Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.8. Evidence in the course of first instance proceedings
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11.8.4. The importance of documentary evidence and possible amendment of the charge before the plea

11.8.4. The importance of documentary evidence and possible amendment of the charge before the plea

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Prior to the closing arguments, the court’s documentary disclosure can play an important role, and has a number of functions in closing the evidence: firstly, it classifies the evidence that has been presented in the case, whether by the prosecution or the defence (this can be particularly important in cases with a long duration). This process mainly involves the naming of documents or records, but any party is entitled to request a more detailed disclosure.1 A separate request for disclosure may be made to revive forgotten facts or evidentiary issues or to draw the attention of the court to a fact or procedural matter which previously appeared to be insignificant.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The importance of documentary evidence is that it limits the evidence that the prosecution or the defence can refer to in their pleadings in accordance with the law and the procedure. In this context, it is important to note that the court cannot qualify the evidence (even indirectly) at this stage of the proceedings, so it is solely for the prosecution or defence counsel to recognise its relevance or to rely on it. According to Miskolcziné, this puts the prosecution and defence counsel in Hungarian criminal proceedings – in a sense – at a disadvantage compared to their counterparts in Anglo-Saxon countries.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Depending on the information brought to light or revealed during the discovery phase, it is often the case that a prosecutor may use the possibility to amend the charge. It should be noted that, according to consistent judicial practice, this has no impact on the legality of the charge, as the court is not bound by the legal qualification of the prosecution, but by the facts of the indictment.3 The directions for amendment of the indictment may be as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Changing the charge: this may be done if the prosecution considers that (1) the accused is guilty of another offence or (2) the offence as charged is more serious or less serious.4
    I would note that changing the factual basis of the charge is only possible if it requires only a minor correction of the facts of the indictment. The prosecution can correct the legal classification without any limitation even if the facts are changed or left unchanged.
    If a charge is changed, the court may adjourn the trial if the prosecutor or, in order to prepare the defence, the accused or the defence request it.5
  2. Extension of the charge: this can be done if the prosecution suspectsthat the accused isalso guilty of an offence different from the one for which he or she ischarged.6

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to judicial practice, an extended prosecution is only lawful if the prosecutor draws the facts justifying the extension of the prosecution from the evidence taken by the court in the proceedings on the original charge.7 Thus, the extension of the charge can only take place if the original charge is maintained and only if the evidence taken at the trial also appears to establish the commission of a new offence which is factually related to the offence charged in the indictment.8 Moreover, it is irrelevant how the fact relating to the original charge to which the extension is made comes to the attention of the prosecution, and it is therefore irrelevant whether the basis for establishing the fact is the evidence ordered by the court.9 On this basis, therefore, there is room for an extension of the charge on the basis of evidence that was not obtained on the prosecution’s motion.10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The rule that, in the event of an extension of the charge, the court shall adjourn the trial for at least eight days or may adjourn it of its own motion on a joint motion of the accused and the defence is of utmostimportance for the right to an effective defence.11
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In my opinion, the above regulation is problematic in that the legislator regulates the rules governing the motion for a change of plea and extension differently. This is of particular concern from the point of view of the right to an effective defence: whereas in the case of an extension of the charge the court is obliged to adjourn the trial on the joint motion of the accused and the defence, in the case of a change of charge the court is under no such obligation, even if the adjournment is expressly requested by the accused or the defence. This rule does not take account of the need to ensure time to prepare the defence, nor of the fact that in many cases there is no material difference between extending the charge and changing it, in terms of the criminal liability of the accused or the aggravation of the penalty.
1 It may also happen that circumstances relevant to the imposition of a sentence do not come to light at all at the trial, so that they can be brought to the attention of the procedural subjects (e.g. jury) during the disclosure of the file – as a last resort. In Miskolcziné (2015) ibid. 12.
2 Miskolcziné ibid. 12.
3 BH 2011.189.
4 § 538 (1) (a)
5 § 538 (5) para.
6 § 538 (1) b)
7 BH 2010.114.III. It should be noted that this possibility of the prosecutor, however, only exists until the session of the court of first instance takes place, which is withdrawn for the purpose of reaching a decision, and as a consequence, there is no room for a prosecutor’s motion to supplement the facts in the second instance proceedings with regard to the fact of a criminal offence other than the one charged, which is of significance for determining guilt. This is conceptually an amendment of the charge, which is no longer admissible at second instancee, and the court may judge the case on the basis of the facts within the scope of the amendment or extension of the charge submitted before the opening of the deliberation session prior to the first instance decision (RO 2015.187.).
8 Belovics–Tóth (2020) ibid. 424.
9 BH 2010.114.
10 BH 2020.138.
11 § 538 (6) para.
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