Viktor Bérces: Evidence in Criminal Proceedings
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Chapter X. The possibilities of excluding evidence and the conditions for indictment at the prosecution (intermediate) stage
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10.5. The indictment. Who is entitled to prosecute and what are the charging documents?
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10.5.5. The indictment

10.5.5. The indictment

Jegyzet elhelyezéséhez, kérjük, lépj be.!

An indictment is a written statement of the prosecutor’s intent to bring a specific person or persons before the court for prosecution on the basis of evidence discovered during the investigation stage. Since the framework of the evidence in the judicial proceedings is determined by the facts contained in the indictment, the CPC provides a taxative list of the mandatory elements of the indictment. Accordingly, this document must contain:

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  • an identifiable mark of the accused,
  • a precise description of the act charged,
  • qualifying the official charge(s) by classifying the act charged based on the criteria found in the Criminal Code,
  • the prosecution’s motion for the imposition of a sentence or the application of a measure or the acquittal of a defendant who cannot be punished for his or her pathological state of mind,
  • an indication of the available means of proof relating to the acts or parts of acts charged,
  • the prosecution’s motions for evidence in relation to the proof of certain acts or parts of acts and the circumstances of the sentence,
  • an indication of the law governing the jurisdiction and competence of the court, and a reference to the provisions governing the jurisdiction and competence of the prosecution service filing the indictment,
  • communications from the public prosecutor’s office, or,
  • the prosecution’s other motions.1
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

At the same time as the indictment is filed, the prosecutor’s office ensures that the investigation file and the evidence are available to the court, and informs the accused, the defence, the victim, the complainant and the private prosecutor of the indictment.2

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If the prosecution and the accused have reached a plea bargain (see point 10.2.2), the prosecution will prosecute the same facts and the same charges as the plea bargain in the record. In such a case, the prosecution shall make a motion in the indictment for the court to (1) approve the plea bargain, (2) impose a sentence or measure that is consistent with the content of the plea bargain, and (3) make other orders that are consistent with the content of the plea bargain. The protocol containing the plea bargain is submitted to the court by the prosecution together with the indictment.3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the indictment does not contain the required elements of law or contains them incompletely,4 the court shall, of its own motion, issue an order to the prosecution to remedy the deficiencies in the indictment, specifying the deficiencies. The prosecution may remedy the deficiencies in the indictment within two months of receipt of this order. If the prosecution fails to do so within that period, the court shall be obliged to terminate the proceedings on the grounds that the indictment is not fit to be tried on the merits.5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The proper preparation and drafting of an indictment undoubtedly presupposes an evaluative-analytical activity falling within the scope of the evidence. However, there has been considerable debate in the literature as to whether the prosecution’s case concerns the part of the facts of the indictment which, in principle, could have legal significance but which the prosecutor, out of professional conviction or inadvertence, did not assess in the context of legal qualification. The solution that is also applicable to current jurisprudential practice was formulated by the former recommendation of the Criminal Chamber of the Supreme Court,6 according to which a specific act described in the motion for indictment of the person entitled to bring the charge is considered to be a legitimate act charged even if the accuser initiated legal proceedings for the act but failed to classify it (therefore, the legality or lawfulness of the act charged is not dependent on how accurately its wording resembles the official definition of the same charge as found in the Criminal Code. In the case of failure to qualify the offence, the prosecutor must be invited to remedy the deficiencies and, if he fails to do so, only then can the court terminate the proceedings.7 However, the General Prosecutor’s Office was known to have taken the view that only those facts which the prosecutor had explicitly qualified – in accordance with the Criminal Code – constituted the subject of the prosecution’s case. In contrast, the current position of the Curia follows the practice of the former Supreme Court, according to which the prosecution’s case is also based on all facts contained in the indictment that the prosecutor did not legally qualify. Consistent judicial practice follows the latter position, i.e. courts typically assume responsibility for the full examination and qualification of the facts in the indictment. 8

Jegyzet elhelyezéséhez, kérjük, lépj be.!

However, despite the unanimity of case law, the treatment of this issue remains controversial in legal literature: 9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • According to Róth and Berkes, if the prosecutor did not qualify the act described in the historical facts at all, he expressed his intention not to prosecute it.10
  • According to Lajos Nagy, “an indictment […] is not the same as the presentation of the facts in the indictment, but an explicit motion to that effect is also required for an indictment.”11
  • The Balogh–Edvi–Vargha commentary contained the following: “The criminal act charged shall be clearly indicated according to the indications laid down by law and taken from the facts. This is nothing other than the formulation of a concret charge, which is composed of two elements. The first is the proven fact, that is to say, the act committed, and the second is the definition of the substantive criminal law which indicates the characteristics of the act in question. The former is therefore factual: the latter is the legal individuality of the act charged.” 12
  • According to Fázsi, an act that is contrary to the criminal law is not simply an act included in the historical facts of the prosecution, but what the prosecutor includes in the scope of the qualification. The author derives this from the principle of separation of functions, since if the court were to evaluate an act included in the prosecution’s statement of facts but not legally classified, it would be exercising a prosecutorial function.13
  • According to Pásztor, it is the prosecutor’s fundamental duty to evaluate the chargeable act legally and, if he/she intends to refrain from prosecuting an act on the basis of his/her authority under the Procedural Act, to refer to it in the indictment, or at least in the final report.14
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In contrast, there are also authors’ views according to which the legality of the accusation does not in itself require the existence of a legal qualification in the indictment, since the court has the statutory power to perform this task (in the examination of the facts of the indictment).

