According to Section 205 (1) of the HU CCP, 'electronic data' means any representations of facts, information or concepts in a form suitable for processing in a computer system, including programs suitable to cause a computer system to perform a function. This definition meets the concept of 'computer data' defined in point b) of Article 1 of the Convention on Cybercrime. Hungarian criminal procedural law draws a distinction between concepts of data and evidence; evidence is the information itself that, as a result of an evaluation process, can be concluded from the data. In other words, data is an evidentiary instrument that carries the information considered evidence. In essence, electronic evidence originates from electronic data automatically stored, processed or transferred in an information system.
In domestic criminal proceedings, there is not any difference between the various categories of electronic data in terms of whether they can be obtained by taking coercive measures or by submitting a request, nor are there requirements and thresholds for access. Classification of data has significance only when picking the proper technical method for performing an investigative measure.
Hungarian judicial authorities, by MLA requests based on bilateral or multilateral agreements as well as by EIOs, guarantee the availability of measures for preservation and obtaining electronic evidence. There are also operational contact points to the CoC’s 24/7 Network (the National Bureau of Investigation and the Centre for International Cooperation in Criminal Matters) to carry out expedited data preservation and provide assistance.
According to the list published by the European Council (participants to the CoC, 24/7 contact point authorities) both the National Bureau of Investigation and the Centre for International Cooperation in Criminal Matters are competent to perform expedited data preservation. Regarding other measures, there is not a single specialized authority to receive or execute the requests.
In case of an incoming request sent via 24/7 Network under Articles 29 and 35 of CoC, the National Bureau of Investigation prepares a decision on data preservation and presents it to the prosecutor for countersigning. Execution of the decision follows at the respective ISP. It only takes a couple of hours or a few days at maximum, depending on the need for clarification. In case of other requests based on mutual legal assistance treaties and in domestic proceedings, under Section 316 of the HU CCP, the investigative authority, the prosecutor or the judge may order the ISP to preserve data for a maximum period of three months.
Under section 261 of the HU CCP, data sought in a criminal proceedings must be provided by ISPs or other data holders and data controllers by a written request of the investigative authority, the prosecutor or the judge within 1 to 30 days when the request is fulfilled in electronic ways and 8 to 30 days when the answer is provided in other forms (e.g. printed). This procedure is also to be followed in international judicial cooperation.
Under 159/A of Act C of 2003, providers of electronic communications services, for the purposes of compliance with the obligation of disclosure referred to in Subsection (1), shall retain the data specified in Paragraphs a)-c) of Subsection (1) for a period of one year following termination of the subscriber contract, the data specified in Paragraphs d)-k) of Subsection (1) for a period of one year following the time they were generated, and the data specified in Subsection (2) for a period of six months following the time they were generated.