HOME ARREST IN HUNGARY

1. HOME ARREST IN HUNGARY An evaluation of national legislation & law enforcement

2. Pre-trial detention – European Standards • Common standards included in two European documents: • Council of Europe Resolution No. 11 of 1965. on remand in custody • Council of Europe Recommendation No. 11 of 1980. on custody pending trial • Set of minimum standards to ensure that pre-trial detention • is exceptional, • is never compulsory, • is not applied for punitive ends, and • is prevented from being extended over the period of time deemed strictly necessary, • Detainees should be • Granted right of appeal and legal assistance, • Brought to trial as soon as possible

3. Pre-trial detention – Hungarian principles • Art. 55 of the Hungarian Constitution sets out as follows: • In the Republic of Hungary everyone has the right to freedom and personal security; no one shall be deprived of his freedom except on the grounds and in accordance with the procedures specified by law. • Any individual suspected of having committed a criminal offence and placed under arrest shall be either released or brought before a judge within the shortest possible period of time. The judge shall grant the detained individual a hearing and shall immediately award a justified decision in the written form for either releasing the detainee or having the individual placed in pre-trial detention. • Any individual subject to illegal arrest or detention is entitled to compensation. • Art. 5 of the Act on Criminal Procedure stipulates: • everybody being suspected of having committed a criminal offence has the right to defend himself / herself against the charges brought up while at large. This fundamental right shall not be restricted and nobody’s personal freedom shall be deprived unless in the cases and with respect to the rules of a due process provided for in the act.

4. Pre-trial detention –legal grounds in Hungarian criminal procedure law • As set out in Art. 129 of the Act on Criminal Procedure, Pre-trial detention may be ordered, on condition that • the offender did abscond, attempted to do so or hid away from the judge, the prosecutor or the law enforcement agency, or charges of another intentional crime for which imprisonment may be imposed has been brought up against him / her; • the offender is likely to abscond or hide away and because of this or for other reasons he / she is expected with reason not to be present during the procedure unless in pre-trial detention; • the offender, if at large, is expected with reason to hinder or to endanger evidence or to make it unaccomplishable via especially influencing or menacing witnesses, hiding away, diminishing or falsifying documents or other proofs; • the offender is expected with reason to accomplish the crime attempted or prepared or to commit another intentional crime for which imprisonment may be imposed.

5. Pre-trial detention – technical rules • Ordering and maintenance (application & prolongation) remains in judicial competence – ”judge of investigation” • In most cases, the prosecutor initiates detention by putting forward a respective proposal to the judge of investigation • The prosecutor is entitled to terminate detention on his own preceding indictment

6. Pre-trial detention – duration • If ordered prior to indictment, pre-trial detention • lasts max. one month • may be prolonged as far as the judge trying the charges resolves on the case • If ordered or prolonged succeeding indictment, pre-trial detention • lasts until final adjudication of charges • shall be supervised by a court of higher instance bi-annually • Maximum duration of pre-trial detention shall not exceed three years (two years in case of juvenile offenders)

7. Home arrest – an alternative of pre-trial detention I. • Home arrest puts temporary restraint on the offender’s right • to free motion, and • to free choice of residence • ”Home” for the purposes of home arrest shall mean any kind of dwelling and the very piece of fenced property belonging to such dwellings • Offender under home arrest shall not leave the territory of the dwelling unless so authorised by the judge

8. Home arrest – an alternative of pre-trial detention II. • As regards technical aspects, home arrest shares (i) principles, (ii) legal grounds, (iii) procedural rules, and (iv) duration of pre-trial detention • Time served on home arrest shall also be deducted from the duration of the final sentence let it be either imprisonment or a non-custodial sentence • As an alternative of pre-trial detention, home arrest may be ordered if, with regard to • the features of the criminal offence, • the duration of the criminal process, and • the offender’s behaviour & personality goals of pre-trial detention may reasonably be achieved without total or further deprivation of the offender’s personal liberty

9. Proportion of PTD within Prison Population

10. PTD – HA Proposed by Prosecutor– HA ordered by the judge • Volume of crime yearly among 2000 – 2006: • app. 420 to 450 thousands • Number of offenders detected yearly among 2000-2006: • app. 120 to 125 thousands

11. HA vs. HA Proposed by Prosecutor

12. Total HA vs. Total HA Proposed by Prosecutor (2000-2006)

13. Home arrest – why so unpopular? • Criminal law enforcement agencies • Focus on procedural interests • Offender should be available for procedural purposes • From their point of view, PTD is reliable & comfortable • Dwelling – the Achilles heel of HA • Dwelling is essential for the purposes of HA • Most offenders do not dispose of any kind of dwelling • HA prevails as a coercive measure fitting white collar offenders / perpetrators of economic crimes • Such an implementation of HA flies in the face of the concept of equal opportunities

14. Home arrest – modes of supervision & control • Act on criminal procedure sets out: the judge may order – upon the offender’s consent – the police to supervise offender under home arrest via electronic monitoring devices • Decree on enforcement of home arrest adds two further modes of supervision: • Police patrol • Occasional control

15. Home arrest – content of supervision & control • When supervising home arrest, the police checks if the offender • stays in the prescribed dwelling, • does not leave such dwelling except for the case when so authorised by the judge • have not changed his / her residence • have not removed or damaged technical monitoring device • If the offender fails or omits to respect exact rules of home arrest, he / she may be arrested by the police

16. Thank YouFor Your Kind Attention Multumesc Frumos Pentru Consideratia Dumnavoastrea