Hungarian Criminal LawGeneral Part

Dr. Katalin LigetiDr. Katalin Ligeti6 March 20096 March 2009

1. The system of justifications and defences in Hungarian

criminal law Statutory defences Statutory defences Ex-statutory defences regulated only in case Ex-statutory defences regulated only in case

law law objective defencesobjective defences subjective defences subjective defences

- applicable to every - applicable to every perpetrator of the perpetrator of the offence,offence,- the act does not - the act does not qualify as a criminal qualify as a criminal offence offence

- it must be individually - it must be individually examined in respect of examined in respect of each perpetrator,each perpetrator,- may exclude the - may exclude the knowledge or the will of knowledge or the will of the perpetrator the perpetrator

the victim ‘s the victim ‘s consentconsent

exercise of rights exercise of rights and fulfilment of and fulfilment of duties duties

permitted permitted risk risk

e.g. proportional e.g. proportional defence in the defence in the framework of self-framework of self-defence defence

- self - self defence,defence,- - emergency,emergency,- coercion, - coercion, - menace,- menace,- mistake - mistake

- mental - mental illness illness

- in respect of - in respect of his/her life,his/her life,- in respect of - in respect of his/her bodily his/her bodily integrity integrity - in respect of - in respect of his wealth,his wealth,

- abortion,- abortion,- freedom of - freedom of expression,expression,- exercise of - exercise of religion,religion,- witness - witness statement,statement,- use of arm by - use of arm by the police,the police,- disciplinary - disciplinary measures in the measures in the family family

2. The victim’s consent

A. Hungarian law differentiates between actions to which the victim had Hungarian law differentiates between actions to which the victim had consented and actionconsented and actionss which are performed in the victim’s interest. which are performed in the victim’s interest. Hungarian law does not know the concept of assumed consent.Hungarian law does not know the concept of assumed consent.Example (1):Example (1): The mother brings her 8 years old daughter to a tattoo-studio The mother brings her 8 years old daughter to a tattoo-studio in order to get her a piercing in her ear.in order to get her a piercing in her ear.Example (2):Example (2): The physician amputates the leg of the victim of a car The physician amputates the leg of the victim of a car accident in order to save his life.accident in order to save his life.

B.B. In Hungarian criminal law, the victim may consent to In Hungarian criminal law, the victim may consent to-- passive euthanasia,passive euthanasia,-- to bodily injury, even serious injury,to bodily injury, even serious injury,-- to loss of property.to loss of property.

C.C. Special case law on sadomasochist sexual practices and sporting. Special case law on sadomasochist sexual practices and sporting.Example (1):Example (1): The victim after having spent a night in a sadomasochist The victim after having spent a night in a sadomasochist club, due to injuries suffered from wiping, flagellating and cuts by a raiser club, due to injuries suffered from wiping, flagellating and cuts by a raiser blade, has to cure his injuries blade, has to cure his injuries 66 weeks long in a hospital. weeks long in a hospital.Example (2)Example (2): During a football match, a player accidentally hits the leg of a : During a football match, a player accidentally hits the leg of a teammate while trying to retain the possession of the ball. The player teammate while trying to retain the possession of the ball. The player ssuffers a muscle rupture.uffers a muscle rupture.

3. Freedom of expression

A. Point of departure:- Hungarian Constitution affords protection to all expressions regardless their content., i.e. hate speech is allowed,- criminal law, however, incriminates expressions which spur on hatred (spur being more than simply incite to hatred).B. What qualifies as spur on hatred?- is it sufficient if the rights of citizens’ are violated in abstracto?- or is it necessary that the rights of a concrete person are violated, i.e. incitement to a concrete crime? Example (1): The preacher, in his ceremony, calls upon his congregation „to crunch upon the liberal worms!”Example (2): One of the football fans calls upon his mates to „beat up the dirty Jew standing at the corner!”C. Special case of persons in the public (celebrities, politicians, etc.), who are expected to endure more criticism than ordinary people.Example (1): During the love parade in Budapest, prime-minister Gyurcsány is targeted by demonstrators with eggs.Example (2): During the election campaign, one politician is blamed in a television broadcast with having stolen the money of the city.Example (3): On occasion of the anniversary of the 1956 revolution, one of the survivals - who is an acting member of parliament- is blamed by the newspapers to have testified against his mates who were, as a result, executed. It is a fact, that all 1956 revolutionaries testified against themselves and against their mates, however, out of pride and conviction.

