Gellér examines this problem with regard to evidence obtained illegally during the investigation phase and asks whether a prosecution based on such evidence can proceed and be tried.6 The starting point for the author’s reasoning is the flawed practice of the investigating authorities in questioning witnesses after 1 July 2006. This case originated from the amendment of the law (2006),7 which introduced the rule that a witness must be warned of the legal consequences of not disclosing an exculpatory circumstance before he starts to give his testimony. However, this rule was not applied in the investigation phase for some time because the authorities failed to update the interrogation forms, so that even after the amendment entered into force, no training on the consequences of not disclosing the exculpatory circumstances was given. When this error was detected by the courts of appeal,8 the first instance decisions were annulled and in those orders it was argued that the statements of the witnesses concerned could not have been taken into account as evidence and should have been excluded from the establishment of the facts, which were therefore in any event unfounded.

According to Gellér, the starting point for deciding these questions is that (1) the prosecution is convinced that the evidence is sufficient to prove the guilt of the accused beyond reasonable doubt; (2) there is no possibility for the court to repeat the questioning of the witnesses concerned at the trial, because this would mean that the court would be conducting the investigation, which would violate the principle of the division of procedural tasks and the requirement of a fair trial.9 According to the author, therefore, the violation of certain procedural rules at the investigative stage (e.g. violation of the rules governing the examination of witnesses) precludes the prosecution from being legally charged.

I cannot agree with this point of view, because it is not compatible with the provisions of Act XIX of 1998 or the current CPC. Although the current law does not refer to the requirement of the legality of the accusation in general, it carries forward the essence of the provisions of Act XIX of 1998 in determining the content of the individual charging documents. According to this provision, the legality of an accusation is only conditional on the fact that (1) it originates from the person entitled to it, (2) it is addressed to the court, (3) it contains a specific act of a specific person which is contrary to criminal law and (4) it is directed to the conduct of judicial proceedings.10 These are the only substantive criteria that can be established under the rules in force for both the indictment and the note. Thus, when examining the legality of the accusation, procedural irregularities can still not be assessed, they can only lead to the prosecution being unfounded, circumstances which require a separate examination at the trial at first instance.11 It is a different matter that the prosecutor exercises a general right to supervise the legality of the investigation, the failure to exercise which, in the course of the pre-trial evidentiary procedure, would mean that he would have to bear the risk of unfoundedness of the accusation.12