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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9.4.7.2. Use of disclosed instruments in criminal proceedings

9.4.7.2. Use of disclosed instruments in criminal proceedings

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The legal instruments falling under the category of disguised instruments are already linked to the initiation of criminal proceedings and are therefore subject to the CPC. They essentially refer to specific activities which

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  • restrict the integrity of the private home, and
  • restrict the fundamental rights to privacy, confidentiality of correspondence and protection of personal data, and
  • are carried out by the competent authorities without the knowledge of the person concerned. 1
 

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I would like to note that the legislator “adopted” several basic concepts almost verbatim from the wording of the Police Act, the NAV Act and the Act on the Protection of the Hungarian Property, and at the same time – with the need for completeness – I consider it justified to analyse the current provisions of the Act in detail.

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As I indicated earlier, the fundamental problem with these legal instruments is that, when they are implemented, the authorities restrict fundamental rights that are also protected by the Convention.2 At the same time, there are rules in force in all the Member States under which these restrictions on fundamental rights may be disregarded on the grounds of law enforcement interests, but only

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  • in exceptional cases,
  • having regard to the interests of evidence, and
  • based on the requirements of necessity and proportionality.
 

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There are of course different degrees of disadvantage.Consider the following: it does not matter whether a letter that has already been delivered and read by the addressee is seized by the authorities, just as it does not matter whether the person concerned is present at a particular search or whether his right to be present is even guaranteed.

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The general authorisation to use disguised means is derived from Article 8 of the Convention, which allows the authority to interfere with the inviolability of certain fundamental rights if it is necessary for reasons of national security, public security, public health, morality, the economic well-being of the country or the prevention of crime.3 It can therefore be concluded that the use of these legal instruments can be considered legitimate from the point of view of European law, even if they are not accompanied by prior or subsequent judicial authorisation. I would point out that, in my view, any procedural act involving a restriction of a fundamental right would require at least some form of judicial authorisation to be obtained ex post. As Király puts it, “a judge’s authorisation as a condition is intended to insert an impartial, unbiased person between the police and the person who suffers the measure […].” 4

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Under Hungarian law, a disguised instrument may be used if

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  1. there are reasonable grounds to believe that the information or evidence to be obtained is essential to achieve the purpose of the criminal proceedings and cannot be obtained by other means;
  2. its application does not result in a disproportionate restriction of a fundamental right of the person concerned or of another person in relation to the law enforcement objective to be achieved; and
  3. its use is likely to lead to the acquisition of information or evidence relating to a criminal offence.5
 

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The use of these instruments may be based on guarantee rules: on this basis, they

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  • may be ordered or carried out only by the bodies authorised to do so;
  • may only be used for law enforcement purposes as defined by law;
  • and in their implementation – only – the rules of the CPC may be applied.6
 

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I would note that practice shows that in cases involving the use of evidence obtained by a concealed means, the scope for the defence to attack the legality of the evidence is almost completely reduced. For this reason, the defence necessarily challenges the procedural rules governing the use of a covert instrument, which may, however, be more effective in this context than motions to exclude other means of evidence. Under the rules of the Constitutional Act, these legal instruments are subject to much more specific rules on their implementation and use.

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As regards the personnel involved in the use of covert means, the concepts of informer, confidential person and undercover investigator should be clarified. The only common feature of these subjects is that their identity or capacity as such remains unknown to the persons under surveillance during the procedure. Beyond this, however, there are substantial differences in terms of (1) the permanence and nature of their activities, (2) their organisational affiliation, (3) their level of loyalty – reliability – risk factors and (4) the rules for authorising their employment.
 

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  1. The informer is a person who provides information on an ad hoc basis for personal gain (e.g. for financial reward).7
  2. The confidental person has been informing the investigating authority (prosecutor’s office) on a long-term and regular basis in connection with several cases or offences. It should be noted that in this case the risk is greater from the point of view of the authorities, since the subject is usually one who is himself involved in the case, and there is a constant risk of “double loyalty”, and a state of uncertainty as to the credibility of the information provided.8
  3. The undercover investigator s a public official acting undercover to gather information, who disguises his or her identity and, like a confidential person, works for a longer period of time. It is important to note that the authorisation of the public prosecutor is required for his use, as it is essentially “a guarantee that his activities are in line with the general principles of criminal procedure and the safeguards of human rights.”9 It is usually used when the organisation of the offender is complex, closed, and conspiratorial action using an informer or a confidant would be ineffective or risky.
 