4. The concept of a New Criminal Code – selected issues of the General Part

Background information on the present situation:Background information on the present situation:-- The The socialist Criminal Code of 1978socialist Criminal Code of 1978 is still in is still in force in force in Hungary with the result that:Hungary with the result that:a)a) all offencesall offences are contained are contained in the Criminal Codein the Criminal Code (no (no NebenstrafrechtNebenstrafrecht),),b)b) there is a large number of there is a large number of framework offence framework offence descriptionsdescriptions ( (BlankettstraftatbeständeBlankettstraftatbestände),),c)c) concepts like e.g. concepts like e.g. social dangerousnesssocial dangerousness are still are still part of part of the the actus reusactus reus..Most debated issues in respect of the rules on criminal Most debated issues in respect of the rules on criminal responsibility:responsibility:-- to adopt a new - formalistic - to adopt a new - formalistic - crime conceptcrime concept, i.e. , i.e. elimina-elimina- tion of social dangerousness as part of the tion of social dangerousness as part of the crime definition,crime definition,-- to codify to codify mittelbare Täterschaftmittelbare Täterschaft,,-- to allow for to allow for pre-emptive self-defencepre-emptive self-defence..

5. Pre-emptive self-defence?

The elements of The elements of self- defenceself- defence::-- imminent attack (imminently threatening attack) imminent attack (imminently threatening attack) against against life, bodily integrity or property,life, bodily integrity or property,-- defensive act,defensive act,-- proportionalityproportionality between the attack and defensive between the attack and defensive act.act.

Should Should pre-emptive self defencepre-emptive self defence be legal? be legal?Example: In order to protect his cropsExample: In order to protect his crops,, the farmer installs an the farmer installs an electric fence around the crop. The electric fence is isolated electric fence around the crop. The electric fence is isolated from the public as it is installed well within his garden walls. from the public as it is installed well within his garden walls. The victim after having entered into the garden illegally The victim after having entered into the garden illegally walks into the electric fence and suffers grave injury.walks into the electric fence and suffers grave injury.

6. The sanctioning system of Hungarian criminal law

Principal punishments Accessory punishments Punitive measures

imprisonmentimprisonment-life long,life long,

- for a determinate period of timefor a determinate period of time

deprivation of civil privilegesdeprivation of civil privileges reprimandreprimand

community servicecommunity service occupational banoccupational ban probationprobation

financial penaltyfinancial penalty ban on drivingban on driving forced medical treatmentforced medical treatment

barring orderbarring order treatment of alcoholicstreatment of alcoholics

expulsionexpulsion confiscationconfiscation

accessory financial penaltyaccessory financial penalty forfeitureforfeiture

7. The sanctioning practice of Hungarian courts

The The dramatic increase of registered crimedramatic increase of registered crime after after the political transition was followed in Hungary by a the political transition was followed in Hungary by a growing growing lenience of the sanctioning practicelenience of the sanctioning practice..

In the last 10 years In the last 10 years more than 90%more than 90% of the of the sanctioned imposed by Hungarian courts sanctioned imposed by Hungarian courts did not did not involve deprivation of libertyinvolve deprivation of liberty (suspended (suspended imprisonment, community service, financial penalty, imprisonment, community service, financial penalty, probation, reprimand).probation, reprimand).

Regardless the above tendencies, the average Regardless the above tendencies, the average number of number of prison population in Hungary is still prison population in Hungary is still twice as high as in Western Europeantwice as high as in Western European countries. countries.

8.8. Prison Population and Number of Pre-trial Prison Population and Number of Pre-trial Detainees Detainees

in the European Union (in the European Union (2004-2005) 2004-2005) **

CountryPrison population per 100 thousand

inhabitants

Pre-trial Detainees within the prison populations (%)

1. Estonia 339 23,7

2. Lettland 337 35,0

3. Lithuania 234 16,9

4. Poland 217 17,4

5. Check Republic 186 14,4

6. Slovakia 165 33,1

7. Hungary 163 24,6

8. United Kingdom 145 17,4

9. Luxemburg 143 45,9

10. Spain 141 23,5

11. Netherlands 127 30,7

12. Portugal 124 23,5

Country Prison population per 100 thousand

inhabitants

Pre-trial Detainees within the prison populations (%)

