Viktor Bérces: Evidence in Criminal Proceedings
›
Chapter X. The possibilities of excluding evidence and the conditions for indictment at the prosecution (intermediate) stage
›
10.1. Introduction
›
10.1.1. Simplification procedures in general. The simplification procedures that can be used by the prosecutor

10.1.1. Simplification procedures in general. The simplification procedures that can be used by the prosecutor

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Legal policy reasons for introducing simplification procedures are mainly motivated by considerations of expediency and economy of litigation. This approach undoubtedly reduces the role of evidence as a whole in criminal proceedings, and it is still debated among procedural law scholars whether these procedural legal instruments are necessary at all, and to what extent their application affects the original, real functions of criminal proceedings (e.g. the discovery of material truth, the principle of the immediacy of the trial, the principle of publicity).1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

What is certain is that the Council of Europe issued its recommendation on the need to introduce legal instruments based on the principle of opportunity as early as 1981. Behind these efforts lies primarily the desire to reduce the burden on the judiciary and to develop a culture of conflict management. It should be noted that some European jurisdictions, including the US, had already known about “shortcut procedures” before the Recommendation was issued. Indeed, even today, the Court of Justice does not necessarily consider it a violation of the Convention for national courts to refrain from holding hearings, depending on the subject matter of the case (e.g. assessment of a tax penalty) or the personal interests of the accused (e.g. stigmatisation).2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • As early as 1995, Cséka drew attention to the fact that “legislators, law enforcers, theoreticians […] were convinced that the only way to improve the quantitative and qualitative performance of the bodies working professionally to reduce crime, to increase their efficiency and thus to meet society’s expectations of them more fully is to eliminate the bureaucratic excesses of the procedure, to eliminate unnecessary constraints, in short, to simplify the procedural rules.”3
  • According to Erdei, “there is no obstacle to the confessing defendant being punished by abandoning the trial, which is based on the principles of immediacy, openness and publicity.”4
  • According to Hack, “even in cases that are relatively easy to judge and not too serious, the verdict is reached after two or three years […]. Is it not better, in cases where it is not absolutely necessary and where the guarantees of trial are not enforced anyway, if the legislator moves towards simpler procedures and creates the possibility of faster judgments in cases of greater weight […].”5
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It should also be noted that, according to a previous AB decision, procedural guarantees cannot be justified by procedural economy or other simplification considerations alone.6

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Cséka raises the following question about the legitimacy of these constructions: “Is the trial, a classical institution of justice in criminal proceedings, nothing more than a procedural right of the accused, which can simply be […] abandoned? What is the relationship between the special legal significance of this confession, which is the basis of a separate procedure, and the legal rules which exclude the predetermined probative value of means of proof and evidence? What is the subject-matter (factual and legal content) of the accusation in these separate proceedings: what is admitted by the accused or does the prosecutor also have a role in ‘shaping’ the accusation?”7

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Recommendation No. R/87/18 of the Committee of Ministers of the Council of Europe explicitly refers to such deals with types of process and allows their use in minor cases if in the circumstances of the case, the relevant facts appear to be established and it seems certain that the suspect committed the offence. The judicial authorities will then proceed by written procedure, bypassing the trial and making a decision equivalent to a conviction they bring. The Recommendation also draws the attention of Member States to consider allowing cases of this gravity to be decided in the absence of the accused, provided that the the person charged was duly informed of the date of the hearing and of the right to legal representation.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

“Over the last few decades, we have heard a lot about speeding up criminal proceedings […]. The global problem of reducing the burden and speeding up justice is still to be solved. Therefore, in recent times, in order to maintain the functioning of the justice system, States have adopted and implemented legal instruments which serve to speed up proceedings by partially abandoning traditional principles and strengthening consensual elements.”8

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to Kadlót, such proceedings are characterised by a “reduced system of guarantees”: this is mainly due to the – usually – legal requirement to confess, the resulting reduction of the right of defence and the limitation of the trial principle. However, according to the author, this “guarantee deficit” can be corrected and, if they are sufficiently “effective, secure, traceable and verifiable, the requirement of procedural justice is not violated.”9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Court of Justice has repeatedly ruled in its judgments on due process that procedural guarantees are not quantitative but formal requirements. Thus, a particular procedure may be unfair even if all the guarantees are met, or it may be fair even if only some of the guarantees are met.10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In relation to simplification procedures, some authors highlight the following requirements:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the procedures should be based on the voluntary participation of the debtor, reinforced by various legal safeguards: e.g. once consent has been given, the possibility for the debtor to change his or her previous decision should be created;11
  • the law must specify the precise legal content of the cooperation: e.g. the conditions of application; the expectations of the debtor; the positive legal consequences of the scheme,12 etc.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Each procedure can be grouped based on several aspects:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. according to the need for a contribution;
  2. as a condition of the confession;13
  3. the level of the penalty;
  4. the nature (extent) of the discretionary powers of the prosecution or court, or
  5. by the type of persection concerned.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

