1. The Prosecutorial Field of Supervision of Investigations and Preparation of Indictments
The main tasks of the Prosecution Service are defined by Section 29 (1) and (2) of the Fundamental Law, which set forth that the Prosecutor General and the Prosecution Service shall contribute to the administration of justice by exclusively enforcing the State’s demand for punishment as public accuser. The Prosecution Service shall prosecute criminal offences and take action against other unlawful acts and omissions, as well as contribute to the prevention of unlawful acts.
The Prosecutor General and the Prosecution Service:
a) shall exercise rights in connection with investigations;
b) shall represent the prosecution in court proceedings;
c) shall supervise the lawfulness of penal enforcement;
d) shall, as a guardian of public interest, exercise further functions and powers laid down in the Fundamental Law or in an Act.
Accordingly, the tasks of the Prosecution Service can be divided into two fields. One of the fields includes the multiple-level criminal justice tasks and activities which can be summarized by the statement that the Prosecution Service contributes to the administration of justice by enforcing the State’s demand for punishment as public accuser.
In this context, first, the prosecutorial task of supervision of investigations and preparation of indictments is in focus, which relates to two phases out of the three phases of the criminal procedure: the criminal investigation and the act of bringing charges to court (also referred to as filing indictments).
In order to determine whether the requirements for bringing charges to court are met, a prosecutor shall
a) order an investigation;
b) supervise the independent investigation of the investigating authority; or
c) (himself) conduct the investigation in cases defined by the Criminal Procedure Act.
During the investigations prosecutors dispose of the cases and of the tasks to be performed, so that criminal procedures could be conducted in the most effective and quickest possible way. Prosecutors are responsible for their actions relating to the investigations, the legality and well-founded nature of their own procedural acts, measures and decisions.
By using their rights defined by law, prosecutors shall take all necessary measures during the supervision of investigations to enable the investigating authorities to conduct their independent investigation in compliance with law, with respect of human rights and in a way so that it could be decided whether charges should be brought to court.
It shall fall within the exclusive competence of the Prosecution Service to conduct investigations into criminal offences where it is a fundamental requirement to guarantee the independence of the investigating authority for reason of the legal operation of State bodies and institutions, the protection and strengthening of trust in public officials elected by the Parliament, in Members of Parliament or in the administration of justice or because of the special status or profession of the victims or perpetrators.
Prosecutors shall ensure that the rights of the participants of criminal procedure shall be respected and enforced.
2. Cases in the Criminal Court
2.1. Prosecutors’ roles in first-instance proceedings
When, based on evaluation of evidence obtained during investigations, a prosecutor concludes that the defendant needs to be sanctioned by the court for the commission of crime, he files an indictment against the defendant. By virtue of the indictment the trial phase of the criminal proceeding commences where the court needs to decide about the indictment, whether the accused is guilty or not of the crimes he is charged with. The court may not examine the defendant’s criminal liability for crimes which are not contained in the indictment.
Before the trial, during the preparation for trial the court examines whether the charges are lawful, whether the judicial proceeding is initiated by a prosecutor entitled to file charges on account of a precisely described conduct of a specific individual violating provisions of the Criminal Code. The court also examines whether the bill of indictment complies with the provisions of Section 217 (3) of the Criminal Procedure Code. If necessary, the court shall request the prosecutor to supplement the insufficient bill of indictment, to search for or secure evidence.
The principle of adversarial proceedings fully prevails at trial: apart from the prosecutor the defendant and his counsel are also heard by the court, and thus the different functions, namely adjudication, prosecution, and defence are separated. At the trial, the court conducts an evidentiary procedure in the course of which the judge examines the evidence presented by the prosecutor, the defendant and his counsel. The evidentiary procedure, however, may also be conducted ex officio, irrespective of the parties’ motions.
Prosecutors’ duty in court, namely the duty of bringing charges to court, is basically determined by the fact that in criminal cases prosecutors have the burden of proof. Prosecutors should show due diligence during the evidentiary procedure, and if they consider there is further evidence not specified by the bill of indictment that may support the charges, they shall motion without delay that such evidence should be obtained and examined. Immediate motioning is necessary because in the trial phase it is the court’s task to establish the facts of the case completely and thoroughly. In absence of a prosecutorial motion, however, the judge shall not be obliged to obtain and examine incriminating evidence supporting the charges against the defendant.
