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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9.4.8. The central procedural act of detection: the interrogation of suspects as the “scene” of incrimination

9.4.8. The central procedural act of detection: the interrogation of suspects as the “scene” of incrimination

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The interrogation of suspects is the last and central procedural step of the detection phase, which only takes place if the investigating authority considers the evidence known on the basis of the means of proof or acts of proof used in the investigation to be sufficient to charge the suspect. The prestige of this procedural act is high, as it is well known that the courts attach great importance to statements made during the investigation. A person may be summoned or questioned as a suspect if, on the basis of the available information and evidence, there are reasonable grounds to suspect him of having committed a criminal offence.1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is a rule of evidence that a person suspected of having committed a criminal offence – even if arrested, summoned, produced, wanted or subject to an arrest warrant – is entitled, until the suspicion is made public, to:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • be informed of his or her rights in criminal proceedings in relation to the questioning of suspects,
  • appoint or request the appointment of a lawyer, and
  • consult his/her lawyer without control. 2
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

At the same time, the defender is also entitled to contact and consult the person he or she is defending without control until the suspicion is communicated.3 However, it should be noted that until the suspicion is communicated, it is hardly possible to discuss strategic issues relating to the defence, since until that time the defence counsel is – as a rule – unaware of the facts of the case and the quantity and quality of the evidence available to the investigating authority (prosecution). However, according to the case law of the Court of Justice, it is a violation of the Convention for the (prosecuting) authority to decide not to make evidence available to the defence without the knowledge and consent of the court. 4

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During the questioning of suspects, it is common practice for the defence to make some form of comment (either on the merits of the case or on the conduct of the proceedings). However, it is important to make clear that these oral statements are never addressed to the investigator, but are intended to be recorded in the minutes5 and ultimately subject to investigation by the prosecution or the court.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that in certain cases the presence of a defence counsel may also be disadvantageous for the accused: if the suspect makes a confession in such circumstances, there is little objection to the legality of the proceedings, and this circumstance makes this personal evidence even more admissible, which will naturally be used as a basis for the court’s decision. Moreover, Decision No 8/2013 (1.3.2013) AB explained that there are many more doubts as to the voluntariness of statements obtained during an investigation than of statements made during a trial. The voluntariness of the statements can be established if the investigating authorities prove that the procedural guarantees protecting the accused have been respected. However, the absence of a defence may lead to the negation of evidence. For this reason, the defence counsel must be notified of the place and time of the hearing in a verifiable manner and in sufficient time to enable him to exercise his rights under the CPC and to attend the hearing. In the absence of such notification, the statement of the accused shall not be admissible as evidence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

During the interrogation, the suspect must be informed – after the necessary warnings – of the facts of the suspected offence and its classification under the Criminal Code.6 Prior to the proceedings, information on the suspect’s criminal record should be obtained and the validity of any foreign conviction against the suspect that may be taken into account in the proceedings should be recognised.7

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This is the first time in criminal proceedings that the presence of the defence becomes important, and the law therefore contains several guarantees in this area. Compliance with these rules is a prerequisite for the use of the record of the interrogation as evidence. On this basis:

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  1. If the participation of a defence counsel is mandatory, the suspected or reasonably suspected person shall be informed that, if he or she does not wish to be represented by a defence counsel, the investigating authority or the prosecutor’s office shall appoint a defence counsel ex officio; if the suspected or reasonably suspected person subsequently or before that time declares that he or she does not wish to be represented by a defence counsel, the investigating authority or the prosecutor’s office shall appoint a defence counsel immediately.8
  2. If a suspect or a person reasonably suspected of having committed a criminal offence wishes to appoint a defence counsel, or if the investigating authority or the prosecutor’s office appoints a defence counsel, the investigating authority or the prosecutor’s office shall immediately notify the defence counsel and postpone the hearing of the suspect until the arrival of the defence counsel, but for at least two hours. If, within the time limit set, (1) the defence counsel fails to appear, or (2) the suspect or the person reasonably suspected of having committed the offence consents to the commencement of the hearing on the basis of the consultation with the defence counsel, the investigating authority or the prosecution shall commence the hearing of the suspect.9
  3. The investigating authority or the prosecutor’s office shall record these measures and, if known, the reason for the lawyer’s absence in the record of the suspect’s interview.10
  4. The investigating authority or the public prosecutor’s office shall ensure that the suspected person or the person reasonably suspected of having committed a criminal offence may consult his or her defence counsel before or during the interrogation without being disturbed.11
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

