Viktor Bérces: Evidence in Criminal Proceedings
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10.5. The indictment. Who is entitled to prosecute and what are the charging documents?
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10.5.7. Special cases of prosecution II: the prosecution phase of the trial

10.5.7. Special cases of prosecution II: the prosecution phase of the trial

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A referral to court is a special fast-track procedure which, like a settlement, also involves a court phase, but is not necessarily conditional on the cooperation of the accused and is not intended to result in the application of less severe legal sanctions against the accused. This procedure is therefore clearly and exclusively aimed at shortening the procedure, and has no other aspect. The possibility of applying this scheme also raises the question of whether “considerations of simplification and speeding up must almost necessarily take precedence over considerations of guarantees, such as the realistic safeguarding of the conditions for the substantive task of criminal proceedings (i.e., inter alia, the enforcement of the principle of impartiality).”1

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In this respect, it can be noted that fast-track procedures are used throughout Europe and that in all cases the prosecutor initiates the procedure:

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  1. In Spain (since 2003), accelerated procedures are available for certain less serious offences. The procedure is used for common offences where a simple factual assessment allows the proceedings to be completed within fifteen days. It is currently used in about 5% of cases in this state.2
  2. Under the Italian procedural code, under the giudicio direttissimo, the prosecutor must bring a suspect caught in the act before the competent judge within 48 hours. Thereafter, if the prosecutor considers that, despite the clear evidentiary situation, the short time available is not sufficient to allow a full investigation, he may request a direct procedure, in which he has 90 days to conduct the investigation.3
  3. In the Accelerated Procedure in England, the accused can notify the prosecution in writing that he or she wishes to make a confession. If this is accepted, the proceedings will commence without a trial.4
 

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According to the Criminal Code, the prosecutor may bring the accused to court within 2 months of the commission of the offence, if other legal conditions are met.5 It should be noted that prior to this regulation, the Criminal Code provided for a time limit of only fifteen days for the prosecution of a person caught in the act of impersonation, which proved to be extremely tight for the necessary investigative measures and the preparation of the trial. The legislator recognised, however, that being caught in the act is not in itself a sufficient condition for criminal prosecution, but that it may also be necessary to interview suspects, victim(s), witness(es) and possibly obtain other evidence. The new general time limit of 2 months may already be met for almost all offences, thus increasing the chances of this procedure being applicable.

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If the prosecutor decides to apply the procedure, he or she has a double task: (1) to consider whether the conditions for application provided for by the Be. apply; (2) to prepare the trial (e.g. to assist in issuing the summonses in due form, to notify the victim’s legal representative, to collect and organise the evidence, to prepare the record, to inform the court).

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The general legal conditions for bringing a case before the court as a simplified procedure are: 6

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  1. The offence is punishable by a sentence of no more than ten years’ imprisonment: by imposing this condition, the legislator has made it clear that the procedure can be used only for minor offences. However, the imposition of this upper limit is not correct either from a doctrinal or a practical point of view, since:
    • it does not follow the system of rules of the Criminal Code on sentences (the statutory provision of a ten-year maximum is an exception);
    • also allows the use of the procedure for offences in which (1) the prosecutor will not – in principle – make use of this option (e.g. crimes against humanity) or (2) the facts of the case are complex (e.g. sexual violence against a person under the age of eighteen);
    • is not in line with the Criminal Code.7
    On the whole, I think that the application of this scheme – in synchronisation with the mediation procedure and the suspension of the prosecutor’s probation – could be applied in the case of offences with a maximum term of imprisonment of 5 years, and for this reason I also considered the provisions of Act XIX of 1998, which set the upper limit at eight years’ imprisonment, to be exaggerated.8
    It should be noted that if, because of the cumulative punishment or the recidivist nature of the accused, the applicable sentence would be more severe, this does not preclude the use of the procedure, because the offences under suspicion must always be considered solely and exclusively in themselves. Accordingly, the prosecutor need only consider that the prescribed sentence for the offence in question does not exceed a term of imprisonment of ten years.9
  2. The assessment of the case is straightforward: the simplicity of the facts and the legal classification must be weighed together in this context. With regard to the facts, it is necessary to examine whether the investigative evidence clearly establishes who committed what, when, where and how. As regards the legal classification, the relevant criteria are: (1) whether there are other criminal proceedings pending against the defendant; (2) whether it is clear that a specific offence was committed; (3) whether there is no contradiction in the evidence (a closed, logical chain of evidence is a basic requirement in this case).
    It should be noted that there is not necessarily a correlation between the simplicity of the facts and the substantive gravity of the offence. It may well be that a simple pickpocketing offence will be more serious than aggravated robbery, and therefore, even if the conditions relating to the range of penalties [see a)] are met, the prosecution will not be applicable.
  3. The evidence is available: this condition does not need any further explanation, as the general procedural rules (see filing an indictment) would not apply in the absence of evidence. In such cases, however, this condition can usually be established, in view of the fact that the person has been caught red-handed or has confessed. At the same time, the prosecutor may have a number of means of evidence at his disposal which could justify the ordering of such proceedings (e.g. camera or audio recordings, fingerprints).
  4. The accused was caught red-handed committing the crime or confessed to it: catching in the act means, according to judicial practice, that (1) the offender commits the offence in the presence of witness(es), in whole or in part, or (2) the offender is apprehended while pursuing or leaving the scene.10 The most common type of crime is the offence of drink-driving, where police officers pull over and stop a suspect driving a vehicle and take a breathalyser test. In addition, the perpetrator of a shoplifting offence is also caught red-handed when he or she is monitored by the security services via surveillance cameras.
    In the case of a confession, the factual admission is sufficient, so it does not need to include guilt. For example, it is often the case that the prosecutor wants to bring a defendant to trial for the crime of misuse of a unique identification mark because he admits (in fact) that he has replaced the number plates on the cars that were the subject of the offence. At the same time, defendants in such cases often claim that they were wrong about the criminality of the offence. However, in such cases, the plea of error as a reason for not being guilty does not exclude the application of a conviction.11
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The procedure involves the following steps:

