The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The organisation and functions of the public prosecution service
The internal organisation and functions of the public prosecution service and the competences exercised by prosecutors are regulated at different levels in the hierarchy of laws. The basic rules are laid down in Chapter IX of the Constitution, while the detailed provisions concerning the service can be found in Act V of 1972 on the public prosecution service of the Republic of Hungary and as well as in Order No. 25/2003 of the Prosecutor-General, issued upon the authorisation granted in the Act. For better understanding of the constitutional position of the public prosecution service in Hungary.
The Prosecutor General is appointed for a six-year term by the Parliament upon the recommendation of the President of the Republic, while the deputies to the Prosecutor General are appointed by the President of the Republic on the proposal of the Prosecutor General. The appointment of all other prosecutors is exclusively within the power of the Prosecutor General. Besides the fully-fledged prosecutors, the functions of the service are performed by junior prosecutors, trainee prosecutors and investigators of the prosecution service, exercising limited powers under the supervision of senior prosecutors or the head of the division they are working in.
The Prosecutor General is accountable to the Parliament and is obliged to report on the activities of the prosecution service to the Parliament on an annual basis. This report is debated and voted on by the MPs, though no sanctions are provided in the Constitution or any other Act in case of refusal. Interpellations and questions may also be addressed by MPs to the Prosecutor General, which he is bound to answer. As different interpretations arose concerning the legal status and accountability of the Prosecutor General, he submitted a motion to the Constitutional Court asking for guidance on the provisions of the Constitution. In its decision of February 16, 2004 (383/G/2003) the Constitutional Court stated that, although the Prosecutor General may be questioned on both general matters and specific cases, the scope of his replies is restrained by two factors. Namely, the content of his answer should not infringe fundamental constitutional rights of individual citizens such as the right to a good reputation or privacy of personal data and should not endanger the fulfilment of constitutional tasks of the prosecution service, for instance should not expose the facts of an ongoing investigation. The Court also pronounced that the Prosecutor General and the prosecution service are not subordinate to the Parliament. Accordingly no instruction, whether it is direct or oblique, may be issued to them by the Parliament or a Committee of a Parliament in relation to a particular decision. The Prosecutor General is not politically accountable for his decisions in particular cases, and may not be called to account or be discharged when Parliament does not accept his answer to a question. The activities of the prosecution service may only be influenced by Parliament through legislation, and the only possible way of taking action against the Prosecutor General, on the basis of dissatisfaction with his official activities, is to not re-elect him upon the completion of his term. Before the end of his term, the Prosecutor General may only be discharged in the case of having been convicted for committing a crime or having become incapable of fulfilling his duties.
Pursuant to Sect. 20 subs. 5 of the Act V of 1972, the prosecution service is independent and subject to law only. Consequently, neither in general matters nor in relation to specific cases, may the Government or the Minister of Justice issue instructions to the public prosecution service.
According to the Constitution, the public prosecution service is headed and directed by the Prosecutor General. Furthermore, based on Sect. 5 of Act V of 1972, the Prosecutor General is vested with competences in the field of public law, criminal law, and in general matters of administration of justice as follows.
The Prosecutor General:
- is entitled to participate in an advisory status in the sittings of the Parliament, and the plenary sittings of the Constitutional Court; has the power to initiate the issuing, amendment or abrogation of legal rules by the Government, the Ministers or any other governmental agencies having national competence, has the right to make preliminary remarks on the legality of the drafts of any Act, decree of the Government or ministerial decree; and is entitled to submit motions on matters specified by law to the Constitutional Court (public law competences);
- exercises his rights specified by law in the procedure for uniformity of law in the Supreme Court. This special procedure is aimed at securing unity of the interpretation of laws in the course of judicial process. This procedure may be initiated by the President of the Supreme Court, the heads of the divisions (Colleges) within the Supreme Court and the Prosecutor General if a theoretical problem has arisen, divergence of interpretation of laws is being experienced, or the Supreme Court intends to deviate from one of its previous decisions. The special bench for this process is composed of five or seven Supreme Court judges and its decisions have binding force on the courts;
- is entitled to exercise his rights and fulfil his duties provided in separate Acts as a member of the National Council of Justice. The National Council of Justice is the central administrative body of the courts, and consists of nine elected judges, two MPs designated by the Constitutional and Justice Committee and the Budget and Finance Committee of the Parliament, and four ex officio members: the Minister of Justice, the Prosecutor General, the President of National Bar Association, and the President of the Supreme Court, who acts as President of the Council. The Council has decision-making authority in all administrative matters, and supervises the administrative activities of presidents of the appellate and regional courts;
- prepares his suggestions for the budget of the prosecution service, which is submitted by the Government to the Parliament as part of the central budget (competences in general matters of administration of justice). According to an amendment in 2003 of the laws concerned, the Prosecutor General and the National Council of Justice prepare the budget proposal of the prosecution service and the courts respectively. The Government is not entitled to alter those proposals, and thereby they automatically become part of the proposal of the general budget and shall be submitted to the Parliament;
- initiates suspension of immunity in case of crimes or administrative offences (contraventions) committed by persons immune from prosecution, or, if the law requires the consent of a body or person to start criminal proceedings, he can request such consent; is entitled to draw any police investigation into the competence of the prosecution service; in the course of the prosecutorial investigation has the right to employ members of other investigating authorities with the consent of the national head of the respective authority; initiates at the Supreme Court the review of the final judgement in criminal cases as defined by the Code on Criminal Procedure, or can submit a motion for legal remedy in the interests of legality (criminal law competences).
