Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.6. Special forms of investigation
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9.6.3. Investigation of proceedings against an absent defendant

9.6.3. Investigation of proceedings against an absent defendant

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The justification and regulation of criminal proceedings against an absent defendant is one of the most sensitive issues of the whole of “constitutional criminal law”. In this case, it is a question of the legislator overriding, for reasons of necessity, the principle of the immediacy of the proceedings in order to safeguard the public interest in effective law enforcement and the continuity of justice. Does this approach raise any constitutional concerns? I believe so, but the legislator has no choice, the judicial and law enforcement function of the state cannot automatically render these processes unconstitutional.1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Constitutional Court in its decision 14/2004 (7 May 2004) AB clearly indicated that the legislator must take action against unjustified absences, the normative content of the rule of law and the guarantee requirements of constitutional criminal law require the state to create rules for the enforcement of the claim against the absentee defendant that strike a balance between the protection of the defendant’s constitutional rights and the interests of criminal justice. The authorities exercising criminal jurisdiction are therefore under a constitutional obligation to identify and locate the accused. However, the burden cannot be placed on the person being prosecuted: (1) to prove that he did not wish to evade justice or that he was unable to appear for reasons beyond his control (therefore the right to be defended by counsel cannot be penalised by limiting his right to be defended); (2) that the State’s failure to do so prevents the ideal objective of criminal proceedings, namely the imposition of a just and proper sentence, from being achieved.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is therefore a basic principle that the presence of the accused in an unknown place is not an obstacle to the conduct of criminal proceedings.2 The reasons for this and the circumstances may vary: (1) the person reasonably suspected of having committed the offence was unavailable before the suspect was questioned, or (2) the suspect was unavailable after the suspect was questioned. In such cases, there are two possible phases for the continuation of the proceedings:

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In the “first step”, the competent authority (investigating authority, prosecutor’s office) must take action to locate the person suspected of committing the offence or the accused. The general means of doing so are issuing a wanted notice or an arrest warrant.

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  • Issuing a wanted notice is – in this case – an investigative measure ordered to establish the whereabouts of a person or a suspect who is in an unknown place and is reasonably suspected of having committed a criminal offence;3
  • An arrest warrant is, in this case, an investigative measure ordered to establish the whereabouts of a person or a suspect who is in an unknown place and is reasonably suspected of having committed a criminal offence, which is taken when (1) there are grounds for detaining this person, (2) the current whereabouts of these persons are unknown and (3) the deprivation of their personal liberty (e.g. arrest) is sought to be initiated by a court.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The arrest warrant is therefore essentially a special form of a wanted notice, which can be issued for an offence punishable by imprisonment, for the purpose of arresting the suspect and bringing him before the competent authority.4 There is also the so-called “European arrest warrant”: a decision issued by a law enforcement authority of an EU Member State, the general purpose of which is to arrest and surrender a requested person to another Member State for the purposes of proceedings.5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the search or the arrest warrant does not lead to a result, the prosecutor’s office will – in a “second step” – declare the person “wanted in absentia”, the conjunctive conditions of which are:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. the person reasonably suspected of having committed the offence or the accused has fled or absconded during the proceedings, or is reasonably believed to have otherwise become unavailable to avoid prosecution,
  2. the measures taken to locate the suspect or the person reasonably suspected of having committed the offence have not been successful within a reasonable time, and
  3. it is justified by the gravity of the offence and the assessment of the case.6
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The condition set out in point b) may be established if (1) evidence has been taken, data has been obtained or a concealed instrument has been used in order to search for the suspect or the person reasonably suspected of having committed the offence, (2) the investigating authority, the prosecutor’s office or the court has issued a wanted notice or an arrest warrant and (3) the wanted notice or the arrest warrant has not led to any result within fifteen days of its issuance.7

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In its decision to declare an accused person in absentia, the public prosecutor’s office is also obliged to order the appointment of a defence lawyer if the accused person does not have one.8 This is because the participation of a lawyer is generally mandatory in the proceedings.9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the prosecutor’s office declares a person suspected of having committed an offence to be an absconder, but does not close the investigation, the investigation shall be conducted according to the rules of the investigation.10 It should be noted that the decision of the prosecutor’s office to declare the suspect to be “charged in absentia” is a prerequisite for any subsequent indictment or judicial proceedings.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The substitute private prosecutor may not bring proceedings against an absent defendant.11
1 The Court, however, only considers trials in absentia to be admissible in a very narrow range of cases. Károly Bárd: Tárgyalás a vádlott távollétében – emberi jog – dogmatikai analízis. [Trial in absentia – human rights – dogmatic analysis.]. In: Wiener A. Imre ünnepi kötet [Wiener A. Imre Festive Volume], ELTE ÁJK, Libri Amicorum 10, 213.
2 The Be. discusses the procedural rules for defendants staying abroad in a separate chapter, although – in my view – these procedural subjects are also considered to be absent defendants. It is a different matter that the reason for the absence is of course not irrelevant from the point of view of evidence, nor is it irrelevant whether or not the whereabouts of the accused are known to the authorities (courts). Under the Criminal Code, it is also possible for the prosecutor’s office, and subsequently the court, to allow the deposit of a security at the request of a defendant who is habitually resident abroad, before the indictment, if (1) a fine or confiscation of property is foreseeably imposed on the accused, (2) the absence of the accused from the trial and procedural acts is not prejudicial to the interests of the proceedings, and (3) the accused or his defence counsel has instructed his defence counsel to act as agent for service of process. [§ 757 (2) para.]
3 § 268 (1) d)
4 A person against whom an arrest warrant has been issued shall, if found, be taken into custody and brought before the prosecutor or other investigating authority issuing the arrest warrant or other authority designated therein within 24 hours, or before the court issuing the arrest warrant or other authority designated therein within 72 hours. Belovics–Tóth (2020) ibid. 147.
5 Belovics–Tóth (2020) ibid. 147.
6 § 747 (3) para.
7 § 747 (4) para.
8 § 748 (2) para.
9 § 747 (6) para.
10 § 748 (1a) para.
11 § 817 (4) para.
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