Hungary
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⚠️ THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.
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Legal Resources for Hungary
E-Learning Resources |
Background
The Republic of Hungary is situated in central Europe and has a population of approximately 10 million people.
Hungary first encountered communism in 1919, when the Hungarian Socialist Republic was founded. In 1949, the Hungarian People’s Republic was established as a one-party socialist state. It was governed by the Hungarian Socialist Workers’ Party, which was under the influence of the Soviet Union and formed part of the Eastern Bloc. After decades of political repression and economic decline, there was a nationwide popular uprising in October and November of 1956. This was the largest single act of dissent in the history of the Eastern Bloc. The revolt was crushed by the Soviet Union, and thousands of Hungarians were killed, imprisoned or driven into exile. During the 1960s and 1970s, the Kádár government relaxed its stance and implemented a semi-liberal form of ‘Goulash Communism’. In the late 1980s there was a significant economic downturn which resulted in widespread popular dissent and the weakening of Soviet control over Hungary.
After years of communist rule, in 1988 the transition period from communism towards democracy began, and in 1989 fundamental amendments were made to the 1949 Constitution, transforming it into a new fundamental law, establishing the rule of law and democracy. Hungary joined the North Atlantic Treaty Organization in 1999 and became a member of the European Union in 2004.
The Legal system
The Hungarian legal system is a civil law system which was first codified during the socialist period.i The Constitution of 2011 replaced that of 1949.
In Hungary, justice is exercised in different types of courts: the ‘Kúria’ (Supreme Court of Hungary), regional courts of appeal (‘ítélőtáblák’), general courts (‘törvényszékek’), district courts (‘járásbíróságok’), and administrative and labour courts.
Legal Aid
Source of Defendants Rights
The Fundamental Law of Hungary, enacted in 2011, sits at the apex of the legislative hierarchy in Hungary, and every other law must be compatible with it.vii Notably, it contains provisions to protect a defendant’s right to due process, including a fair and public trial. Other forms of legislation include Acts of Parliament and decrees (which can be issued by institutions including the government, Prime Minister, ministers, local government). The Hungarian Criminal Code sets out the criminal offenses in Hungary and the requirements for criminal liability to be established. It also serves to protect inviolable and inalienable human rights.
In Hungary, the relationship between international agreements and domestic law is based on a dualist system: international agreements become part of national law via their promulgation by legal regulations. Hungary has been a member of the EU since 2004
Rights of the Accused
- Right to information:
The accused must be informed of their rights, either in writing or orally. The accused has the right to be informed about the nature of the accusations against them, and to be given a brief summary of the crime of which they are accused. In particular, they must be informed of which parts of the Hungarian Criminal Code they are suspected of having violated.
- Right to inform people:
The accused has the right to inform their family of the arrest. A police officer may do this on their behalf, and the notification must be made within 24 hours of the request being made. However, the accused may be denied the right to notify their family if the police think this could interfere with ongoing investigations.
If the accused is not a Hungarian citizen, they have the right to have their embassy or consulate informed of their arrest.
- Right to Counsel and effective assistance
The accused has the right to defense at all stages of the proceedings: the accused has the right to appoint an attorney or to have one appointed for them. The accused should be informed of these rights before the police start to question them.
- Right to Presumption of Innocence:
The accused has the right to the presumption of innocence.
- Right Against Self-Incrimination:
The accused has the right against self-incrimination.
- Right to Due Process:
The right to due process is enshrined in the Hungarian Constitution, particularly under Article XXVIII which protects a defendant’s right to a fair and public trial. Under Article XXVIII(7), “Everyone shall have the right to seek legal remedy against any court, authority or other administrative decision which violates his or her rights or legitimate interests.”
However, Hungarian courts have shown some resistance to European judicial oversight of judicial processes. For example, in 2019, a Hungarian Supreme Court ruling limited the European Court of Justice’s oversight over domestic criminal proceedings. In November 2021, the CJEU subsequently found that EU law precluded such rulings of the Supreme Court.
- Right to Equal Protection of the Laws:
Fundamental Law of Hungary 2011, Article XV (1): “Everyone shall be equal before the law.”
- Right to Bail:
The accused has a right to bail if the sole reason the court has for detaining them is that they may try to avoid their trial. If the accused complies with all the conditions of their bail and attends all the required court hearings, the money should be paid back to them.
