https://doi.org/10.58528/JAP.2024.16-3.61
Searching for truth is an eternal axiom of criminal procedural law. It is a principle that fundamentally determines the functioning of a criminal proceeding, and mainly the function of taking of evidence. In the history of Hungarian procedural law, the attitude of legislators to the content of truth has changed considerably from the beginning to the present day. The first period of striving for material truth has been characterised by a gradual move away from it in modern procedural codes in Hungary because of historical development. On the axis of material and formal justice, the Hungarian legislators developed their own "concept of hybrid truth". This can be traced back on the one hand to the implantation of foreign procedural legal models in Hungary, and on the other hand to modern legislative goals (e.g. speeding up proceedings). The aim of this study is to present this historical development in Hungary in this field using the method of historical analysis.
Keywords: Hungary, criminal proceeding, material truth, formal truth, taking of evidence, history of Hungarian criminal procedural law, hybrid truth
The supreme task of criminal proceedings is to "find out" the truth, using the tools provided by the law. This principle can be considered as an eternal axiom[1] of criminal procedure, which, regardless of the model of criminal procedure followed, has never been subject to any reasonable doubt by researchers or legislators in any period of legal history, and this is also the case in the history of the Hungarian law. As Ulpianus pointed
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out: "Res iudicata pro veritate habetur".[2] This principle posited the truth as the effect of legal force even in ancient Rome. Establishing the truth, which is expected not only from criminal proceedings but also from the judge, is not a simple task, since the parties who are involved in a criminal procedure carry out procedural acts in the present to understand and investigate the events of the past and to put them into a logical order. As Árpád Erdei states in his study, we expect the criminal proceedings - irrespective of the procedural system followed by the state in question - to establish the truth of the past.[3] However, it is difficult to define and formulate it in legal regulations when the result of taking of evidence can reach the level of truth. The greatest paradox of truth is that acquiring new knowledge can also increase the scope of the unknown,[4] and this has a strong influence on any person who is responsible for the assessment of evidence. The international academic literature which deals with the theory of evidence has also clearly pointed out the factors which can deceive the authorities in the process of finding the truth and the methods which can be used to resolve them. However, this paper does not aim to examine the research question from the point of view of criminalistics, nor does it seek to address the notion of justice, which is often linked to the concept of truth in the literature. In 1927, the famous Hungarian jurist Ferenc Finkey pointed out that many people identify the concepts of truth and justice with each other, in fact, they use them interchangeably, which is the wrong approach.[5] The category of justice is an ethical rather than a legal one because it expresses a demand for the application of the law. Therefore, the concept of truth is basically a matter of epistemology and an expectation of the elements of the concrete crime to be established in criminal proceedings because of taking evidence. The paper deals with the content of the concept of truth from a legal-historical perspective, from the first Hungarian procedural code to the present day. Our aim is to show in a historical view how the legislators have approached the concept of truth and what impact it has had on the procedural rules.
Basically, considering the historical evolution, we can differentiate between material and formal truth. The procedural systems concentrate on material truth being reached and regulate the provisions concerning the taking of evidence to support this aim try to find the answer for the following question: "what actually
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happened?". The ideal of material truth was an important starting point during criminal procedural legislation in the European continental legal systems, including in Hungary. In 1916, the famous Hungarian jurist Rusztem Vámbery defined material truth as an ideal to which all procedural regulations aspire.[6] Ferenc Finkey thought about this question in the same way. He stated that considering real truth is obligatory not only for the judge but also for everyone else who is involved in a criminal procedure.[7] Another Hungarian academic, Pál Angyal, also underlined the need to strive for detecting the real truth on the level of the elements of the concrete crime.[8]
However, the need for material truth, i.e. the need to establish the facts in accordance with reality, often remains an idea in criminal proceedings. Material truth is not a procedural right in criminal proceedings. The legal systems which follow the rule of law are merely responsible for creating an institutional framework within which this idea can prevail in the practice. It also follows from this that the decision of the authority is not in itself unlawful because the facts established do not accurately reflect reality. The reason for this is that criminal proceedings are not simply a cognitive process, but - as Tibor Király has pointed out - an arena for the exercise of criminal justice.[9] Furthermore, on this stage, sometimes only the formal aspect of truth prevails, which does not in itself exclude the possibility that formal truth and material truth may coincide.
