THE PUBLIC PROSECUTOR OFFICE OF HUNGARY AND ITS DEVELOPMENT 

SÁNDOR FÜLÖP

Public Prosecutor Hungary

INTRODUCTION

According to our Constitution, Hungary's Chief Public Prosecutor is elected by the Parliament of Hungary for a six-year term on the proposal of the President. The two deputies are appointed by President on the proposal of the Chief Public Prosecutor. The further prosecutors are nominated by the Chief Public Prosecutor. They are working on three levels, following the structure of our court system: the first instance /towns/, the second instance /counties/, and the Chief Public Prosecutor's Office, besides our Supreme Court, actually placed in the same building in Budapest, the Capitol City.

1 THE FUNCTIONS OF THE PUBLIC PROSECUTOR OFFICE

The main functions are delineated in the Constitution itself, under the section 51, and are detailed in the amended Act V. of 1972, about the Public Prosecutor Office /PPO/. In general, the Chief Public Prosecutor and PPOs protect the civil rights of citizens and consequently prosecute all the offenses that are harmful or perilous for the constitutional order, the safety and independence of the Country. The prosecutor surveys the police investigation or he investigates, represents the criminal charge side on the courts. The other area of our work is also involved in the Constitution: the prosecutor assists in the law compliance of the organizations and citizens in the country. In the case of noncompliance he is supposed to make legal steps in the protection of legality.

The Act about prosecutors gives more details of the function. According to this, there are three main branches of our work: criminal law, civil law and administrative law functions.

1.2 The criminal law function

In our criminal procedure, the Police have an independent role in the investigation. Following the practice of the past decades the investigation has been divided into two parts: the so-called operative phase, and the investigation in its narrower sense. The operative phase has not been the subject of the criminal law regulation at all, but it has had some administrative law rules and otherwise has fallen out of the scope of legal supervision. The forthcoming new Police Act is going to change this highly debated situation.

The prosecutorial supervision now actually begins only from the second phase of the investigation, when the Police communicate the so-called well founded suspicion to the defendant, allowing him to protect himself and to hire a defense attorney. From this stage the police prepares official records on the investigative steps, and these are open to the prosecutorial supervision. Nevertheless, the supervision has not taken place in all the cases. It is definitely mandatory when the defendant passes a complaint against the communication of the suspicion, when the defendant is under arrest or in the cases of highest importance. The supervision of the police investigation is made through the overview of the files, or accomplishing some investigative actions, such as the survey or hearing witnesses. One of the strongest tools of the supervision is the supplementary investigation. The prosecutor may order it if the facts of the case have not been discovered properly or the rules of procedure have been violated in a way considerably impairing the settlement of the case. In the evaluation of the work of a policeman the supplementary investigation represents a bad trait, so he tries to avoid it by frequent consultation with the prosecutor on the evidence or legal matter of the cases. There are some crimes, such as the offences against administration of justice or crimes committed by or against policemen, which are totally investigated by the PPO. In the draft of the New Criminal Procedure Act it is proposed to bring to this group of crimes the environmental crimes, too, because their investigation requires special expertise and they are often difficult from legal side as well.

When the investigation is finished, the prosecutor examines the records coming from the Police /in the overwhelming majority of the cases/ and may prepare the indictment. This phase of the criminal procedure is a clearly prosecutorial one, where he is the only decision making official. The prosecutor fulfills here the filter role, not leaving improper cases to go further to the court. So he can order a supplementary investigation, and he can suspend the investigation or even can abandon it, too. It does not mean that we have a discretionary right, because the Hungarian criminal procedure accepts the principle of legality, that is every case has to be passed with an indictment, only the obstacles of punishability can exclude it, or the case where the suspect cannot be identified and no result may be expected from the continued procedure.

On the trial stage of the criminal procedure, the judge, as the president of the division, shall conduct the evidence process, striving to clarify the material truth. In the continental criminal procedure system the prosecutor and the defense attorneys have less deciding role in the court proving process as in the clearly adversarial systems. Nevertheless the prosecutor could have a deciding role in a mainly negative way: the withdrawal and the modification of the charge binds the court.

Our prosecutors have not any bargaining position with the defendants. After the sentencing phase the function of the prosecutor in the criminal process is to supervise the due accomplishing of the imprisonment's or other punishments.

