Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.4. Investigation I: The detection phase
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9.4.7. Data collection methods: open and covert instruments
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9.4.7.1. Covert means (CPC)

9.4.7.1. Covert means (CPC)

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The use of covert means is a special activity carried out by authorised organs in the criminal proceedings without the knowledge of the persons concerned, as such means restrict the fundamental rights of persons to the privacy of homes, personal secrets, the confidentiality of correspondence, and the protection of personal data.

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Covert means may be used by authorised organs to carry out their law enforcement tasks, as specified in applicable legislation, only according to the rules laid down in the CPC. This rule shall not affect any secret information gathering carried out by national security services and the counter-terrorism police organ for their law enforcement tasks according to the Act on national security services.

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Covert means that are

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  1. not subject to permission of a judge or a prosecutor,
  2. subject to permission of a prosecutor, or
  3. subject to permission of a judge

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may be used in a criminal proceeding.
 

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A covert means may be used if (1) it is reasonable to assume that a piece of information or evidence to be acquired is indispensable for achieving the purpose of a criminal proceeding, and it cannot be acquired by other means, (2) its use does not restrict any fundamental right of the person concerned, or any other person, in a disproportional manner considering the attainable law enforcement goal, and (3) it is likely that information or evidence relating to a criminal offence may be obtained by its use.1
 

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A) Covert means not subject to permission of a judge or a prosecutor:

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  1. The organ authorised to use covert means may use persons cooperating in secret to acquire information regarding a criminal offence.

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  1. A member of the organ authorised to use covert means may collect and verify information relating to a criminal offence while keeping the actual purpose of his proceeding secret.
  2. The organ authorised to use covert means may use a trap not causing injury or damaging health to interrupt a criminal offence, identify the perpetrator of a criminal offence, or take evidence.
  3. A member of the organ authorised to use covert means may, to interrupt a criminal offence, identify the perpetrator of a criminal offence, or take evidence, replace an aggrieved party or another person to protect his life and physical integrity.
  4. The organ authorised to use covert means may covertly surveil a person, home, room, fenced area, public area, premises open to the public, vehicle, or an object serving as means of physical evidence, that are associated with the criminal offence, and it may collect information on events taking place, and it may use technical means to record such events (hereinafter: “covert surveillance”). For the purpose of covert surveillance, the organ authorised to use covert means may also use persons cooperating in secret.
  5. The organ authorised to use covert means may, to interrupt a criminal offence, identify the perpetrator of a criminal offence, or take evidence, disclose false or misleading information to the person involved in the use of covert means by concealing the source of information. The organ authorised to use covert means may also use persons cooperating in secret to transfer such information. This may not be used during the interrogation of a defendant or witness or during an evidentiary act, contain any promise that is inconsistent with the law, or constitute a threat or instigation, and it may not drive the person concerned towards the commission of a criminal offence, the gravity of which is greater than that of the criminal offence he initially planned to commit.
  6. The organ authorised to use covert means may secretly acquire, using technical means, the data necessary for interrupting the criminal offence, identifying the perpetrator of the criminal offence or, for the purpose of taking evidence, establishing that communication was carried out using an electronic communications network or device or through an information system, or identifying the electronic communications device or information system or determining the location thereof.2
 

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B) Covert means subject to permission of a prosecutor

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The prosecution service shall decide on granting permission to use covert means upon a corresponding motion submitted by an authorised senior official of an organ authorised to use covert means within seventy-two hours after the prosecution service receives the motion.

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The following shall be stated or provided in the course of filing a motion:

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  • the name of the organ authorised to use covert means, the date of ordering the preparatory proceeding or investigation, and the case number,
  • the qualification under the Criminal Code and a short description of the facts of the criminal offence underlying the proceeding and the data serving as a ground for suspecting, or suggesting the possibility of, a criminal offence,
  • all data confirming that the statutory conditions of using such means are met,
  • the designation of the covert means to be used, and data required for granting permission to use such means, and
  • the decision underlying the permission of a prosecutor.
 

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If granting permission to use a covert means subject to a permission of a prosecutor would significantly jeopardise the objective of using covert means due to the delay involved, an authorised senior official of the organ authorised to use covert means may begin using the covert means until the prosecution service makes a decision. In the event of beginning to use a covert means in this way, an authorised senior official of the organ authorised to use covert means shall file a motion with the prosecution service for ex-post permission within seventy-two hours after the decision on beginning the use of a covert means was made. The prosecution service shall decide on the motion within one hundred and twenty hours after the decision on beginning the use of a covert means was made.

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In the course of a preparatory proceeding conducted by the prosecution office, or of a prosecutorial investigation, the superior prosecution office shall carry out the tasks relating to granting permission to use a covert means subject to a permission of a prosecutor.3
 

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a) Surveillance of payment transactions:

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The organ authorised to use covert means may order, subject to the permission of the prosecution service, an organisation providing financial services or supplementary financial services as defined in the Act on credit institutions and financial undertakings (hereinafter “service provider”), to record, keep, and transmit data pertaining to payment transactions, as defined in the Act on providing payment services, to the ordering entity during a specified period.

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In particular, the surveillance of payment transactions may be aimed at the recording and transmission of data pertaining to (1) all payment transactions relating to a payment account as defined in the Act on providing payment services, (2) payment transactions meeting pre-determined criteria.

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The ordering entity may order the specified data to be transmitted without delay or within a set time limit. The surveillance of payment transactions may be ordered for a maximum period of three months, with the proviso that the surveillance period, subject to the permission of the

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prosecution service, may be extended once for an additional period of three months.