The literature on formal truth approaches the concept from two perspectives. Some authors define the content of formal truth as the answer to the question "what can be proved?". According to this approach, formal truth is nothing more than a quality of the facts revealed by the legal rules of taking of evidence. The other approach is to identify formal truth with the truth of the legal dispute, i.e. the concept of the "truth of the case". In this sense, therefore, the facts established are not separated from reality but become 'material truth' within the scope of the legal dispute.[10] This paper will show how the legislators during the development of Hungarian legal history tended to move towards the centralisation of the procedural truth, creating a new category in the concept of truth (the "hybrid concept of truth"), while it tried to preserve the intention of striving for material truth. This presentation of Hungarian legal development starts from the first Code on Criminal Proceedings, and the analysis continues up to the procedural regulations in force.
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Before Act XXXIII of 1896, there was no unified code of criminal procedure in Hungary. In the period before the 1848/49 Revolution, there were attempts to create a procedural code in Hungary, but they were unsuccessful. After the suppression of the Revolution, Austrian law had more influence on Hungarian law. In the Hungarian history of law, József Werbőczy was the first who collected the unwritten law which prevailed in the field of criminal procedure law in Hungary. This can be considered an important point in the development of Hungarian criminal law, because before it the legislation was passed on a case-by-case basis, therefore it was very inconsistent and fragmented. Although this document, called "Tripartitum", never entered into force, it declared that the judge shall administer justice for the people and underlined the importance of detecting truth in the proceeding.
With the first unified criminal code (Act XXXIII of 1896, hereinafter: "Act I"), however, the legislators laid the basis for a modern and civil criminal procedural law. Both continental and Anglo-Saxon traditions can be traced in Act I. The explanatory memorandum of Act I itself refers to the mixed nature of the system, which incorporated elements of the inquisitorial and the accusatorial procedural systems as well. The legislators indicated that material truth can only be achieved if procedural tasks and functions are correctly separated.[11] The striving for material truth as an inquisitorial heritage became the task of all procedural phases. The authorities had to seek to establish the true facts. This also applied to the investigation and the examining judge's proceedings, where Act I expressly made it the duty of the judge, in Article 117, to take all the measures necessary to establish the true facts.[12] In other words, the ideal of accessible material truth, as highlighted by Pál Angyal, Rustem Vámbéry and Ferenc Finkey, was a central element of the first criminal procedure code of Hungary and the rules of taking of evidence it contained. This was complemented by the activity of the authorities in assessing evidence, through which a material level of truth could be achieved. Judicial conviction was already defined by Act I as a condition of material truth.
However, it must be underlined that Act I did not define material truth as an absolute and unconditional goal of the proceeding, since all judgments are results of human behaviour, and the court may be wrong. Therefore, material truth was not interpreted as the sole and exclusive concept of truth after Act I entered into force, nor did the academic literature exclude the possibility of procedural truth as an exception to material truth.[13]
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After the Second World War, Hungarian legislation was essentially determined by a socialist approach. Act I was replaced in 1951 by a new procedural legal framework (Act III of 1951, hereinafter: "Act II") in Hungary, which clearly focused on material truth. The possibility of procedural truth, which was still accepted in the period of Act I -as mentioned above - was pushed into the background. The abandonment of material truth was declared by socialist law to be a characteristic of bourgeois codes.[14] Thus, the Hungarian legal literature has also adopted this ideology. A jurist of this time, Mihály Kovács, argued outright that material truth was not a scientific question, but a social expectation arising from the state's duty.[15] Therefore, the judiciary's activity is determined by the people's expectation of material truth. According to socialist law, there can be no doubt as to the exact knowledge of truth, since it was a principle of Marxism that truth can be known.
