The criminal procedure against juveniles in hungary. The preventive patronage
| Autor | Csongor Herke DSc |
| Páginas | 145-152 |
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It shall be noted that Hungary belongs to the civil law legal system, the primary (and almost exclusive) feature of which is that laws are written, whereas the common law system based on the law making of the judges1. In Hungary, judicial legislation and case law generally have only a theoretically binding role when a judge is deciding a given case (meaning that the judge has more freedom to interpret the text of a statue)2. At the same time, both the Constitutional Court (decisions of the Constitutional Court) and the Supreme Court (resolutions for the uniformity of law) may issue decisions which are binding to lower courts3.
Laws stand out among the acts. The highest law source in Hungary is the Constitution from 2011. Fundamental acts regarding social and economic order, fundamental rights and duties of citizens must be composed on a legal level. For this very reason, the main regulations of both criminal law (Act C of 2012) and law of criminal procedure (Act XIX of 1998) may be found in the
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law. The third important act is the law of execution of sentences (Act CCXL of 2013).
However, the law also regulates numerous other matters related to the law of criminal procedure4:
x primarily the organisational laws must be emphasized (e.g., the Act
CLXI of 2011 regarding the establishment and administration of the courts, the Act CLXIII of 2011 dealing with the prosecution, the Act XXXIV of 1994 concerning the police and the Act XI of 1998 regarding solicitors);
x the next level of judicial hierarchy are the decrees, the orders of individual ministers, primarily the Minister of the Interior and the Minister of Justice, (e.g., Act 56/2014of the Ministry of the Interior regarding police jails, Act 16/2014 of the Ministry of Justice concerning regulations for the execution of imprisonment and preventive arrest and Act 14/2008 of the Ministry of Justice concerning remuneration of witnesses, etc.). Individual framework regulations may also be filled in by even lower level regulations, such as those of local governments.
The main source for criminal procedure is, therefore, the Act XIX of 1998 on Criminal Proceedings which would have originally entered into force on 1st January, 2000. However, due to numerous modifications, this could take place only on 1st July, 2003. The CPC consists of 608 sections and it is divided into the following parts:
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Static part (section 1 to 163)
I.Basic provisions (section 1 to 11)
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The court (section 12 to 27)
III.The prosecutor (section 28 to 34)
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The investigating authorities (section 35 to 41)
V.The participants (section 42 to 59)
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Regulation on procedural actions (section 60 to 74/B)
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The evidence (section 75 to 125)
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Coercive measures (section 126 to 163)
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Main provisions of the investigation (section 164 to 233)
I. Investigation (section 164 to 215)
II. Indictment (section 216 to 233)
3. Provisions of the court procedure (section 234 to 391)
I. The general rules of court procedure (section 234 to 262)Page 147
II. Preparation of a trial (section 263 to 280)
III. Procedure of first instance (section 281 to 344)
IV. Procedure of second instance (section 345 to 384)
V. Procedure of the third instance (section 385 to 401)
VI. Repeated procedure (section 402 to 407)
4. Extraordinary legal remedies (section 408 to 445)
I. Retrial (section 408 to 415)
II. Judicial review (section 416 to 429)
III.Procedure in case of a constitutional complaint (section 429/A to 429/C)
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Appeal on legal grounds (section 430 to 438)
V. Procedure for the uniformity of the law (section 439 to 445)
5. Separate procedures (section 446 to 554/R)
I. Criminal proceeding against juvenile offenders (section 446-468)
II. Military criminal proceeding (section 469 to 492)
III. Procedure based on private accusation (section 493 to 515)
IV. Allegation in court (section 516 to 525)
V. Procedure against an absent defendant (section 526 to 532)
VI. Waiver of trial (section 533 to 542/C)
VII. Omission of trial (section 543 to 550)
VIII. Procedure against persons enjoying immunity (section 551 to 554)
IX. Procedural rules concerning prominent cases (section 554/A to 554/O) -
Asset recovery process (section 554/P to 554/R)
6. Closing provisions (section 555 to 607)
I. Special procedures (section 555-587)
II. Enforcement of decisions (section 588 to 599)
III. Closing provisions (section 600-608 §)
The criminal procedure in Hungary contents three stages 5 :
The first stage is the investigation, which can be divided into two phases. The first is the tracking down of the unknown subject of the investigation (a.k.a. unsub), hence identifying the unsub. The second is the inquisition when the investigating authorities endeavours to collect sufficient evidence and may even apply coercive measures therefore6.
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The second stage of the criminal procedure is the so called intermediate proceeding, including the indictment (when the prosecutors’ office decides whether there is sufficient evidence to charge a person) and preparation of a trial (when the trial court decides whether a trial should be held against the defendant, arraignment)7.
The third stage is the procedure of the court. Inevitable part of this stage is the procedure of first instance and depending on whether an appeal is lodged procedure of second or third instance may be initiated. All the procedure of first, second and third instance is governed by different rules in the course of separate proceedings, which aims to speed up, simplify the criminal procedure (omission or waiver of trial) or just have different rules because of the unusual circumstances of the defendant (the defendant is a juvenile or enjoying immunity)8. The separate proceedings may not be confused...
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