Prosecutors prove the charges in compliance with the legal provisions applicable for criminal proceedings. In this regard not only is it important for prosecutors to lawfully exercise their rights and obligations, but it is equally important that the court should comply with the procedural rules of criminal proceedings.
While prosecuting the cases, prosecutors are entitled to consult all the documents of the court, and they may file motions in all questions relating to the case that the court has the power to decide about. Unless otherwise provided for by law, prosecutors may appeal against all the decisions of the court excluding the ones relating to the conduct of the trial and to the maintenance of order during trial. Prosecutors have the power to dispose of the charges: they may modify the charges at any time during the trial until the court retires to deliberate; they may also expand the charges if based on the result of the evidentiary procedure they are of the opinion that the defendant is guilty of other crimes as well, whereas they modify the charges when they qualify the criminal act in a different way.
After the evidentiary proceeding has ended, prosecutors make their closing argument. In the closing arguments prosecutors analyse the presented evidence in detail, weigh each piece of evidence separately and collectively, and they thoroughly examine all the information in favour or against the defendant’s defence. Prosecutors file motions with their reasons with regard to all questions that are to be decided by the court with special attention given to the question of guilt, legal qualification of the crime and the applicable punishments and measures. Afterwards, the defence counsels may present their pleas.
Prosecutors shall consider equally the circumstances aggravating and extenuating for the defendant and the circumstances aggravating and mitigating the criminal liability in all phases of the proceedings. Having regard to this, if based on the evidentiary procedure prosecutors conclude that the act charged in the indictment does not constitute a crime, or it was not the defendant who committed the crime, or the crime is not subject to public but to private prosecution, prosecutors drop the charges. In case charges are dropped, the law allows for the continuation of proceedings. If the victim agrees to act as a substitute private accuser coupled with compulsory legal representation, the court is not entitled to terminate the proceeding on the legal basis that the prosecutor has dropped the charge.
Based on the evidentiary procedure prosecutors may also conclude that the commission of the crime is not proven, or it was not the accused who committed the crime. In those cases and when grounds for the exemption from criminal responsibility – such as coercion, threat, mistake, self-defence or necessity – can be established in favour of the accused, prosecutors shall motion the acquittal of the defendants. Such prosecutorial motions may not prevent the court from finding the accused guilty when the differently assessed evidence by court leads thereto.
The prosecutor, the accused and his counsel may appeal against decisions on the merit announced at trials of first instance when they hold those decisions to be unlawful or unfounded. The prosecutor may lodge appeals both in favour and against the accused. In absence of a prosecutor’s appeal against the accused the appeal court (see: court of second instance) may not find the acquitted defendant guilty, and it may not impose a more serious punishment or apply stricter measures instead of punishments, either.
2.2. Prosecutors’involvement in judicial proceedings of courts of second and third instance
The courts of second and third instance shall decide not about the charges but about the decisions of merit against which appeals have been filed with the courts of second and third instance. Thus, by elaborating upon their views about the court decisions against which appeals have been lodged prosecutors facilitate in these stages of the proceeding that well-founded and lawful decisions on the merit are made by the courts of appeal. Prosecutors acting at the level of the courts of second and third instance may file motions both in favour and against the accused.
Courts of first instance refer case files for appeal via the prosecutors acting at the level of the courts of second instance. Prosecutors acting in second-instance proceedings forward case files to the appeal courts along with the documents including the prosecutorial view about well-groundedness of the decision of the first-instance court, the guilt of the accused, the legal qualification of the crime, the imposed legal sanction, and about the compliance with procedural rules. Prosecutors also make a statement about the maintenance or withdrawal of the appeal, address the assessment of the defendant’s and his defence counsel’s appeal and they file a motion about the upholding, modification or repealing of the decision of the first-instance court.
Courts of second-instance hear appeals at panel sessions, public sessions or – if evidence taking is ordered because the facts of the case are not well-founded – at trials.