1.3 The civil law function

In general the Act about prosecutor says under the section 4, par /2/, point e./, that the prosecutor takes part in the maintaining of the due process in the Civil Procedures. The amended Act II. of 1952, under the section 2/A gives the rights to the Public Prosecutor to institute a lawsuit out of important state or social interest, or if the person entitled thereto is for any reason unable to defend his rights; he may also take action in any phase of the lawsuit in the interest of observing legality. In the course of taking action in a lawsuit and in a lawsuit instituted by the prosecutor he shall be entitled to all rights which are due to a party in a lawsuit: but he may not come to terms of arrangement, may not waive rights, may not acknowledge rights respectively. Although this function was given to the PPO in the last political regime with a quite different purpose, it seems to be tailored to the tasks of the environmental protection, where there is always a strong social interest, and the entitled persons usually are not in the position that enables them to defend their rights, and even the exact circle of the plaintiffs can not be defined easily. Using the famous section 2/A, the prosecutor could solve one of the main problems in our recent early environmental cases, the question of the capacity to sue. I have to add to this survey of the functions of the PPO that it is not in practice yet to begin civil law cases in the name of a concerned community. Although the legal possibilities are given in a fortunate legal situation.

1.4 The administrative law function

The third branch of our function is, as usually called "the general supervision" that is the overview of the processes and the administrative law and labor law decisions in the centralized state organizations, municipalities, and other organizations /associations etc./ of the society. This function has been very popular, the citizens has turned to the PPOs with several complaints about administrative law decisions, and the PPOs themselves have run regularly preplanned supervision programs at the several organizations. In the vast amount of cases the administrative law prosecutor can solve the legal problems by advising proper legal steps or clarifying the legal situation itself. If it is not enough for the maintaining the due process, he can warn the leaders of the concerned organization, or ask for further data, or an inward survey. The strongest tool of the administrative law supervision is the protest on legal ground against an enforceable decision. The PPO could propose in his paper the suspending of the execution, too. If the organization does not agree with the protest, it has to pass it to its superior organization. The confrontation takes place rarely, our administrative law prosecutors have extremely broad connection system in the whole range of the administrative organization, and this PPO function is widely accepted and appreciated. Yet, the administrative law function together the civil law one seems to lose its position in comparison with the criminal law functions. On the theoretical level many experts object the maintaining of the previous regime's overall legal supervisor organization. Others agree that in the new democratic political system there has to be balances against the governmental power. They say, that together with the President, the Ombudsmans /not elected yet/, the Constitutional Court and even the free Press, the PPO can be one element of this balance system through its civil and administrative functions, too. Without wanting to decide the theoretical and political debate, I could insist on the maintaining the "not only criminal law" prosecution system, from the special viewpoint of handling of the environmental cases.

2 WHY IT IS CRUCIAL TO HAVE THE POSSIBILITIES FOR THE PARALLEL PROCESSES?

According to the centuries old practice, our continental criminal law can not handle the enterprises, associations, etc, as to whom criminal liability is imputable. This point can make extremely difficult to use the criminal liability for the so called corporate committed environmental crimes, because the decision making structure in a big corporation can be so sophisticated, that it is almost impossible to find the responsible persons. But once you have found them, and let us say punished them strongly, the corporation probably will continue its environmentally harmful practice just with an other management. Naturally the criminal procedure can leave a message to the new staff, but the economic enticement for the noncompliance could be enormous, and the new leadership can put their hopes to the reorganization of an extremely deceiving decision making structure. It seems to be the only successful environmental enforcement solution to begin a strong civil law case against the firm in the same time with the criminal one. The coordinated fight against the wanton noncompliant, big sized corporation requires a law enforcement organization with authorities in the field of criminal, and civil law as well. As far as the environmental noncompliance cases usually have their previous history in the administrative law enforcement, it is also useful if the organization in issue has a certain administrative law input, too. The only organization, which fits to these requirements, is the PPO, in its recent form.

3 THE STAFF OF THE PPO

According to the functions, our staff is divided to criminal, civil and administrative law departments. Out of the roughly 1000 prosecutors in the Country, there are not more than 200 prosecutors on the charge of the civil and administrative law cases. Their number used to be more than one third of the whole, and is diminishing continually. They are uncertain about the future of their departments because of the strong plans of "clarifying the profile" of the PPO, although there is not any definite decision yet concerning their position. The retaining of these highly experienced and professional administrative lawyers is essential from the viewpoint of the environmental enforcement. They will not be easily superseded later by other administrative lawyers, because this work in the PPOs needs a special experience and training. The losing of the administrative law staff is especially painful because of their widespread connections towards the several levels of the administrative system. It seems to be urgent to make clear for them that they have a sound future in the PPOs, as environmental protecting specialists, amongst other important tasks.

