The following information was provided on 21 April 2000 by the Program Director of the Hungarian Helsinki Committee in response to written questions from the Research Directorate:

The formal process of complaints against police officers:

According to the Act V of 1972 on the Prosecutor's Office, the prosecutor's office has exclusive competence to investigate non-military crimes committed by official members of the police (Point 1. f. of the Annex of the Act V of 1972). This duty is carried out by the Prosecutor's Investigation Department (§ 36 of the Supreme Prosecutor's Order no. 6/1994). Investigation Departments are organized under each County Prosecutor's Office and in the capital, Budapest (§ 1 para. 2 of Supreme Prosecutor's Order no. 9/1195). Therefore, complaints or reports against police officers, for example, on account of ill-treatment during official procedure, forced interrogation or unlawful arrest, should be lodged with the Investigation Department of the prosecutor's office. Act I of 1973 on Criminal Procedure provides that in case such a report is lodged with the police, the police are obliged to transfer the complaint to the Investigation Department (§ 125 para 2.).

Consequently, it would be against the law for the police to carry out an investigation into an allegation of rape committed by a police officer.

The Prosecutor's Investigation Department will carry out its procedure based on Act 1 of 1973 on Criminal Procedure.

Within three days of having received the report (either in written or verbal form), the Department shall decide whether to carry out an investigation, refuse investigation or order the report to be supplemented (§ 126 para 1). Investigation in general may only be refused if it is certain from the report that the reported act is not a criminal act or well-founded suspicion of a criminal act is lacking, grounds excluding or terminating criminal liability exist or if the reported act has already been adjudicated (§ 127 para 1.).

The Investigation Department may terminate a commenced criminal investigation in the following cases (§ 139 para 1.):

(a) the act is not a criminal act, the act was committed by someone other than the suspect,

(b) based on data collected during the investigation, the perpetration of a criminal act or the identity of the perpetrator may not be established, or it cannot be established that the crime was committed by the suspect and the continuation of the investigation is unlikely to bring further result

(c) grounds excluding or terminating criminal liability exist

(d) the act has already been adjudicated.

In cases of reports against police officers for the above-mentioned crimes, termination of the investigation is ordered in most cases for the lack of crime (ie. excessive force was not used during the arrest), lack of evidence (victim's allegations were opposed by other police witnesses) or because the identity of the perpetrator remains unknown (as it has happened, the victim was unable to identify the police officer committing ill-treatment because he had had a ski mask pulled over his head, through which he could not see the police officers).

In case the Investigation Department does not terminate the investigation, it forwards a proposal of indictment to the Prosecutor's Office. In case the Prosecutor's Office decides to press charges, the court will then examine the case.

The right to file complaints is open throughout the investigation process (§ 148). The victim may file a complaint against the Investigation Department's decision to refuse or terminate investigation to the Prosecutor's Office, and in case this complaint is dismissed, to the Supreme Prosecutor's Office. The victim may also file a complaint against the Prosecutor's Office's decision not to press charges. Complaints should be filed within 8 days of having been notified of the injurious decision. Such complaints, however, are most commonly without much prospect.

It should be noted that until the new amendments of the Criminal Procedure Code take effect on 1 January 2003, supplementary private prosecution is not open to victims in case the Prosecutor's Office refuses to press charges.

In practice, victims of alleged ill-treatment or forced interrogation who have filed reports against police officers are in turn generally charged with having used violence against a public official. As this is a widely known phenomenon, it has a discouraging effect on victims and many times prevents them from filing reports against police officers. Furthermore, the extremely low rate of ill-treatment cases reaching the courts, let alone the perpetrators being convicted, also results in that victims are many times reluctant to report such cases to the Prosecutor's Investigation Departments.

The following information, provided jointly by the Executive Director and a legal expert with the Legal Defence Bureau for National and Ethnic Minorities (NEKI), corroborates some of the above information:

According to t 1(f) of the Supplement of Act of 1972 about Public Prosecutor, the County Prosecutor's Office Department of Investigation investigates crime or offence committed by a police officer. There exists no opportunity for a victim to launch a "private prosecution" in the event state authorities do not fulfill their responsibilities to carry out a thorough and effective investigation in such kinds of cases. (See Article 54 of Criminal Procedure Code (CCC) in conjunction with Article 17 and 18 of CCC, Article 227 and Article 170 of Criminal Code). But according to Act 4 of 1957 and according to paragraph 93 of Act 34 of 1994 (Act about Police) - even in cases of crime, offence and misdemeanor - either the head of the district police department (exofficio) or the victim could initiate a public administration procedure against the police officer. If the District terminates the investigation, the victim could file an appeal with the Head of the County Police Department. According to a 1999 Supreme Court decision, a victim of police misconduct could attack the decision of the Head of the County Police in court. Though this decision has been well published, it is not tested yet in practice. ...

As above-mentioned crime, like rape, committed by police officers is investigated by the county prosecutor's office department of investigation.

Please see the attached NEKI table "Crimes Committed By and Against Public Officials" for additional statistics on the prosecution of 1997 complaints against public officials, including police.

According to an undated entry in the U.S. Department of Justice's World Factbook of Criminal Justice Systems, and in which the latest reference is to 25 November 1993:

The Police handle citizen or departmental complaints against officers when the complaints are likely to result in disciplinary action. The prosecution handles the complaint if it is likely to have criminal repercussions. ... (n.d.).

A 2 December 1999 Intelligence Newsletter article refers to "BM FEH, the internal police service that investigates complaints against police."

While noting that that there were fewer complaints of police brutality in 1998 than the previous year, the Hungarian Helsinki Committee reported instances of inadequate investigation of complaints against police (n.d. (b); ibid. n.d.(a); ibid. 15 Nov. 1998).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Hungarian Helsinki Committee, Budapest. 21 April 2000. Correspondence from Program Director.

_____. 15 November 1998. "Inhuman and Degrading Treatment in Hungary: Submission to the 21st Session of the UN Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." http://www.helsinki.hu/index2.htm [Accessed 25 Apr. 2000]

_____. n.d. (a). András Kádár. "Police Strategies in Dealing with Complaints From NGO's." http://www.helsinki.hu/index2.htm [Accessed 18 Apr. 2000]

_____. n.d. (b). "Excessive Use of Force by the Police - Cases from the Human Rights Legal Counselling Office, 1998." http://www.helsinki.hu/index2.htm [Accessed 18 Apr. 2000]

Intelligence Newsletter. 2 December 1999. Lazlo Gal. "Lazlo Gal (Hungary)." (NEXIS)

Legal Defence Bureau for National and Ethnic Minorities (NEKI), Budapest. 25 April 2000. Correspondence from Executive Director and Legal Expert.

U.S. Department of Justice. n.d. Lazlo Pusztai. World Factbook of Criminal Justice Systems. www.ojp.usdoj.gov [Accessed 25 Apr. 2000]

Attachment

Legal Defence Bureau for National and Ethnic Minorities (NEKI), Budapest. n.d. "Crimes Committed By and Against Public Officials: An Analysis of Final Decisions Based on 1997 Prosecutorial Statistics."

Additional Sources Consulted

IRB databases

LEXIS-NEXIS

REFWORLD

World News Connection (WNC)

Internet sites including:

Federation of American Scientists (FAS)