The right of prosecutors, defendants and their counsels to lodge appeals is more limited in second-instance proceedings because they can appeal against decisions on the merit of the second-instance courts only if the second-instance court has reached a different decision about the question of guilt than the court of first instance. Prosecutors may lodge appeals both against and in favour of the defendants. Courts of third instance decide the appeals at panel sessions or public sessions as the Criminal Procedure Code does not allow the taking of evidence in third instance proceedings. Prosecutors acting at the level of third instance courts shall compulsorily attend public sessions, where, based on the examination of case files, they shall answer and make statements about the same questions that were addressed to prosecutors acting in the second instance proceedings.
2.3. Prosecutors’ role in extraordinary remedy proceedings
Under the law extraordinary remedy proceedings may be initiated against final and conclusive court decisions. On the one hand, extraordinary remedy proceedings may be instituted when evidence is discovered subsequently to the decision of the first instance court and such evidence could have fundamentally influenced the adjudication of the case (re-trial of the case). On the other hand, the law allows for extraordinary remedy proceedings when the lower courts have seriously violated the substantive and procedural rules of criminal law (judicial review proceedings).
For reasons specified by Section 408 (1) of the Criminal Procedure Code, the defendant, his counsel or other authorized persons may file a motion for re-trial with the prosecutor acting in the territory of the second-instance court against the final and conclusive court decisions because of incorrect or false fact findings. Prosecutors shall forward the motion for re-trial along with their statements of acceptance or rejection to the second-instance court which is to decide about the admissibility of re-trial. Prosecutors themselves may be entitled to motion re-trials.
If the second-instance court finds that the motion for re-trial is well-founded, it shall order a re-trial and shall refer the case to the first-instance court, which is to try the case again. Depending on the outcome of the trial, the first-instance court shall render a new judgement or shall dismiss the re-trial case.
The Criminal Procedure Code stipulates that for reasons specified by Section 416 (1) the final and conclusive court decisions may be subjected to review, inter alia, if the defendant was acquitted, the defendant was found guilty, an unlawful punishment was imposed or an unlawful criminal measure was imposed in violation of the substantive criminal law, or if the court has reached its decision in violation of the rules of the criminal procedure.
As to the review of decisions of third instance courts, incorrect fact finding and the violation of criminal substantive law are excluded by the Criminal Procedure Code as reasons for review.
Prosecutors are entitled to file motions for review against defendants within six months as of the date of notification of the final and conclusive decisions. The Criminal Procedure Code, however, does not set any deadline for the filing of such motion in favour of the defendant. Prior to the adjudication of the motion at a panel session or a public session, the Curia sends the motion with the case files to the Office of the Prosecutor General, which expresses its view in a statement on whether the motion is unfounded or not. The Office of the Prosecutor General elaborates its reasons and its motion for modifying, maintaining or setting aside the contested court decision in writing. If the prosecutor has filed a motion for review against the defendant, it is decided by the Curia in a public session where the prosecutor’s attendance is compulsory.
Judicial review proceedings are also used as tools for implementing decisions of international human rights organizations into the national law. Petitions for judicial review are submitted for this reason when the European Court of Human Rights (ECHR) delivers a judgement against Hungary provided the European Convention of Human Rights is violated by a final and conclusive judgement of a criminal court. In such cases the Prosecutor General shall file a motion for review, and the Curia shall decide the case in which the petition was filed on the basis of the decision of the international human right organization and by disregarding the contested provisions of law. This “legal tool” may only be used in concrete cases decided by the ECHR; in other cases – even if the facts of the case are similar – this practice may not be followed.
2.4. The involvement of the Prosecution Service in the creation of a uniform judicial practice
In order to ensure uniform legal practice and legality the Prosecutor General is entitled to file motions for legality and to initiate uniformity decision proceedings.
In order to restore and ensure legality the Prosecutor General may announce a motion for legality to be filed with the Curia provided the unlawful and final decision of the court cannot be remedied by any other legal tools but only by this type of extraordinary legal remedy. Rules governing the judicial review proceeding shall be applicable to the adjudication of motion for legality with one exception, namely that in a public session attended by the Prosecutor General or by a person representing him the Curia shall decide in favour of the defendant if violation of law is found. In any other cases the rights of the Curia are restricted only to the establishment of the violation of law.