If we read the justification of the law in relation to material truth, the text may make us smile. The explanation points out that formal truth in bourgeois states serves only the interests of the ruling social class, while guarantees, such as the principle of material truth, prevail only in people's democracies.[16] According to its explanation, the law was therefore intended to help the authorities establish material truth by all means. Although the explanatory memorandum reflects a socialist sense of truth, this was not so at the level of the legal provisions. The message of several provisions pointed more towards procedural truth, although according to the socialist conception, this had to coincide with material truth. We can say, therefore, that the first socialist code on criminal proceedings identified procedural truth with material truth from an ideological point of view. Furthermore, although formal truth was more dominant in socialist criminal proceedings - we can think of the conceptual trials (in other words, political trials) of the 1950s in Hungary - it was taken to the level of material truth by means of ideology.
Indeed, if we look at the rules of Act II, the legislators have placed the emphasis on "adequate" detection. This has given flexibility to the interpretation of evidence since the purpose of the procedure has become the detection of the facts to a sufficient degree to enable the procedure to be successfully completed. The task of investigation was to establish the circumstances necessary for the success of the proceedings (Art. 91 par. /1/[17] of Act II) and it had to be completed
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when the results of the investigation led to the accusation (Art. 135. par. /1/[18] of Act II). The condition for indictment was therefore the discovery of the facts to the degree that they were sufficient to justify an indictment, based on which the judicial discretion was an illusory provision (Art 177.[19] of Act II). According to the real meaning of the provisions, the taking of evidence in the investigation had to serve as a basis for the accusation. Therefore, the striving for material truth can be questioned. It can be argued that the first Hungarian socialist code of criminal procedure, under Soviet influence, determined the direction and meaning of the investigation and strengthened the power of the prosecutÖsszevetés - a magyar szabályozás a külföldi megoldások tükrébencode on criminal proceedings (Law-Decree 8 of 1962) did not change the legal view of the main goal in a criminal procedure, in the later period of socialism, in the 1960s, an increasing number of Hungarian jurists indicated that there were difficulties concerning the procedural cognition,[20] and thus the achievement of material truth cannot be the exclusive aim in a criminal proceeding.
The legislative expectation of material truth was raised to a higher level with the third Hungarian Code on Criminal Procedure. While Act I did not aim at achieving material truth at any rate, since it considered the limited possibility of cognition, Act II was only ideologically grounded in material truth and identified the fundamental aim of the taking of evidence as the establishment of the indictment. However, by the 1970s this position was no longer acceptable, although the idea of material truth had not changed. The third Hungarian Code (Act I of 1973, hereinafter: "Act III") no longer approached the goal of material truth on a purely ideological basis, but rather set it out "expressis verbis" as a legal requirement of taking of evidence.
Art. 5 par. (1)[21] of Act III made it the responsibility of the authorities to detect the facts in their entirety and in accordance with the material truth. The rigid adherence of Act III to material truth was a fundamental problem relating to the development of criminal procedural law.[22] In such circumstances, neither the timeliness of the procedure nor its efficiency and simplification could pre-
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vail, although examples from other countries' procedural codes would have been a step in this direction. In other words, the legislation itself was the main obstacle to the development of Hungarian law. In this context, Tibor Király, one of the greatest figures in the history of Hungarian criminal procedural law, stated that although the procedural aim was to establish the truth, this should not be at all costs.[23] As we will see, the slow move away from an insistence on material truth began at this time in Hungary and is already conceptualised in the codes entering into force after 1989. Due to the shift, characteristics of Anglo-Saxon laws started to appear more frequently in later procedural regulations. This is what caused the main legal problem. In the procedural system based on the absolute power of material truth, the new, accusatory legal institutions based on formal truth created a dichotomy and disharmony in the newer codes, because of which Western models began to function as a "strange body"[24] in criminal procedure.
If we want to summarise briefly the development of Hungarian law between 1896 and 1989, we can draw the conclusion that Act I marked the beginning of a development of procedural law, based on Western models, in which material and formal justice were in balance. This balance was altered by the socialist system, which, by proclaiming the primacy of material truth, transformed the procedural legal institutions, forcibly marginalising the possibility of formal justice. Therefore, this slowed the development of Hungarian criminal procedure law.
