The Official Acquittal: The Summary of the Legal Proceeding against Miklós Hagyó and Others in Relation to the Alleged Forgery of Private Documents
Re’sume’ of the legal proceeding against Miklós Hagyó and others because of forgery of Private Document
2012th on January 16 Miklós Hagyó, his common law wife and his lawyer, Dr. Viktor Géza Szűcs were cleared of a charge of forgery-private documents by the court of first instance. On the ground of the published media reports probably was difficult to follow exactly what the case is about, therefore we tried to easily summarize with the facts of the accusation and clearing, we analyzed the law background of the case, and finally we discussed the solicitous in connection with prosecutor's procedure.
What exactly happened?
Miklós Hagyó was arrested and then was placed in preliminary detention on 14th of May 2010 by the public well know suspicions. Every prisoner is entitled to keep in touch with its folks so he asked to keep in touch with her common law wife -prosecution had no objection to her- that the Budapest Prison permitted and as “folks” it has introduced in its computer registration system on 17th of May 2010. In the preliminary detention Miklós Hagyó could not manage the business of his limited liability company so he gave an authorization to his common law wife to exercise his rights of his ownership. The authorization was created and countersigned by dr. Viktor Géza Szűcs who presented it to the prosecutor (2/1). After the authorization arrived to the prosecutor on 6th of August 2010 (it was sealed on that day to prove it), the lawyer sent the authorization to the prison institution on 17th of August 2010 with the common law wife petition (4/1), the petition is intent to manage the business of Miklós Hagyó’s limited liability common law wife so she asked two meeting in a month instead of one meeting in a month which she was entitled as “folks”. (4/1)
The commander in his response indicated that according to the rules the common law wife can meet with Miklós Hagyó as his mandatory in connection with the business of his ltd when she ask permission in advance and writing,. At the same time the commander made it possible on the 26th of August 2010 for the common law wife could visit the prisoner, and by the presented authorization Hagyó Miklós’s common-law wife was recorded in the Registry Department of Prison Institute on 25th of August 2010 as "legal representative " in the computer system. (4/2)
On the 6th of August in 2010 another authorization was made. On the 21st of March in 2010 the Célpont titled show of the HírTV showed that kind of records which did violence to Hagyó Miklós and his common law wife ‘s personality rights, because of this started a sue of damages on the Budapest Regional Court. Therefore on the 6th of August in 2010 dr. Viktor Géza Szűcs created a document in which he(HM) authorized his common law wife to act as a legal representative in the legal action to provide his representation (2/2). Hagyó Miklós presented this authorization personally through his tutor to the Prison Institution on 2nd of September 2010. Seeing that the common-law wife was already registered as “legal representative “ in the registry system of the institution, therefore change did not occur.
Refer to the ongoing litigation against HírTV, the commo law wife met five times with Hagyó Miklós by unique visiting applications: on 6th of September 2010, 10th of October 2010 and 19th of October 2010 at the Budapest Prison Institution, 17th and 21th of October 2010 on the Tököl Prison Institution where the ill prisoners are where he was transferred because of his serious deterioration health status. The meetings took place under control all the time.
Here it is important to highlight that Miklós inquired from his tutor about how to authorize his common law wife to act on his behalf in his cases, and he mandate his lawyer to create the authorization with its all necessary attachments based on the given instructions by the tutor.
II. What is the legal problem?
The prosecutor's position
The prosecutor on the ground that instructed the police to investigation because Hagyó Miklós’s common law wife did not have legal qualifications when she signed the authorization for the legal action against the HírTV, therefore she could not have acted as 'legal representative "so because of the represented quality the authorization is included false information.
According to the Criminal Code 276.§ section "who prove that right or obligation exist, change or end [...] with using false private document , it commits misdemeanor and with up to one year imprisonment indictable." The prosecution presumed that when Hagyó Miklós presented to his tutor the authorization in that the common law wife was referred as legal representative, he used up false documents to the effect to generate legal impact(to allow for the common law wife to meet with him more favorable conditions meet than the relatives get by the rules), so committed the forgery-private documents. In this the common law wife and the document creating lawyer were abettor according to the prosecutor. (1/1)
Who and how to talk with someone who is in preliminary detention?