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The following shall be specified in a decision ordering the surveillance of payment transactions:

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  • data that are suitable for identifying the payment account concerned,
  • the starting and finishing date, specified in days, of the surveillance of payment transactions,
  • the exact scope of data to be transmitted,
  • the applicable conditions, if the ordering entity set any condition for recording or transmitting the data,
  • the method of, and time limit for, transmitting the data.

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In the course of the surveillance of payment transactions, the service provider shall record and transmit the data specified in the ordering decision in the manner, and by the time limit, specified in the decision.

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Within the framework of the surveillance of payment transactions, the ordering entity may also order a service provider to suspend the execution of payment transactions between certain payment accounts and persons, or payment transactions that meet certain conditions.

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The period of suspending the execution of payment transactions may last for up to four working days following the notification of the ordering organ; this period may be extended once by up to three working days subject to the permission of the prosecution service.

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During the suspension of the payment transaction, the ordering entity shall examine whether the suspended payment transaction can be connected to a criminal offence. If the suspension of the payment transaction is unnecessary, the service provider shall be notified that the payment transaction may be executed. If further follow-up of a suspended payment transaction is necessary, the ordering entity, subject to the permission of the prosecution service, may also order other service providers to monitor the payment transactions, and then it shall notify the service provider that the suspended payment transaction may be executed.

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If the ordering entity establishes that the conditions for the seizure or sequestration of scriptural money or electronic money involved in the payment transaction are met, it shall order the seizure or sequestration.

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A service provider shall not inform any person about the surveillance of payment transactions, the content of the ordering decision, the content of data transfers completed, or the suspension of executing a payment transaction, and it shall ensure that such information is kept secret. If a person affected by the surveillance of payment transactions requests information concerning the processing of his own personal data, he shall be provided with information that does not reveal that his personal data were transferred for the surveillance of payment transactions. The service provider shall be advised about this provision when the surveillance of payment transactions is ordered.4
 

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b) The prospect of avoiding the establishment of criminal liability:

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The organ authorised to use covert means may, with permission from the prosecution service, enter into an agreement with the perpetrator of a criminal offence, offering that no criminal proceeding would be instituted against him or a pending criminal proceeding would be terminated, if he provided information and evidence for detecting and proving the case, or another criminal case, provided that the national security or law enforcement interest that may be realised through such an agreement exceeds the interest in establishing the criminal liability of the perpetrator. When outlining the prospect of avoiding the establishment of criminal liability, it may be set out as a condition that the perpetrator pays, in whole or in part and through the State, damages and grievance awards he is liable to pay under civil law.

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No agreement may be concluded if a criminal proceeding is to be conducted against a perpetrator due to a criminal offence involving the intentional killing of another person or causing any permanent disability or serious degradation of health intentionally. An agreement

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shall be terminated if the organ authorised to use covert means learns that the person providing information committed any such criminal offence.

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An agreement offering avoidance of the establishment of criminal liability shall specify (1) data that are suitable for identifying the perpetrator of the criminal offence, (2) the qualification under the Criminal Code and a short description of the facts of the criminal offence, the prospect of avoiding the establishment of criminal liability for which is outlined, (3) the qualification under the Criminal Code and a short description of the facts of the criminal offence, concerning which the perpetrator agrees to provide information and evidence, (4) the commitment to provide information and evidence, including the method thereof, and (5) details of paying any damages or grievance award if doing so is part of the agreement.

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If the perpetrator of the criminal offence performs the agreement, no criminal proceeding may be instituted against him, and any pending criminal proceeding against him shall be terminated. If no criminal proceeding is instituted against the perpetrator, or any pending criminal proceeding is terminated, due to an agreement, the State shall pay the damages or grievance award the perpetrator is liable to pay under civil law, provided that the perpetrator has not paid it. To pay any damages or grievance award, the organ authorised to use covert means may initiate the conclusion of a confidentiality agreement with the aggrieved party, and it may draft documents that are necessary for doing so.5
 

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c) Consented surveillance:

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Subject to the permission of the prosecution service and the written consent of the aggrieved party, the organ authorised to use covert means may use surveillance regarding (1) a criminal offence of usury, domestic violence, or harassment, or (2) any criminal offence committed by threat.

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Subject to the permission of the prosecution service and the written consent of the person who was invited, or sought to be induced, the organ authorised to use covert means may use surveillance

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  • regarding an invitation to commit a criminal offence, provided that preparation constitutes a punishable act under the Criminal Code, or inviting another person to commit a given criminal offence constitutes a criminal offence, or
  • if seeking to induce to the act constitutes a criminal offence.6
 

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d) Simulated purchases:

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Subject to the permission of the prosecution service, sham contracts

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  • on acquiring things or samples, or using services that are presumably related to a criminal offence,
  • on acquiring a thing or using a service that would provide a means of physical evidence regarding a criminal offence, in order to reinforce trust in the seller,
  • on acquiring a thing or using a service, to apprehend the perpetrator of a criminal offence or secure a means of physical evidence,

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may be concluded and performed.7
 

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e) Using undercover investigators:

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Subject to the permission of the prosecution service, an organ authorised to use covert means may use, in a criminal proceeding, members who conceal their identity and association with the organ permanently and are employed for such tasks specifically (hereinafter: “undercover investigator”).