The first Hungarian code on criminal proceedings after the change of regime, and the fourth in the history of the development (Act XIX of 1998, hereinafter: "Act IV"), clearly aimed to move away from the socialist approach. It was an attempt to return to its roots, namely to Act I, by translating the Anglo-Saxon models to Hungarian. This was also referred to in the justification of Act IV. It underlined that law enforcement challenges can be addressed more effectively if there are similarities in the legal systems of cooperating states.
The sole and exclusive aim of the new code was no longer to establish material truth. The rules concerning it were moved from the fundamental provisions to the rules on taking of evidence, thereby indicating that the question was no longer of the same importance as before.[25] In any case, this would not have made sense in the reformed criminal procedure. Act IV does not seek to "chase illusions"[26] in the search for truth. The code imposed a requirement on taking of evidence that the authorities should seek to establish true facts. However, this
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did not equate to a requirement to establish material truth at all costs. In this context, the purpose of the investigation was also changed, since it was only responsible for establishing the facts at a level based upon which the prosecutor could make a reasonable decision on accusation.
This intention of the legislators also appeared in the amendments of Act IV. Act LI of 2006 inserted a new regulation into Act IV which aimed to declare the main function of the court concerning the taking of evidence. Based on this amendment, the court should acquire pieces of evidence based on motions, and in the absence of this, the court should not be obliged to acquire or examine any piece of evidence. The problem with this amendment was that it also affected a fundamental provision of the principle of the indictment, imposing an obligation on the courts to exhaust the accusation, which in practice pushed the courts towards the taking of evidence ex officio. Therefore, the courts endeavoured not to be passive during the taking of evidence. In connection with this attitude, the amendment mentioned above could not prevail in practice, and development towards the formal truth (the truth of the procedure) also stopped, because the courts tried to avoid the groundlessness of the judgment.
This fourth Hungarian Code on Criminal Proceedings also tried to move towards formal justice by introducing special procedural rules. Influenced by the Anglo-Saxon legal systems, Act IV already regulated the opportunity of making a conclusive decision without a trial (omission of the trial), as well as special procedural rules on waiving of the trial. At the same time, Act IV still did not completely banish the idea of material justice, though the new legal institutions that fit into European trends already showed a kind of shift towards the judicial truth, or "justice of legal dispute", as it is called. This process culminated in the code currently in force, which is the fifth code on criminal proceedings in Hungary.
The fourth code - as we can see above - sought to create the possibility of separation from material truth in the criminal procedure; however, a strong duality still prevailed in it, since in addition to the concept of striving for material truth, its amendments tried to constantly loosen it, which broke the consistency and uniformity of the code. That is why it was necessary to create a new code adapted to the requirements of the time and its new legal solutions.
The fourth code (Act IV) was determined by the legislator's nostalgia for the Act I.,[27] and was replaced by the code in force in 2018 (Act XC of 2017, hereinafter: "Act V"). Act V better reflects the idea of procedural justice, or "hybrid justice", as many of the legal instruments that simplify the procedure have been
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introduced into the code, an Anglo-Saxon influence.[28] As a result of this, procedural solutions were introduced into the new code which had no Hungarian legislative precedent. The way in which the law is drafted also changed, describing it as a kind of "user's guide" - or as Mihály Tóth wrote, a "cookbook"[29] - on how the persons involved in the procedure can get to the truth. The so-called "zeitgeist" is hard to find in the new code. The requirements of simplification, efficiency, and rapidity of the procedure so strongly appeared in the process of drafting Act V that the so-called "hybrid-truth concept" mentioned earlier became a central element of the fifth code.
In the new code, we find characteristics of both the inquisitorial and the accusatorial style. The dichotomy that characterised the earlier codes can also be seen in relation to the truth to be achieved in the proceedings. Art. 163 par. (2)[30] of the Act still starts from the pursuit of material truth, but the other static and dynamic rules are significantly distanced from this. As the legislators pointed out in the justification of the code: "the code, following the elements of the mixed procedural system, necessarily preserves the requirement of material truth, but the requirements of the rule of law in criminal proceedings mean that the system on taking of evidence cannot be in the future the sole value of the system".[31]
This legislative intention is also reflected in Act V in new legal instruments to simplify and speed up the procedure. The codification's aims of efficiency, simplicity and rapidity have significantly softened the idea of substantive justice in the new code. This is why the concept of truth that appears in the fifth Hungarian code can be described as "hybrid truth". This concept can be described as an intermediate state between material and formal truth, in which the truth of procedure is increasingly embodied.
