Where’s my lawyer? Making legal assistance in pre-trial detention effective 3. Hungary Hungarian Helsinki Committee Main findings and key challenges Since 2014, the number of persons in pre-trial detention has gradually decreased. Research has shown that the reason behind this development is a decrease in the number of police proposals and prosecutorial motions aimed at ordering pre-trial detention.105 In addition, prosecutorial motions have been slightly less successful before the courts in recent years (success rate going down from over 90% in 2014 and earlier to 87.8% in 2017). At the same time, the number and proportion of alternative coercive measures motioned by the prosecution and/or applied by the courts is still rather low and has not increased in the same proportion as pre-trial detentions decreased. Hence the authorities are not applying alternative coercive measures instead of pre-trial detention. Present research shows a change in practice of the authorities (especially in certain parts of the country, like Budapest) towards a slight improvement in recent years, although the approaches taken by prosecutors and judges differ significantly across the country.106 As of 1 July 2018 a new Code of Criminal Procedure (the New CCP)107 entered into force, replacing the old law. The New CCP brought a positive conceptual change in the area of pre-trial measures: it is explicitly aimed at ensuring that the principles of gradual approach, necessity and proportionality are complied with and so pre-trial detention is ordered only if the purpose of the coercive measure cannot be achieved by applying a less restrictive coercive measure.108 The New CCP also broadened the scope of alternative coercive measures available, allowing the authorities to reach more individualized decisions. In addition, the rules on bail were modified in a way that extends the possibility of posting bail. Nevertheless, the practice of the stakeholders (both that of the authorities and of the defence counsels) needs to adapt to these legislative changes for the new rules to result in positive change in practice. Where pre-trial detention is requested by the prosecutor, problems still exist: • The prosecution’s arguments are more frequently accepted than those of the defence. Courts often fail to respond in their decisions to the reasoning of the defence counsel, including the motion for a less restrictive coercive measure. • Court decisions on pre-trial detention tend to be abstract and fail to assess the defendant’s individual circumstances as well as the possibility of applying alternative coercive measures. • This is coupled with the frequent lack of criminal justice actors, including defence lawyers, to apply international standards or refer to them during the criminal procedure. As a result, in many cases the pre-trial detention of defendants is ordered and maintained unlawfully. • Hungarian courts, for example, fail to consider the applicable case-law of the ECtHR. The ECtHR has repeatedly condemned Hungary for violating Article 5 of the European Convention on Human Rights in pre-trial detention cases for similar reasons.106 In 2018, in the case Lakatos v. Hungary,110 the ECtHR ruled that the 3-yearand-8-month long pre-trial detention of the applicant and the lack of consideration of the alternative coercive measures, as well as the ‘standardized’ wording of the reasoning violated Article 5 § 3 of the Convention. • Also, as a result of ‘penal populism,’ judges are sometimes under strong pressure to order strict coercive measures. Recent research has highlighted how the presumption of innocence is being undermined in Hungary in the case of migrants. Press coverage underscores the non-national origin of the suspect especially in cases involving alleged crimes seen in populist-fuelled public discourse as linked to the dangers of migration, such as sexual assault.111 105 In 2013, prosecutors submitted 6,673 pre-trial motions, compared to 4,552 in 2017. This amounts to a decrease of 31.8%. Between 2013 and 2014, the number of prosecutorial motions dropped by 20.3%. 106 András Kádár, Pre-trial measures in Hungary, in: Fair Trials and Criminal Justice Policy Program at Harvard Law School, Bail and Jail: A Comparative Look at Pretrial Detention Reform in the UAS and Europe, Conference Paper, 2 April 2019. 107 Act XC of 2017 on the Code of Criminal Procedure. 108 The New CCP introduced ‘criminal supervision’ as an overarching category which covers ‘alternative’ coercive measures which limit personal liberty. It includes house arrest, geographical ban, ban on visits to certain public places or events, and the obligation to regularly check in with the respective police organ (New CCP, Article 281). Criminal supervision measures may be supervised by an electronic monitoring device and may be accompanied by the requirement of posting bail (New CCP, Article 282). Posting bail may also result in criminal supervision to be terminated or a less severe coercive measure to be ordered (New CCP, Article 285). 109 See judgments of the European Court of Human Rights, e.g.: A.B. v. Hungary (Judgment of 16 April 2013, App. no. 33292/09), Baksza v. Hungary (Judgment of 23 April 2013, App. no. 59196/08), Bandur v. Hungary (Judgment of 5 July 2016, App. no. 50130/12), Darvas v. Hungary (Judgment of 11 January 2011, App. no. 19547/07), Kovács Ferencné v. Hungary (Judgment of 20 December 2011, App. no. 19325/09), X.Y. v. Hungary (Judgment of 19 March 2013, App. no. 43888/08). In these cases Hungarian authorities were condemned for more or less same reasons: the deprivation of liberty which may be considered justified in the beginning is upheld for an unreasonably long time, in a way that the personal circumstances of the procedure and the defendant are not taken into account, they refer to the risk of frustrating the procedure and/or the risk of absconding automatically (with regard to the latter, usually taking into account exclusively the gravity of the punishment that may be imposed), and do not consider in reality the possibility of applying a less restrictive coercive measure even if the individual circumstances would make it reasonable. 110 European Court of Human Rights, Lakatos v. Hungary, Judgment of 26 June 2018, App. no. 21786/15. 111 Fair Trials, Innocent until proven guilty? The presentation of suspects in criminal proceedings, 2019. 37