To understand the situation, you need to know what rules, who is in preliminary detention how can meet with its defender/pleader, relatives and other people.
According to the Criminal Law of process 43.§ section someone is in preliminary detention can touch/ keep in touch with its defender or pleader (if it is foreign with its consul of his country) in writing or orally without control. Contrarily someone is in preliminary detention can touch/keep in touch with its relative- by permission of the prosecutor or judge – and with any other person in personally with supervision, in writing under control (except if the prosecutor or the judge restrict or prohibit the touching/keeping in touch towards the efficiency of the process).
The 44/2007 IRM (IRM Regulation) contains the rules of the personal touching fully (1/2). This rule distinguishes someone , who come to visit, so someone who come to visit with private purpose typically relatives from someone who is “the defender/pleader” ( who is acting on behalf of the prisoner in criminal cases), on the other hand from the "prisoner ‘s representative" under it you can understand the prisoner’s (i) legal representative, who is not defender or pleader, (ii) lawful representative, and (iii) any others who are acting on behalf of the prisoner by authorization , without specifying exactly those three exactly what it means. Therefore, by legislation it is not clear, that Hagyó Miklós’s common-law wife, who is “ prisoner’s representative " which category is from the three sub-category.
What is certain, there is no difference among the three sub -categories in that beside what kind of conditions they can meet with someone who is in the preliminary detention. Contrarily the defender/pleader, who can talk with his client control without according to the criminal law of process , the prisoner representative (who can be a legal representative, lawful representative or other authorized representative) – according to the above mentioned legislation – can touch or keep in touch with the prisoner under supervision in the same way like relatives who come to visit , because according to the criminal law of process everybody who is not defender or pleader can talk with the prisoner only under supervision.
The difference between relative and the prisoner’s representative is that while the relative is entitled to visit the prisoner only once in a month, until then the prisoner’s representative more often, if the commander of the Prison Institution permits it, because according to the IRM Regulation the prisoner’s representative has to petition every time in writing the visiting, and the commander decides whether to permit the visiting or not. This exrta right or plus right is not only entitled to legal representation, but all of the three sub-category in the "prisoner’s representative" category.
In the "prisoner representative" category the sub-categories have no significance difference from that point who and with what kind of conditions can touch/keep in touch with someone who is in the preliminary detention, this shows it well– that also confirmed Hagyó Miklós’s tutor and commander of the Budapest Prison Institution in his testimony – that they use uniformly “legal representative “ category in the computer system of the Institution everybody who is not as defender or pleader or as a private visitor visited the prisoner. This is the reason why Hagyó Miklós common-law wife was registered in the computer system as "legal representative" based on that first authorization which did not contain the “legal representative” express .(6/2 page 3)
It can be clearly stated that Hagyó Miklós’ common law wife had no reason to represent untrue facts, bewildering title in the second authorization: firstly, by the very first authorization she was introduced as a “legal representative" into the system, on the other hand as an " authorized representative " she would not have had less right as a legal representative. Inasmuch as by the criminal law of process just the defender or the pleader can touch or keep in touch personally without control someone who is in the preliminary detention , either as a simple mandatory or either a legal representative she would not have been entitled to touch or keep in touch without supervision.
Who is legal representative?
As we have seen above, IMR Regulation is relating to the access of the Prison Institution to does not specify who is legal representative exactly: anyone who act as legal representative, or just somebody who has some kind of certified legal qualification. That’s way we should look for the answer in other pieces of legislation, but we will not get a obvious result.
According to the prosecutor legal representative, who is rehearsed by the Code of Civil Procedure Chapter V., which includes those cases where legal representative is compulsory. According to the provisions of this Chapter, the lawyers, in some cases, the legal adviser, in some cases someone who is a professional with specialized legal knowledge (such as patent agent), and those people act as a legal representation, who have legal specialist exam. Because Hagyó Miklós’s common law wife is not a lawyer, not legal adviser, not a patent agent, and she has no legal specialist exam, according to the she can not be either legal representative.
