Hatékonysági problémák, azaz a hazai büntetőeljárás gyakorlati visszásságai

Fantoly Zsanett: Hatékonysági problémák, azaz a hazai büntetőeljárás gyakorlati visszásságai. In: Acta Universitatis Szegediensis : acta juridica et politica, (74). pp. 119-130. (2012)

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Examining the effectiveness of a state's criminal jurisdiction, the question really is how the changes of criminal law can keep pace with the changes of social, political, economic and cultural life. In the light of past experiences nor citizens nor legal practitioners are pleased with the rules of criminal law, which means that reforms should be made. Everybody agrees on the fact that a judgment which takes a lot of time generally becomes vain. Neither should be allowed such a continuance of the criminal procedure that the punishability of the offence is excluded by the limitation period before the date of the judgment. Solving the problem is not simple as the following factors indicate processes which are contrary to each other: the human (accused's) rights are broadening, the demand of the accused to a fast and simple procedure and the need of society for an effective law enforcement. The infringement of the rights of the subjects of criminal procedure and violation of the procedural guarantees can also be the price of fastening criminal procedure. The Constitutional Court held that the enforcement and the judgment of the state's claim against crimes in a reasonable time is a requirement against criminal regulation and it is derogable from the normative content of the rule of law and from the constitutional right offair procedure. The effectiveness of criminal procedure goes back partly to outer (factors outside criminal law in a broad sense) and partly inner factors (factors affected by legal rules divided into factors of substantive criminal law and criminal procedure law). Examining foreign legal writings we can find efforts taken in order to fasten and simplify procedures. Almost every continental European state's criminal procedure law has started to acknowledge procedures based on agreement. However at the same time with the penetration of consensual elements we have to resign from the material justice and the contradictory procedure. In spite, consensual elements are forcing their own way also in traditional procedural systems with investigatory principles. Therefore developed European countries have realized that special forms of procedure shall be formed in accordance with the different types of cases. Furthermore, by broadening the prosecutor's discretional power, the law can make it possible to finish the procedure before the main trial. The prosecution would weigh the facts more freely and the prosecutor's power seems to contribute to the judge's power in the area of establishing criminal liability and making conclusions from the lack of conditions. The level of the decision making organ a case can reach depends on how sensible the "filters" work in the criminal procedure and to what they react. A more proportional distribution of cases can be ensured by filtering the cases and letting to the trial stage only the ones which need the main trial. Therefore not only the judge gets rid of the burdens, but also does the criminal procedure. Regarding the rules of the code of criminal procedure, provisions made in order to fasten procedure become effective partly by broadening the prosecutor's discretional authority and bringing forward the alternative procedures, partly simplifying or sometimes disregarding the main trial. Although in principle our prosecutors still prefer the primate of the accusation. However, the appearance of the different diversions from accusation (finishing the procedure and imposing reprimand if the crime's level of danger to society is not significant, suspension of the procedure, delaying the charge, starting mediation procedure) significantly takes the burden off the judges without being accused of the charge of "prosecution's judging". It is true that the alternatives of accusation impose more tasks on prosecution, and in principle they are applicable in less significant cases. Furthermore they disregard the right to court procedure, the principle of verbality, directness and contradiction. However, the lawmaker makes it possible for the accused to make a complaint against the delay of the charge (or against the reprimand) or not letting to start the mediation procedure. Therefore the traditional procedural principles would again become important. Experiments made in order to simplify or fasten procedure can lead to three guidelines: first the possibility to apply administrative rules of public administration law, usually known as penal order (separated procedure ignoring trial), second the negotiated procedure known as plea bargain (separated procedure i.e. waiver of the trial) and finally the so called summary procedure (special form of prosecution before court). It can be stated without doubt that the difference in application between counties results in the violation of the principle of equality before the law and the institution needs reforms. Lawmaking is not the only way to reach this reform. According to that the recent motion on the amendments of the rules of criminal law (even though their aim is to simplify and fasten procedures and to guarantee legal security) in fact is an action promising fast success and disregarding the severe disorders of the system and the signs of declining professional competence. Guarantee rules are not responsible for the disorders of the jurisdiction: worse, by weakening the guarantees, the chance of judicial mistakes would increase. Criminal procedure has two tasks: establishing justice and ensuring legality. These can only be maintained by complying with procedural guarantees. Our opinion is that the only way to effectively apply alternative procedures and therefore fasten, simplify and improve the effectiveness of procedures is to rationally modify the structure of law enforcement and to increase their professional competency. Any impairment of procedural guarantees shall be allowed only in cases where legal security or accountability is not endangered. The most important goal under every circumstance is to bear in mind the rule of law's criminal law.

Item Type: Article
Other title: The problems of effectiveness, i. e. the thwartings of the Hungarian criminal procedure
Journal or Publication Title: Acta Universitatis Szegediensis : acta juridica et politica
Date: 2012
Volume: 74
ISSN: 0324-6523
Page Range: pp. 119-130
Language: Hungarian, English
Publisher: Szegedi Tudományegyetem Állam- és Jogtudományi Kar
Place of Publication: Szeged
Related URLs: http://acta.bibl.u-szeged.hu/37953/
Uncontrolled Keywords: Büntetőjog
Additional Information: Bibliogr. a lábjegyzetekben ; összefoglalás angol nyelven
Subjects: 05. Social sciences
05. Social sciences > 05.05. Law
Date Deposited: 2016. Oct. 17. 09:56
Last Modified: 2023. Nov. 10. 15:50
URI: http://acta.bibl.u-szeged.hu/id/eprint/29255

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