In addition the Prosecutor General can perform any act to which a prosecution service is authorised by law.
As the highest authority in the prosecution service, the Prosecutor General may issue orders and circulars, which all the prosecutors are bound to follow. Besides this, the deputies to the Prosecutor General and the heads of the departments at the office of the Prosecutor General may issue circulars with the same binding force. A compilation of guiding opinions of the office of the Prosecutor General also regularly comes out, ensuring unified practice of prosecutors all over the country. These orders, circulars and guiding opinions are not formal laws as no binding force is attached to them outside the prosecution service. Further tools in the direction and supervision of the service are the recurring inspections held at subordinate prosecution offices by superior prosecutors. Owing to the above-mentioned methods of steering and control, the operation of the service may be deemed consistent to a great extent.
The prosecution service is organised on four levels following the organisation of the courts. At the highest level is the office of the Prosecutor General in Budapest, the next level consists of the three regional prosecution offices fulfilling tasks exclusively in relation to the court proceedings at the regional courts of appeal set up recently. The next level in the hierarchy embraces the county prosecution offices in the 19 counties of Hungary and the prosecution office of the Capital in Budapest. At the lowest level of the organisation are the local prosecution offices, whose territory of operation is determined by the 143/1997 Resolution of the President of the Republic and usually includes several towns and villages.
The military prosecution offices are a relatively distinct part of the prosecution service and are headed by the chief military prosecutor, who is one of the deputies of the Prosecutor General. The scope of the military criminal procedure is regulated in Sect. 470 CCP.
There is only one prosecutorial unit with competency nation-wide, the Central Prosecutorial Investigation Office, within the structure of the prosecution office of the Capital, which conducts investigations of great importance falling in the sphere of prosecutorial investigation. The competence of the Central Prosecutorial Investigating Office is specified by Sect. 49 subs. 2 of Order 11/2003 of the Prosecutor General. This agency investigates, for instance, cases where the alleged offender is a judge, prosecutor, a person enjoying immunity from prosecution granted by public law (mainly MPs) or leader of an investigating authority. It is also entitled to proceed when serious crimes are committed against the above-mentioned persons.
The prosecution service is a nation-wide, hierarchical organisation. Although the service itself is independent, and has to observe the law exclusively, the individual prosecutors are bound to follow the instructions of superior prosecutors and thus ultimately those of the Prosecutor General. The basic point of difference between the status of prosecutors and judges can be found here. Whilst the prosecution service is as independent as the courts, individual prosecutors do not enjoy the same autonomy as judges in their decision-making. The higher-ranking prosecutor’s power to give instructions, however, is not without limits. The prosecutor is obliged to reject any instruction, which when carried out would involve a criminal offence or contravention. Moreover, he may also refuse to carry out an instruction when, by following the instruction, his life, health or corporal integrity would be seriously and directly endangered. It is of more practical importance that if the prosecutor considers the instruction to be incompatible with his professional opinion, he may ask for an exemption from proceeding with the case. This request should be put in writing and be motivated. Compliance with such a request cannot be denied, the prosecutor concerned should be substituted by someone else or the superior prosecutor can take over the case. In addition, the prosecutor may refrain from acting on an instruction before it is issued in written form.
The internal structure of individual prosecution offices, depending on their size, is divided into departments, divisions and groups according to different fields of competences exercised by the prosecution service. For the organisation of the office of the Prosecutor General and the county prosecution offices see Figures 1-2.
The prosecution service exercises rights specified by law relating to investigation, participates in judicial proceedings and supervises the legality of implementation of punishments. At the same time, the service has numerous tasks outside the realm of criminal law, e.g. supervision of legal rules and decisions issued by administrative bodies of any level lower than the Government, and the lawful operation of foundations and NGOs.
Monopoly over prosecution and its limits
The decision on whether to prosecute or dismiss a case is exclusively within the power of the prosecutor, he can only be instructed ex officio or on complaint by a higher ranking prosecutor. If the prosecutor decides to bring the case to the court, no complaint is allowed against this decision, while in the case of dismissal the persons concerned have the right to lodge a complaint, which is adjudged by the superior prosecutor.