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • According to Mihály Tóth, “the judge is free to draw all the legal consequences of the acts he has established as facts in his judgment, as long as these acts can be considered identical to those stated or maintained in the indictment.”15
  • According to Belovics, the imposition of legal qualification as a condition of legality would lead to the paradoxical situation that the prosecutor would have to reprosecute additional offences not qualified by the accuser but described in the historical facts, in view of the principle of ex officio procedure. In any case, according to the author, “the prosecutor prosecutes by charging the facts and not by qualifying them legally, and if the indictment contains an act that is contrary to criminal law but not qualified by the prosecutor, the charge is lawful if the other conditions (legitimacy of the accuser, the accused specifically named in the indictment) are met, and the court must dismiss the charge.”16
  • According to Steffler, by requiring the act charged17 as a mandatory content element, the legislator implies that the object of the charge is not a crime, but only an act whose legal classification is primarily subject to judicial discretion. The author also argues that the law does not require the legal qualification of the act even in the case of a private accuser or a substitute private accuser, despite the fact that these persons are also entitled to be charged.18
  • According to Bárd and Pusztai, the court has to assess the facts that are the subject of the charge, so if the prosecutor states the facts constituting the offence in the indictment, they are the subject of the charge even in the absence of a specific legal qualification.19
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In my view, this issue can be resolved simply, because the court has a statutory obligation under the CPC to decide the charge in its entirety.20 On this basis, the court must therefore decide not only on the facts of the charge but also on the legal classification of the offence – even if the charge does not contain any reference to the latter. An indictment which does not contain any substantive information on the legal classification can therefore be regarded as ‘lacking in substance’ but does not raise any concerns about the lack of legality of the charge. It should be noted that, in practice, it is difficult to imagine an indictment which does not contain any reference to the legal classification of the facts of the indictment. Bócz justifies this by arguing that, when drafting the statement of facts, it is necessary to take into account the possible legal classification variants and then, on the basis of a comparison of these, to decide which legal classification is appropriate for the accused’s act.21
1 § 422 (1)–(2) para.
2 CPC § 423 (1)–(3) para.
3 CPC § 424 (1)–(3) para.
4 CPC § 422 (1) para.
5 CPC § 493 (1)–(3) para.
6 See the former LB’s college meetings of 27 November 2006 and 08 February 2007.
7 I would note that even if the act charged is capable of establishing a real, heterogeneous set of material facts, the prosecutor must expressly declare whether he waives the state’s claim to prosecution (otherwise the court must classify all the acts in the set).
8 Flórián Tremmel (2001) ibid. 451.
9 The Ministerial Explanatory Memorandum to Section 1 of Act LI of 2006 states that a statutory charge can only be a charge that includes, inter alia, the classification of the offence charged under the Criminal Code. It should be noted that this provision is not binding on judicial practice.
10 Ervin Belovics: A vád törvényessége [The legality of the prosecution.] www.jak.ppke.hu/uploads/articles/12081/file/T%C3%A9zis.pdf
11 Nagy (1974) ibid. 427–428.
12 Balogh–Edvi -Vargha (1909) ibid. 212.
13 The author also discusses the problem of material cumulative acts, citing as an example the case in practice where the prosecutor in a criminal case for manslaughter, although making it part of the historical facts, did not propose to prosecute the accused for the crime of violation of personal liberty committed against the victim’s relatives. In his view, the accuser had thus expressed his intention not to prosecute the victim for this offence. In László Fázsi: A tények jogi minősítésének gyakorlati jelentősége. [The practical significance of the legal classification of facts.] Miskolci Jogi Szemle, 2012/2. 71–78.
14 István Pásztor: Problémák a vádelv gyakorlati érvényesülése köréből. [Problems in the practical application of the principle of impeachment.] Ügyészségi Értesítő, 1975/1. 15.
15 Mihály Tóth: A “tettazonosság” újabb dilemmái – Meghaladott dogma vagy értékes tradíció? [The new dilemmas of “theta identity” – Outdated dogma or precious tradition?] In: Csaba Fenyvesi – Csongor Herke (eds.): Minúciák. Tanulmányok Tremmel Flórián professzor 60. születésnapjának tiszteletére. [Minutiae. Studies in honour of the 60th birthday of Professor Flórián Tremmel.] Pécs, 2001, 22–41.
16 Belovics: A vád törvényessége [The Legality of the Prosecution] ibid. 17–18.
17 See CPC § 422 (1) (b)
18 Sándor Steffler: A váddal összefüggő gyakorlati kérdések. [Practical issues related to the prosecution.] Magyar Jog, 1974/6. 335.
19 Károly Bárd – László Pusztai: A büntetőeljárás kézikönyve. [Handbook of Criminal Procedure.] Budapest, KJK, 1993. 32.
20 CPC § 6 (2) para.
21 Endre Bócz: Valóban a vád törvényességének fogalma volt tizstázatlan? [Was the concept of the legality of the prosecution really unclear?] Magyar Jog, 2008/5. 260.
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