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
SUMMARY

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... (see full summary)

 
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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)

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