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An undercover investigator may be used to

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  • infiltrate a criminal organisation,
  • infiltrate a terrorist group or an organisation that provides or collects material means to arrange the conditions that are necessary to commit terrorist acts, or supports the commission of terrorist acts or the operations of a terrorist group by providing material means or in any other way,
  • carry out simulated purchases,
  • conduct secret surveillance,
  • transfer information, or
  • acquire information and evidence relating to the criminal offence.

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The undercover investigator may be used for a period required to achieve the purpose of his use, but not exceeding six months. If the conditions of ordering the use of an undercover investigator are still met, the use of an undercover investigator may be extended repeatedly, subject to the permission of the prosecution service, by up to six months each time.

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Under the provisions on using covert means subject to permission of a judge or prosecutor, an undercover investigator may be used in combination with other covert means subject to permission of a judge or prosecutor, or to enable the use of other covert means subject to permission of a judge or prosecutor.

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The undercover investigator may not be punished for a criminal offence, infraction, or a violation punishable by an administrative fine that he committed while being used as an undercover investigator if committing the offence, infraction or violation

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  • is necessary for the success, or to achieve the law enforcement objective, of using an undercover investigator, and the law enforcement interest to be achieved through using him exceeds the interest in holding the undercover investigator liable,
  • is necessary to ensure the safety, and prevent the exposure, of the undercover investigator, and the interest in ensuring the safety, and preventing the exposure, of the undercover investigator exceeds the interest in holding the undercover investigator liable or
  • is necessary to prevent or interrupt the commission of another criminal offence, and the interest in preventing or interrupting the other criminal offence exceeds the interest in holding the undercover investigator liable.

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If a criminal offence, infraction, or violation punishable by an administrative fine needs to be foreseeably committed for an undercover investigator to be successful, this shall be specified in the decision on using the undercover investigator.

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The undercover investigator may not commit any criminal offence that involves the intentional killing of another person or causing permanent disability or serious degradation of health intentionally.

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The undercover investigator may not induce another person to commit a criminal offence, and he may not drive a person concerned towards the commission of a criminal offence the gravity of which is greater than that of the criminal offence initially planned. Making a simulated purchase shall not constitute inducement in and of itself.8
 

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f) Simulated purchases by members of organs authorised to use covert means and persons cooperating in secret:

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To make a simulated purchase, a member of an organ authorised to use covert means may be used, and an organ authorised to use covert means may also use a person cooperating in secret. An organ authorised to use covert means may use a person cooperating in secret to make a simulated purchase if the objective of making a simulated purchase may not be achieved, or may be achieved only with a significant delay, by using an undercover investigator or a member of the organ authorised to use covert means. The provisions on undercover investigators shall apply as appropriate to the use of members of organs authorised to use covert means and persons cooperating in secret for making simulated purchases.9
 

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g) Cover deeds, cover institutes, and cover data:

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Subject to the permission of the prosecution service, the organ authorised to use covert means may, in the course of using another covert means,

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  • produce or use deeds or public deeds containing false data, facts, or statements (hereinafter: “cover deed”) to detect and prove a criminal offence,
  • establish and maintain an organisation by applying the provisions on cover institutions as laid down in applicable Acts, to detect and prove a criminal offence, or
  • have false data (hereinafter: “cover data”) entered in publicly certified registers to detect and prove a criminal offence, and to protect a cover deed or an organisation.

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Cover deeds shall be destroyed, and cover data shall be erased from publicly certified registers when they are not needed in a criminal proceeding any longer.10
 

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C) Covert means subject to permission of a judge

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In a criminal proceeding, the following covert means may be used subject to permission of a judge: (1) secret surveillance of an information system, (2) secret search, (3) secret surveillance of a locality, (4) secret interception of a consignment, (5) interception of communications.

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  1. In the course of secret surveillance of an information system, the organ authorised to use covert means may, with permission from a judge, secretly access, and record by technical means, data processed in an information system. For that purpose, any necessary electronic data may be placed in an information system, while any necessary technical device may be placed at a home, room, fenced area, vehicle, or other object used by the person concerned, except for public areas, premises open to the public, and means of public transport.
  2. In the course of a secret search, the organ authorised to use covert means may, with permission from a judge, secretly search a home, room, fenced area, vehicle, or other object used by the person concerned, except for public areas, premises open to the public, and means of public transport; it may also record its findings by technical means.
  3. In the course of secret surveillance of a locality, the organ authorised to use covert means may, with permission from a judge, secretly surveil and record events taking place at a home, room, fenced area, or vehicle, except for public areas, premises open to the public, and means of public transport. For that purpose, any necessary technical means may be placed at the place of operation.
  4. In the course of secret interception of a consignment, the organ authorised to use covert means may, with permission from a judge, secretly open, intercept, verify, and record the contents of a postal item or other sealed consignment.
  5. In the course of interception of communications, the organ authorised to use covert means may, with permission from a judge, intercept and record communications conducted through an electronic communications network or device, using an electronic communications service, or an information system.
 

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Any technical means used, or electronic data placed in an information system, in the course of using a covert means subject to permission of a judge shall be removed without delay after finishing the use of the given covert means. If an obstacle prevents such removal, the technical means or electronic data concerned shall be removed without delay after the obstacle is eliminated. To place or remove a technical means or data used in the course of using a covert means subject to permission of a judge, the organ authorised to use covert means may use covert means not subject to permission of a judge, and the organ performing the use of a covert means may engage in secret information gathering under the Act applicable to that organ.

