1. Hungarian Criminal Law General Part Dr. Katalin Ligeti 6 March 2009

2. 1.The system of justifications and defences in Hungarian criminal law Statutory defences Ex-statutory defences regulated only in case law objective defences subjective defences - applicable to every perpetrator of the offence, - the act does not qualify as a criminal offence - it must be individually examined in respect of each perpetrator, - may exclude the knowledge or the will of the perpetrator the victim ‘s consent exercise of rights and fulfilment of duties permitted risk e.g. proportional defence in the framework of self- defence - self defence, - emergency, - coercion, - menace, - mistake - mental illness - in respect of his/her life, - in respect of his/her bodily integrity - in respect of his wealth, - abortion, - freedom of expression, - exercise of religion, - witness statement, - use of arm by the police, - disciplinary measures in the family

3. 2.The victim’s consent Hungarian law differentiates between actions to which the victim had consented and actions which are performed in the victim’s interest. Hungarian law does not know the concept of assumed consent. A. Hungarian law differentiates between actions to which the victim had consented and actions which are performed in the victim’s interest. Hungarian law does not know the concept of assumed consent. Example (1): The mother brings her 8 years old daughter to a tattoo-studio in order to get her a piercing in her ear. Example (2): The physician amputates the leg of the victim of a car accident in order to save his life. B. In Hungarian criminal law, the victim may consent to -passive euthanasia, -to bodily injury, even serious injury, -to loss of property. C. Special case law on sadomasochist sexual practices and sporting. Example (1): The victim after having spent a night in a sadomasochist club, due to injuries suffered from wiping, flagellating and cuts by a raiser blade, has to cure his injuries 6 weeks long in a hospital. Example (2): During a football match, a player accidentally hits the leg of a teammate while trying to retain the possession of the ball. The player suffers a muscle rupture.

4. 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.

5. 4.The concept of a New Criminal Code – selected issues of the General Part Background information on the present situation: -The socialist Criminal Code of 1978 is still in force in Hungary with the result that: a)all offences are contained in the Criminal Code (no Nebenstrafrecht), b)there is a large number of framework offence descriptions (Blankettstraftatbestände), c)concepts like e.g. social dangerousness are still part of the actus reus. Most debated issues in respect of the rules on criminal responsibility: -to adopt a new - formalistic - crime concept, i.e. elimina- tion of social dangerousness as part of the crime definition, -to codify mittelbare Täterschaft, -to allow for pre-emptive self-defence.

6. 5.Pre-emptive self-defence? The elements of self- defence: -imminent attack (imminently threatening attack) against life, bodily integrity or property, -defensive act, -proportionality between the attack and defensive act. Should pre-emptive self defence be legal? Example: In order to protect his crops, the farmer installs an electric fence around the crop. The electric fence is isolated from the public as it is installed well within his garden walls. The victim after having entered into the garden illegally walks into the electric fence and suffers grave injury.

7. 6.The sanctioning system of Hungarian criminal law Principal punishmentsAccessory punishmentsPunitive measures imprisonment - life long, - for a determinate period of time deprivation of civil privileges reprimand community service occupational ban probation financial penalty ban on driving forced medical treatment barring order treatment of alcoholics expulsionconfiscation accessory financial penalty forfeiture

8. 7.The sanctioning practice of Hungarian courts The dramatic increase of registered crime after the political transition was followed in Hungary by a growing lenience of the sanctioning practice. In the last 10 years more than 90% of the sanctioned imposed by Hungarian courts did not involve deprivation of liberty (suspended imprisonment, community service, financial penalty, probation, reprimand). Regardless the above tendencies, the average number of prison population in Hungary is still twice as high as in Western European countries.

9. 8.Prison Population and Number of Pre-trial Detainees in the European Union ( 2004-2005) * Country Prison population per 100 thousand inhabitants Pre-trial Detainees within the prison populations (%) 1. Estonia33923,7 2. Lettland33735,0 3. Lithuania23416,9 4. Poland21717,4 5. Check Republic 18614,4 6. Slovakia16533,1 7. Hungary16324,6 8. United Kingdom14517,4 9. Luxemburg14345,9 10. Spain14123,5 11. Netherlands12730,7 12. Portugal12423,5 Country Prison population per 100 thousand inhabitants Pre-trial Detainees within the prison populations (%) 13. Austria10626,9 14. Germany9719,7 15. Italy9736,0 16. Belgium8839,1 17. France8836,1 18. Ireland8516,4 19. Greece8228,2 20. Sweden8120,5 21. Malta7233,1 22. Denmark7029,0 23. Finland6613,6 24. Slovenia5627,1 25. Cyprus5013,2 * International Centre for Prison Studies, King’s College, University of London

10. Group of countries Average rate based on 100 000 inhabitant 1. EU 25 134 2. EU 15 (old Member States) 109 3. EU 10 (new Member States) 182 4. 8 former socialist countries 212 5. EU 5 (Central Eastern European Countries) 157 9.Average rate of prison population in different country groups of the European Union

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

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

13. 12. 12.The increase of the amount of financial penalty Currently, the amount of financial penalty varies between HUF 3.000-10.800.000 (EUR 10-36.000). According to the envisaged reform the amount of financial penalty should be between HUF 90.000-108.000.000 (EUR 300-360.000). Reasons of the substantial increase: -to reflect upon the changed economic situation of some perpetrators, -to establish a more reasonable relationship between administrative fines (max. is EUR 500) and financial penalties, -to allow for more individual sanctioning practice, better reflecting the gravity of the crime and the individual circumstances of the perpetrator.