A fundamental question is whether, in the Hungarian procedural system, investigative authorities and prosecutors’ offices should be regarded as evidence-gathering bodies or merely preparatory-detective or investigative bodies. The general position is still that

 

Notwithstanding the above, I believe that investigative authorities and prosecutors’ offices are also necessarily evidentiary authorities, since all the procedural acts they perform in order to investigate the circumstances of criminal offences form a coherent and integral part of the evidence. Nor can the concept of investigative evidence be called into question because the prosecution service itself is under pressure to identify the evidence as accurately as possible, given the statistics on prosecution success. The drafting of the indictment therefore in itself requires a preliminary weighing of the evidence, which takes place during the preparation, discovery and investigation stages. Otherwise, the case would not reach the next stage of the procedure (the principle of “staggering of evidence”). This is supported by the opinion of the Curia No 56/2007 BK, which states that it is more practical to clarify certain facts during the investigation, such as the extent of the victim’s culpable involvement, or the accused’s behaviour in causing the occasion in the case of an occasional offence, etc.2 It should also be borne in mind that evidence is obtained (e.g. expert opinion) and evidence is ordered (e.g. production of evidence, confrontation) at the investigative stage.

 

Another fundamental difference is that an investigation is first and foremost a data collection process, and only after this has been successfully completed does the investigating authority reach the stage of gathering and evaluating evidence. Therefore, if we want to define the stages of investigative evidence, the following chronological order should be established: (1) collection of data, (2) gathering of evidence, (3) evaluation of evidence. According to Gödöny, “once the investigator has defined […] the subject of the evidence, he starts to search for sources that contain relevant evidence. It is no longer a question of collecting data, but of obtaining evidence.”9 This is coupled with an assessment of the evidence, based on the sovereign conviction of the person in authority as to its admissibility and relevance in court. However, this internal conviction cannot be influenced by a presumed (subsequent) judicial finding of fact, as this would unduly narrow the investigative material. It is another matter that investigating authorities obviously select evidence on the basis of the local judicial practice. Nevertheless, the investigative assessment of evidence may not only lead to “ready evidence” but also to the generation of new evidence as the direction of the evidence changes. Investigating authorities (prosecutors), like courts, assess this evidence not only individually but also as a whole.10

 

This plan must be unique and dynamic, as only these characteristics ensure that it is “free from templates, from excessive formalism and sufficiently adapted to the changing circumstances of the investigation, to the new requirements that arise.”12

 

Along with this

 

Notwithstanding the above, investigative and judicial evidence are not mutually exclusive; indeed, their coexistence is a prerequisite for the effectiveness of the procedure.