The author's standpoint mentioned above is underlined by the provisions defining the main purpose of the different procedural stages,[32] but also by the amended rules on taking of evidence, which move towards hybrid truth. Although Act IV placed the burden of proof on the prosecutor, by defining the con-
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tent of the principle of indictment, the legislator pushed the courts towards the ex officio taking of evidence. However, the fifth code changed this approach, emphasising the importance of the principle of separation of the procedural tasks. The role of the court in the taking of evidence has changed based on Art. 164[33] of Act V., which could also be a cornerstone on the road to hybrid truth, because, if the court observes this rule, its judgment will not be groundless even in the absence of the necessary evidence.[34]
Another change towards the hybrid truth is the re-evaluation of the defendant's confession on criminal liability in the fifth code on criminal proceedings. It is underlined by the regulations on plea agreements and the new reason for the preparatory session. In both cases, Act V allows the proceedings to be terminated by a final, binding conclusive decision if the accused person makes a confession on criminal liability in accordance with the indictment.[35]
As we have seen, the content of truth, as the epistemological requirement for the facts to be established in criminal proceedings, has evolved dynamically in the development of Hungarian law, basically as the requirements for criminal proceedings have changed. The classical idea of striving for material truth was constantly weakened along the development of the Hungarian criminal procedure law, but the ideal as a principle remained indisputably dominant as a starting point in the codes of criminal proceedings.
This trend in development can also be traced in the development of Hungarian law presented in this paper if we examine how the procedural rules have been related to the idea of striving for material truth. In Hungary's first code on criminal proceedings (Act XXXIII of 1896) before the Second World War, the concept of truth was not identical with the absolute requirement of material
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truth since it was not defined as the sole purpose of criminal proceedings. It was only applied with certain cautious compromises. This was clearly due to the Anglo-Saxon influence. After the Second World War, Soviet law and its inquisitorial characteristics dominated Hungarian criminal procedural law. The search for material truth became ideologically binding in this period, even though it was not consistently expressed in the procedural regulations. The wind of change was brought to Hungary by the fourth code (Act IV), which again gave dominance to the accusatorial characteristics, pushing the Soviet ideology relating to the material truth into the background. The fourth Hungarian code on criminal proceedings only moved towards formal truth, but the Code in force (Act V) goes beyond this and focuses on achieving a procedural truth that can be placed between the content of material and formal truth. This is what we can call "hybrid truth", or "truth of the procedure", or "procedural truth".
The increasingly modern criminal procedural law, even in the mixed system - which combines the main characteristics of the inquisitorial and the accusatorial system - both abroad and in Hungary, has moved towards the so-called "truth of the procedure" and is expected to continue to do so in the future. The implementation of the foreign (mainly the Anglo-Saxon ones) models into the domestic legal system, helping to improve the efficiency of criminal proceedings, clearly demonstrates this. Of course, this should not mean that legislation will sacrifice material truth on the altar of efficiency, rapidity, and simplicity. The demand for the material truth must not be abandoned in the future.
While maintaining the guarantees of the rule of law, it is the responsibility of the legislature to develop and operate an institutional system and to create a system of rules in which procedural truth will continue to expand - in practice -as a requirement for the facts of a case, which will reach or at least approach the level of material truth.
• Angyal Pál (1915): A magyar büntető eljárásjog tankönyve I. Athenaeum Irodalmi és Nyomdai R. - T., Budapest.
• Bárd Károly (2019): Az út az igazsághoz - büntetőeljárási törvényünk a jogállami elvek tükrében. In: Belügyi Szemle. Vol. 3/2019.
• Bócz Endre (2011): A bíráskodás tekintélye és a jogpolitika. In: Magyar Jog. Vol. 8/2011.