The Prosecutor General may issue instructions on prosecution policy, though his power is very restricted. The principle of legality (mandatory prosecution) can be identified as the major limitation on the discretionary power of prosecutors, which, in every phase of the procedure, as a rule puts an obligation on the authorities to proceed with the case provided the conditions set by the Code are fulfilled. Hence, even the Prosecutor General may not require the prosecutor working on a case to refrain from submitting an indictment, if the facts of the case, in the light of procedural rules, warrant prosecution. The Code of Criminal Procedure specifies the conditions under which the prosecutor may dismiss the charge even if the perpetration of a criminal offence is established. On the other hand, when the conditions of non-prosecution are met there is no other choice for the prosecutor than to conclude the case, following the legal rules, in a way specified in the Code. It is evident that the relevant provisions contain several conditions that can be established by balancing numerous factors (e.g. ‘if the postponement of prosecution is expected to influence the future conduct of the offender favourably’ or ‘if the danger or harm to society caused by the offence is so insignificant that imposition of any punishment is unnecessary’), and hence through giving guidance on the proper evaluation of certain circumstances the Prosecutor General can influence the practice of the prosecutors.
The monopoly over the prosecution is limited by the existence of so-called private prosecution, that is, the victim has the right to prosecute certain, not too serious, offences like criminal libel or defamation. In this procedure the prosecutor has nothing to do, since the victim should report the case to the court, the proceeding judge may order an investigation and the victim should represent the prosecution at trial. At the same time the prosecutor may take over the prosecution from the victim at any stage of the proceedings, thereby transforming the procedure into an ordinary one. This is, however, exceptional, and may only occur when public prosecution seems necessary on the basis of public interest or private interest of great importance.
If the prosecutor has taken over the prosecution, or in the ordinary procedure it turns out later that the offence that is the subject of the proceedings is subject of a private prosecution, the prosecutor is not entitled to dismiss the case or drop the charge at the trial. The prosecutor’s decision not to proceed further with the case has to be notified to the victim who can take up the prosecution. Hence, ultimately the victim may dispose of the prosecution.
The new CCP introduced the legal instrument of ‘supplementary private prosecution’ which can be considered the other restraint on the prosecutor’s monopoly over prosecution. This new remedy was necessitated by the increasing recognition of the rights of the victim in the criminal procedure, as well as by the pressing need for correcting prosecutorial mistakes. In pursuance of Sect. 229 CCP, if the superior prosecutor (or in the case of discontinuation by the investing authority, the prosecutor) has found the complaint against dismissal unfounded and supplementary private prosecution is not excluded by law, or if the prosecution has been partially waived, the victim, within 30 days from his notification, may submit a special indictment which the prosecutor shall forward to the court with the case file.
Supplementary private prosecution is allowed if the dismissal was based on the reason that the act does not constitute a criminal offence, the evidence available is not sufficient to support prosecution, an excuse or justification is established, or there is any other obstacle to criminal proceedings (e.g. the period of limitation has been exceeded). Insanity, infancy and the death of the suspect preclude the possibility of supplementary private prosecution.
If the court considers the indictment of the supplementary private prosecutor groundless, it refuses to proceed with the case; otherwise, the ordinary procedure takes its course.
Alternatives to prosecution
Upon the completion of an investigation the police, with the exception of cases where it is entitled to discontinue the proceedings at their own initiative, shall forward the files of the investigation to the prosecution office with recommendations.
The prosecutor has several options besides bringing the case to the court; he may discontinue the case, postpone or partially waive the prosecution. It is a general rule that the decisions of investigating authorities and the prosecutor have to be motivated and made known to persons concerned. These persons may lodge a complaint against the decisions of the prosecutor, which will be dealt with by the superior prosecutor.
A. Dismissal due to technicalities
The case must be dropped with a formal decision when it is established that no criminal offence was committed, the evidence obtained is insufficient, or in the case of a confirmed defense (be it a justification, excuse or other hindrance in the way of the proceedings such as a pardon, death of the suspect, res judicata).
With the CCP, the legislator enacted an additional ground for dismissal with a view to shortening the length of the pre-trial phase. The investigation has to be concluded when two years have passed since the first interrogation of the suspect.
B. Conditional or unconditional dismissal on expediency grounds
The county chief prosecutor, or his deputy in criminal matters, may discontinue the investigation in the case of a collaborating suspect or undercover agent, if the suspect cooperates with the authorities in discovering evidence in other investigations or in relation to other suspects in his own case, or if the agent has committed the crime in the course of a secret mission, provided the interest relating to the cooperation or to the success of the covert investigation is considered to be more significant than strict observance of the legality principle.
This option, which is a clear manifestation of the expediency principle, has been available since 1994, and was enacted due to the needs felt in fighting organised crime. Dismissal on this ground is exceptional and only a few cases a year are registered in the statistics.
A special tool for dealing with petty crime is the possibility of dismissal based on the insignificance of the danger to society caused by the offence. Danger to society is an element of the notion of criminal offence as provided in the Criminal Code. As a result, the lack of danger to society or its insignificance precludes the establishment of an offence, and may serve as a basis to drop the case without formally offending against the principle of legality.
