The history of the Prosecution Service

In Hungary prosecutors’ activities date back to centuries. In the feudal era the Director of Legal Affairs was the King’s entity, whose title expressed dual functions of “the Director of Royal Matters and Prosecutor of the Holy Crown”. His competence included the representation of the King and the State, and in the scope of his duties he acted either as a plaintiff or an accuser. Elected municipal prosecutors acting as legal representatives operated in municipalities. Their criminal law tasks included the preparation of indictments, performance of tasks of the public prosecutor and supervision of the enforcement of punishments and penal sanctions. There were no organizational links or relations between the municipal prosecutors, or between municipal prosecutors and the Director of Legal Affairs.

In the private lawsuits, in cases tried by the manorial court manorial prosecutors represented the noblemen.

After the Revolution of 1848 national public prosecutors were appointed, while during the war of independence public prosecutors appointed by the government acted in instant trial courts. Afterwards, the Public Prosecutors’ Department was established in the Ministry of Justice.

After the suppression of the war of independence, Hungary being part of the Austro-Hungarian Empire used the French model to set up the institution of public prosecution. Public prosecutors had the power to act in criminal, civil and disciplinary proceedings. After the restoration of traditional Hungarian constitutionality in 1860 this institution was terminated, which gave way to the operation of former institutions for a couple of years.

After the Compromise between Austria and Hungary in 1867 the civic state administration started to be built up. Act IV of 1869 on the exercising of judicial power, which separated the administration of justice and public administration, secularized the administration of justice. This was the time when Act XXXIII of 1871 on the Crown Prosecutor’s Office was legislated and it was reasoned by the necessity of separating the tasks of judges, public prosecutors and defending counsellors. Public prosecution may only operate as a state institution since offenders act against and violate the legal system and thus the whole society. In accordance with the contemporary European models the prosecution service was organized as an institution subordinated to the Minister of Justice. The Crown Prosecutor’s Office functioned as a two-level institution from 1st January 1872, and the basic units of its organization included the prosecution offices operating alongside the courts of justice. Their number kept changing for financial reasons or due to changes in the country’s territory, and their supervisory bodies were the chief prosecution offices attached to the regional courts of appeal. Prosecutorial staff was subordinated to chief prosecutors. The superior of chief prosecutors was the Minister of Justice, who had the power to direct the whole prosecution service. Regulations regarding the legal status of judges were also applicable for the status of prosecutors.

The Crown Prosecutor’s Office had the power to prosecute criminal cases, whereas it also had disciplinary competences. Moreover, it supervised court prisons. The power of the Crown Prosecutor’s Office continuously increased; further powers in civil and private law cases were entrusted it. The great piece of codification, Act XXXIII of 1896 on Criminal Proceedings was based on the idea that crimes should be prosecuted, so it became necessary to have prosecutors at all the four levels of the court system: prosecution paralegals who were appointed by the Minister of Justice started working at the local court level, while the Crown Prosecutor started working at the level of the Supreme Court, the Curia. In accordance with the Criminal Proceedings Act prosecutors gave orders for, directed and terminated criminal investigations. They filed indictments, but they could also refuse prosecuting a case in court, they could modify and drop charges. No trials could be held if a prosecutor was not present, and prosecutors could lodge appeals against court decisions.

The most important power of the Crown Prosecutor was that he could challenge and appeal to the Curia against any legally effective decisions of the criminal and civil courts in order to ensure the standard and uniformity of legal practices. The Crown Prosecutor had to be heard in the Curia. The post of Crown Prosecutor was taken on several occasions by prominent figures of jurisprudence.

Due to the historic events of the 20th century, the changes of society and law some elements of the principle of opportunity appeared in criminal proceedings, which increased the importance of the role of the Prosecution Service. After World War II former institutions prevailed as far as proceedings and the organization of the Prosecution Service were concerned. Parallel to public prosecution offices people’s prosecution offices also operated in 1945-50. They were competent to deal with cases of war crimes and crime against humanity.

After 1945, when Hungary was still being occupied by foreign troops, the state institutions and legal system were reorganized according to the Soviet model. The Constitution promulgated by Act XX of 1949 provided for a type of new prosecution service by setting forth that the Prosecutor General elected by and accountable to Parliament shall guard legality, and the Prosecution Service shall be headed and directed by him. Legislative Decree No. 13/1953 created a new hierarchy which contained county prosecution offices placed below the Office of the Prosecutor General, while at local level city, district and Budapest district prosecution offices were set up. The formerly separate military prosecution offices were integrated into the organization of the prosecution service.

The Legislative Decree imposed the obligation on the prosecution service to supervise the legality of criminal proceedings and the enforcement of punishments and criminal sanctions. The supervision of regulations, decisions, instructions and measures issued or taken by ministries, local bodies and institution of the state or state administration created a new task for the prosecution service. Prosecutors were entitled to initiate any kind of lawsuit or take actions in any kind of proceedings in civil cases with the exception of cases where one could assert his rights only in person.

During the Revolution of 1956 revolution committees were set up at the prosecution offices as well. After the Revolution fell revenge was taken on members who had been actively involved in these committees.
In the one-party era until 1989 all the institutions of the state and public administration were confined within the frameworks determined by the sole and exclusive centre of power. Within these frameworks the Prosecution Service carried out its activity by following provisions of laws passed by the prevailing and dominating political will, but prosecutorial work was characterized and driven by expertise. Act V of 1972 replaced the former laws to regulate the Prosecution Service in this era.

