DAY 4 - BALÁZS TÓTH Balázs Tóth* “Theoretically effective, practically almost non-existent: the exclusion of evidence obtained by torture in criminal proceedings in Hungary” * Attorney-at-law, Hungarian Helsinki Committee As in the case of so many other issues, the Hungarian law is in compliance with the basic international human rights requirements with regard to evidence obtained by torture as well. The Criminal Procedure Act provides that facts derived from evidence obtained by the court, the prosecution service, the investigating authority or any other authority by means of a criminal offence, by other prohibited means or by substantial violation of the rights of the participants in criminal proceedings shall not be admissible as evidence. And even though the concept of torture is not defined and consequently not penalized in the domestic Criminal Code, coercive interrogation is defined as an official applying violence, threats, or using other similar methods with the aim of extracting a confession or declaration, or forcing a person not to make one, and that is sanctioned by the criminal law. This is an acceptable formulation of criminalizing the obtaining of evidence by torture, although with different wording than the definition of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Were it not for the concept of coercive interrogation included in the Criminal Code, the exclusionary provision would still apply to any act of torture as understood by the relevant international human rights bodies, since any kind of torture unquestionably constitutes a substantial violation of the rights of the participants in criminal proceedings. Evidence obtained via torture can be excluded (i) if the respective officials have been already convicted for the coercive interrogation; (ii) if the defendant or the witness already reported the ill-treatment or coercive interrogation, but the criminal procedure is ongoing and no indictment or judgment has been reached yet; and (iii) the judge can exclude evidence even if the defendant or the witness himself/herself does not claim that he/she was ill-treated, but the judge comes to this conclusion ex officio. The typical version of the latter case is when a defendant alleges in the judicial phase of the criminal procedure that his/her statement or confession was obtained by force and therefore should be excluded from the evidence. In such a case the judges usually summon all those police officers, prosecutors or others who were present at the hearing where the defendant allegedly was subjected to torture, who will be obliged to testify under the penalty of perjury. In addition, the judge might turn to the head of the given police authority and request information about any internal investigation carried out into the circumstances of the interrogation. Based on these pieces of information, the judge shall decide whether to exclude the given evidence or not. This means that in an ideal reality it could never happen that evidence obtained via any kind of torture would be used in a criminal procedure in Hungary. If we were to rely only on statistics, they would show that coercive interrogation is almost non-existent in this country. Between 2016 and 2020, 174 reports for coercive interrogation were rejected, and 369 investigations were terminated. The number of indictments submitted during this five-year period was 8, all of which happened in the same year, in 2017. This means that according to the official evaluation of the reports into such cases, 98.5% of the reports are unfounded, and in four out of five years’ coercive interrogation did not take place at 39