- Right Against Ex Post Facto Prosecution:
The right against ex post facto prosecution (imposing criminal liability or increasing criminal punishment retroactively) is protected under the Fundamental Law of Hungary 2011, Article XXVIII, Paragraph (4).
- Right Against Double Jeopardy:
The right against double jeopardy is protected under the Fundamental Law of Hungary 2011, Article XXVIII(6): “No one shall be prosecuted or convicted for a criminal offense for which he or she has already been finally acquitted or convicted”.
- Right to a Fair Trial:
Generally (including right to a speedy trial and right to an impartial judge)
The right to a fair, public and speedy trial are protected by the Fundamental Law of Hungary. The right to trial by an “independent and impartial” court is also protected.
- Right to a Trial by Jury:
There is no jury in Hungary. The case will either be heard by a single judge, or a panel of judges, depending on the nature and the seriousness of the accusations.
- Right to Language Interpretation: If the accused does not speak Hungarian, an interpreter should be made available for every phase of the criminal process.
Rights of Counsel
Pre-Trial Procedure
Police procedures
- Arrests: The police can generally take a person into custody for up to 24 hours in order to determine their identity. For this, no warrant is needed as this technically does not count as ‘arresting’ or ‘detaining’. For any formal arrest, a warrant is required. If the accused’s arrest or detention has previously been ordered, or the accused has escaped from previous custody, the police can take the accused again for a maximum of 12 hours. If the accused was caught committing a crime, or if there is a good reason (in the police officer’s view) to believe that the court will order the accused’s arrest, the police can detain the accused on sight for up to 72 hours.
- Pre-trial detention: The court may decide to keep the accused in detention if they could face a prison sentence for the accusations against them, the court believes that the accused may try to avoid trial if released, the court believes the accused may commit another criminal offense if released, or the court believes that the accused may try to interfere with ongoing criminal investigations. If the accused is released pending trial, they may still be subject to various restrictions, such as being required to stay in a particular area. The time that the accused spends in pre-trial detention will be deducted from the final sentence. The maximum length of pre-trial detention is 1, 2 or 3 years depending on the maximum sentence the accused is facing.
- Stops and Searches: A police officer may inspect you, your clothing, or your vehicle if it is necessary to figure out who you are, for public safety reasons or to confirm their suspicion of a criminal offense or violation.
Court Procedures
- Preliminary Hearing: After the accused has been charged, the court will fix a date for the preparatory hearing which the prosecution, the accused and the defense lawyer must attend. At this hearing, the accused can make a confession or waive any claims for further evidence. If this does not occur, and so a judgment is not delivered immediately, the court will fix a date for a hearing trial.
- Discovery: Hungarian law generally does not acknowledge, provide for or require parties to engage in any discovery or disclosure. There is still the possibility of pre-hearing evidence-taking, but this is uncommon.
- Nature of the Trial, Defendant, Lawyers, Expert Witnesses, Judges, Victims:
The judge, the prosecutor, the defense lawyer and the defendant are present at the trial. At first instance the evidentiary proceedings occur: the judge may hear testimony from the defendant, the witnesses, expert witnesses etc. The defense may call and cross examine witnesses. The victim may take part in the trial as a witness, but they could also join the criminal proceedings in order to seek compensation.
Once the evidentiary proceedings are concluded, the sentence is delivered.
- The Hungarian Criminal Code sets out the possible penalties at Chapter VII. These range from imprisonment, to custodial arrest or community service. The minimum duration of a fixed-term imprisonment is three months, and the maximum duration of a fixed-term imprisonment is twenty years.
- Right to Appeal, Right to Counsel, Grounds of Appeal:
The defendant has the right to appeal against the sentence to the second instance court, and has a right to an attorney. The defendant can appeal to challenge both the factual findings made by the court, and the legal basis on which the decision was made. However, there is no evidentiary procedure: the court of second instance will work from the material of the court of first instance.
Rights in Prison
- Women: Female prisoners are separated from male prisoners. Female prisoners have the right to shower in warm water every day (most prisoners only have a right to a warm shower at least three times per week). Under the Penitentiary Code, it is compulsory to postpone the start of a sentence in prison for a woman who is more than twelve weeks pregnant. This postponement may be granted to pregnant women up until the twelfth month after the expected date of childbirth. A mother has the option to declare that she wishes to be placed with her child while serving her sentence. If placed in a mother-and-child unit, the mother will not be separated from their child provided that the child is younger than one year old. If the guardianship office declares that the mother has parental custody, a psychological expert will assess whether the mother is fit to take on the mother’s duties and whether the child will be safe with her. The ultimate decision on placement with the child is made by the Hungarian Prison Service Headquarters.