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Covert means subject to permission of a judge may be used regarding intentional criminal offences punishable by imprisonment for five years or more.

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Covert means subject to permission of a judge may also be used regarding the following intentional criminal offences punishable by imprisonment for three years:

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  • criminal offences committed on a commercial basis or in a criminal conspiracy,
  • abuse of drug precursors, counterfeiting of medicinal products, abuse of performance enhancing substance, counterfeiting of medical products,
  • sexual abuse, procuring, facilitating prostitution, living on the earnings of prostitution, exploitation of child prostitution, child pornography,
  • damaging the environment, damaging natural values, game poaching, organising illegal animal fights, violation of waste management regulations,
  • criminal offences against justice, except for breach of seal,
  • corruption criminal offences, except for failure to report a corruption criminal offence,
  • criminal offence against the order of election, referendum and European citizens’ initiative, illegal employment of a third-country national, organising illegal gambling,
  • insider trading and illegal market manipulation.

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Covert means subject to permission of a judge may also be used regarding any intentionally committed misuse of classified data, abuse of office, violence against a public officer, violence against an internationally protected person, counterfeiting non-cash payment instruments, unauthorised financial activity, or organising a pyramid scheme.11
 

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Covert means that are subject to permission of a judge may be used on the basis of, and within the limits specified in, a permission granted by a court. The covert means subject to the permission of a judge that may be used against the person concerned shall be specified in the court’s permission. The court may extend the period of its permission, withdraw its permission, extend the scope of its permission to other covert means, and prohibit any further use of a covert means already covered by a permission.

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The court shall decide on granting permission to use any covert means subject to permission of a judge upon a motion submitted by the prosecution service. Such a motion shall include the following:

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  • the name of the organ authorised to use covert means, the date of ordering the preparatory proceeding or investigation, and the case number,
  • available data identifying the person concerned,
  • the planned date and time, indicated in days and hours, of starting and finishing the use of the covert means subject to permission of a judge against the person concerned,
  • detailed reasons confirming that the conditions of permitting the use of the covert means subject to permission of a judge are met, including the following: (1) the qualification under the Criminal Code and a short description of the facts of the criminal offence underlying the proceeding, and the data serving as a ground for suspecting, or suggesting the possibility of, a criminal offence, (2) the purpose of using covert means subject to permission of a judge, (3) the designation of the covert means to be used, (4) data clearly identifying the information system subject to secret surveillance; the room, vehicle, or object subject to a secret search; the room or vehicle subject to secret surveillance of a locality; the place of posting and receipt, and the sender or recipient in case of the secret interception of a consignment; the electronic communications service or device, or information system subject to interception of communications.
  • A motion shall be accompanied by documents serving as a ground for the content of the motion.
 

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The court shall decide within seventy-two hours after the filing of the motion. On the basis of a motion, the court shall grant a permission, in whole or in part, or dismiss the motion.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A permission shall be granted by the court in part, if it permits the use of covert means subject to permission of a judge but dismisses any part of the motion regarding the use of certain covert means in its decision.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the court permits, in whole or in part, the use of covert means, it shall specify the following in its corresponding decision: (1) available data identifying the person concerned, (2) the date and time, indicated in days and hours, of starting and finishing the use of the covert means subject to permission of a judge, (3) the relevant criminal offence and the purpose of use, indicating the qualification under the Criminal Code and a short description of the facts of the criminal offence, and (4) the covert means subject to permission of a judge for which permission is granted.12
 

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If granting or extending a permission to use a covert means subject to permission of a judge would significantly jeopardise the objective of using covert means due to the delay involved, the prosecution service may order a secret search or the use of a covert means until the court adopts its decision, but no longer than one hundred and twenty hours.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the court dismisses a motion for ex-post permission to use covert means or certain means specified in the motion, the result of using any non-permitted covert means may not be used as evidence, and all data acquired in such a manner shall be erased without delay.13
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Permission to use covert means subject to permission of a judge may be granted for a period of up to ninety days; this period may be extended repeatedly by up to ninety days each time. In a criminal proceeding, the total period of using a covert means subject to permission of a judge against a person concerned may not exceed three hundred and sixty days.

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Not later than five days before the expiry of the permitted period, the prosecution service may move for the extension of the period of using a covert means; the court shall decide on the motion within seventy-two hours after it is filed. The court shall either extend the period of use or dismiss the motion. If the period of use is extended, the court shall prohibit the use of any covert means concerning which the statutory conditions of use are not met. If the period of using a covert means is extended, the finishing date of use shall be calculated from the finishing date specified in the previous permission. Any document produced since the previous permission shall be attached at the time of submitting a motion.14
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The scope of use may be extended if, before the date of finishing the use of covert means as specified in the permission, it is necessary to use a covert means (1) not covered by the permission, or (2) already included in the permission concerning another information system subject to secret surveillance; a room, vehicle, or object subject to a secret search; a room or vehicle subject to secret surveillance of a locality; a place and sender or recipient subject to the secret interception of a consignment; an electronic communications service or device, or information system subject to interception of communications against the person concerned.15
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Upon a call from the court, the organ authorised to use covert means shall present all data available to it at the time of such call and acquired during the use of a covert means subject to permission of a judge. The court shall also examine the legality of using covert means when deciding on a motion to extend the period or scope of use. The court shall prohibit the use of any covert means concerning which the statutory conditions of use are not met. If the court (1) withdraws its permission to use a covert means, all data acquired during its use, (2) prohibits the use of a covert means, all data acquired using the prohibited covert means shall be erased without delay.16
 