Evaluating the degree of danger posed by the crime to society calls for complex analysis of the facts of the case, which is why the decision belongs with the prosecutor. The prosecutor usually takes the following factors into account: the seriousness and nature of the offence, the consequences, compensation to the victim, decriminalisation in preparation and any other objective mitigating circumstances.
The procedure carries elements of consensus as in ordinary cases the prosecutor administers reprimand and complaint against this reprimand automatically leads to filing an indictment with the court.
C. Partial waiver of prosecution
Prosecution may be partially waived in relation to offences that are of no significance compared to other offences forming the subject of the ongoing criminal proceedings. The relevant provisions of the CCP, having no other purpose than to optimise resources, are construed in prosecutorial practice broadly so that not only the less significant offences fall within the scope of the waiver, but also, beyond a certain number, offences with the same gravity. Behind this interpretation is the recognition that it is irrelevant for punishment whether the indictment contains 50, 75 or 100 counts of similar offences.
D. Postponing prosecution
Essentially, postponement of prosecution is probation by the prosecutor. There are one general and two special forms of postponement, the latter two apply to the offence of omission to support a relative (Sect. 196 CC) and to certain drug offences.
The prosecutor may postpone the prosecution of an offence – for a period of one to two years – which carries a penalty not exceeding three years (in the case of juveniles five years) of imprisonment if, taking into account the gravity of the offence in concreto and any extraordinary mitigating circumstances, postponing prosecution is expected to influence the future conduct of the offender favourably. The office of the Prosecutor General issued a guideline recommending the application of postponement of prosecution in cases where the prosecutor would move for probation at the court, but the court procedure is not considered necessary to achieve the goals of the proceedings.
Section 283 CC provides a special ground for discontinuing drug cases of not too serious a nature if the offender has undergone continuous medical treatment against drug addiction for at least six months. Promoting the application of this provision, the prosecutor is allowed to postpone the prosecution should the defendant undertake to participate in the treatment. Also, the prosecution of the offence of omission to support a relative can be postponed if the future fulfilment of this duty can be expected.
Postponement may be unconditional or offered on condition that the suspect complies with certain rules of conduct, e.g. undergoing medical treatment or avoiding certain public places, or fulfils certain requirements such as compensation or redress to the victim, payment of a sum of money for public purposes, or community service. In the case of conditional postponement, the prosecutor first obtains a report from the probation officer on the ability and willingness of the suspect to meet the conditions, and finally interviews the suspect so that he can decide on the obligations to prescribe. The suspect must agree with the rules of conduct, whilst compensation or redress requires the consent of the victim as well. Thereby the procedure shows elements of mediation.
For the success of unconditional postponement of prosecution, the suspect merely has to refrain from committing another offence during the probationary period.
Should an indictment be submitted to the court containing an offence committed during the period of the postponement, or when the suspect seriously breaks the rules of conduct or does not fulfil his obligations, the prosecutor brings the charges to court. If the period of postponement has passed successfully, the prosecutor shall dismiss the case.
The prosecutor’s power of initiating simplified court procedures
The CCP contains several special forms of abbreviated court procedures designed to accelerate proceedings. These procedures may be initiated by the prosecutor exclusively, hence the court may not apply the relevant provisions at its own initiative, even if the conditions of application are considered to be met. The simplified procedures are as follows:
A. Summary procedure
The prosecutor shall bring the defendant before the court within 15 days from perpetration of the offence, if the case belongs to the jurisdiction of the local court or military criminal procedure, the offence carries imprisonment not exceeding eight years, the facts and legal basis of the case are clear, and the defendant has confessed to the offence or has been caught red-handed. If the other requirements are met, in the case of in flagrante delicto, the procedure shall be initiated. Upon the notification by the prosecutor, the court shall set the hearing and try the case immediately. Should the court consider the conditions of the procedure have not been complied with, it will send the file back to the prosecutor and an ordinary investigation takes place.
B. Penal order
Upon the motion of the prosecutor introduced in the indictment the court may impose, without trial, suspended imprisonment, a fine, certain supplementary punishments (inter alia prohibition from driving vehicles or practising certain professions), probation or a reprimand, provided the offence prosecuted does not carry a penalty exceeding three years imprisonment. This on the conditions that the other legal conditions for imposing such penalties and measures are met, the case is free from legal and evidence problems, the defendant confessed to the offence, and there are indications that the objects of the criminal procedure can be achieved by dispensing with the hearing stage. No appeal is permitted against the penal order; the parties, however, may apply for trial, upon which the court is compelled to hold trial according to the ordinary rules.
C. Procedure upon waiver of trial
The prosecutor may file a motion for an open session procedure of the court instead of holding a trial, if the defendant has confessed to the crime and initiated this procedure with the prosecutor. At the open session, the accused should waive his right to trial and plead guilty to the charges. If the plea is considered to be voluntary, reliable and made with full capacity, no further evidence will be introduced and the judge will pass sentence. The court shall base the punishment on reduced upper limits. This sentencing discount is rather significant. For instance, if the offence carries imprisonment from two to eight years, the punishment imposed will not exceed three years.