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It is essential to preserve incognito in the interrogation of persons in groups (a) and (b), for both pertactical and protective reasons. If they are to be interrogated at any stage of the procedure, these considerations are best met by using a closed telecommunications network or by keeping their personal data private (complete anonymity): 10

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In relation to the proceedings of persons belonging to group c), the Court has recently received a number of petitions which have criticised (1) the sanctioning of offences committed at the provocation of undercover investigators and (2) the complete “procedural anonymity” of such investigators and, therefore, their exclusion from evidence. On this basis, the Strasbourg forum found a violation of the Convention in the following case:

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  • two plain-clothes police officers knocked on the door of the unsuspecting applicant to buy drugs, who managed to obtain the 20 grams of drugs requested from several addresses; the defendant was sentenced to 6 years’ imprisonment in the national proceedings, but the Court held that the action of the undercover detectives could not be justified even by the most “determined” fight against drugs, since a police action – undercover – which is carried out by the person under investigation at the express encouragement of the authorities cannot be justified on grounds of public interest;11
  • the applicant, who had no criminal record, was explicitly persuaded by the undercover investigator to obtain drugs; the Court found that the guarantees of an undercover police procedure (such as judicial review) were completely lacking in the Member State’s law, and the police officers involved in the test purchase were not questioned at all during the trial;12
  • in the case of multiple offences, only the applicants were prosecuted, as the other perpetrators were secret agents of the British authorities, who quasi persuaded the applicants to commit the offences;13
  • it established the responsibility of the accused, who had no criminal record, although there was no evidence that the offence would have been committed without the effective persuasion of the police officers acting as private individuals.14
 

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The Court did not find a breach of the Convention when:

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  • a judge himself approached a private individual to pay him $10,000 to settle a civil case in his favour, and the latter was then provided with a recording machine by the police, the contents of which constituted the evidence in the case; no violation of the Convention could be established in this case because the police did not initiate the offence but only joined the investigation afterwards in order to provide evidence.15
 

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In terms of Hungarian case law, we find conflicting judgments on the assessment of provocations by public authorities:

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  • the former Municipal Court of Budapest stated in principle that crimes committed on the basis of provocation by undercover investigators are punishable in the same way because of their danger to society, and police involvement in such cases can only be taken into account as a mitigating circumstance; 16
  • in another case, the court ruled that it is not incriminating for the accused if the police officer, disguising his identity, repeatedly urges the drug dealer to carry out the intended transaction; 17
  • the nature of the offence may be a sufficient basis for the use of anonymous informants, but the public interest may not be a sufficient ground for using evidence obtained through incitement by the police.18
1 § 214 (1) para.
2 Article 8, point 1
3 Article 8, point 2
4 Király (1996) ibid. 210.
5 § 214 (5) para.
6 § 214 (2) para.
7 Veronika Takács: Investigating corruption, with special regard to intelligence tools. Belügyi Szemle, 2012/12. 96.
8 Bócz (2004) ibid. 710.
9 Bócz –Finszter (2008) ibid. 315.
10 Tremmel (2016) ibid. 176–177.
11 Teixeira de Castro v. Portugal judgment of 9 June 1998, Reports 1998-IV, p. 1451. In: Grád–Weller (2011) ibid. 367.
12 Khudobin v. Russia judgment of 26 October 2006, no. 59696/00. In: Grád–Weller (2011) ibid. 367.
13 In addition, their identity remained unknown throughout the procedure, which did not allow for a fair trial. Edwards and Lewis v. the United Kingdom judgment of 27 October 2004, no. 39647/98.
14 Ramanauskas v. Luthuania judgment of 5 February 2008, no. 74420/01. In: Grád–Weller (2011) ibid. 369.
15 Miliniené v. Lithuania judgment of 24 June 2008, no. 7435501. In: Grád–Weller (2011) ibid. 369.
16 It should be noted that there is also a criminal law position in legal literature that such acts are not punishable because they are not dangerous to society. In Grád–Weller (2011) ibid. 368.
17 BH 1999/8. 635. In: Czine–Szabó–Villányi–Baka (2008) ibid. 285.
18 BH 1993/5. 397. In: Czine–Szabó–Villányi–Baka (2008) ibid. 286.
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