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NEWS

Guest Post: Hungary's perpetual pre-trial detention

editor - March 13, 2015 - Pre-trial detention

budapest-77610_640As it was reported in a guest post by the Hungarian Helsinki Committee (HHC), in December 2013 the Hungarian Parliament adopted an amendment to the Code of Criminal Procedure, whereby the four-year time limit on duration of pre-trial detention pending a first instance judgment was abolished for those accused of crimes punishable by a prison term of up to 15 years or life-long imprisonment. Allowing for unlimited pre-trial detention added another problem to the deficiencies surrounding pre-trial detention in Hungary, including its excessive use as opposed to measures not involving the deprivation of liberty, the success rate of prosecutorial motions for ordering pre-trial detention exceeding 90% as well as the excessive length of pre-trial detentions. Furthermore, cases suggest that individual circumstances are not sufficiently considered by courts deciding on pre-trial detention.

 The HHC criticised the amendment from the outset, claiming that the amendment raises serious concerns in light of the relevant case-law of the European Court of Human Rights, among other criticisms. Since 2012, NGOs cannot submit actio popularis requests directly to the Constitutional Court, but the Ombudsperson is entitled to initiate a constitutional review by law. In light of this, the Eötvös Károly Institute and the HHC submitted a request in January 2014 to the Ombudsperson of Hungary, asking him to initiate the review of the respective provisions by the Constitutional Court.

The two NGOs claimed that the new rule violates the right to liberty, arguing that - in addition to the principle that liberty can only be deprived for reasons specified in the law, and in accordance with a procedure prescribed by law - the requirements of necessity and proportionality should also be fulfilled. The interests of the criminal procedure cannot justify the deprivation of liberty, and setting out a maximum time limit for pre-trial detention aimed at ensuring that the deprivation of liberty does not exceed a reasonably justified length. According to the NGOs, it also raises constitutional concerns that the amendment was triggered by a particular criminal case, and that it abolished a formerly existing guarantee. In March 2015, the Ombudsperson turned to the Constitutional Court regarding the matter, requesting it to abolish the respective legal provision due to its unconstitutionality. The Ombudsperson’s motion echoes the NGOs’ concerns that the limitation of liberty shall comply with the requirement of proportionality. Also, the state’s interest in a successful criminal procedure is definitely not in proportion to the deprivation of liberty after a certain period of time. The Ombudsperson also emphasized that pre-trial detention serves the aim of conducting the criminal procedure and preventing reoffending, thus it is constitutional only as long as it is not a punishment “in advance”. Therefore, abolishing the time limit for pre-trial detention violates the right to liberty and the rule of law. The motion is currently pending before the Constitutional Court.

This is a guest post written by the Hungarian Helsinki Committee and may not reflect the views of Fair Trials. Hungarian-Helsinki-Foundation-Logo The Hungarian Helsinki Committee (HHC) was established in 1989 and has been monitoring whether rights that are assured by domestic law can be effectively exercised, and whether Hungarian legislation guarantees the rights that it should under either international treaties or the general principles of human rights.  For regular updates follow Fair Trials on Twitter or sign-up to our monthly bulletin at the bottom of the page.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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