Contrarily she took side in her annexed opinion in the case like that Enumeration of the Code of Civil Procedure Chapter is related to those cases in which legal representation is required, this enumeration is not applicable to other cases. So in those cases where legal representation is not compulsory (and Hagyó Miklós’ s suit of his personality right is similar), there is no obstacle for that the common-law wife acts as a legal representative in the case.
The legal background is at least uncertain. As Hagyó Miklós and partner’s acquittal of first instance court stated that the solution of the problem needs legal background knowledge and careful interpretation from more legal professional, therefore the prime and second accused who do not have legal qualification it is not expectable from them to know the legal terms, specifically if the Prison Institution required expressly this expression in the case. (10 - second paragraph on page 6)
III. Anxieties of the prosecutor's activities
Refering to meetings without supervision is unrealistic
From the file – especially from the prosecutor’s petition that sent to the prison– it seems, that someone has informed the Central Detective Public Prosecutor about that Hagyó Miklós‘s common law wife by an authorization which is related the legal representation "several times - sometimes without control – she kept in touch with Hagyó Miklós prisoner." [highlighting from the editor]
The Public Prosecutor therefore contacted with both of the Budapest Prison Institute (4/4), and the Central Prison Hospital (4/6) on 20th of October 2010 to put up those questions like who, in what kind of status, when and under what kind of supervision touched or kept in touch with Hagyó Miklós.
The commanders of the two contacted prison have responded to the requests on the next day.
The commander of Budapest Prison Institution wrote the followings, " I inform you about that in the Budapest Prison Institution III. Object the visitings are conducted – wit the legal representatives- in speaking cabin/box. In the cabin between the prisoner and the visitor there is a transparent plastic wall with that they are separated from each other and they are speaking/talking on phone. While they are speaking outside the cabin, in the foreground there is one co-worker from the Prison Institution and one co-worker from the security department, and the conversation is controllable with a technological tool (checking out). "(4/5)
The General Director of the Prison Hospital in Tököl said that "In the Institution all of the conversations will be checking in each cases."(4/7)
The responses of the directors or commanders of the Prison Institutions, are not confirmed information, not at all, about that Hagyó Miklós could speak with his common-law wife without control. But the prosecutor practically ignored this information until presenting of the indictment.
The prosecutor, who analyzed the case in legal aspect, in his notes on 27th of October 2011 he handled the touching without control as a fact : " Hagyó Miklós presented the false data including authorization in September 2010 in order to touch with his common law wife [...]on the ground of this the Prison Institution permitted unauthorized visiting/touching opportunities with his common-law wife - more times than his common-law wife would have been entitled, without control "[highlighting from the editor] (4/11)
Of course, it is possible if the responses of the directors or commanders of institutions did not arrived till 27th of October 2011. But obviously it was not possible
- when on the 8th of November 2010 the Public Prosecutor sent the case to investigation to the Budapest X. District Police Office (" by the authorization the Prison Institution permitted unauthorized visiting/keeping in touch opportunities with his common-law wife - more times than his common-law wife would have been entitled, without control like the defender/pleander.") [highlighting from the editor] (4/14)
- when on the 9th of November 2010 the Public Prosecutor prohibited Hagyó Miklós and his common law wife to keep in touch and call each other ("by the available data the common-law wife successfully more times - than she would have been entitled; without control – tried to keep in touch with Hagyó Miklós suspected in the preliminary detention. "[ highlighting from the editor], or (4/12)
- when 5th April 2011 the Budapest X and XVII. District Prosecutor rejected the plaint against the imputation ("by this, the Budapest Prison Institution recorded the common-law wife as a legal representative and then [...] permitted the contacting/keeping in touch without control, for that the common law wife would not have been entitled. "( highlighting from the editor). (4/32, 4/33, 4/34)
It seems that the prosecutor authorities recognized and noticed when they have written the indictment that information from the Prison Institutions about the contacting without control can not be determined . Likely it would have been difficult to admit that such things were not happened, therefore, the indictment goes into rather alternative assumptions:
