Pre-trial detention and alternatives to it

In Hungarian Criminal Law the presence of the defendant may be ensured by a number or coercive measures.

Custody means a temporary deprivation of the defendant of his freedom for a period of maximum seventy-two hours. It may be ordered upon a reasonable suspicion that the defendant has committed a criminal offence subject to imprisonment probable cause exists to believe that the pre-trial detention of the defendant is to follow.

Pre-trial detention means the judicial deprivation of the defendant of his freedom prior to the delivery of the final decision. Pre-trial detention may be ordered only on conditions set forth by the law (for example if the defendant escaped or absconded from the court, attempted to aescape or to hide, or  there is reasonable cause to believe that if left at liberty, the defendant would frustrate, obstruct or jeopardise the evidentiary procedure, or  he would accomplish the attempted or planned criminal offence or commit another criminal offence.

Instead of pre-trial detention, the court may order house arrest  or home curfew as well.

Home Curfew means that the person subjected to this may not leave the specified area or district nor may he change his place of residence or stay without permission.

House Arrest means that the defendant may not leave the dwelling designated by the court and the enclosed area attached to it, or only for the reason, at the time and within the distance specified in the court decision, thus especially, for the purpose of complying with everyday basic necessities or medical treatment. In case of house arrest the police may monitor  with a device tracing the movement of the defendant (sort of an electrconic bracelet).

Special rules of coercive measures in extradition procedures

In Hungary – since 2004 – in extradition or European Arrest Warrant Procedures there is no legal possibility of alternatives to pre-trial detention. In my opinion this rule is unfair and undue and in most cases means unjust discrimination of foreigners. Especially in case of extraditons which process usually takes much longer than European Arrest Warrant cases.

The Hungarian Constitutional Court has once dealed with this problem, but only from point of view of European Arrest Warrants.

Presently a group of defence-lawyers (including me) filed a constitutional complaint against this rule concerning extradition procedures at the Constitutional Court.