These processes, moreover, are mostly the subject of objections of legality in Hungarian literature. According to Király, these factors may arise if the legislator makes the simplification dependent not on the subject matter of the case but on the person of the defendant.14 I note that I can only partly agree with this position, since on this basis special rules for juveniles could not be called lawful either. However, Hack argues that it would be necessary to consider whether “it is necessarily worthwhile to insist on the trial as the exclusive form of procedure […], which is essentially more similar to the misdemeanour procedure than to the criminal procedure, namely when the judge is alone with the accused and the trial differs from it only in appearance […].”15

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The prosecuting authority has a central role, both internationally and domestically, in the initiation and imposition of simplified proceedings. This means that the prosecution, in addition to its traditional prosecutorial function, is constantly examining the possibility of shortening or even dispensing with criminal proceedings. It could also be said that most European legal systems consider the prosecution service as a “filter” of proceedings, which is essentially linked to its general power of supervision of the legality of the proceedings.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would like to note that under the current CPC, simplification procedures that can be initiated by the prosecutor are not limited to the prosecution phase: “avoiding the prospect of criminal prosecution” belongs to the investigation phase, while “bringing to court” is part of the court proceedings. However, in this chapter I will only deal with simplifying procedures specific to the prosecution phase.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It should be noted at the outset that these procedural options are ancillary to the indictment,16 and the prosecution is not obliged to use these constructions even if the statutory conditions are otherwise met. On the basis of these powers, it can be concluded that the current CPC essentially makes the prosecutor the “first judge” of the case and that in making these decisions he must assess aspects such as the confession of the accused, cooperation with the authorities, the capacity to comply with the various rules of conduct which he has laid down, or the capacity to make reparation for the damage.
1 For my part, I believe that the application of the general rules of procedure (i.e. the taking of evidence) is always necessary when (1) the adjudication of the case requires a more complex investigation (e.g. witness hearings, expert evidence, etc.) or (2) the accused is in denial of any of the offences contained in the indictment.
2 Cf. The Court of Justice did not find a breach of the Convention in a case where the applicant was fined more than EUR 300 for failings in his VAT declaration. Jussila v. Finland judgment of 23 November, 2006, no. 73053/01. In: Grád–Weller (2011) ibid. 317.
3 Cséka: Crime situation, simplification of procedures, investigation. In Árpád Erdei (ed.): Facts and perspectives. Budapest, KJK, 1995. 18.
4 Erdei (1991) ibid. 210.
5 Péter Hack: A büntetőeljárás reformja. [Reform of criminal procedure.] In Erika Csemáné Váradi (2009) ibid. 65.
6 Decision 72/2009 (10. 6. 2009) AB, point IV/5
7 Ervin Cséka: Bevezető. [Introduction.] Jogtudományi Közlöny, 1998/4. 113.
8 Ágnes Pápai-Tarr: Vádalku – az amerikai és a magyar valóság. [Plea bargain – the American and the Hungarian reality.] http://jesz.ajk.elte.hu/papai45.html
9 Erzsébet Kadlót: Milyen büntetőeljárásjogot akarunk? [What kind of criminal procedure law do we want?] In: Erika Csemáné Váradi (2009) ibid. 55.
10 E.g. Patrimol v. France (23/11/1993); Doorson v. Netherlands (26/03/1996); Hulko Gunes v. Turkey (19/06/2003) In: Kadlót (2009) ibid. 55.
11 “However, the interests of justice must also be taken into account: that is, the change must not constitute an abuse of rights, i.e. the framework of the defence must be made consistent with the requirement of timeliness.” Kadlót (2009) ibid. 55.
12 Kadlót (2009) ibid. 55.
13 According to Erdei, it is not enough to simply make an investigative confession for the sommat procedure to apply: if the accused refuses to repeat it in court, the case should be tried in a regular trial. “A proper balance of the components of the interest will help to exclude the possibility that the tactics of the accused will result in a delay rather than a simplification of the proceedings.” Erdei (1991) ibid.
14 Király (1996) ibid. 215.
15 In the words of Kálmán Györgyi, the “large orchestra format” should only be used in cases where it is absolutely justified. Hack (2009) ibid. 64.
16 See “subsidiary” nature
chevron_left
chevron_right
Tartalomjegyzék navigate_next
Keresés a kiadványban navigate_next
A kereséshez, kérjük, lépj be!
Könyvjelzőim navigate_next
A könyvjelzők használatához
be kell jelentkezned.
Jegyzeteim navigate_next
Jegyzetek létrehozásához
be kell jelentkezned.
    Kiemeléseim navigate_next
    Mutasd a szövegben:
    Szűrés:
    Kiemelések létrehozásához
    MeRSZ+ előfizetés szükséges.
      Útmutató elindítása
      delete
      Kivonat
      fullscreenclose
      printsave