Overview of the prohibition of reformatio in peius in the hungarian criminal procedure

• Author: Csongor Herke - Csenge D. Tóth
• Position: Associated professor, Ph.D., Head of Department, Department of Criminal Procedure Law and Forensic Science, Faculty of Political and Legal Sciences ,University of Pécs - Ph.D. candidate, Department of Criminal Procedure Law and Forensic Science , Faculty of Political and Legal Sciences ,University of Pécs
• Pages: 18-28

18 Lex ET Scientia. Juridical Series

LESIJ NO. XVIII, VOL. 1/2011

OVERVIEW OF THE PROHIBITION OF REFORMATIO IN PEIUS

IN THE HUNGARIAN CRIMINAL PROCEDURE

Csongor HERKE*

Csenge D. TÓTH**

Abstract

The prohibition of reformation in peius has two meanings in the Hungarian legal

terminology, such as the prohibition of increasing punishment and the so called reformation in

peius. In the effective Hungarian legal system it is regulated, within the rules of the criminal

procedure, regarding the ordinary and extraordinary legal remedies, separate procedures and, in

addition to the criminal procedure, it is regulated even regarding the law of minor offences.

Furthermore, the reformation in peius is not an inevitable consequence of the rule of law, but only

a legal favour, and many questions and problems emerge in the light of fundamental principles

and constitutionality concerning this prohibition. The prohibition of reformation in peius may be

regarded as a legal guarantee for the defence to be able to file an appeal without the risk that the

judgment might be altered to detriment of the accused. Therefore, it is a case of favour defensionis

and as such it plays a huge role in sentencing, especially when the judgment was appealed in

order to increase the severity of sentences.

This paper examines the connection between the prohibition of reformation in peius and the

principle of constitutionality, as well as the its relation to the aggravating and mitigating factors

of sentencing taken into account by the court of appeal.

Keywords: Reformatio in Peius; Criminal Procedure; Con stitutionality; Waving the

Prohibition of Reformatio in Peius, Sentencing, Criminal-Policy

Introduction

The expression „reformatio in peius” was mentioned for the first time in a roman legal case

connected to procedural law, however it was unknown to the criminal procedure law in the 18th

century (KLEINSCHROD). At the beginning of the 19th century, GONNER pointed out that the

alteration of the judgment to the detriment of the accused through ordinary legal remedy

(reformatio in peius) should not be required. These two sources led to ineffectual debates

regarding the origin of the expression.

The prohibition of reformation in peius describes, in a wider sense, the right of state bodies

entitled to permit the alteration of a decision to the detriment of the receiver (KOPP). In procedural

law, reformatio in peius is mentioned in case an organ of higher degree passes a decision to the

detriment of the accused, while a more favourable decision was expected to be passed thereby

(SARTORIUS). In the course of time, more differentiated opinions were born regarding the

expression, and the prohibition of reformation in peius was determined as the alteration of every

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* Associated professor, Ph.D., Head of Department, Department of Criminal Procedure Law and Forensic Science ,

Faculty of Political and Legal Sciences ,University of Pécs (e-mail: herke@ajk.pte.hu).

** Ph.D. candidate, Department of Criminal Procedure Law and Forensic Science , Faculty of Political and Legal

Sciences ,University of Pécs (email: csenge@ajk.pte.hu)