Viktor Bérces: Evidence in Criminal Proceedings
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Chapter II. Paradigm shifts in the development of evidence in Hungarian law
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2.4. The stages of the trial under Act XXXIII of 1896 (I. Bp.)

2.4. The stages of the trial under Act XXXIII of 1896 (I. Bp.)

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Under the Code of Criminal Procedure (I. Bp.) adopted by Act XXXIII of 1896, the investigation and the inquiry were separated. The investigation was ordered by the prosecutor on the basis of simple suspicion and conducted by the police. The investigation required a well-founded suspicion, and the procedure fell within the competence of the investigating judge.1 The legislation regulated the investigation in only 18 stages, but did not specify the conditions for its order, unlike the indictment. 2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The structure of criminal proceedings was based on the legislative intention as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The preparatory phase: this consisted of the investigative phase. The opening of the investigative stage was ordered by the prosecutor,3 the strong suspicion could be based on a denunciation or on a formal observation by the authority. The prosecutor also decided on any further continuation or termination of the proceedings. In addition, the public prosecutor’s office could request information from the public authorities on all matters relating to the proceedings and had full powers of instruction vis-à-vis the investigating authorities. It should also be noted that the I. Bp. did not prescribe the procedural steps to be taken in the course of an investigation or the order in which they should be taken. The legislator regarded this as a matter for the discretion of the authorities. At the same time, the legislation stipulated that the investigating authorities had a fundamental duty to establish not only incriminating but also exculpatory circumstances. Moreover, there were already provisions in the legislation which, on a guarantee basis, transferred the power to order certain coercive measures to the judiciary.4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

At the investigation stage, the court’s role was to decide whether the case file was fit to be heard and, if necessary, to take other measures of inquiry.5 The central figure at this stage was the so-called “investigating judge”, who often used the possibility of further hearings of witnesses, experts, etc. in order to ensure that the charges were well founded. It should be noted that this section was only mandatory in press cases and for the most serious offences6 , and in all other cases it was only optional, mainly depending on the motions of the parties to the proceedings. 7
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In connection with the justification of the preparatory stage and the justification for its regulation, we can read an interesting reasoning in Vargha’s contemporary commentary: “However fragmentary our criminal prosecution procedure may have been in the past, the legal history of the past centuries indicates that the preparatory procedure has been an independent part of the trial from ancient times and has never merged with the procedure of the judge. Already in the laws of the sixteenth century we find traces of the inquisition, when the general inquisition (inquisitio generalis) was understood to mean the determination of whether a crime had been committed, and the special inquisition (inquisitio specialis) was the procedure against a specific person […].”8
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. At the interlocutory stage, the prosecutor submitted the indictment to the court, in which – on the basis of the evidence gathered – he proposed to set a “main hearing”. At the same time, the prosecutor’s office also arranged for the indictment to be served on the accused, with an invitation to object to the charges:
    • “The purpose of the prosecution was to prevent unfounded charges from being brought to court; in such cases the prosecution did not examine the whole facts of the case, but only the issues that were challenged; the accused and his or her defence counsel were allowed to be present and had the right to defend themselves on the merits;9 the decision of the prosecution was used to terminate the proceedings, supplement the investigation or bring the accused to trial;
    • if the defendant did not object, he was summoned directly to the main hearing, without the need for an indictment (the intermediate stage was essentially dropped).
  2. The main hearing was the decisive stage of the process, and comprised the following structural elements:
    • the opening of the hearing,
    • an enumeration of the summoned,
    • the indictment,
    • the opening of the evidence procedure by questioning the accused,
    • witness hearings,
    • hearing experts,
    • inspections, line-ups, documentary evidence,
    • pleadings,
    • the right to have the last word,
    • sentencing, and finally,
    • the delivery of the judgment.
  3. At the remedies stage, both ordinary and extraordinary remedies were available. Under the ordinary remedies, judgments could be appealed against by “reconsideration” and judgments by appeal. An extraordinary appeal could only be lodged if the judgment could not be appealed (e.g. jury verdict, etc.).
    For extraordinary remedies, the following remedies were available:
    • an appeal in the interests of legal unity: only the Crown Prosecutor could appeal to the Curia against a final judgment of any criminal court (if he found it to be unlawful); there was no time limit, and the Curia could only change the judgment in favour of the accused;
    • reopening: cases that had already been closed by a final decision were reopened if new facts or evidence not considered during the previous evidentiary hearing came to light (usually initiated by the court of first instance).10
  4. In the enforcement phase, depending on the jurisdiction of the court in which the main proceedings were conducted, the enforcement of the court decision was carried out by (1) the Royal Prosecutor’s Office in the case of the tribunal and the jury courts, (2) the district judge in the case of the district courts.11

2.4.1. Rules of jury trial

1 Judit Sléder: A büntetőeljárás megindítása. [The opening of criminal proceedings.] Doctoral thesis. Pécs, PTE ÁJK, Doctoral School, 2010. 10.
2 Judit Sléder: A nyomozás gyorsításának lehetőségeiről. [On ways to speed up investigations.] In Erika Csemáné Váradi (ed.): Koncepciók és megvalósulásuk a rendszerváltozás utáni kriminálpolitikában. [Concepts and their implementation in post-regime change criminal policy.] Miskolc, Bíbor, 2009. 146.
3 See the head of the competent police authority in private prosecutions. In Mezey–Pomogyi (2001) ibid. 389.
4 E.g. searches could only be carried out with a warrant or by order of a judge. In Mezey–Pomogyi (2001) ibid. 389.
5 The investigation is therefore “the judicial establishment or collection of information on the basis of which it can be decided whether a main hearing should be ordered or whether the criminal proceedings should be terminated.” See Finkey in Mezey–Pomogyi (2001) ibid. 389.
6 See Offences punishable by death, life imprisonment or imprisonment for more than 5 years. In Mezey–Pomogyi (2001) ibid. 389.
7 There was no investigation stage before the district courts. In Mezey–Pomogyi (2001) ibid. 389.
8 Jenő Balogh – Károly Edvi Illés – Ferenc Vargha: A bűnvádi perrendtartás magyarázata II. [Explanation of the Code of Criminal Procedure II.]. Budapest, Grill, 1897. 1.
9 Mezey says in a unique way in Europe. In Mezey–Pomogyi (2001) ibid. 390.
10 Mezey–Pomogyi (2001) ibid. 392.
11 Mezey–Pomogyi (2001) ibid. 393.
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