• Csontos Laura (2020): Igazságelméletek. Egyszerűsítés és gyorsítás az új büntető eljárásjogban. In: Kriminológiai Közlemények. Vol. 80/2020.
• Elek Balázs (2012): A jogerő a büntetőeljárásban. Debreceni Egyetem Állam- és Jogtudományi Kar Büntető Eljárásjogi Tanszéke, Debrecen.
• Elek Balázs (2014): Az igazság feltárása a büntetőeljárásban. In: Elek Balázs (ed.): Igazság, Ideál, Valóság. Tanulmányok Kardos Sándor 65. születésnapja tiszteletére. Debreceni Egyetem Állam- és Jogtudományi Kar Büntető Eljárásjogi Tanszéke, Debrecen.
• Erdei Árpád (2010): Mi az igazság? In: Erdei Árpád (ed.): A büntető ítélet igazságtartalma. Magyar Közlöny Lap- és Könyvkiadó, Budapest.
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• Erdei Árpád (2014): Az igazságon alapuló büntető ítélet ideálja és a valóság. In: Igazság, Ideál, Valóság. Tanulmányok Kardos Sándor 65. születésnapja tiszteletére. Debreceni Egyetem Állam- és Jogtudományi Kar Büntető Eljárásjogi Tanszéke, Debrecen.
• Finkey Ferenc (1927): Anyagi igazság és téves jelszavak a büntető eljárásban. Magyar Jogi Szemle kiadása, Budapest.
• Kadlót Erzsébet (2010): A vád igazsága. In: Erdei Árpád (ed.): A büntető ítélet igazságtartalma. Magyar Közlöny Lap- és Könyvkiadó, Budapest.
• Király Tibor (1972): Büntetőítélet a jog határán. Közgazdasági és Jogi Könyvkiadó, Budapest.
• Korinek László (2020): Király Tibor és az eljárási igazságosság. A 100 éves Király Tibor köszöntése. In: Jogtudományi Közlöny. Vol. 7-8/2020.
• Kovács Mihály (1954): A bírói bizonyosság problémájához. In: Flachbarth Ernő (ed.): A Pécsi Tudományegyetem Állam-és Jogtudományi Karának Évkönyve. Tankönyvkiadó, Budapest.
• Tóth Mihály (2016): Hol az igazság mostanában? - Szemelvények és reflexiók Király Tibor professor tiszteletére. In: Hack Péter (ed.): Kodifikációs kölcsönhatások. Tanulmányok Király Tibor tiszteletére. ELTE Eötvös Kiadó, Budapest.
• Tóth Mihály (2018): Néhány megjegyzés az új büntetőeljárási törvényhez. In: Belügyi Szemle. Vol. 3/2018. DOI: https://doi.org/10.38146/bsz.2018.3A
• Vámbéry Rusztem (1916): A bűnvádi perrendtartás tankönyve. 3rd edition. Grill Kiadó, Budapest. ■
NOTES
[1] Elek, 2012, 15.
[2] Elek, 2014, 50.
[3] Erdei, 2010, 9-22.
[4] Bócz, 2011, 449-458.
[5] Finkey, 1927, 14.
[6] Vámberfy, 1916, 46-47.
[7] Finkey, 1927, 17.
[8] Angyal, 1915, 266.
[10] Erdei, 2014, 76.
[11] Explanation of Act I point V/a.
[12] According to Art. 117 of Act I: "During the investigation, the examining judge is obliged to take all measures necessary to establish the true facts and to investigate the perpetrator and the party involved, ex officio, without the need to request an indictment."
[13] Elek, 2012, 19.
[14] Tóth, 2016, 23.
[15] Kovács, 1954, 92.
[16] See: General Explanation of Act III of 1951.
[17] According to Art. 91 par. (1) of Act II: "During the investigation it shall be ensured that the identity of the perpetrator is established; that in case of a risk of escaping the perpetrator is hindered from doing it; that the accused and witnesses are questioned; that physical evidence is obtained and secured; that if necessary, experts are heard; and that the circumstances necessary for the success of the proceedings are investigated in any other appropriate way".
