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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12.10. Theoretical preliminary questions and rules of evidence applicable to the commission of border-related offences

12.10. Theoretical preliminary questions and rules of evidence applicable to the commission of border-related offences

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The introduction of border-related crime is mainly linked to the recent wave of immigration (“migration crisis”). A serious dilemma regarding the procedural aspects of these cases is the fact that these offences can be committed not only by immigrants but also by other border offenders. Therefore, it is not possible to take a unanimous position on such important issues as the possibility of providing for exceptional rules from the obligation to translate case files, the requirement of mandatory participation of defence counsel, or even the types of evidence to be taken and the rules of execution.1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Obviously, the cases of foreign nationals or stateless immigrants must be closed as soon as possible. The main reason for this is that they usually do not speak Hungarian, which makes communication particularly difficult. According to Póczik’s study, “for almost six percent of the persons in the files (38 persons), the mother tongue was not identified, so it is likely that communication between the authority and the suspect/defendant was in English.”2 In these circumstances, the general rule for border-related offences is to bring the accused to trial or to apply the criminal conviction procedure. This of course fundamentally reduces the role of evidence in the procedure, but this seems less of a concern as it is not possible to obtain full evidence of the personal circumstances of the accused anyway (in the case of immigrants from unknown territories, marital status or financial situation cannot be established beyond reasonable doubt).

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The public prosecutor’s office is obliged to ensure access to the case file in accordance with the general rules, except that the minimum time limit of one month for the transmission of the file before indictment may be shortened or waived. 3 It should be noted that the possibility of shortening the time limit may be justified, but that it is not acceptable from the point of view of the rule of law, and is incompatible with the provisions of the Convention. The translation of the case file into a language understood by the person concerned is a minimum requirement. If there is no such language, a translator should be provided for, and the law should make this compulsory.
  2. As a general rule, the court acts as a single judge; the case can only be referred to the court’s chamber if (1) the proceedings are also being conducted for another offence related to border crossing4 or (2) the accused is a juvenile:5 the justification for this rule is that the facts of border crossing offences are relatively simple and the evidence is available. The presence of a three-member jury can therefore only be justified if there are other offences to be prosecuted for which these conditions are not met (although it is not mandatory). However, the presence of a jury can always be justified in the case of juvenile defendants.
  3. The participation of a lawyer is mandatory in the proceedings:6 This raises the question of the procedural effectiveness of the lawyer’s representation of the accused. Obviously, the role of the defender in this case is only symbolic, typically on the basis of a secondment. In such cases, he may have particular difficulties in communicating with the accused, speeding up the procedure and ensuring that the offence is fully proven.
  4. Proceedings shall be terminated – not by means of an order deciding the case – if the non-Hungarian citizen who is not a resident of Hungary and is charged with or reasonably suspected of having committed a criminal offence is in an unknown place.7 The application of this rule represents a justified breakthrough in the principle of officiality, since in such cases the issuing of a wanted notice or arrest warrant would obviously be ineffective or difficult to enforce. It should also be particularly appreciated that, although the territorial scope of the Criminal Code would impose a legal obligation on domestic authorities to investigate, the Hungarian element in such cases is obviously minimal, as the suspect has neither Hungarian citizenship nor Hungarian domicile.
  5. The accused may waive the translation of the indictment or the judgment:8 The exercise of the right of waiver may be justified in certain cases, but the law does not specify how the accused is to be informed of this right or how the authority is to inform the accused of this right.
  6. In the case of a juvenile who is not a Hungarian citizen and does not reside in Hungary, the environmental report is not required if the proceedings against the juvenile are pending solely for a border-related offence.9
  7. The prosecutor’s office will bring the suspect to trial within fifteen days of the offence being committed. The court shall return the case file to the prosecution if (1) the offence is punishable by law with a sentence of more than ten years’ imprisonment or (2) the evidence is not available.10
  8. In the case of proceedings for a criminal conviction, the court shall deliver the criminal judgment within five days of the date on which the case file is received by the court.11
1 Regarding the frequency of crimes committed by illegal immigrants, I would like to note that based on 2012 data, migration was the penultimate among the many potential threats to the security of Hungary on a list comprising security threats and risks. However, since 2015, two out of three illegal migrants detected in the Schengen area were apprehended at the Hungarian-Serbian border, which corresponds to 62.5% of the total number. In Hungary’s National Security Strategy. In: György Ritecz – János Sallai: A migráció trendjei, okai és kezelésének lehetőségei. [Trends, causes and management of migration.] Budapest, Hanns Seidel Alapítvány, 2015. 9.
2 Szilveszter Póczik: A határzárral kapcsolatos bűncselekmények elkövetőinek szociológiai vizsgálata a Csongrád megyei büntetőeljárások alapján. [Sociological analysis of the perpetrators of border-related crimes based on criminal proceedings in Csongrád County.] https://atka-intezet.hu/wp-content/uploads/2019/06/poczik-sz_hatarzaras-buncselekmenyek_kriminologiai-tanulmanyok-55-2018-10-28_T.pdf
3 § 828 (5) para.
4 § 828 (1) para.
5 § 834 (1) para.
6 829. §
7 This rule shall not apply (1) if the offence is punishable by imprisonment for a term of up to eight years or more, (2) if the debtor is also being prosecuted for another offence in addition to the border-crossing offence, or (3) in proceedings at second instance, third instance or in proceedings repeated after annulment [§ 832 (2)–(3) para.].
8 833. §
9 § 834 (2) para.
10 § 835 (1)–(2) para.
11 § 836 (2) para.
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