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D) Common rules of using covert means

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The use of covert means shall be recorded in minutes or memorandum. The minutes or memorandum of the proceeding of an undercover investigator shall be signed by an authorised senior official of the organ authorised to employ undercover investigators. The minutes or memorandum shall be drafted in a way that it does not allow for any conclusion regarding the identity of an undercover investigator. The organ authorised to use covert means shall implement the use of a covert means itself, or with assistance from a police organ designated to assist in the implementation of the use of covert means, or by engaging a national security service designated to perform such services by the Act on national security services.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the course of a preparatory proceeding or investigation conducted regarding a criminal offence falling within its subject-matter competence under the Act on the police, the police organ performing internal crime prevention and crime detection tasks, or the counterterrorism police organ, shall assist, upon request, in implementing the use of a covert means used by an investigating authority. Upon invitation, the following shall participate in implementing the use of a covert means used by the prosecution service: (1) the investigating authority or the police organ performing internal crime prevention and crime detection activities, or (2) the counter-terrorism police organ in a proceeding conducted for a criminal offence within its subject-matter competence under the Act on the police.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the preparatory proceeding is conducted by the police organ performing internal crime prevention and crime detection activities, or the counter-terrorism police organ, and the investigation is ordered while covert means are already in use, the organ conducting the preparatory proceeding shall assist in implementing the use of covert means until instructed otherwise by the investigating authority or the prosecution service.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If a covert means subject to permission of a judge or a prosecutor is used in the course of a preparatory proceeding or investigation conducted against a member of the professional personnel of national security services, or the counter-terrorism police organ, for committing a criminal offence, the national security service, or the counter-terrorism police organ concerned shall assist, upon invitation, in implementing the use of the covert means.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

An organisation providing electronic communications services or engaged in the transfer, technical processing or processing of postal items, other sealed consignments, or data stored in information systems shall be obliged to enable the use of covert means and cooperate with organs authorised to use such means.17
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The head of the organ authorised to use covert means, or the prosecution service, shall terminate the use of covert means, or certain covert means, if

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • it is clear that no result may be expected from any further use, including situations where extending the scope of use would be in order, but the data necessary to do so are not available,
  • it is clear that the use of a covert means may not be continued any longer within the limits specified in the corresponding permission,
  • the purpose specified in the permission is achieved,
  • the period set or extended in the permission expired,
  • the motion for ex-post permission is dismissed by the court or the prosecution service,
  • the time limit for a preparatory proceeding expired during a use ordered in a preparatory proceeding, without an investigation being ordered, or
  • the proceeding has been terminated or the time limit for an investigation expired.18
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

E) Common rules concerning data acquired during the use of convert means

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Within thirty days after the use of a covert means is terminated, the following data shall be erased from among data acquired during the use of the covert means: (1) data that are not related to the purpose of using covert means, (2) all personal data that are not necessary for the criminal proceeding, (3) data that may not be used as evidence in the criminal proceeding. 19
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the course of permitting and implementing the use of covert means, or using any data generated as a result of such use, it shall be ensured that no unauthorised person may access, or get informed of, any measure or data. If the organ authorised to use covert means classified any data related to the use of a covert means in accordance with the rules laid down in the Act on the protection of classified data, the review provided for under the Act shall be carried out immediately after terminating the use of the covert means and every two years thereafter. If data related to the use of covert means are processed as classified data in the criminal proceeding, the court, the prosecution service, or the investigating authority may initiate the review or revision of classification.20
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Pursuant to the provisions of the CPC, the case documents of a proceeding include (1) means of evidence produced during the use of covert means, including, in particular, data recorded by technical means, and (2) any permission to use covert means. Unless ordered otherwise by the prosecution service, means of evidence produced by using a covert means, including, in particular, data recorded by technical means and any permission to use a covert means, shall not form part of the case documents of a proceeding before finishing the use of the covert means concerned. Before finishing the use of a covert means, a means of evidence or document specified may be inspected only by a member of the organ authorised to use covert means, the prosecutor, the senior official of the prosecution service, or the judge or the senior court official who proceeds concerning the use of the covert means.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If doing so does not jeopardise the success of another criminal proceeding or any secret information gathering carried out under the Act on the prosecution service, the Act on the police, the Act on the National Tax and Customs Administration, or the Act on national security services, a person concerned specified in a permission from a judge shall be informed about the fact of the use of covert means subject to permission of a judge (1) after the completion of a preparatory proceeding, if no investigation is launched, or (2) after the completion of an investigation, if the person concerned is neither interrogated as a suspect nor indicted. A person concerned may not be informed about any other data relating to the use of a covert means subject to permission of a judge. A request for information regarding such data shall be denied in writing and with reference to this provision.21
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

