Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.1. Preparation of the court proceedings at first instance

11.1. Preparation of the court proceedings at first instance

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The procedural steps involved in the preparation of a trial are primarily aimed at examining the formal, not the substantive, aspects of the accusation. At this stage, therefore, it is only a matter of judicial control whether the accusation can even be discussed at the trial as a legal and well-founded motion. 1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In legal literature, there is considerable controversy as to whether evidence can be taken at this stage of the procedure. For example, no evidence can be taken at all during the preparation of the trial, not even evidence that would lead to the termination of the proceedings. Kratochwill takes the same position, arguing that to enforce the principle of immediacy at this stage would mean that the judicial preparation assumes the role of the trial.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Within one month of the receipt of the case file, the court examines whether it is necessary or possible to transfer the case,3 to merge4 or separate the cases,5 to suspend the proceedings,6 to terminate the proceedings,7 to request the prosecution to remedy the deficiencies in the indictment, to order coercive measures,8 to establish a classification different from that contained by the indictment,9 to refer the case to the court’s council or to conduct proceedings for the issuance of a criminal sentence.10 From an evidentiary point of view, two categories of cases should be highlighted:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The indictment does not contain the mandatory elements of the indictment, or contains them incompletely: in such cases, the court, of its own motion or on a motion, issues an order to the prosecution to fill in the gaps in the indictment, indicating the gaps.11 If the prosecution fails to remedy the deficiencies in the indictment within the statutory time limit, the court shall terminate the proceedings.
  2. The complexity of the case, the size of the case file or the number of persons involved make it obvious that a single judge is not able to coordinate the preparation to an adequate level. In such cases, the court will refer the case to the Chamber of three professional judges until the preparatory meeting is completed.12
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

These decisions, which seem to be procedural in nature, have a serious impact on the further course of the evidence, as they basically limit the duration of the proceedings and may require the completion of the investigative material. It is no coincidence that the Court of Justice has recently received applications relating to this aspect of the case. The Strasbourg forum has found a violation of the Convention, inter alia, where (1) the handling of an otherwise straightforward case was unduly delayed because of a failure to segregate it;13 (2) the accused was not informed of the possibility of a different classification from that of the accused.14

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The preparation of the trial involves four procedural steps that are important for the taking of evidence:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the court holds a (separate) session to hear the prosecutor, the accused, the defence or the victim;15
  • the court shall serve the indictment on the accused and the defence no later than one month after the date of receipt of the case file, and shall invite the accused and the defence to submit their motions to take evidence or to exclude evidence no later than the preparatory hearing;16
  • the court, of its own motion or on the motion of the person entitled to do so, shall arrange for the means of evidence specified in the request for evidence to be available at the trial; it may request the prosecution to do so, setting a time limit of no more than two months, which may also be directed at the search for and provision of the means of evidence specified in the request for evidence of another person entitled to do so;17
  • the court obtains information from the criminal record of the accused and from the central offence register, and may also obtain ex officio information on the accused or the subject of the charge from other public records established by law.18
1 The preparatory meeting is essentially a stage between the indictment and the trial, involving a preliminary judicial examination of the charge and the preliminary conditions for the trial. In Csák: A vád megalapozottságának vizsgálata a tárgyalás előkészítése során. [Examination of the merits of the accusation during the preparation of the trial.] In Mihály Tóth (2003) ibid. 335.
2 In his letter, he also points out that, among other things, the – former – Supreme Court rulings prohibit evidence at this stage. The author adds, however, that “if […] we take the rigid view that the court cannot take evidence and cannot weigh the evidence, and thus cannot form its own internal convictions, it also follows from these principles that, apart from a few secondary decisions (e.g. finding lack of jurisdiction, lack of competence, etc.), the court should not be entrusted with any other task […].” In Kratochwill Ferenc: A bizonyítékok mérlegelése a tárgyalás bírói előkészítésének szakaszában. [Weighing the evidence in the judicial preparation phase of the trial.]. In Mihály Tóth (2003) ibid. 33.
3 This is done when the court has no jurisdiction or competence to hear the case. In such a case, it is obliged to transfer the case to the court with jurisdiction (§485).
4 If (new) proceedings are or were brought against the probationer for an offence committed during or before the probation period, the cases shall be merged and the court having jurisdiction and competence to hear the new case shall act.§ 486 (1).
5 If in the new proceedings the court does not find the accused guilty, or if in the case of an offence committed before probation the probation period has expired before the cases are tried together, the court shall separate the joined cases. (Art.)
6 Among the optional grounds for suspension, which are also relevant for the taking of evidence, the cases when the accused is in an unknown place or abroad, or the court has taken measures to remedy the deficiencies of the indictment or to perform a procedural act are particularly noteworthy. [§ 488 (1)]
7 Among the mandatory grounds for termination, which are also relevant from the point of view of evidence, those cases should be highlighted in particular where the act which is the subject of the accusation is proved not to be a criminal offence, or the proceedings are pending for an offence which, apart from the more serious offence which is the subject of the accusation, is of no relevance for the prosecution [Art.492 (1) para.].
8 The court shall decide of its own motion or on a motion on the maintenance, imposition or termination of a coercive measure with a judicial authorisation affecting personal liberty [Art.494 (1) para.].
9 If there are reasonable grounds to believe that the act charged may be capable of constituting a different offence or an additional offence from that charged in the indictment, or that the offence as charged may be more or less serious, the court shall by order determine how the act charged may be classified differently from the charge. If the court finds that the act charged is an offence to be prosecuted privately, the statement of the prosecution to accept the charge need not be obtained (Art.).
10 § 484 (1) para.
11 The prosecutor’s office may remedy these deficiencies within two months from the receipt of the order [§ 493 (1)–(2)].
12 496. §
13 BH 2000.12. 955. In Czine–Szabó–Villányi–Baka (2008) ibid. 285.
14 “Pélissier and Sassi v. France” case, 25 March 1999, ECHR 1999/2.18. In Czine–Szabó–Villányi–Baka (2008) ibid. 305.
15 § 484 (3) para.
16 497. §
17 § 498 (1)–(2) para.
18 § 498 (3) para.
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