After the political and economic changes in 1989/90 the need to change the constitutional status of the Prosecution Service arose on several occasions. One of the concepts was to subordinate the Prosecution Service to the Minister of Justice and exclude the possibility that the latter could give instructions for the termination of investigations or for non-indictment. Unlike the proposal concerning the employment by and the data management in the Prosecution Service, regulated and promulgated by Act LXXX of 1994, this concept was not accepted.

After the turn of the millennium the four-level judicial system of the civic era was restored, and the regional courts of appeal and the chief prosecution offices of appeal were integrated into the structure of formerly already existing institutions and offices.

Act XIX of 1998 authorized prosecutors as public accusers to direct criminal investigations. Since this Act entered into force in 2003 prosecutorial investigations as phase of the preparation of indictments have gained significance. Accordingly, the Central Chief Prosecution Office of Investigation, which has national competence, as well as its regional offices in the counties and the capital, Budapest were set up in 2006.

Decision No. 3/2004 (II.17.) of the Constitutional Court, which clarified the constitutional status of the Prosecution Service and the role of the Prosecutor General, was of paramount in the history of the Prosecution Service. This Decision declared that the Prosecution Service is placed in the system of justice in the broader sense and determined that the Prosecutor General and the Prosecution Service are not subordinated to Parliament. The Prosecutor General is the head of the Prosecution Service but not in a political sense: he directs prosecutorial work. The accountability of the Prosecutor General to Parliament includes the obligation of annual reporting, the obligation of appearance both at parliamentary commissions or plenary sessions, the obligation of response both to hearings at parliamentary commissions or questionings at plenary sessions and the fulfillment of other duties specified by the Constitution. The Prosecutor General bears no political responsibility to Parliament for his individual decisions, and he shall be instructed neither directly nor indirectly to make or amend decisions with specified substance in individual cases. The Parliament monitors the activity of the Prosecution Service by means of the Prosecutor General’s obligation of annual reporting and his obligation of response.

On May 1st 2004 Hungary joined the European Union, which provided an opportunity for the Prosecution Service to actively participate in the work of the Eurojust, and in this way the Prosecution Service of Hungary became fully integrated into the prosecution system of the EU. As far as the legal status and the operation of the Prosecution Service are concerned, Article 29 of the Fundamental Law of Hungary, which has been effective as of January 1st 2012, is of paramount importance. Pursuant to Article 29 the Prosecutor General and the Prosecution Service shall be independent, 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, take action against other unlawful acts or non-compliances, as well as contribute to the prevention of unlawful acts. The Prosecutor General shall be elected by the National Assembly from among the prosecutors for nine years on the proposal of the President of the Republic. The Prosecutor General shall be elected with the votes of two-thirds of the Members of the National Assembly.

In accordance with the Fundamental Law Act CLXIII of 2011 on the Prosecution Service (Prosecution Service Act) and Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and other Prosecution Employees and the Prosecution Career (Prosecution Employment Status Act) laid down the new rules regarding the organization and employment relations of the Prosecution Service. Pursuant to the Prosecution Service Act and Prosecution Employment Status Act the Prosecutor General and the Prosecution Service perform their duties and responsibilities in accordance with the Fundamental Law, relevant Acts and laws. Prosecutors shall accept instructions only from a superior prosecutor and the Prosecutor General. Military prosecution offices are no longer separated from non-military prosecution offices. As a result, military prosecution offices not only deal with cases subject to military criminal proceedings, but they are also actively involved in the detection, supervision of investigations and prosecution of other criminal cases.

The Prosecution Service Act sets forth prosecutorial duties and responsibilities relating to criminal law and to the enforcement of the State’s demand for punishment in line with the legal provisions of the Fundamental Law and with the actual prosecutorial tasks already carried out earlier, and in compliance with the Act on the Criminal Proceedings emphasis is laid on the role of prosecutors as public accusers. As far as the enforcement of punishments and penal sanctions are concerned the Prosecution Service Act also defines exact and specific duties and responsibilities for prosecutors. In this way, prosecutors are entitled to monitor the enforcement of legal sanctions and restrictions, the legality of detainee treatment, the application of the legal provisions concerning the protection of detainees’ rights, and prosecutors act accordingly with respect to reintegration measures and criminal records as well.

As for prosecutors’ non-criminal duties and responsibilities the Prosecution Service Act determines that prosecutors’ non-criminal power lies in their right to file lawsuits and their right to launch actions. When this non-criminal power is exercised, the protection of public interest and rights are considered to be decisive objectives. Legal tools needed for the exercise of such power are laid down by law.
Pursuant to the Prosecution Employment Status Act the provisions applicable for judges and prosecutors (e.g. provisions about their payment, work, promotion and free and vacation days) are fundamentally still the same. This Act regulates issues like prosecution bodies, prosecution employment, the appointment and termination of the employment of senior and head prosecutors, the conflict of interests, assessment, work performance, payment, free and vacation days, disciplinary liability and liability for damages as well as the settlement of disputes in detail.

The National Institute of Criminology is a structural unit of the Prosecution Service: it functions as a research centre. During the operation of the Prosecution Service of Hungary the first crown prosecutor, Mr. Sándor Kozma’s thoughts from 1872 shall prevail for the prosecutorial profession: prosecution “is an individual field and component of the justice of the State which fights independently and only for justice upon the authorization received by the State when it prosecutes crime and criminals”. A prosecutor is not “a party to the lawsuit who intends to defeat the other party by all means, but he rather represents the moral power which strives to search and demand justice.”