On the basis of the Hungarian (and continental) legal order, I believe that the ultimate function of all procedural acts is – directly or indirectly – to facilitate the taking of evidence, and they thus form a logical unit, and cannot be separated from each other. Hence, for example, a plea in defence, regardless of its content, must be regarded as an act of evidence in the same way as an on-the-spot interview by an investigating authority. In this respect, we must therefore go beyond the doctrinal system of the current CPC, which, in my view, is flawed in that it links the concept of evidence exclusively to the court hearing. 1

Let us not forget that the prosecutor also decides whether to close an investigation (e.g. because the act is not a crime) on the basis of the results of the evidence known up to that point. We can therefore accept Király’s reasoning that “in the investigation, and thus also in the prosecutor’s decision, there are always elements of thinking to which the laws and rules of evidence known from logic apply. The termination of an investigation is based on evidence in this sense, but not in the legal sense. It is not the public prosecutor who testifies and proves before the court, but the decisive forum, which decides on the conditions of the charge, but not on guilt.”2 In the author’s view, moreover, “there is reason to regard the communication of information and the dissemination of knowledge (examination of witnesses, testimony, inspection, etc.) and other procedural acts connected with them as part of the proof, in addition to the activities of the prosecution and the defence.”3 The author also includes – in theory – the judicial decision making in the evidence, since the court also uses statements of justification in its reasoning for its judgment, referring to the facts summarised. 4

There is also an opinion that evidence is in fact taken up to the end of the investigation, and that the subsequent procedural stages are essentially only a post-clearance review of the results of the investigation. In Király’s view, however, it would not be appropriate for most of the acts of proof to be manifested in the investigative phase, since that would make the criminal proceedings predominantly inquisitorial in nature.5

However, the majority view – and the grammatical interpretation of the new CPC – is that an investigation only means the preliminary collection of facts or data that are important for the evidence. Nevertheless, for the above reasons, I cannot agree with this position.