The Relation between the Public Prosecutor and the Minister of Justice
The organisation and functions of the public prosecution service
The internal organisation and functions of the public prosecution service and the competences exercised by prosecutors are regulated at different levels in the hierarchy of laws. The basic rules are laid down in Chapter IX of the Constitution, while the detailed provisions concerning the service can be found in Act V of 1972 on the public prosecution service of the Republic of Hungary and as well as in Order No. 25/2003 of the Prosecutor-General, issued upon the authorisation granted in the Act. For better understanding of the constitutional position of the public prosecution service in Hungary.
The Prosecutor General is appointed for a six-year term by the Parliament upon the recommendation of the President of the Republic, while the deputies to the Prosecutor General are appointed by the President of the Republic on the proposal of the Prosecutor General. The appointment of all other prosecutors is exclusively within the power of the Prosecutor General. Besides the fully-fledged prosecutors, the functions of the service are performed by junior prosecutors, trainee prosecutors and investigators of the prosecution service, exercising limited powers under the supervision of senior prosecutors or the head of the division they are working in.
The Prosecutor General is accountable to the Parliament and is obliged to report on the activities of the prosecution service to the Parliament on an annual basis. This report is debated and voted on by the MPs, though no sanctions are provided in the Constitution or any other Act in case of refusal. Interpellations and questions may also be addressed by MPs to the Prosecutor General, which he is bound to answer. As different interpretations arose concerning the legal status and accountability of the Prosecutor General, he submitted a motion to the Constitutional Court asking for guidance on the provisions of the Constitution. In its decision of February 16, 2004 (383/G/2003) the Constitutional Court stated that, although the Prosecutor General may be questioned on both general matters and specific cases, the scope of his replies is restrained by two factors. Namely, the content of his answer should not infringe fundamental constitutional rights of individual citizens such as the right to a good reputation or privacy of personal data and should not endanger the fulfilment of constitutional tasks of the prosecution service, for instance should not expose the facts of an ongoing investigation. The Court also pronounced that the Prosecutor General and the prosecution service are not subordinate to the Parliament. Accordingly no instruction, whether it is direct or oblique, may be issued to them by the Parliament or a Committee of a Parliament in relation to a particular decision. The Prosecutor General is not politically accountable for his decisions in particular cases, and may not be called to account or be discharged when Parliament does not accept his answer to a question. The activities of the prosecution service may only be influenced by Parliament through legislation, and the only possible way of taking action against the Prosecutor General, on the basis of dissatisfaction with his official activities, is to not re-elect him upon the completion of his term. Before the end of his term, the Prosecutor General may only be discharged in the case of having been convicted for committing a crime or having become incapable of fulfilling his duties.
Pursuant to Sect. 20 subs. 5 of the Act V of 1972, the prosecution service is independent and subject to law only. Consequently, neither in general matters nor in relation to specific cases, may the Government or the Minister of Justice issue instructions to the public prosecution service.
According to the Constitution, the public prosecution service is headed and directed by the Prosecutor General. Furthermore, based on Sect. 5 of Act V of 1972, the Prosecutor General is vested with competences in the field of public law, criminal law, and in general matters of administration of justice as follows.
The Prosecutor General:
- is entitled to participate in an advisory status in the sittings of the Parliament, and the plenary sittings of the Constitutional Court; has the power to initiate the issuing, amendment or abrogation of legal rules by the Government, the Ministers or any other governmental agencies having national competence, has the right to make preliminary remarks on the legality of the drafts of any Act, decree of the Government or ministerial decree; and is entitled to submit motions on matters specified by law to the Constitutional Court (public law competences);
- exercises his rights specified by law in the procedure for uniformity of law in the Supreme Court. This special procedure is aimed at securing unity of the interpretation of laws in the course of judicial process. This procedure may be initiated by the President of the Supreme Court, the heads of the divisions (Colleges) within the Supreme Court and the Prosecutor General if a theoretical problem has arisen, divergence of interpretation of laws is being experienced, or the Supreme Court intends to deviate from one of its previous decisions. The special bench for this process is composed of five or seven Supreme Court judges and its decisions have binding force on the courts;
- is entitled to exercise his rights and fulfil his duties provided in separate Acts as a member of the National Council of Justice. The National Council of Justice is the central administrative body of the courts, and consists of nine elected judges, two MPs designated by the Constitutional and Justice Committee and the Budget and Finance Committee of the Parliament, and four ex officio members: the Minister of Justice, the Prosecutor General, the President of National Bar Association, and the President of the Supreme Court, who acts as President of the Council. The Council has decision-making authority in all administrative matters, and supervises the administrative activities of presidents of the appellate and regional courts;
- prepares his suggestions for the budget of the prosecution service, which is submitted by the Government to the Parliament as part of the central budget (competences in general matters of administration of justice). According to an amendment in 2003 of the laws concerned, the Prosecutor General and the National Council of Justice prepare the budget proposal of the prosecution service and the courts respectively. The Government is not entitled to alter those proposals, and thereby they automatically become part of the proposal of the general budget and shall be submitted to the Parliament;
- initiates suspension of immunity in case of crimes or administrative offences (contraventions) committed by persons immune from prosecution, or, if the law requires the consent of a body or person to start criminal proceedings, he can request such consent; is entitled to draw any police investigation into the competence of the prosecution service; in the course of the prosecutorial investigation has the right to employ members of other investigating authorities with the consent of the national head of the respective authority; initiates at the Supreme Court the review of the final judgement in criminal cases as defined by the Code on Criminal Procedure, or can submit a motion for legal remedy in the interests of legality (criminal law competences).