"The accused [...] in order to [...] made a written authorization to get same rights as a legal representative can keep in touch with prime accused Hagyó Miklós without control or under more informal control in the preliminary detention [...] . [...] Based on these the Budapest Prison Institution [... and] the Prison Hospital in Tököl [...] permitted contacting/keeping in touch opportunities without control or under more informal control like a legal representative is entitled for the common law wife, who would not have been entitled for this. "( highlighting from the editor) (5)
Beside this process completely contradicts those basic requirements that is necessary for an indictment (eg, the facts are clearly recorded), not just those words are not correct that the legal representative can meet with someone who is in the preliminary detention without control (the letters of directors of the prisons confuted this ), but either it is not correct that their contact would be under more informal control. From the testimony of the commander of Budapest Prison Institution and from the response he gave for the prosecutor’s questions in October 2010 clear up that while the prisoner’s representative (including the legal representative) can speak somebody in the preliminary detention separated with glass wall and only on phone and in the conversation they can check out, until then the 'normal' visitors at same time 30 or 40 can meet with the prisoners in a room where between prisoners and visitors there is no wall (at the most plexi glass separates the relatives from the other visitors), and where the guards take care of the security and they do not go too close to them specifically.")
Presumption of criminal intent is founded on an obvious mistake
Although the commander of Budapest Prison Institution in his letter on 21st of Ovtober 2010 explained it clearly, it became clear for the prosecutor just only the last trial Hagyó Miklós’s common law wife was not recorded as a legal representative in the system of the institution by the authorization that included this expression, but she was recorded by the previously authorization, which only contained that Hagyó Miklós authorized her to exercise his ownership’s right related the business of his limited liability company. (therefore, the prosecutor at the last minute had to modify the charge in his pleading.) (8 - Page 1, paragraph 2)
This obviously makes unacceptable the train of thought try to prove the criminal intent about that the common law wife does not have law specialist exams, they represented her as a legal representative in the second authorization in order to keep in touch with Hagyó Miklós without control and, on the other hand she tried to render more difficult success of the criminal process against him/her.
The prosecution still tried to support this in his pleading that because the common law wife was recorded as a legal representative by the authorization that did not include this expression they would have had to know that the Prison Institution does not need authorization with expression like legal representative because –by authorization without this terms- it has already permitted visiting. According to the prosecutor this contradiction can be solved if the court rejects the defense of the accused that they got the information from the stuff of the prison whether the relative as a legal representative can manage the prisoner’s outside business.
According to our opinion we can draw a much more obvious conclusions from the prosecutor's statement. Why would have they wanted to present per a well known false data including authorization , if the common law wife has already been registered as a legal representative by the previous unquestioned authorization and - as the prosecutor rightly pointed out that- by that visiting was happened? Did they have any reason to risk if they have already reached what they wanted? Obviously, they did not have any reason so they convincingly confute that aim of the signature of the authorization was a “guilty keeping in touch”, that the prosecutor tried to support in the process.
IV. The judgment
By the conducted demonstration the first instance court drawn a conclusion that Hagyó Miklós’s common law wife’s "legal representatives" status is not untrue fact because
- there is no legal definition for that who can be a legal representative in those proceedings where legal representation is not compulsory;
- the questioned authorization which was presented in the personality right suit against HírTV, that the judge of the suit accepted as an updated authorization ";
- it is not impossible that the accused's intention really was that Hagyó Miklós common law wife represented him in the personality right suit like a legal representative
The court, in addition – as it has already been mentioned in above - indicated that it is not expectable from the two not legally qualified accused, to be aware of a precise legal meaning of the definitions that legal professional people always discuss about also . Therefore, the court may also have been determined only negligence if authorization had contained untrue facts. Because the negligence form forgery private document is not a crime, in this case would have been aquitment. (10)
- it is not impossible that the accused's intention really was that Hagyó Miklós common law wife represented him in the personality right suit like a legal representative
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