Hungary’s legal system has been heavily influenced by Romano-Germanic law (continental law) therefore an important characteristic of criminal law is the comprehensive codification and the dominance of statutes as the sources of law. It can be distinguished from common law systems’ judge-made decisional law that gives primacy to prior court decisions: a previous legal case is binding for other courts when deciding different cases with similar facts. In Hungary case law is held to be secondary to statutory law.
The rules of substantive criminal law are contained by the Act C of 2012 on the Criminal Code which is divided into two main sections: General Part and Special Part. The General Part determines the scope of the Code, the essential categories of criminal responsibility, the conditions and preclusions of culpability as well as the punishments and criminal measures. The Special Part defines those acts that are labeled as crimes.
The most essential concept of criminal law is the definition of crime. Pursuant to our Penal Code, a crime is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which is dangerous for society and for which the law orders the infliction of punishment.
Hungarian law makes a distinction between two types of crimes: a crime is either a felony or a misdemeanor. Felony is an act of crime perpetrated intentionally, for which the law orders a punishment graver than imprisonment of two years. Any other act of crime is misdemeanor. This means that a felony is generally considered to be a crime of high seriousness, while a misdemeanor is not, and the law treats them differently.
The rulings of criminal procedure law are placed in the Act XIX of 1998 on the Hungarian Criminal Procedure Code. The Code lays down which organizations and in what framework of procedural authority can judge the crimes described in the Penal Code.
Basically, criminal proceeding starts with investigation. The investigating authorities (Police, National Tax and Customs Office) conduct the investigation independently or upon the order of the prosecutor. Their tasks include the exploration of the crime and the perpetrator besides tracing and securing evidence. The prosecutor acts as the public accuser. If the evidence gathered during the investigation confirms the guilt of the defendant without any doubt, the prosecutor files an indictment and represents the charge before the court. The court proceeds can be only based upon an indictment: the court may only ascertain the criminal liability of the person against whom the accusatory instrument was filed, and may only consider acts contained in the instrument.
The prosecutor in a Hungarian court is responsible for presenting all the evidence, both for and against the defendant. Judges are mostly bound by the law as written, not by the decisions of other judges.
How can we assist you as defense lawyers?
One of the most fundamental principles of criminal process is the right to defense: every defendant may undertake his own defense, or may choose to be defended by a lawyer. In Hungary a lawyer as representative in criminal proceedings can act on behalf of the defendant before the competent authorities in any phases of the procedure: from the investigation period to the court trial(s).
It is also important to notice that Hungarian criminal law permits the same counsel to represent more defendants, provided that they do not have adverse conflicts of interest.
Normally, under Hungarian law the defendant gives the power of attorney to the lawyer but the trustee or a relative of older age of the accused person can also authorize the lawyer, or, in the case of foreign citizens the consular officer of their native country. The defendant may withdraw the power of attorney at any time, regardless of whether it was given by himself or another person. According to Hungarian law, the lawyer is to submit the power of attorney to the investigating authority, prosecutor or court before the process is begun. The lawyer can only exercise his procedural rights for the defense after submitting his power of attorney.
In particular cases the lawyer’s participation is mandatory in criminal procedures, e.g. if the defendant is detained, does not speak the Hungarian language, or is unable to defend himself personally for any other reasons. In such situations when defense is compulsory and the defendant does not have an authorized lawyer the authority officially appoints a counsel for defense.
The main duties of the defense lawyer are the following: (i) making contact with the defendant without delay; (ii) using all legal means for the defendant in due time; (iii) informing the defendant of these legal means and his rights; (iv) urging the investigation of facts extenuating for the defendant or diminishing the liability; (v) providing a replacement if unable to attend at a procedural action where attendance is statutory.
In Hungary the lawyer is allowed to visit the penal institution, in which the defendant is detained – of course by showing respect for the internal rules of the institution.