Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XII. The evidentiary features of juridical proceedings in each of the special procedures
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12.9. Proceeding against an absent defendant

12.9. Proceeding against an absent defendant

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A defendant or a person reasonably suspected of having committed a criminal offence becoming unavailable shall not constitute an obstacle to a criminal proceeding. In a proceeding conducted against an absent defendant, the provisions of theCPC shall apply subject to the derogations laid down in its Chapter on proceeding against an absent defendant. An absent defendant may be indicted, and subsequently subjected to a court proceeding, if (1) a defendant or a person reasonably suspected of having committed a criminal offence escapes or hides during a proceeding, or it is reasonable to assume that he became otherwise unavailable to avoid a criminal proceeding, (2) the measures taken to locate the defendant or the person reasonably suspected of having committed a criminal offence were not successful within a reasonable time, and (3) it is justified by the material gravity or the criminal offence or the evaluation of the case. The condition specified in point (2) shall be deemed as met if

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • any evidence is taken, activity for data acquisition is performed, or, where the relevant conditions are met, covert means are used for locating the defendant or the person reasonably suspected of having committed a criminal offence,
  • a search warrant or, where the relevant conditions are met, an arrest warrant is issued by an investigating authority, prosecution office, or court, and
  • the search warrant or arrest warrant remains unsuccessful for a period of fifteen days after it is issued.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the conditions for conducting a proceeding against an absent defendant are not met, the proceeding court or prosecution office shall suspend its proceeding. The participation of a defence counsel shall be mandatory in a proceeding conducted against an absent defendant.1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the whereabouts of a person reasonably suspected of having committed a criminal offence, or a suspect, are unknown, and the conditions of conducting a proceeding against an absent defendant are met, the prosecution service shall declare the suspect, or the person reasonably suspected of having committed a criminal offence, to be an absent defendant. No complaint shall lie against such a decision. If the prosecution service declares the person reasonably suspected of having committed a criminal offence to be an absent defendant, but does not conclude the investigation, the rules on examination shall apply to the continuation of the investigation. If an absent defendant does not have a defence counsel, the proceeding prosecution office shall appoint a defence counsel for him at the time of adopting its decision. A prosecution office or investigating authority shall serve to an absent defendant only a decision on suspending or terminating the proceeding or a notification about the indictment.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the conditions are met, any failure to communicate the suspicion shall not constitute an obstacle to indictment. If the prosecution service, in its indictment document, moves for conducting a proceeding in the absence of the defendant, the indictment document shall contain, in addition to the elements required under the CPC.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A court shall proceed against an absent defendant upon a corresponding motion from the prosecution service. In a proceeding conducted against an absent defendant, a preparatory session may not be held.3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the prosecution service brings an indictment against an absent defendant, and the whereabouts of the defendant become known before the commencement of the trial, the court shall inform the prosecution service accordingly. If a defendant becomes unavailable after he is indicted, and the conditions for proceeding against an absent defendant are met, the proceeding court shall notify the prosecution service accordingly. A single judge, or the chair of a panel, shall suspend a proceeding, unless a motion to proceed in the absence of a defendant is filed by the prosecution service within fifteen days after receipt of a notification. The suspension of a proceeding shall not be an obstacle for the prosecution service to filing a motion subsequently. If a court appoints a defence counsel for an absent accused, the trial shall be continued by presenting the materials already covered earlier during the trial.4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the measures taken to locate an accused succeed before a conclusive decision is passed by a court of first instance, the proceeding court shall continue the trial by presenting the materials already covered earlier during the trial and reopen the taking of evidence, if necessary. If the measures taken to locate an accused succeed after a conclusive decision is passed by a court of first instance, the accused may submit an appeal within the time limit open for appeals.5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the measures taken to locate an accused succeed during a second instance court proceeding, the court of second instance shall set a trial; during the trial, the court of second instance shall interrogate the accused, present the essence of the materials covered during a trial held in the absence of the accused, and, if necessary, take further evidence proposed in a motion by the accused or the defence counsel. If the measures taken to locate an accused succeed in a third instance court proceeding, the court of third instance shall set aside the second instance judgment and instruct the court of second instance to conduct a new proceeding. If the measures taken to locate an accused succeed in the course of adjudicating a legal remedy submitted against an order of the third instance on setting aside, the Curia shall set aside the third instance decision and instruct the court of third instance to conduct a new proceeding. If the place of residence of a defendant becomes known after a final and binding conclusive decision is passed, a motion for retrial may be submitted to the benefit of the defendant.6

12.9.1. Proceeding in the absence of a defendant staying abroad

1 CPC 747. §
2 CPC 748. §
3 CPC 749. §
4 CPC 750. §
5 CPC 751. §
6 CPC 752. §
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