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.

Basic rules of pre-trial detention in the Criminal Procedure Act

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.