In order to ensure uniform judicial practice the Prosecutor General may initiate uniformity decision proceedings and may motion uniformity decisions with regard to matters of principle. If uniformity proceedings are initiated by the president of the Curia, the head or deputy head of the criminal department of the Curia, by a trial chamber of the Curia or by the president of a Regional Court of Appeal, the Prosecutor General shall elaborate his opinion in a statement. The sessions of the uniformity decision chamber are not public; apart from the members of the uniformity decision chamber these sessions may only be attended by the party filing the motion, the Prosecutor General and an ad hoc invited observer. In case the motion is accepted and provisions of the final court decision which are affected by the uniformity decision and which have found the defendant guilty are unlawful, the uniformity decision chamber shall order the acquittal of the defendant or shall terminate the proceeding.
2.5. The involvement of prosecutors in special and extraordinary proceedings
Prosecutors may also consult documents and case files and may attend trials in proceedings having been initiated for crimes that are subject to private prosecution. Prosecution of the crime may be taken over from the private prosecutor in any phase of the proceeding for reasons of the public interest or for any other significant reasons. Once the prosecution of the crime is taken over, the private prosecutor is entitled to the exercise the victim’s rights. Even if the public prosecutor has taken over prosecution of the crime, he has the right to withdraw from the prosecution at any time during the proceeding. Thus, he has to withdraw from prosecution if in his view charges should be dropped.
As far as proceedings aimed at simplifying and accelerating criminal proceedings (so called simplifying proceedings) are concerned arraignment may occur upon a prosecutor’s motion if less serious crimes are to be decided, the defendant has admitted to having committed the crime or the defendant has been caught in the act of crime. Upon the defendant’s initiation or if the defendant admits the commission of the crime, the prosecutor may motion that the court should find the defendant guilty at a public session instead of a trial.
Courts may proceed in absence of the defendant only upon a prosecutor’s motion. This type of special proceeding does not necessarily lead to a speedy ending of the case because if measures taken to locate the defendant have proven to be successful, the Criminal Procedure Code, as a guarantee, allows for the proceeding to be repeated. Moreover, if the defendant files a motion for re-trial, the court has to order the re-trial.
Prosecutors play a significant role even after the final ending of the criminal proceedings in the special proceedings aimed at deciding some ancillary questions. The majority of these proceedings are initiated upon prosecutors’ motions, but they can also be instituted ex officio or upon request.
3. Prosecutors’ functions relating to criminal cases of child and juvenile offenders
The aim of juvenile criminal justice is to adequately protect juveniles’ fundamental rights and to effectively prevent juvenile delinquency primarily by using measures that serve educational purposes. Prosecutors dealing with juvenile offenders’ criminal cases carefully examine the application of the special provisions of substantive and procedural laws and pay special attention to the principle that coercive measures and sanctions depriving liberty should be applied against juvenile offenders only as ‘last resorts’ and within the shortest reasonable time.
Duties and responsibilities of prosecutors dealing with cases of juvenile offenders shall include:
a) cases initiated for the commission of crimes by juvenile offenders;
b) interlinked criminal cases of juvenile and adult offenders (mixed cases);
c) child offenders’ criminal cases except if such cases are solely connected to adult offenders’ cases.
Prosecutors dealing with cases of juvenile offenders perform tasks relating to the preparation of indictments, supervision of the legality of investigations and to the filing of indictments with court in cases falling into their competence. Furthermore, they participate and have important roles in criminal court proceedings, extraordinary remedy proceedings, special proceedings or – in cases specified by law – in proceedings which are to decide ancillary questions.
Restorative criminal justice, which is also tailored for the individual, and choosing sanctions that serve the aim of general crime prevention are decisive criteria for the activity of prosecutors dealing with cases of juvenile offenders. This means, on the one hand, – provided legal conditions exist – using the tools of diversion (postponement of the indictment, mediation), tools to accelerate criminal proceedings (criminal proceeding without trial, arraignment), and, on the other hand, initiating the application of sanctions serving educational purposes or alternative community sanctions (probation, compensatory labour, community service). During criminal proceedings prosecutors dealing with cases of juvenile offenders shall facilitate that the facts of the case should be clarified and determined by the court to the extent that even those circumstances of the case are revealed which are essential to learn more about the juvenile’s personality and environment. Prosecutors shall make their final motion on the penal sanction only in view of this.
Prior to the assignment of prosecutors for special tasks relating to crimes committed by children and juvenile offenders, the approval of the Head of the Department for Criminal Cases of Children and Juvenile Offenders shall be obtained.