowed the ordering of a supplement to the complaint if the suspicion of a criminal offence was doubtful on the basis of the information provided in the complaint or if it was unclear whether there was a legal obstacle to the proceedings. This source of law also provided that if several offences were mentioned in the report and one of these offences was suspected to be a criminal offence, no supplementary report could be issued to clarify whether the additional offences were suspected to be criminal offences. 24

In the case of supplementing a complaint, the investigating authority is usually responsible for investigating circumstances in which the investigating authority or the prosecution has the necessary expertise (e.g. formalities of documents, detectability of a given offence). At the same time, there are of course also areas of investigation which, either because of lack of expertise or competence, necessarily require the assistance of an external body, authority or person (e.g. environmental impact assessment).25 I would note that in the latter case, the one-month time limit26 for completing the notification is often insufficient, and therefore it may be appropriate to amend this rule in the near future.

When completing the report, the prosecution or the investigating authority may collect data, ask the complainant to provide information, documents and data, and to disclose the damage, loss of property, loss of tax revenue, loss of customs revenue or the value of the offence. In doing so, the prosecutor’s office or the investigating authority, if it has not already done so, will warn the complainant of the consequences of false accusation and misleading the authorities.27

The purpose of the supplementary report is to rule on the suspicion of a criminal offence and to decide on procedural obstacles. It should be noted that the methods within its scope are essentially of a forensic nature, but since they are neither means of proof nor acts of proof under the Criminal Code, the law itself does not provide for any formal requirements regarding the performance of procedural acts in the context of supplementing a complaint.28 However, the investigating authority may still make use of law enforcement databases of law enforcement agencies as defined in a separate law, request the provision of documents and data, request information, request certain agencies to conduct an investigation and to determine damage, inspect the scene of the crime, engage an expert, verify the data obtained, select a person or object or request information on the person presented, in accordance with the rules on requests. However, it is important to note that the order to supplement the report cannot be directly aimed at identifying the perpetrator, since the perpetrator is only the perpetrator of a crime and, if the suspicion that a crime has been committed can be established, the procedure must be continued according to the general rules. Accordingly, no act may be carried out with the direct purpose of obtaining evidence (e.g. witness statements, expert opinions), nor may any act of proof be carried out in the course of such an act. 29

Sléder’s research at the Investigations Department of the Budapest Police Headquarters shows that nearly 10% of the denunciations were supplemented by a complaint. “In 2007, the department received 408 reports, in 2008 776. Of these, 49 in 2007 and 71 in 2008 were supplemented because the investigating authority did not have the information necessary to reach a decision. In particular, various documents were obtained, requests were made for investigations to be held and other information was requested. Not all of the requests for information contained the information necessary to take the right decision on whether to initiate proceedings, and therefore this legal instrument has increased the investigating authority’s knowledge of the information.” 30

As a result of the supplement to the complaint, the determining authority may decide to: (1) order an investigation; (2) reject the complaint; (3) order a supplement to the complaint, as a result of which the investigation is either ordered or the complaint is rejected; or (4) carry out various procedural steps that cannot be delayed before the investigation is ordered.

Mandatory cases of refusal to report are circumstances in which the investigating authority has no discretion to order an investigation. Although there is no uniform practice as regards the investigative aspects, officials acting on behalf of the competent authority must in all cases carry out an activity of a qualification or fact-finding nature, which is a specific law enforcement task. The possible reasons are the following:

A discretionary case of refusal to report is when the person reasonably suspected of having committed the offence cooperates to the extent that the national security or law enforcement interest in cooperating outweighs the interest in prosecuting the person reasonably suspected of having committed the offence, by contributing to the investigation or proof of the case or other criminal case.37 However, this rule shall not apply where the cooperating person is reasonably suspected of having committed a criminal offence involving the intentional taking of another person’s life or the intentional causing of permanent disability or serious impairment of health.38

If the rejection of the report is not necessary, or the necessary and justified additions to the report have been made, the substantive function of the exploration phase can begin. The starting point is the principle of legality, according to which investigating authorities and prosecutors have an unconditional obligation to investigate suspected offences. This requires that the crime and the identity of the perpetrator be investigated to the extent necessary to establish reasonable suspicion, and that the means of proof be sought and provided.39 It follows that the suspicion of a criminal offence, which does not yet rise to the level of reasonable suspicion, is necessary to start the investigation. It should be noted that the prosecuting authorities not only have a duty to investigate, but also to assess in advance the circumstances (mitigating or aggravating) that are relevant to the imposition of a sentence, since these factors can have a major impact on the course of the proceedings.40

Since the interests of the taking of evidence and the fundamental rights of the subjects of the proceedings are particularly conflicting at this stage of the proceedings, the CPC contains provisions on the exercise of the right to be present for reasons of guarantee. On this basis:

The public prosecutor’s office and the investigating authority may remove from the scene of a procedural act anyone whose presence is an obstacle to the proceedings and anyone who cannot be present at the procedural act, or may order a person participating in criminal proceedings to remain at the scene of the procedural act in order to facilitate the investigation.41