Herke Csongor. Associated Professor, Ph.D., Head of the Department of Criminal Procedure Law and Forensic Science, Faculty of Law, University of Pecs, Hungary (e-mail: firstname.lastname@example.org; email@example.com)
Keywords: the prohibition of reformation in peius, Hungarian law, Hungarian jurisprudence
In the operative criminal procedure law the prohibition of reformatio in peius is effective during the procedure of second instance, the procedure of third instance, the retrial procedure, during the procedure of the extraordinary legal remedies, and even during the special procedures. In addition to the criminal procedure the prohibition of reformatio in peius is regulated within the law of misdemeanor, since the Section 92. (4) of the Act LXIX of 1999 on Misdemeanors provides that the court may take a more disadvantageous decision against the person subjected to the criminal procedure than it was stated in the provisions of the decision of the infringement authority just in case during the hearing new evidences are revealed and on the grounds of this the court establishes a new fact and due to such fact more serious crime must be classified or the penalty shall be significantly increased. By the same token the principle of ne ultra petitium is just as relevant in the civil procedure law: according to first sentence of the section 253 (3) of the Act III of 1952 (Code of Civil Procedure) the court of second instance may alter the decision of the court of first instance just within the confines of the appeal (joint appeal) and the cross-appeal. However, within such confines questions concerning the right enforced in the lawsuit as well as plea against such enforcement of right may be decided by the court of second instance even if the court of first instance did not discuss or make a decision on such questions1.
The prohibition of reformatio in peius benefits the accused during the process of the appeal and the extraordinary legal remedies regardless of the person who filed them. This may be the defendant himself, or the prosecutor who, according to Section 324 (2) of the Code of Criminal Procedure, may appeal in favor of the defendant, and according to Sections 409, 417, 431, 440 of the Code of Criminal Procedure the prosecutor may file for remedy against or in favor of the defendant as well. In addition, the counsel for the defense has absolute right to appeal in favor of the defendant, and has absolute right to file for remedy unless the defendant expressly forbade this. Furthermore, other persons may exercise their right to file a remedy against or in favor of the defendant, such as the legal representative of the defendant, the relative of legal age of the defendant, other interested parties etc.. So the prosecutor can file for remedy against and also in favor of the accused, the other entitled persons may exercise their right only in one way (either against or in favor of the accused).
The prohibition of reformatio in peius is irrelevant in the case of a remedy filed against the defendant. The prosecutor as the public prosecuting body of the state may proceed in both directions, while the privet accuser and the substitute privet accuser may file a remedy just against the defendant. The prohibition of reformatio in peius intends to enable the accused to exercise his right to legal remedy if his punishment is deemed to be too serious or illegitimate, but without risking that the judgment would be altered to a more serious one without the possibility ofPage 101 revoking it due to groundlessness. The court empowered to take the decision is as a rule always subject to the prohibition of reformatio in peius, if the court took the new decision of the same action of the defendant on the ground of an appeal filed by the defendant, by the prosecutor or another person, who has the right to appeal, in favor of the defendant. The prohibition of reformatio in peius shall grant the freedom of the decision-making process: the judgment must be acknowledged or an appeal may be filed without the risk of adverse alteration. However, the new verdict does not have to be the same comparing to the appealed verdict concerning the declaration of guilt or the penalty.
The freedom of the decision-making of the accused is significant in the matter of usage and extent of prohibition of reformatio in peius. The prohibition of reformatio in peius is in this respect a “procedural protection-right”2, which should compensate the hindrance to file an appeal. The defendant would face a psychological dilemma in the lack of prohibition of reformatio in peius3, in which he would have to decide whether to accept the verdict (including the penalty set forth thereby), or he should fear that the appeal submitted by him would put him at disadvantage. The reformatio in peius may show a way out of this dilemma, because it may give a reason to trust that the submission of an appeal will not affect the situation adversely. MOLNÁR is right to call the prohibition of reformatio in peius as “the principle of fearless appeal”4.
The problem of the prohibition of reformatio in peius raises many important questions. However, in the Hungarian legal bibliography just very few writers have discussed this subject. In the twentieth century only eight studies were published in our country, which examined specifically the question of prohibition of reformatio in peius, and still none of them is from the time after the regime change. This instrument of law is poorly endowed by the university textbooks and notes as well, just a few pages are devoted to the topic. The situation is different abroad, especially in German literature. In Germany not only several professional articles are issued in respect of certain questions of prohibition of reformatio in peius, but also various monographs have reviewed the prohibition of reformatio in peius to the full or just some of its segments (e.g. measures taken).
After analyzed the case-law it may be stated that the ad hoc decisions regarding the prohibition of reformatio in peius have been referring to the following issues:
What is declared as an appeal against the defendant?
■ The legal classification of a criminal offense does not mean only the designation according to the provisions set forth in the Special Part of the Criminal Code (including the basic case, the qualified case and the privileged case), but also the formation of the perpetrators and the determination of the stage of the completion of the committed crime etc. Therefore, an appeal against the defendant should be any appeal filed on the grounds of the above written.