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  1. The prosecutor’s office will inform the suspect if it intends to bring him to trial:12 I would note that you often see in investigation files that the suspect does not agree to a summary trial during his questioning. However, these statements should be disregarded by the prosecutor if the conditions for bringing the suspect to trial are otherwise met and there are no other circumstances that would justify the use of the ordinary procedure. Consequently, it is not necessary to seek the consent of the accused to be brought before the court, since the aim is not to obtain leniency for the accused because of his or her cooperation, but to bring the proceedings to a speedy conclusion.13
  2. The public prosecutor will immediately appoint a defence counsel if the suspect does not wish to be represented by one,14 as the participation of a defence counsel is mandatory by law. It should be noted that, in the case of a mandated counsel, the prosecutor’s office should make a special effort to communicate its legal position on the case as soon as possible. As a rule of guarantee, the public prosecutor’s office must ensure that the suspect and the defence are given access to the case file in good time and in the manner necessary for the preparation of the defence, at the latest one hour before the start of the trial, and must also serve them with the charge sheet.15 However, the one-hour minimum should only be limited to the most extreme cases (e.g. the authorisation of the defence directly on the day of the trial). This, of course, depends to a large extent on the “correctness” of the prosecution procedure and on the circumstances and possible obstacles to personal contact between the prosecutor and the defence.
  3. The charging document of the proceedings is the memorandum, which is essentially a simplified indictment. This document must contain (1) the suspect’s personal data that can be used to identify him, (2) a description of the act that is the subject of the prosecution, (3) its classification under the Criminal Code and (4) a list of the means of proof.16
  4. If the prosecution brings the suspect to court, it summons the defence and ensures that evidence is available at the trial.
  5. The prosecutor’s office shall ensure that (1) the defence counsel may consult with the detained suspect before the trial, and (2) those whose presence is mandatory and whose presence is permitted may be present at the trial.17
1 Ervin Cséka (1998) ibid. 114.
2 Anna Kiss – Ádám Mészáros ibid. 6–7. http://www.bm-tt.hu/assets/letolt/rendtudtar/be_gyorsitas_kutjel_meszaros_kiss_2011%20doc.pdf
3 László Pusztai: Az új olasz büntetőeljárási törvény a hazai kodifikáció nézőpontjából. [The new Italian Code of Criminal Procedure from the perspective of domestic codification.] Magyar Jog, 1991/4. 236.
4 Miklós Lévai: A büntetőjogi jogkövetkezmények rendszere Angliában és Walesben; kriminálpolitikai tanulságok. [The system of criminal sanctions in England and Wales; lessons for criminal policy.] Kriminológiai Közlemények, 1991/42. 30.
5 723. §
6 723. §
7 Viktor Bérces – Zsuzsanna Fedor: A bíróság elé állítás alkalmazási feltételeiről. [On the conditions of application of the summons.] Ügyészségi Szemle, 2018/4. 11.
8 There are, however, some offences where it is certainly beneficial to have a statutory upper limit. This is the case, for example, in certain serious cases of drug trafficking, as these cases are typically straightforward, the evidence is available and in many cases are accompanied by a catch in the act or a confession by the accused(s). In Bérces–Fedor (2018) ibid. 11.
9 Belovics–Tóth (2017) ibid. 538.
10 Belovics–Tóth (2017) ibid. 538.
11 It is another matter for the prosecutor to consider beforehand whether the mistake can be used as a ground for not prosecuting the offender in the court proceedings.
12 § 726 (1) para.
13 Bérces–Fedor (2018) ibid. 10.
14 § 726 (2) para.
15 § 726 (5) para.
16 § 726 (4) para.
17 § 727 (4)–(5) para.
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