The Master of Investigation

E dolgozat a Siegler Ügyvédi Iroda / Weil, Gotshal & Manges, az Új Jogtár és az Ars Boni által meghirdetett 2016. évi cikkíró pályázat keretében született.
Szerző: Lichtenstein András

The role of the prosecutor in the criminal investigation in Hungary

“In the criminal justice system, the people are represented by two separate yet equally important groups: The police who investigate crime, and the (…) prosecutors who prosecute the offenders. These are their stories.”
(Opening narration of Law & Order: UK)

Although the opening quote is borrowed from Law & Order: UK, a successful British police procedural and legal drama series, it might as well describe the Hungarian investigation procedure. In order to prove this statement, first I am going to break it down to its elements and introduce the relevant Hungarian legislation. I also invite the reader to go behind the scenes and take a closer look at the relationship between the police and the prosecutor and let me explain why the Hungarian prosecutor is called the “Master of Investigation”.

“In the criminal justice system…”

The main source of the Hungarian criminal procedural law is the Act XIX of 1998 on the Criminal Procedure (in the following: CPA). The CPA, being a single comprehensive code, contains all the statutory rules of the criminal procedure. Apart from the CPA, there are other important sources of law relevant to the criminal justice system and to the topic. The Fundamental Law of Hungary contains provisions in two sections regarding the police and the prosecution services. Moreover, these two bodies are governed by separate statutes as well: by the Act on the Police and the Act on the Prosecution Service.

“…the people are represented…”

The primary objective of criminal law is the legal assurance and protection of the peaceful coexistence. This general interest of the society (i.e. the people) is represented by the state through its authorities by the means of criminal law. From a criminal procedural point of view, this is manifested in the principle of legality and in the ex officio principle: Article 6 CPA obliges the investigating authority (i.e. the police) and the prosecutor to launch and conduct the procedure under specific statutory conditions. Based on this principle the police are required to investigate every single crime of every single offender and to uncover the relevant facts. On the other hand, the prosecutor is obliged to supervise or to conduct the investigation, to summarize the facts and to decide, whether to press charges, if so, to prosecute.

“…by two separate yet equally important groups…”

As already mentioned, there are two separate acts on the police and on the prosecution services. This already implies their separation, and the CPA also deals with them in separate chapters. As far as the efficiency of the criminal procedure is concerned, there is no doubt that the police and the prosecutor are equally important, but they are by no means equal. The latter is always the dominant party in their relationship.

It is also worth mentioning, that the division of procedural functions is included in the CPA, however it is not to be confused with the separation of the law enforcement agencies. It concerns the separation of prosecution, defence and sentencing, rather than the separation of the investigating and prosecuting authorities.

“…the police who investigate crime…”

Usually the first contact someone has with the criminal justice system is with the police. In the terminology of the CPA however, the term police rarely occurs. On the whole, the legislator preferred to use the more general expression “investigating authority”. Yet, the police are specifically declared as the general investigating authority in Article 36 CPA.

The investigation is the first, initial stage of the criminal procedure, aimed at the disclosure of the criminal offence, identification of the perpetrator and collection of the procedurally relevant data. As previously mentioned, it goes without saying, that the police are involved in the investigation, but when it comes right down to it, it is always the prosecutor, who has the last say. This is because after all the whole purpose of the investigation is to make the decision whether to charge.

“…and the prosecutors who prosecute the offenders.”

Of course, prosecutors do prosecute, but it would be foolish to say, that it is their only task. There is so much more to being a prosecutor, than merely pressing and representing charges and drafting indictments. As the ultimate purpose of the investigation is to establish whether there is sufficient evidence to provide a realistic prospect of conviction against the defendant, Article 28, paragraph 4 CPA provides that in order to make the decision whether to charge, the prosecutor has the investigation conducted by the investigating authority or investigates himself. For this reason, the investigation can also be seen as the preparation of the indictment.

It is a widely held view among Hungarian criminal justice scholars, that the prosecutor is the master of investigation. This concept is best described with the Latin term “dominus litis” and concerns the role of the prosecutor during the investigation.

But a real master needs powers, right? How does it manifest in the provisions of the CPA?

Lucky for him, being the master of the investigation, the prosecutor is granted a wide range of powers over the investigating authority by the legislator.

During the course of the investigation, the prosecutor is entitled to order the supplementation of crime reports and direct the investigating authority to perform certain investigating actions or order further investigation. He is also authorized to set a deadline for the completion of the investigation. Moreover, he can demand the inspection of the case files or request them to himself. Within his own sphere of authority, he even has the right to reverse and overrule the decisions of the investigating authority and to adjudicate the complaints made against the investigating authorities.