F) The result of using covert means

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The result of using a covert means subject to permission of a judge may be used to prove a criminal offence, because of which, and against the person concerned, as regards whom the court permitted the use of the covert means. As regards whom a court permitted the use of covert means subject to permission of a judge, the result of such use may also be used to prove a criminal offence not specified in the permission, provided that the conditions for using such means, as specified in the CPC, are met with regard to the latter criminal offence as well. Where the court permitted the use of a covert means subject to permission of a judge to prove a criminal offence, the result of such use may be used against all perpetrators. In these situations, the result of using a covert means may be used where the organ authorised to use covert means orders or initiates launching a preparatory proceeding or investigation, or using such a result in the pending criminal proceeding, regarding the person or criminal offence not specified in the permission within thirty days after finishing the use of a covert means subject to permission of a judge. The organ authorised to use covert means shall, through the prosecution service, notify the court that granted permission to use the covert means about doing so. If the organ authorised to use covert means does not use the covert means itself, the time limit specified shall be calculated from the day when every data-storage medium document or an extract thereof containing the results of using the covert means arrives at the organ authorised to use covert means after the use of covert means has been terminated.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Concerning a criminal offence not specified in the permission committed by a person not specified in the permission, the result of using a covert means subject to permission of a judge may only be used to prove a criminal offence involving the intentional killing of a person; kidnapping; a criminal offence against the State under Chapter XXIV of the Criminal Code that is punishable by five or more years of imprisonment; a terrorist act; terrorism financing; or causing public danger intentionally, provided that

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the other conditions of using such means as specified in this Act are met,
  • the organ authorised to use covert means orders or initiates a preparatory proceeding or investigation to be launched regarding a criminal offence not specified in the permission committed by a person not specified in the permission, or orders or initiates using such data in a pending criminal proceeding, within eight days after acquiring the data to be used in a criminal proceeding, and
  • the court permits the result of using covert means to be used concerning the criminal offence not specified in the permission committed by the person not specified in the permission.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The organ authorised to use covert means shall initiate that the use of the result of using covert means be permitted by the prosecution service within three working days after a preparatory proceeding or investigation or after using such a result in a pending criminal proceeding. The prosecution service shall file a motion with the court for permission to use the result of using covert means within seventy-two hours after such initiative. The court shall decide within seventy-two hours after the filing of the motion.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

When using an undercover investigator, a memorandum of implementation and a permission from a prosecutor to use an undercover investigator shall be attached to the case documents of a proceeding. The undercover investigator may be interrogated as a witness only after obtaining the position of the organ employing the undercover investigator. After the indictment, the undercover investigator may be interrogated as a witness, and any other evidentiary act requiring his presence in person may be carried out only upon a motion filed by the prosecution service and subject to the condition that his testimony may not be substituted by any other means. If it is necessary to interrogate an undercover investigator as a witness or to carry out any other evidentiary act requiring his presence in person, the undercover investigator shall be

Jegyzet elhelyezéséhez, kérjük, lépj be.!

considered a specially protected witness without any decision by the court. The court may not cancel the status of an undercover investigator as a specially protected witness without the consent of the organ employing the undercover investigator concerned. The attendance of the undercover investigator at a procedural act may be ensured using a telecommunication device only with consent from the organ employing the undercover investigator. If consent is granted, the organ employing the undercover investigator shall specify the following to ensure the attendance of the undercover investigator: (1) whether distorting by technical means the individual identifying characteristics of the person concerned is to be omitted, (2) the separate location where the undercover investigator is to be present. In the course of using the result of using an undercover investigator as evidence, all necessary measures shall be taken to keep the identity of the undercover investigator secret and ensure his security.22
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

G) Legal assessment of entrapment by the ECrHR

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The Court has recognised the need for the authorities to have recourse to special investigative methods, notably in organised crime and corruption cases. It has held, in this connection, that the use of special investigative methods – in particular, undercover techniques – does not in itself infringe the right to a fair trial. However, on account of the risk of police incitement entailed by such techniques, their use must be kept within clear limits.23

Jegyzet elhelyezéséhez, kérjük, lépj be.!

While the rise of organised crime requires the States to take appropriate measures, the right to a fair trial, from which the requirement of the proper administration of justice is to be inferred, nevertheless applies to all types of criminal offence, from the most straightforward to the most complex. The right to the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed for the sake of expedience. In this connection, the Court has emphasised that the police may act undercover but not incite.24

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Moreover, while the Convention does not preclude reliance, at the preliminary investigation stage and where this may be warranted by the nature of the offence, on sources such as anonymous informants, the subsequent use of such sources by the trial court to found a conviction is a different matter. Such a use can be acceptable only if adequate and sufficient safeguards against abuse are in place, in particular, a clear and foreseeable procedure for authorising, implementing and supervising the investigative measures in question. As to the authority exercising control over undercover operations, the Court has considered that, while judicial supervision would be the most appropriate means, other means may be used provided that adequate procedures and safeguards are in place, such as supervision by a prosecutor.25

Jegyzet elhelyezéséhez, kérjük, lépj be.!

While the use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards, the public interest cannot justify the use of evidence obtained as a result of police incitement, as this would expose the accused to the risk of being definitely deprived of a fair trial from the outset. The undercover agents in this context may be the State agents or private parties acting under their instructions and control. However, a complaint related to the incitement to commit an offence by a private party, who was not acting under the instructions or otherwise control of the authorities, is examined under the general rules on the administration of evidence and not as an issue of entrapment.26

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The prohibition of entrapment extends to the recourse to operation techniques involving the arrangement of multiple illicit transactions with a suspect by the State authorities. The Court has held that such operation techniques are recognised and permissible means of investigating a crime when the criminal activity is not a one-off, isolated criminal incident but a continuing illegal enterprise. However, in keeping with the general prohibition of entrapment, the actions of undercover agents must seek to investigate ongoing criminal activity in an essentially passive manner and not exert an influence such as to incite the commission of a greater offence than the one the individual was already planning to commit without such incitement. Accordingly, when State authorities use an operational technique involving the arrangement of multiple illicit transactions with a suspect, the infiltration and participation of an undercover agent in each illicit transaction must not expand the police’s role beyond that of undercover agents to that of agents provocateurs. Moreover, any extension of the investigation must be based on valid reasons, such as the need to ensure sufficient evidence to obtain a conviction, to obtain a greater understanding of the nature and scope of the suspect’s criminal activity, or to uncover a larger criminal circle. Absent such reasons, the State authorities may be found to be engaging in activities which improperly enlarge the scope or scale of the crime.27