13. Austria 106 26,9

14. Germany 97 19,7

15. Italy 97 36,0

16. Belgium 88 39,1

17. France 88 36,1

18. Ireland 85 16,4

19. Greece 82 28,2

20. Sweden 81 20,5

21. Malta 72 33,1

22. Denmark 70 29,0

23. Finland 66 13,6

24. Slovenia 56 27,1

25. Cyprus 50 13,2

* International Centre for Prison Studies, King’s College, University of London

Group of countries Average rate based on 100 000 inhabitant

1. EU 25 1342. EU 15 (old Member States) 1093. EU 10 (new Member States) 1824. 8 former socialist countries 2125. EU 5 (Central Eastern European Countries) 157

9. Average rate of prison population in different country groups of the European Union

10. The envisaged reform of the sanctioning system

Point of departure is the Point of departure is the double track criminal policydouble track criminal policy, , according to which:according to which:-- serious crimes should result in severe punishments, serious crimes should result in severe punishments, whereaswhereas-- in case of less serious crimes victim compensation in case of less serious crimes victim compensation should should prevail over the prevail over the ius puniendiius puniendi of the state, of the state,-- the system of punishments and punitive measures should the system of punishments and punitive measures should be more flexible in order to allow the judge a better be more flexible in order to allow the judge a better individualisation of the sanction (individualisation of the sanction (cocktail punishmentscocktail punishments).).Most Most debated issuesdebated issues in respect of the sanctioning system: in respect of the sanctioning system:-- new rules on active regret,new rules on active regret,-- unlimited combination possibility of all types of unlimited combination possibility of all types of sanctions,sanctions,-- introduction of partially suspended imprisonment,introduction of partially suspended imprisonment,-- increase the amount of financial penalty,increase the amount of financial penalty,-- elimination of life long imprisonment.elimination of life long imprisonment.

11. Active regret and victim compensation

According to the present rules active regret may be performed:According to the present rules active regret may be performed:-- only in case of offences against only in case of offences against life, life, propertyproperty and and traffic offences, traffic offences, punishable punishable with max. 3 years of imprisonmentwith max. 3 years of imprisonment,,-- the perpetrator performed/fulfilled the compensation in the the perpetrator performed/fulfilled the compensation in the course of course of mediationmediation,,-- if the crime did not result in death.if the crime did not result in death.Shortcomings of the present rules:Shortcomings of the present rules:-- the scope of active regret is too narrow,the scope of active regret is too narrow,-- active regret may take place also at the second instance.active regret may take place also at the second instance.-- there is no control on the fulfilment of the compensation.there is no control on the fulfilment of the compensation.The new concept of active regret would apply to all crimes punishable The new concept of active regret would apply to all crimes punishable with max. 3 years of imprisonment, if:with max. 3 years of imprisonment, if:-- the perpetrator admitted to have committed the crime beforethe perpetrator admitted to have committed the crime before the the indictment,indictment,-- both the victim and the perpetrator agreed to mediation,both the victim and the perpetrator agreed to mediation,-- the perpetrator performed/fulfilled the compensation,the perpetrator performed/fulfilled the compensation,-- the crime concerned did not result in death.the crime concerned did not result in death.Upon completion of the above criteria the public prosecutor or the judge Upon completion of the above criteria the public prosecutor or the judge closes the case and reprimands the perpetrator.closes the case and reprimands the perpetrator.

12. The increase of the amount of financial penalty

Currently, the amount of financial penalty varies between Currently, the amount of financial penalty varies between HUF 3.000-10.800.000 (EUR 10-36.000).HUF 3.000-10.800.000 (EUR 10-36.000).

According to the envisaged reform the amount of financial According to the envisaged reform the amount of financial penalty should be between HUF 90.000-108.000.000 (EUR penalty should be between HUF 90.000-108.000.000 (EUR 300-360.000).300-360.000).

Reasons of the substantial increase:Reasons of the substantial increase:-- to reflect upon the changed economic situation of to reflect upon the changed economic situation of some some perpetrators,perpetrators,-- to establish a more reasonable relationship between to establish a more reasonable relationship between

administrative fines (max. is EUR 500) and financial administrative fines (max. is EUR 500) and financial penalties,penalties,-- to allow for more individual sanctioning practice, to allow for more individual sanctioning practice, better better reflecting the gravity of the crime and the reflecting the gravity of the crime and the individual individual circumstances of the perpetrator.circumstances of the perpetrator.