The fate of the whole investigation is also ruled by the prosecutor: he can initiate and terminate investigations, and even dismiss crime reports. Nevertheless, his most powerful legal means of all is drawing the whole investigation to himself.

Usually the prosecutor can delegate his rights to the investigating authority, relieving himself of the heavy caseload. There are however exceptions, called exclusive prosecutorial powers, which cannot be delegated. The CPA provides that certain criminal offences can only be investigated by the prosecutor. Article 29 gives a specified catalogue of these offences. The reasons these are referred to exclusive prosecutorial investigation may vary. They include but are not limited to crimes against the judicial system or certain crimes committed by or against members of the judiciary and other state officials. This is so, because the investigation of these usually requires a more complex legal approach and knowledge, which the prosecutor is more likely to possess than the investigating authority.

As for the relationship of the police and the prosecutor, there are four possible models describing their relations.

In most cases, the investigating authority investigates by itself and the prosecutor does not participate in the investigation. However, he is still obliged to supervise the legality of the investigation and the investigating authority has a duty of disclosure towards him about the course of the investigation.

There is further scheme, in which the investigating authority conducts the investigation on its own, but the prosecutor exercises his supervisory power to a greater extent, that is to say an increased supervision. This usually occurs, if the case is particularly complicated or more serious. Following this model, the prosecutor must inspect the case file at least once a month.

It is the third pattern, in which the prosecutor is in fact the real master of the investigation. In this scenario, the investigation is initiated by him or launched upon his order and he exercises all his above mentioned rights according to his full discretion.

The prosecutorial investigation is also seen as distinct, fourth model. As previously mentioned, there are criminal offences subjected to exclusive prosecutorial investigation ex lege, but any other offence can also be investigated by the prosecutor at his discretion. Still in these cases the prosecutor can make use of the investigating authorities to perform certain procedural actions, since he rarely has the special knowledge, specifically trained staff or the means required for the effective execution of the investigation.

One more interesting characteristic of the Hungarian prosecutor worth mentioning, especially compared to his English colleague, that he is obliged to objectivity. That is, he should also develop lines of investigation which may be favourable to the defence. In this respect, he must recover not only the damning, but the exculpating evidence as well, and needs to take both the aggravating and mitigating circumstances into consideration. This concept is called “material defence” and is laid down in Article 28, paragraph 1 CPA. The idea behind this provision originated in Germany, where the prosecutor’s office is referred to as the “most objective authority in the world”.

“These are their stories.”

In my article, I described the role of the police and public prosecutor, their relationship to one another and explained the meaning of the master of investigation concept. Another key thing to remember though, that the moment the prosecutor presses charges and files the indictment, he stops being the master of the procedure and becomes a mere party in the procedure in accordance with the principle of equality of arms.

However, the relationship between the two of them is a constantly developing story, still far from being over.

Last year, the Consultative Council of European Prosecutors (CCPE) of the Council of Europe has adopted its Opinion No. 10(2015) on “the role of prosecutors in criminal investigations” in order to improve the efficiency of the investigations and to promote good professional practices between prosecutors and investigating authorities.

As for Hungary, there is an ongoing recodification of the criminal procedural law in progress, coming shortly to an end, and a new Act on Criminal Procedure is expected to come into force in 2018. With direct prosecutorial control over the investigating authority being explicitly stated in the already published draft of the new CPA, the prosecutor is expected gain more power, thus making him an even more powerful master of the investigation.

All things considered, I believe the new CPA opens an exciting new chapter in the whole Hungarian criminal justice system and I am excited to see what the future holds.

Források, felhasznált irodalom
“Law & Order: UK” TV Intro:

1998. évi XIX. törvény a büntetőeljárásról

FANTOLY, Zsanett: The current questions of the Hungarian law of criminal procedure, LAP LAMBERT Academic Publishing, 2016.

HERKE, Csongor: The prosecutor’s legal status in comparative law perspective In: 2015 M-Sphere Book of Papers, 2015., pp. 83-90.
http://www.herke.hu/tan/15dupub.pdf

KARSAI, Krisztina – SZOMORA, Zsolt: Criminal law in Hungary, Wolters Kluwer, 2010.

CCPE Opinion No. 10 (2015) on the role of prosecutors in criminal investigations:
http://wcd.coe.int/ViewDoc.jsp?p=&Ref=CCPE(2015)3&Language=lanEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864&direct=true

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