HUN-2002-1-001
a) Hungary / b) Constitutional Court / c)   / d) 20-03-2002 / e) 14/2002 / f)   / g) Magyar Közlöny (Official Gazette), 2002/36 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
Institutions - Judicial bodies - Procedure.
Institutions - Judicial bodies - Ordinary courts - Criminal courts.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to be informed about the charges.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to have adequate time and facilities for the preparation of the case.
 
Keywords of the alphabetical index:
 
Court, prosecution, relations / Criminal procedure, guarantees / Indictment, widening.
 
Headnotes:
 
It is contrary to the right to a fair trial and the principle of separating clearly the functions of the court and the prosecution that the Code of Criminal Procedure orders the trial judge to inform the prosecutor when there is a possibility either of widening the scope of the indictment or of pressing charges against someone other than the accused based upon the facts contained by the indictment.
 
Summary:
 
A judge of a court of first instance who found that Article 171.2 of the Code of Criminal Procedure to be applied was unconstitutional stayed the proceedings and obtained a decision on the matter from the Constitutional Court. Under the first sentence of the challenged provision, during the trial the judge is obliged to draw the prosecutor's attention to the fact that widening the scope of indictment is possible. In the opinion of the initiating court, this rule infringes the right to an impartial court ensured by Article 57.1 of the Constitution.
 
The Code of Criminal Procedure prescribes that the functions of the prosecutor, the defence counsel and the court are separate from each other. The court decides on the criminal responsibility of the accused exclusively by reference to the facts contained in the indictment (Article 9). The Constitutional Court examined not only the first sentence of the contested provision, but also the second one according to which, during the trial the trial judge can draw the prosecutor's attention to the fact that based upon the facts contained in the indictment, it is possible to press charges against someone else.
 
In addition, the Constitutional Court reviewed Article 227 of the Code of Criminal Procedure, under which if there is a possibility of widening the scope of the indictment and the prosecutor is not present at the trial, the trial judge can postpone the trial in order to inform the prosecutor about it.
 
According to the Constitutional Court, after finishing the investigation it is only for the prosecutor to decide upon initiating criminal proceedings before the criminal court. The court proceeds based upon a lawful indictment and the court decides on the criminal responsibility of the accused exclusively by referring to the facts contained in the indictment. When informing the prosecutor about the possibility of widening the scope of the indictment, the court takes over the duty of the prosecutor. Consequently, the provision could be seen as questioning the impartiality of the judiciary.
 
It is also problematic that when the prosecutor is not present at the trial, the judge can postpone the trial to inform the prosecutor about the possibility of widening the scope of indictment. In this case the law did not even require the accused or his counsel to be notified about the steps made by the judge. It is an important guarantee for the defence to be aware of the nature and cause of the accusation against him, in order for him to prepare his defence to the new or at least widened charge.
 
Cross-references:
 
The Constitutional Court referred to its previous Decision 33/2001, in which it declared that the provision which regulates the cases involving the exclusion of judges in favour of the prosecution ensuring special rights for them, violates the right to a fair trial and the constitutional requirement of judicial impartiality (Decision 33/2001 of 11.07.2001, Bulletin 2001/2 [HUN-2001-2-007]).
 
Languages:
 
Hungarian.