[18] Based on the rule mentioned above: "The investigation shall be terminated if the result of the investigation indicates that there are sufficient reasons to submit an indictment."
[19] According to the article mentioned in the text: "the court may base its judgment only on the evidence examined at the trial; it shall evaluate the pieces of evidence in their totality and shall judge it according to its conviction."
[20] Tóth, 2016, 23.
[21] Based on this rule: "It shall be the duty of the authorities to clarify the facts of the case thoroughly and completely at all stages of the proceedings, to establish them in accordance with the reality".
[22] Kadlót, 2010, 23-44.
[23] Király, 1972, 139.
[24] Tóth, 2016, 25.
[25] This rule appeared under the Art. 75. par. (1) of the Act IV as following: "The objective of gathering evidence shall be thorough and complete elucidation of the true facts."
[26] Erdei, 2014, 80.
[27] Bárd, 2019, 6.
[28] Csontos, 2020, 168.
[29] Tóth, 2018, 63.
[30] According to the rule mentioned: "in a criminal proceeding, the court, prosecution service, or investigating authority shall decide on the basis of real facts".
[31] General reasoning to Chapter XIII of Act V
[32] According to Art. 348 par. (3) of the Act V.: "in the course of detection, the criminal offence and the identity of the perpetrator shall be detected, to an extent necessary to establish a reasonable suspicion [...]" However, it shall be clear that it cannot be a goal of the investigation or of its first part (the detection) to establish the reasonable suspicion. The aim of this part of the procedure shall be to detect all pieces of evidence based on which the authorities can make a grounded decision on the opportunity of the suspicion. A similar inaccuracy can be seen in the definition of the purpose of the trial. Based on Art. 425 par. (1): "a court shall hold a trial if evidence is taken for the purpose of establishing the criminal liability of an accused." However, the court does not hold a trial due to this aim. The purpose of a trial is to examine the pieces of evidence and to assess them to be able to decide the criminal liability. In other words, the sole purpose of an investigation should not be to establish suspicion, nor should a trial be intended to establish a guilty verdict.
[33] Based on this rule: "the prosecutor shall be responsible for discovering all facts required to prove the indictment, and making available, or moving to acquire, all supporting means of evidence. In the course of clarifying the facts of the case, the court shall acquire pieces of evidence on the basis of motion. In the absence of motion, the court shall be not obliged to acquire and examine any pieces of evidence."
[34] See Art. 593 par. (4): "if the groundlessness is clearly due to any failure to perform the obligation provided for under Section 164 (1), the consequences of the groundlessness shall not apply."
[35] It is underlined by Art. 408 par. (1) of the Act V.: "with a view of entering into a plea agreement, the prosecution service, the defendant and his defence counsel may engage in negotiation regarding the confession of guilt and the content of the plea agreement, with the exceptions of the facts of the case and qualification under the Criminal Code of the criminal offence with regard to which the plea agreement is concluded." There is a similar situation during the preparatory session (after the accusation). Before the trial the court shall conduct a preparatory session where it is possible for the defendant to confess his guilt of the criminal offence he was indicted for, and he may waive his right to the trial within the scope of his confession of guilt (See Art. 500 par (2) of t Act V).
Lábjegyzetek:
[1] A szerző habilitált egyetemi docens, Széchenyi István Egyetem, Deák Ferenc Állam- és Jogtudományi Kar, Bűnügyi Tudományok Tanszék. Oktatói munkáját a Miskolci Egyetem ÁJK Büntetőjogi és Kriminológiai Tanszékén kezdte meg 2003-ban, 2008-tól mint meghívott oktató kapcsolódott be a győri jogi kar életébe. 2009-től mint egyetemi tanársegéd, 2011-tol egyetemi adjunktuskent, jelenleg habilitált egyetemi docenskent vesz részt az anyagi büntetőjog és büntető eljárási jog oktatásában. Oktatói munkája mellett ügyvédként dolgozik, emellett a SZE ÁJDI, valamint a Tudományági Habilitációs Tanács Tudományos Titkára. bartko.robert@ga.sze.hu.
Visszaugrás
