The Act adopted to amend the Act on Criminal Procedure is without prejudice to the Fundamental Law3 November 2022
The Constitutional Court held that Section 1 of the Act on the Amendment to Act XC of 2017 on Criminal Procedure adopted on the sitting day of the National Assembly of 3 October 2022 but not yet promulgated, does not violate the principle of the prosecution monopoly granted to the prosecution service and is therefore not inconsistent with the Fundamental Law.
On the motion put forward by the Government before the final vote, the National Assembly initiated a preliminary review before the Constitutional Court of the conformity with the Fundamental Law of Section 1 of the Act on the Amendment of Act XC of 2017 on Criminal Procedure in Connection with the Conditionality Mechanism, adopted on the sitting day of the National Assembly of 3 October 2022. The provision sought to be placed under scrutiny supplements the Act on Criminal Procedure with a new special procedure for priority criminal offences relating to the exercise of public authority or the management of public assets. Moreover, the provision lays down rules which are to be applied in derogation from the general rules on investigation, judicial redress and indictment.
The first part of the new procedure is a type of prosecution enforcement procedure, the objective of which would initially be to obtain corrective judicial redress by procedural means for an investigative or prosecutorial decision dismissing or terminating the conduct of criminal proceedings brought on the basis of a priority criminal offence relating to the exercise of public authority or the management of public assets. This will allow the investigation to continue in the right direction. Any natural or non-natural person may submit such a motion for revision. In addition, the other part of the regulation also ensures, within an appropriate framework of guarantees, that ultimately, where public law enforcement authorities do not see fit to do so, the person submitting the motion for revision is afforded the opportunity to bring a motion for prosecution for a priority criminal offence affecting the community before a court, thereby ensuring that the court may adopt a position on the issue of criminal liability for the offence this person claims to have been committed. In its petition for preliminary norm control, the National Assembly requested that it be considered whether this new special procedure in the Act on Criminal Procedure is in conformity with the principle of the prosecution monopoly enshrined in Article 29 (1) of the Fundamental Law.
In its Decision, the Constitutional Court explained that, by introducing the Act, the legislator has created a specific procedural opportunity, hitherto unknown in the Hungarian legal system, for legal entities acting essentially in the interest of the protection of public funds to act as enforcers of the right prosecute, and to initiate court proceedings by filing a motion for revision or a motion for prosecution.
The Constitutional Court established that the new procedure should be interpreted taxonomically within the category of correction of charges (as is the institution of a substitute private prosecution). The regulation does not remove the exclusive power of the prosecution service to prosecute public charges, but merely supplements it as a corrective instrument for the prosecution of criminal claims. It is not at variance with the principle of the prosecution monopoly to introduce an additional element into the criminal procedure framework which secures direct protection for public assets. Therefore, the Act does not contravene the principle of the prosecution monopoly under Article 29 (1) of the Fundamental Law.
Concurring reasonings to the decision were appended to the Decision by Justices Ágnes Czine, Egon Dienes-Oehm and Zoltán Márki. The text of the Decision can be consulted on the following link >>