In addition the Prosecutor General can perform any act to which a prosecution service is authorised by law.
As the highest authority in the prosecution service, the Prosecutor General may issue orders and circulars, which all the prosecutors are bound to follow. Besides this, the deputies to the Prosecutor General and the heads of the departments at the office of the Prosecutor General may issue circulars with the same binding force. A compilation of guiding opinions of the office of the Prosecutor General also regularly comes out, ensuring unified practice of prosecutors all over the country. These orders, circulars and guiding opinions are not formal laws as no binding force is attached to them outside the prosecution service. Further tools in the direction and supervision of the service are the recurring inspections held at subordinate prosecution offices by superior prosecutors. Owing to the above-mentioned methods of steering and control, the operation of the service may be deemed consistent to a great extent.
The prosecution service is organised on four levels following the organisation of the courts. At the highest level is the office of the Prosecutor General in Budapest, the next level consists of the three regional prosecution offices fulfilling tasks exclusively in relation to the court proceedings at the regional courts of appeal set up recently. The next level in the hierarchy embraces the county prosecution offices in the 19 counties of Hungary and the prosecution office of the Capital in Budapest. At the lowest level of the organisation are the local prosecution offices, whose territory of operation is determined by the 143/1997 Resolution of the President of the Republic and usually includes several towns and villages.
The military prosecution offices are a relatively distinct part of the prosecution service and are headed by the chief military prosecutor, who is one of the deputies of the Prosecutor General. The scope of the military criminal procedure is regulated in Sect. 470 CCP.
There is only one prosecutorial unit with competency nation-wide, the Central Prosecutorial Investigation Office, within the structure of the prosecution office of the Capital, which conducts investigations of great importance falling in the sphere of prosecutorial investigation. The competence of the Central Prosecutorial Investigating Office is specified by Sect. 49 subs. 2 of Order 11/2003 of the Prosecutor General. This agency investigates, for instance, cases where the alleged offender is a judge, prosecutor, a person enjoying immunity from prosecution granted by public law (mainly MPs) or leader of an investigating authority. It is also entitled to proceed when serious crimes are committed against the above-mentioned persons.
The prosecution service is a nation-wide, hierarchical organisation. Although the service itself is independent, and has to observe the law exclusively, the individual prosecutors are bound to follow the instructions of superior prosecutors and thus ultimately those of the Prosecutor General. The basic point of difference between the status of prosecutors and judges can be found here. Whilst the prosecution service is as independent as the courts, individual prosecutors do not enjoy the same autonomy as judges in their decision-making. The higher-ranking prosecutor’s power to give instructions, however, is not without limits. The prosecutor is obliged to reject any instruction, which when carried out would involve a criminal offence or contravention. Moreover, he may also refuse to carry out an instruction when, by following the instruction, his life, health or corporal integrity would be seriously and directly endangered. It is of more practical importance that if the prosecutor considers the instruction to be incompatible with his professional opinion, he may ask for an exemption from proceeding with the case. This request should be put in writing and be motivated. Compliance with such a request cannot be denied, the prosecutor concerned should be substituted by someone else or the superior prosecutor can take over the case. In addition, the prosecutor may refrain from acting on an instruction before it is issued in written form.
The internal structure of individual prosecution offices, depending on their size, is divided into departments, divisions and groups according to different fields of competences exercised by the prosecution service. For the organisation of the office of the Prosecutor General and the county prosecution offices see Figures 1-2.
The prosecution service exercises rights specified by law relating to investigation, participates in judicial proceedings and supervises the legality of implementation of punishments. At the same time, the service has numerous tasks outside the realm of criminal law, e.g. supervision of legal rules and decisions issued by administrative bodies of any level lower than the Government, and the lawful operation of foundations and NGOs.
Monopoly over prosecution and its limits
The decision on whether to prosecute or dismiss a case is exclusively within the power of the prosecutor, he can only be instructed ex officio or on complaint by a higher ranking prosecutor. If the prosecutor decides to bring the case to the court, no complaint is allowed against this decision, while in the case of dismissal the persons concerned have the right to lodge a complaint, which is adjudged by the superior prosecutor.