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In particular, as a result of improper conduct of undercover agents in one or more multiple illicit transactions or involvement in activities enlarging the scope or scale of the crime, the State authorities might unfairly subject the defendant to increased penalties either within the prescribed range of penalties or for an aggravated offence. Should it be established that this was the case, the relevant inferences in accordance with the Convention must be drawn either with regard to the particular illicit transaction effected by means of improper conduct of State authorities or with regard to the arrangement of multiple illicit transactions as a whole. As a matter of fairness, the sentence imposed should reflect the offence which the defendant was actually planning to commit. Thus, although it would not be unfair to convict the person, it would be unfair for him or her to be punished for that part of the criminal activity which was the result of improper conduct on the part of State authorities.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Court’s case-law on entrapment also concerns instances of indirect entrapment. This is a

Jegyzet elhelyezéséhez, kérjük, lépj be.!

situation where a person is not directly in contact with the police officers working undercover but was involved in the offence by an accomplice who had been directly incited to commit an offence by the police. In this connection, the Court set out the following test for its assessment: (a) whether it was foreseeable for the police that the person directly incited to commit the offence was likely to contact other persons to participate in the offence; (b) whether that person’s activities were also determined by the conduct of the police officers; and (c) whether the persons involved were considered as accomplices in the offence by the domestic courts.28

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In its case-law on the subject of entrapment, the Court has developed criteria to distinguish entrapment breaching Article 6 § 1 of the Convention from permissible conduct in the use of legitimate undercover techniques in criminal investigations. The Court has explained that whereas it is not possible to reduce the variety of situations which might occur in this context to a mere checklist of simplified criteria, the Court’s examination of complaints of entrapment has developed on the basis of two tests: the substantive and the procedural test of incitement.29

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Court has defined entrapment, as opposed to a legitimate undercover investigation, as a situation where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is to provide evidence and institute a prosecution.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In deciding whether the investigation was essentially passive, the Court examines the reasons underlying the covert operation and the conduct of the authorities carrying it out. In particular, it determines whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence.30

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In its assessment, the Court takes into account a number of factors. For example, in the early landmark case of “Teixeira de Castro v. Portugal” (1998), the Court took into account, inter alia, the fact that the applicant had no criminal record, that no investigation concerning him had been opened, that he was unknown to the police officers, that no drugs were found in his home and that the amount of drugs found on him during arrest was not more than the amount requested by the undercover agents. It found that the agents’ actions had gone beyond those of undercover agents because they had instigated the offence and there was nothing to suggest that without their intervention the offence in question would have been committed.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A previous criminal record is not by itself indicative of a predisposition to commit a criminal offence. However, the applicant’s familiarity with the modalities of the offence and his failure to withdraw from the deal despite a number of opportunities to do so or to report the offence to the authorities, have been considered by the Court to be indicative of pre-existing criminal activity or intent.31

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Another factor to be taken into account is whether the applicant was pressured into committing the offence in question. Taking the initiative in contacting the applicant in the absence of any objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence, reiterating the offer despite the applicant’s initial refusal, insistent prompting, raising the price beyond average and appealing to the applicant’s compassion by mentioning withdrawal symptoms32 have been regarded by the Court as conduct which can be deemed to have pressured the applicant into committing the offence in question, irrespective of whether the agent in question was a member of the security forces or a private individual acting on their instructions.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A further question of importance is whether the State agents can be deemed to have “joined” or “infiltrated” the criminal activity rather than to have initiated it. In the former case the action in question remains within the bounds of undercover work. In “Milinienė v. Lithuania” (2008) the Court considered that, although the police had influenced the course of events, notably by giving technical equipment to the private individual to record conversations and supporting the offer of financial inducements to the applicant, their actions were treated as having “joined” the criminal activity rather than as having initiated it as the initiative in the case had been taken by a private individual. The latter had complained to the police that the applicant would require a bribe to reach a favourable outcome in his case, and only after this complaint was the operation authorised and supervised by the Deputy Prosecutor General, with a view to verifying the complaint.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The manner in which the undercover police operation was launched and carried out is relevant in assessing whether the applicant was subjected to entrapment. The absence of clear and foreseeable procedures for authorising, implementing and supervising the investigative measure in question tips the balance in favour of finding that the acts in question constitute entrapment: see, for example, Teixeira de Castro v. Portugal (1998), where the Court noted the fact that the undercover agents’ intervention had not taken place as part of an official anti-drug-trafficking operation supervised by a judge; Ramanauskas v. Lithuania (2008), where there was no indication of what reasons or personal motives had led the undercover agent to approach the applicant on his own initiative without bringing the matter to the attention of his superiors; and Tchokhonelidze v. Georgia (2018), where there was no formal authorisation and supervision of the undercover operation in question.

