In July 2011, the Hungarian Parliament passed amendments to the Criminal Procedure Code. Police can now detain suspects in “priority cases” for five days before bringing them before a judge. This has increased from the previous three day maximum.
In addition, in priority cases the prosecutor can now ban a suspect from contacting a lawyer for the first 48 hours of detention. This is an unfettered power concentrated in the hands of the prosecutor and it is not subject to judicial review. This is unprecedented in Hungarian law, as previously suspects had the right to access a lawyer from the moment of arrest. It is also an unfortunate backwards step, when many countries across the EU are reforming their systems to ensure that suspects have the right to early access to counsel.
At the last minute, after being criticized publically for this severe restriction on fair trial rights, the Parliament included a small twist on the law. Now, if an interrogation takes place during the first 48 hours of detention, the suspect can have a lawyer present at that interrogation. But it is unclear what the lawyer is actually allowed to do; whether they can intervene, ask questions, or provide any advice to their client.
Priority cases include what the Government has referred to as “politician crimes” such as abuse of office, and serious financial and property crimes. In another last minute change – perhaps in response to criticisms that the Government was targeting the opposition with these amendments – the definition of priority crimes was expanded to include violent crimes such as murder and terrorist acts.
The law also includes “forum shopping” provisions. The prosecutor can now choose the geographic region in Hungary in which to bring the case against the suspect. This is concerning, as it undermines the neutrality of the courts. From now on the Prosecutor has the power to pick which court, and indirectly which judge, will rule on the case.
Despite objections both the legal profession, the Supreme Court and human rights organizations, the Hungarian government continues to sweep away the previous fair trial rights held by individuals, and increase the power of the prosecutor and police. On 9 September a new legislative proposal came to light which expands on the July amendment to the Criminal Procedure Code. Under this new proposal, lawyers will be banned from attending any questioning of witnesses in priority cases as well.
The Justice Initiative will be monitoring these developments in the future.
The issue of early access to counsel for criminal suspects has gained enormous momentum across Europe in 2011. To keep you abreast of these exciting developments, the Justice Initiative is presenting short “country snapshots,” showing how European countries are changing their systems and giving people who are suspected or accused with crimes the right to speak to a lawyer from the outset of police custody, both before and during the first questioning by police.