The Prosecutor General may issue instructions on prosecution policy, though his power is very restricted. The principle of legality (mandatory prosecution) can be identified as the major limitation on the discretionary power of prosecutors, which, in every phase of the procedure, as a rule puts an obligation on the authorities to proceed with the case provided the conditions set by the Code are fulfilled. Hence, even the Prosecutor General may not require the prosecutor working on a case to refrain from submitting an indictment, if the facts of the case, in the light of procedural rules, warrant prosecution. The Code of Criminal Procedure specifies the conditions under which the prosecutor may dismiss the charge even if the perpetration of a criminal offence is established. On the other hand, when the conditions of non-prosecution are met there is no other choice for the prosecutor than to conclude the case, following the legal rules, in a way specified in the Code. It is evident that the relevant provisions contain several conditions that can be established by balancing numerous factors (e.g. ‘if the postponement of prosecution is expected to influence the future conduct of the offender favourably’ or ‘if the danger or harm to society caused by the offence is so insignificant that imposition of any punishment is unnecessary’), and hence through giving guidance on the proper evaluation of certain circumstances the Prosecutor General can influence the practice of the prosecutors.
The monopoly over the prosecution is limited by the existence of so-called private prosecution, that is, the victim has the right to prosecute certain, not too serious, offences like criminal libel or defamation. In this procedure the prosecutor has nothing to do, since the victim should report the case to the court, the proceeding judge may order an investigation and the victim should represent the prosecution at trial. At the same time the prosecutor may take over the prosecution from the victim at any stage of the proceedings, thereby transforming the procedure into an ordinary one. This is, however, exceptional, and may only occur when public prosecution seems necessary on the basis of public interest or private interest of great importance.
If the prosecutor has taken over the prosecution, or in the ordinary procedure it turns out later that the offence that is the subject of the proceedings is subject of a private prosecution, the prosecutor is not entitled to dismiss the case or drop the charge at the trial. The prosecutor’s decision not to proceed further with the case has to be notified to the victim who can take up the prosecution. Hence, ultimately the victim may dispose of the prosecution.
The new CCP introduced the legal instrument of ‘supplementary private prosecution’ which can be considered the other restraint on the prosecutor’s monopoly over prosecution. This new remedy was necessitated by the increasing recognition of the rights of the victim in the criminal procedure, as well as by the pressing need for correcting prosecutorial mistakes. In pursuance of Sect. 229 CCP, if the superior prosecutor (or in the case of discontinuation by the investing authority, the prosecutor) has found the complaint against dismissal unfounded and supplementary private prosecution is not excluded by law, or if the prosecution has been partially waived, the victim, within 30 days from his notification, may submit a special indictment which the prosecutor shall forward to the court with the case file.
Supplementary private prosecution is allowed if the dismissal was based on the reason that the act does not constitute a criminal offence, the evidence available is not sufficient to support prosecution, an excuse or justification is established, or there is any other obstacle to criminal proceedings (e.g. the period of limitation has been exceeded). Insanity, infancy and the death of the suspect preclude the possibility of supplementary private prosecution.
If the court considers the indictment of the supplementary private prosecutor groundless, it refuses to proceed with the case; otherwise, the ordinary procedure takes its course.
Alternatives to prosecution
Upon the completion of an investigation the police, with the exception of cases where it is entitled to discontinue the proceedings at their own initiative, shall forward the files of the investigation to the prosecution office with recommendations.
The prosecutor has several options besides bringing the case to the court; he may discontinue the case, postpone or partially waive the prosecution. It is a general rule that the decisions of investigating authorities and the prosecutor have to be motivated and made known to persons concerned. These persons may lodge a complaint against the decisions of the prosecutor, which will be dealt with by the superior prosecutor.
A. Dismissal due to technicalities
The case must be dropped with a formal decision when it is established that no criminal offence was committed, the evidence obtained is insufficient, or in the case of a confirmed defense (be it a justification, excuse or other hindrance in the way of the proceedings such as a pardon, death of the suspect, res judicata).
With the CCP, the legislator enacted an additional ground for dismissal with a view to shortening the length of the pre-trial phase. The investigation has to be concluded when two years have passed since the first interrogation of the suspect.
B. Conditional or unconditional dismissal on expediency grounds
The county chief prosecutor, or his deputy in criminal matters, may discontinue the investigation in the case of a collaborating suspect or undercover agent, if the suspect cooperates with the authorities in discovering evidence in other investigations or in relation to other suspects in his own case, or if the agent has committed the crime in the course of a secret mission, provided the interest relating to the cooperation or to the success of the covert investigation is considered to be more significant than strict observance of the legality principle.
This option, which is a clear manifestation of the expediency principle, has been available since 1994, and was enacted due to the needs felt in fighting organised crime. Dismissal on this ground is exceptional and only a few cases a year are registered in the statistics.
A special tool for dealing with petty crime is the possibility of dismissal based on the insignificance of the danger to society caused by the offence. Danger to society is an element of the notion of criminal offence as provided in the Criminal Code. As a result, the lack of danger to society or its insignificance precludes the establishment of an offence, and may serve as a basis to drop the case without formally offending against the principle of legality.