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In “Vanyan v. Russia” (2005), where the Court noted that the police operation had been authorised by a simple administrative decision by the body which later carried out the operation, that the decision contained very little information as to the reasons for and purposes of the planned test purchase, and that the operation was not subject to judicial review or any other independent supervision. In this connection, the “test purchase” technique used by the Russian authorities was closely scrutinised in the case of Veselov and Others v. Russia (2012), where the Court held that the procedure in question was deficient and that it exposed the applicants to arbitrary action by the police and undermined the fairness of the criminal proceedings against them.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It further found that the domestic courts had also failed to adequately examine the applicants’ plea of entrapment, and in particular to review the reasons for the test purchase and the conduct of the police and their informants vis-à-vis the applicants.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In cases raising issues of entrapment, Article 6 of the Convention will be complied with only if the applicant was effectively able to raise the issue of incitement during his trial, whether by means of an objection or otherwise. The mere fact that general safeguards, such as equality of arms or the rights of the defence, have been observed is not sufficient. In such cases the Court has indicated that it falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If a plea of entrapment is made and there is certain prima facie evidence of entrapment, the judicial authorities must examine the facts of the case and take the necessary steps to uncover the truth in order to determine whether there was any incitement. Should they find that there was, they must draw inferences in accordance with the Convention. The mere fact that the applicant pleaded guilty to the criminal charges does not dispense the trial court from the duty to examine allegations of entrapment. Indeed, the Court has held that the defence of entrapment necessarily presupposes that the accused admits that the act he or she is charged with was committed but claims that it happened due to unlawful incitement by the police.33

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In this connection the Court verifies whether a prima facie complaint of entrapment constitutes a substantive defence under domestic law or gives grounds for the exclusion of evidence or leads to similar consequences. Although it is up to the domestic authorities to decide what procedure is appropriate when faced with a plea of incitement, the Court requires the procedure in question to be adversarial, thorough, comprehensive and conclusive on the issue of entrapment. Moreover, in the context of non-disclosure of information by the investigative authorities, the Court attaches particular weight to compliance with the principles of adversarial proceedings and equality of arms.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Where an accused asserts that he was incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police incitement must be excluded or a procedure with similar consequences must apply.34 This is especially true where the police operation took place without a sufficient legal framework or adequate safeguards. In such a system the judicial examination of an entrapment plea provides the only effective means of verifying the validity of the reasons for the undercover operations and ascertaining whether the agents remained “essentially passive” during those operations.35 It is also imperative that the domestic courts’ decisions dismissing an applicant’s plea of entrapment are sufficiently reasoned.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the available information does not enable the Court to conclude whether the applicant was subjected to entrapment, the judicial review of the entrapment plea becomes decisive in accordance with the methodology of the Court’s assessment of entrapment cases.36

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the application of the substantive and procedural tests of entrapment, the Court must first satisfy itself that the situation under examination falls prima facie within the category of “entrapment cases”. If the Court is satisfied that the applicant’s complaint falls within the category of “entrapment cases”, it will proceed, as a first step, with the assessment under the substantive test of incitement. Where, under the substantive test of incitement, on the basis of the available information the Court could find with a sufficient degree of certainty that the domestic authorities investigated the applicant’s activities in an essentially passive manner and did not incite him or her to commit an offence, that will normally be sufficient for the Court to conclude that the subsequent use in the criminal proceedings against the applicant of the evidence obtained by the undercover measure does not raise an issue under Article 6.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

However, if the Court’s findings under the substantive test are inconclusive owing to a lack of information in the file, the lack of disclosure or contradictions in the parties’ interpretations of events, or if the Court finds, on the basis of the substantive test, that an applicant was subjected to incitement contrary to Article 6., it will be necessary for the Court to proceed, as a second step, with the procedural test of incitement. The Court has explained that it applies this test in order to determine whether the necessary steps to uncover the circumstances of an arguable plea of incitement were taken by the domestic courts, and whether in the case of a finding that there has been incitement or in a case in which the prosecution failed to prove that there was no incitement, the relevant inferences were drawn in accordance with the Convention. The proceedings against an applicant would be deprived of the fairness required by Article 6 of the Convention if the actions of the State authorities had the effect of inciting the applicant to commit the offence for which he or she was convicted, and the domestic courts did not appropriately address the allegations of incitement.37
1 CPC 214. §
2 CPC 215. §
3 CPC 228–230. §
4 CPC 216–218. §
5 CPC 219. §
6 CPC 220. §
7 CPC 221. §
8 CPC 222–225. §
9 CPC 226. §
10 CPC 227. §
11 CPC 231–234. §
12 CPC 235–237. §
13 CPC 238. §
14 CPC 239–240. §
15 CPC 241. §
16 CPC 242. §
17 CPC 243–244. §
18 CPC 245. §
19 CPC 246. §
20 CPC 247–248. §
21 CPC 249–251. §
22 CPC 252–255. §
23 “Ramanauskas v. Lithuania” (2008)
24 “Khudobin v. Russia” (2006)
25 “Bannikova v. Russia” (2010) and “tchokhonelidze v. Georgia” (2018)
26 “Shannon v. the United Kingdom” (2004)
27 “Grba v. Croatia” (2017)
28 “Akbay and Others v. Germany” (2020)
29 “Matanović v. Croatia” (2017)
30 “Bannikova v. Russia” (2010)
31 “Gorgievski v. the former Yugoslav Republic of Macedonia” (2009)
32 “Vanyan v. Russia” (2005)
33 “Berlizev v. Ukraine” (2021)
34 “Akbay and Others v. Germany” (2020)
35 “Lagutin and Others v. Russia” (2014)
36 “Ali v. Romania” (2010)
37 “Virgil Dan Vasile v. Romania” (2018)
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