HUNGARY | Ombudsman calls for statute stipulating max. duration of pre-trial detention

According to the Commissioner for Fundamental Rights, the principle of the rule of law and the fundamental right to personal liberty imply that there should be a statute stipulating the maximum duration of pre‑trial detention. Therefore, Ombudsman László Székely has submitted a petition to the Constitutional Court requesting the annulment of that provision of the Act on Criminal Proceedings which fails to specify the maximum duration of pre‑trial detention in the case of individuals suspected of having committed the most serious crimes.

Acting on a submission by a civil society organization, the Commissioner for Fundamental Rights has conducted an investigation into legal regulation of pre‑trial detention. He has established that pre‑trial detention is not a form of "advance" punishment for the (allegedly) committed crime, but a guarantee of the criminal procedure's success and the availability of the suspect, and a means of preventing repeat offences. Pre‑trial detention is constitutional only if it preserves its "preliminary" character and does not turn into a custodial sentence involving deprivation of liberty. Before 19 November 2013, the Act on Criminal Proceedings stipulated that pre‑trial detention should not exceed four years even in the case of the most serious offenses; however, an amendment to the Act has abolished this limitation.

The Commissioner for Fundamental Rights has cited the Constitutional Court's practice: back in 1992 it stated that "in a constitutional state the violation of rights can only be remedied by upholding the rule of the law", and "wherever the value of the rule of law is entrenched, not even a just demand can justify the disregard of the constitutional state's legal guarantees". Obviously, the rule of law means legal action against offenders and seeks to bring them to justice. To this end, it establishes a procedure which takes into consideration not only effectiveness, but also the fundamental rights of the accused. Rule of law also implies that the state may not shift the burden of an unsuccessful criminal procedure onto the accused. Therefore, the abolition of the maximum duration of pre‑trial detention infringes on the rule of law clause of the Fundamental Law.

The Ombudsman has also pointed out that the regulation of pre‑trial detention can meet the requirements of personal liberty only if its limitation is proportionate to the objective to be reached. After a certain while, enforcing the interest in the criminal procedure's success and the public interest in enforcing the state's punitive powers will surely become disproportionate to the conceptually irreversible and, in fact, not remediable restriction of one's personal liberty.

In view of the above, the Ombudsman has recommended the annulment of the relevant provision of the Act on Criminal Proceedings to the Constitutional Court.

Source: Commissioner for Fundamental Rights, HUNGARY