An important part of the questioning of suspects is to clarify the personal circumstances of the accused. In this respect, it should be noted that interrogators often do not carry out a thorough investigation of the financial circumstances of the suspect, which is particularly problematic because of the potential for the imposition of a property penalty. The accused is not obliged to testify in this respect either. According to Háger: “It is rare to see an investigative procedure in which the property relations of the debtor are carefully clarified by means of documentary or other evidence of a personal nature, with sufficient depth. The procedural means to do so are available, because by obtaining property certificates, real estate, movable valuations, witness testimony, and inspection of official records, the facts concerning personal circumstances can be discovered to the extent necessary. Such evidence should undoubtedly be taken at the investigation stage, particularly in cases where confiscation of property may be applied or where the victims are pursuing civil claims, but not least where a pecuniary penalty may be imposed.”12

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If the suspect does not wish to make a statement, it is only necessary to record the fact that he or she does not wish to make a statement, in addition to his or her personal details. If the suspect makes a statement, the content of the statement may be categorised as follows:

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  • a confession: in this case, the suspect usually gives a short, affirmative answer to the authorities’ question about admitting the crime and no answer to other questions (mitigating circumstance);
  • partial confession: in this case, the suspect confesses only to certain parts of the facts, and denies the rest or does not confess at all (mitigating circumstance);
  • a full disclosure confession: in this case, the suspect makes a detailed statement summarising all the important details of the facts or all the facts to be proved, and then – usually – provides the necessary answers to the questions asked by the authorities (a strong mitigating circumstance);13
  • denial: in this case, the suspect declares that he or she does not admit having committed the offence and (1) provides additional information to the authority to support this (e.g. alibi) or (2) does not make any further statement afterwards.
 

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I would note that the main reason why suspects are deterred from confessing is the fear of the prospect of sanctions. The denial of the charge may also be supported by the fact that a suspicion which the prosecuting authority considers to be founded is “perceived” by the accused as unfounded, as a result of any comments made by the defence. If he nevertheless makes a confession, it is presumably for reasons of conscience or in order to shorten the proceedings.14

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Nevertheless, whatever the type of confession, the question of the veracity of the suspect’s statement may always arise. This doubt is most likely to be justified in the case of denials, but practical experience has shown that there are also false confessions. The following observations should be made in relation to these false statements: (1) the accused is the only participant in the proceedings who is not under an obligation to tell the truth and can therefore make false statements deliberately and intentionally; (2) this ‘freedom of defence’ of the accused may only extend as far as it does not constitute some other offence (e.g. false accusation, conspiracy).15 It is important to note that these acts can also only be committed against or in the interests of third partiesoutside the proceedings, not against the co-defendant. 16
1 In the case of detention, the suspect shall be questioned within twenty-four hours of the beginning of his detention (Art.).
2 § 386 (1) para.
3 § 386 (2) para.
4 No evidence – inculpatory or exculpatory – relating to the case can be excluded from the defence, as it has a direct impact on the “equality of arms” to be ensured in the judicial proceedings. ECHR 2001/11. 16. In: Czine–Szabó–Villányi–Baka (2008) ibid. 297.
5 In the course of my practice as a defence lawyer, there have been several occasions when the person conducting the interrogation has considered it merely “personal” when I have made comments about the illegality of the conduct of the proceedings or the unfounded nature of the suspicions.
6 After the suspect has been informed of the suspicion, the investigating authority or the prosecutor’s office shall warn the suspect and the defence counsel that there is a right to lodge a complaint against the suspicion. [§ 388 (1)–(2) para.]
7 389. §
8 § 387 (2) para.
9 § 387 (3) para.
10 § 387 (4) para.
11 § 387 (1)–(5) para.
12 Háger: Gondolatok a bizonyításról. [Reflections on proof.] ibid. https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/gondolatok_a_bizonyitasrol_ht_0.pdf
13 Within these categories, too, confessions of fact and guilty pleas are of particular importance for the imposition of sentences.
14 This finding is of course also valid for the further stages of the procedure.
15 Bolgár–Kárpáti–Traytler (1962) ibid. 170.
16 “The accused is not exempt […] from criminal law restrictions, and is not a suspect or accused in the case of a new crime. Thus, in his defence, he has no right to commit a new offence, and the most common defence in this respect is the defence of false accusation or suspicion.” In Fenyvesi (2002) ibid. 265.
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