- LGBT Prisoners: There is no special protection of LGBT prisoners, and little protection of LGBT rights in general in Hungary. In 2012, a new constitution, the ‘Fundamental Law of Hungary’, enacted by the Parliament in 2011, came into effect. This constitution restricted the definition of marriage to opposite-sex couples only (i.e. a man and a woman). The constitution contains no guarantee of protection from discrimination on the grounds of sexual orientation. Additionally, the Hungarian Parliament voted in favor of a bill, ‘Section 33’, in 2020 that made it impossible for individuals to change their legal gender. This bill was signed into law on 28 May 2020 by President János Áder. Therefore, there is both a lack of recognition and a lack of protection of transgender people in Hungary.
- Mentally Ill Prisoners: It is possible for a prisoner to apply to the prison psychologist for an individual or group interview. However, the Hungarian Helsinki Committee notes in its prison guide that access to a psychologist is limited in Hungarian prisons. If a prisoner needs psychiatric treatment, they will be transferred to the Judicial Observatory and Rehabilitation Institute (IMEI) in Budapest.
- Juveniles: In Hungary, the minimum age of criminal responsibility is 14. However, there are specific exceptions (e.g. homicide) for which the minimum age of criminal responsibility is 12, provided that the accused had the requisite capacity at the time of the offense to understand the nature and consequences of their acts. In terms of sentencing, the court determines the penalty freely within a reduced range of penalties for juveniles. The Hungarian Criminal Code lays down four potential sanctions for juveniles: (1) educative (and/or security) measure without deprivation of liberty, (2) penalty without deprivation of liberty, (3) measure involving deprivation of liberty, (4) penalty involving deprivation of liberty. These different sanctions place emphasis on the importance of moral salvation and education of juveniles, and the fact that separating a juvenile from their social environment should only come as a last resort. Hungarian criminal law lays down the measure of ‘Special education in a reformatory institution’ for juveniles, in the interest of their successful education, which can last 1-3 years. Adult prisoners are separated from juvenile prisoners under 21 years of age. There are only two levels of security of prisons in use for juveniles - medium and low. Life imprisonment can only be imposed on offenders who have turned 20 at the time that the offense was committed.
Resources
- John Henry Merryman and Rogelio Pérez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America. Third Edition. Stanford University Press. 2007
- https://constitutionnet.org/country/hungary
- Hungarian Helsinki Committee: https://helsinki.hu/en/.
- Street Lawyer Association: https://www.utcajogasz.hu/.
- Council of Europe data 2021: https://rm.coe.int/hungary-2021-data-/1680ab89ba.
- https://e-justice.europa.eu/6/EN/national_legislation?HUNGARY&init=true&member=1
- Hungary: Criminal Code: https://www.refworld.org/legal/legislation/natlegbod/2012/en/78046
- https://european-union.europa.eu/principles-countries-history/country-profiles/hungary_en
- Fundamental Law of Hungary 2011. Available at: https://www.constituteproject.org/constitution/Hungary_2016#s401.
- https://freedomhouse.org/country/hungary/freedom-world/2022
- Act LXXVIII of 2017 - on Legal Practice. Available at: https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/National_Regulations/National_Laws_on_the_Bars/EN_Hungary_Act-on-Lawyers.pdf.
- Hungary: Act XXXIV of 1994 on the Police: https://www.refworld.org/legal/legislation/natlegbod/1994/en/74143
- https://www.iadclaw.org/assets/1/7/SILP_Hungary.pdf
- ‘The Right to Appeal and Individual Application in Criminal Proceedings in Hungary, with Special Regard to the Defendant’s Participatory Rights’: https://dergipark.org.tr/en/download/article-file/498182.
- Hungary: Act No. LXXX of 2007, Act on Asylum: https://www.refworld.org/legal/legislation/natlegbod/2008/en/110732
- Prison Guide: https://helsinki.hu/en/prison-guide/
- ↑ hhttps://www.constituteproject.org/constitution/Hungary_2016