Evaluating the degree of danger posed by the crime to society calls for complex analysis of the facts of the case, which is why the decision belongs with the prosecutor. The prosecutor usually takes the following factors into account: the seriousness and nature of the offence, the consequences, compensation to the victim, decriminalisation in preparation and any other objective mitigating circumstances.
The procedure carries elements of consensus as in ordinary cases the prosecutor administers reprimand and complaint against this reprimand automatically leads to filing an indictment with the court.
C. Partial waiver of prosecution
Prosecution may be partially waived in relation to offences that are of no significance compared to other offences forming the subject of the ongoing criminal proceedings. The relevant provisions of the CCP, having no other purpose than to optimise resources, are construed in prosecutorial practice broadly so that not only the less significant offences fall within the scope of the waiver, but also, beyond a certain number, offences with the same gravity. Behind this interpretation is the recognition that it is irrelevant for punishment whether the indictment contains 50, 75 or 100 counts of similar offences.
D. Postponing prosecution
Essentially, postponement of prosecution is probation by the prosecutor. There are one general and two special forms of postponement, the latter two apply to the offence of omission to support a relative (Sect. 196 CC) and to certain drug offences.
The prosecutor may postpone the prosecution of an offence – for a period of one to two years – which carries a penalty not exceeding three years (in the case of juveniles five years) of imprisonment if, taking into account the gravity of the offence in concreto and any extraordinary mitigating circumstances, postponing prosecution is expected to influence the future conduct of the offender favourably. The office of the Prosecutor General issued a guideline recommending the application of postponement of prosecution in cases where the prosecutor would move for probation at the court, but the court procedure is not considered necessary to achieve the goals of the proceedings.
Section 283 CC provides a special ground for discontinuing drug cases of not too serious a nature if the offender has undergone continuous medical treatment against drug addiction for at least six months. Promoting the application of this provision, the prosecutor is allowed to postpone the prosecution should the defendant undertake to participate in the treatment. Also, the prosecution of the offence of omission to support a relative can be postponed if the future fulfilment of this duty can be expected.
Postponement may be unconditional or offered on condition that the suspect complies with certain rules of conduct, e.g. undergoing medical treatment or avoiding certain public places, or fulfils certain requirements such as compensation or redress to the victim, payment of a sum of money for public purposes, or community service. In the case of conditional postponement, the prosecutor first obtains a report from the probation officer on the ability and willingness of the suspect to meet the conditions, and finally interviews the suspect so that he can decide on the obligations to prescribe. The suspect must agree with the rules of conduct, whilst compensation or redress requires the consent of the victim as well. Thereby the procedure shows elements of mediation.
For the success of unconditional postponement of prosecution, the suspect merely has to refrain from committing another offence during the probationary period.
Should an indictment be submitted to the court containing an offence committed during the period of the postponement, or when the suspect seriously breaks the rules of conduct or does not fulfil his obligations, the prosecutor brings the charges to court. If the period of postponement has passed successfully, the prosecutor shall dismiss the case.
The prosecutor’s power of initiating simplified court procedures
The CCP contains several special forms of abbreviated court procedures designed to accelerate proceedings. These procedures may be initiated by the prosecutor exclusively, hence the court may not apply the relevant provisions at its own initiative, even if the conditions of application are considered to be met. The simplified procedures are as follows:
A. Summary procedure
The prosecutor shall bring the defendant before the court within 15 days from perpetration of the offence, if the case belongs to the jurisdiction of the local court or military criminal procedure, the offence carries imprisonment not exceeding eight years, the facts and legal basis of the case are clear, and the defendant has confessed to the offence or has been caught red-handed. If the other requirements are met, in the case of in flagrante delicto, the procedure shall be initiated. Upon the notification by the prosecutor, the court shall set the hearing and try the case immediately. Should the court consider the conditions of the procedure have not been complied with, it will send the file back to the prosecutor and an ordinary investigation takes place.
B. Penal order
Upon the motion of the prosecutor introduced in the indictment the court may impose, without trial, suspended imprisonment, a fine, certain supplementary punishments (inter alia prohibition from driving vehicles or practising certain professions), probation or a reprimand, provided the offence prosecuted does not carry a penalty exceeding three years imprisonment. This on the conditions that the other legal conditions for imposing such penalties and measures are met, the case is free from legal and evidence problems, the defendant confessed to the offence, and there are indications that the objects of the criminal procedure can be achieved by dispensing with the hearing stage. No appeal is permitted against the penal order; the parties, however, may apply for trial, upon which the court is compelled to hold trial according to the ordinary rules.
C. Procedure upon waiver of trial
The prosecutor may file a motion for an open session procedure of the court instead of holding a trial, if the defendant has confessed to the crime and initiated this procedure with the prosecutor. At the open session, the accused should waive his right to trial and plead guilty to the charges. If the plea is considered to be voluntary, reliable and made with full capacity, no further evidence will be introduced and the judge will pass sentence. The court shall base the punishment on reduced upper limits. This sentencing discount is rather significant. For instance, if the offence carries imprisonment from two to eight years, the punishment imposed will not exceed three years.