Besides. the criminal law staff has also very important specialties useful to the environmental enforcement. Being the largest part of the PPO, their departments are divided to several subdivisions, as the investigation supervision, the representation of the charge at the courts, the supervision of the accomplishing of punishments, juvenile delinquency cases, traffic crime cases and some others. The separation of tasks is more definite on the level of the Chief Public Prosecution Office, and the bigger County Prosecutor Offices, and less definite on the local level. Because of the specialization, our criminal lawyers have advances in comparison with other professionals. The criminal law staff also has a good possibility to build up good work connections towards the Police which, as it was seen, tends to use the prosecutor's technical and legal advises frequently.

4 TRAINING

The Hungarian educational system does not contain colleges, but after the secondary school, the students can go to universities immediately. The Law School takes four and half years, and the graduated can look after jobs in Courts, PPOs, Private Attorneys' or elsewhere. After at least two and half years practice and further learning he/she passes the bar exam, and gains his/her appointment as judge, prosecutor, etc. The PPOs put stress on the high level training in their postgraduation system. The future prosecutor visits all the departments on the first and second instances in the PPOs. Their workload is nearly equally divided between the learning the law materials of the Bar Exam, and resolving practical legal problems in the cases. There are nearly 150 young colleagues on legal Practice at PPOs, and taking the average three years period before their exam, it means at least 50 appointments of new prosecutors per year. This number is hardly enough to fulfill the positions in our offices because the state salary never can compete with the private firms offers, and a couple of years practice in the PPOs is a good background for getting a job in the private sector.

5 THE CONSTITUTIONAL POSITION OF THE PPO

In the short introduction of the PPO of Hungary, I could not avoid to mention this highly debated issue. Although the theoretical opinion tends to decline to that direction that PPO has to belong to the Government and to the Department of Justice, the recent situation is different. There is an independent PPO in our system, and only the Parliament exercises the right of the control over the PPO through the person of the Chief Public Prosecutor. This independence can cause some difficulties, too. Because of being a politically neutral organization, the PPO in the Parliament in the most of cases can not gain any aim from any parties, and even it means frequently an easy victory for a party to challenge the Chief Public Prosecutor, who tends to lose the final voting's. On the other side in the civil life, and from the Press, the PPO gets better and better appreciation, sometimes only from the reason of being independent from the government. In reality the PPO is trying to avoid any confrontation with any political problem, and restricts itself to the legal issues in the strictest sense. Otherwise there is little possibility for the change in our highly debated constitutional position because of the need for a two-third majority in the Parliament for any amendments in the Constitution. The leader parties have only a simple majority, and the opposite parties are consequently objecting of bringing the PPO under the Government.

6 POSSIBILITIES OF A BROADER PARTICIPATION OF THE PPO IN THE ENVIRONMENTAL LAW ENFORCEMENT

As we could see, the PPO has got in a paradox situation: in the ever-changing political situation it is remaining unchanged. Yet we are experiencing that the stress in our work is shifting to the criminal law side, and we are losing our best civil and administrative law experts. I have tried to clarify that even in this recent situation the PPO has a fortunate position for becoming the key organization in the environmental law enforcement. We could undertake the task of the developing sound, parallel cases against the environmentally noncompliant big sized corporations, too. On the other side, this undertaking could provide an opportunity to retain many of the non criminal law experts, offering them a long run, valuable prospect.

Finally I have to call attention to a basic difference between the operation of the legal programs in Central Europe and in America or Western Europe. It has definite historical basis that in our region nobody can accomplish a legal program unless determines its structural details, not only the material ones. Here is not enough to delineate the aim of an Act and to set out the legal orders and prohibitions. We have to build up or point out the executive structure, with an exact hierarchy in the decisionmaking, with the . . elements of the process and with the deadlines. And that is the very problem in our Environmental Enforcement. Since 1976 we have had a first class Environmental Legal System, which has reached the world standards in itself. But the responsibilities for the execution are not clear-cut enough, and in reality Hungary's environmental status is deteriorating with high speed. The civil law and criminal law enforcement are missing totally, because of lack of any departments in the Police and PPO, lack of a legal practice of the beginning and developing the cases. The draft of the new overall environmental code has to pay more attention to the structural side of the enforcement, and has to give definite authorities to the Police and PPO as well. The leadership and the staff of PPO have commitment to this work, and the Public, the NGOs have been urging us to get more involved in the environmental law enforcement.

I would like to thank for his professional advises to Mr. Stephen Stec. our CEELI liaison. Special thanks to Mrs. Erzsebet Kazsmer and Ms Judit Hornung for their indispensable technical assistance.