Basic rules of pre-trial detention in Hungary
Pre-trial detention is a coercive measure regulated by the Act on Criminal Procedures. It is clear, and many judicial decisions stress out that pre-trial detention must not function as an advance punishment.
The legal reasons of ordering pre-trial punishment is the efficient conduct of the criminal procedure and it can be ordered only in cases set forth by the Act on Criminal Procedures:
-the defendant has escaped or tried to escape or absconded from the authorities;
-there is reasonable cause to believe that the defendant would try to escape or abscond and therefore his presence cannot be otherwise ensured;
-there is reasonable risk to believe that if left at liberty the suspect would frustrate, obstruct or jeopardize the evidentiary procedure (e.g. by influencing witnesses or other defendants or by destruction or secretion of physical evidences) conspire with other or would prejudice the criminal procedure
-there is reasonable risk to believe that if left at liberty the defendant would accomplish the attempted or planned criminal offence or would commit another criminal offence punishable by imprisonment
The pre trial detention is initiated by the public prosecutor. There is no mandatory case for the court to order pre-trial detention, the court decides discretionally in every case.
House arrest and home curfew
If the pre-trial detention is too severe the court can order house arrest or home curfew too. House arrest means that the defendant must not leave an apartment and its enclosed area attached to it, while home curfew means that the defendant may not leave the specified area or district.
It is important to know that since 2004 house arrest or home curfew may not be ordered instead of pre-trial detention in extradition or European arrest warrant issues.
Term of the pre-trial detention
Pre-trial detention ordered prior to the prosecutor’s indictment is ordered by investigating judge and may not be longer than 30 days. Nevertheless the pre-trial detention may be extended by the investigating judge by three months on each occasion. After the lapse of one year it is the county court’s competence to extend the detention by two months each time.
After the filing of the prosecutor’s indictment it falls within the competence of the ordinary court (and not the investigating judge) to order or to maintain the pre-trial detention.
Until the filing of the prosecutor’s indictment to the court the pre-trial detention ordered by the judge may be terminated by the prosecutor.
The execution of the pre-trial detention
Pre-trial detention is usually executed in a penal institution. Pre-trial detention may exceptionally be held in a police cell for a maximum of 30 days which period may be extended once.
During the pre-trial detention the defendant may keep controlled contact with his relatives after registering their data in the penal institution. The defendant may be in uncontrolled contact with his defense-lawyer and the representatives of consular authorities.
Alternatives of pre-trial detention
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).
Critical points in the rules and practice of the pre-trial detention
In the Hungarian judicial system pre-trial detention is an often criticized issue. First of all: accused persons often have the feeling that this coercive measure is used by the investigating authorities as inquisition in order to obtain a plea agreement. Secondly: it is a fact that the conditions of detention in Hungarian prisons are much worse than in Western-Europe.
Hungarian prison conditions are often and urgently criticized by Human Rights Agencies. It is also a fact that Hungary has many times been condemned by European Court of Human Rights for violating the rules of the Convention prohibiting inhuman and degrading prison conditions.
Besides these critical points the Hungarian Parliament adopted a modification of the Criminal Procedure Act in November of 2013 which revokes the maximum duration of pre-trial detentions in respect of criminal offences punishable by fifteen years of imprisonment or life sentence. It means that in many criminal procedures there is no maximum duration of pre-trial set forth by law. It is clear that this rule jeopardize human rights and criminal law guarantees.
An example of success in relation with pre-trial detention
Recently F.’s case raised questions regarding the constitutional guarantees of a fair criminal procedure. F was national of another EU country and he was accused by Hungarian police of the misdemeanor of theft by way of pickpocketing.
According to the indictment, F. Q. reached into the coat of a customer in a café to find values, but upon seeing that the pockets were empty, he left. After this event, he went into a restaurant where he repeated this process: he reached into the pocket of a foreign customer, took his wallet out and left with the money found in it, dropping the wallet on the ground. Some policemen noticed him immediately, for he had already been considered a suspect in another pickpocketing case. They followed F. and took him into custody – the stolen money was found confiscated on the spot.
Causes of pre-trial detention in this case
The suspect pleaded right away guilty and cooperated with the authorities. However the court decided to order his pre-trial detention on the following grounds:
The prosecution deemed that in F’s case it was necessary to acquire the documents of two earlier pickpocketing criminal cases from the police department, in which the perpetrator had not been identified. But it is likely that F might been the one. So the prosecution intended to re-open the earlier cases and unify them with the new one. For this reason the prosecution has asked to court to order F’s pre-trial detention for 90 days.
The position of the prosecution
According to the prosecution’s motion for the pre-trial detention the suspect didn’t have a Hungarian address or affiliations; he had only been in the country temporarily. While the length of the possible punishment increased the risks of the suspect’s possible escape or hiding.
As a defense counsel I found the motion groundless and so I asked the court to be dismiss it. I asked the court to order the defendant’s house arrest in the Czech Republic. My motion lay on the following grounds: in case the suspect is in pre-trial detention, the criminal procedure must be conducted with urgency, and the authorities must make sure that it lasts the shortest time possible.
The court finally decided to order the pre-trial detention for 60 days instead of 90.
The prosecutor’s motion to prolong the pre-trial detention
When approaching to the end of the period of 60 days the prosecutor made a motion for the prolongation of the pre – trial detention stating that an extra time is needed for the success of the investigation.
Naturally I asked the court again to dismiss this motion. I emphasized that one could normally expect the prosecutor or the investigating authorities to obtain the documents of an earliler criminal file in a maximum of few weeks. However nothing happened in the merits of the case during the time the suspect had been in detention.
Constitonal limits of pre-trial detention
Comparing the suspect’s constitutional right to liberty to the state’s demand for the punishment of the guilty, it is clear that the time given to authorities to acquire the necessary documents had been sufficient. An acceptance of the prosecution’s motion would mean that action of the authorities conducting criminal investigations are not limited by constitutional rights and are operating without legal limits.
Additionally, the severity of the possible punishment could not serve as a ground for the increase of risks concerning the suspect’s escape, since the crimes in question were only to be punished up to 2 years of incarceration.
The possibility of pre-trial detention executed in another EU country
Moreover, there was an alternative to pre-trial detention in this case: the 2009/829/JHA Framework Decision of the EU Council guaranteed the legal possibility of the acknowledgement and implementation of a foreign decision on house arrest. (In this case it would mean that house arrest could be ordered by Hungarian court and could be executed at the suspects domicile in an other EU country)
All well if ends well
This time, the court has 100 % accepted my reasoning. They found that the criminal procedure was inactive, and this served as an obstacle to the prolongation of the detention. Therefore, in its ruling the court decided to terminate F.’s pre-trial detention who was soon released from detention and could travel back home.
Read about me in my introduction page as a criminal lawyer
Read my articles in the field of Hungarian Criminal Law
Read an interesting article about pre-trial detention in Hungary at the page of FairTrails.org