Specific information on the recourse available to those with a complaint of police inaction in Hungary was scarce among the sources consulted by the Research Directorate.

Internal Instruments

Hungary has a single national police force and no gendarmerie or municipal police forces (Interpol 13 July 2005). The police force is divided into three levels: the national, county, and local (district or municipal) levels (ibid.). Both police and border guards carry out law enforcement and fall under the Ministry of the Interior (ibid.).

The Office of the National Police Headquarters has a complaints and internal affairs unit (ibid.), although specific details on the mandate and organization of this unit could not be found among the sources consulted by the Research Directorate.

The Protective Service of Enforcement Agencies of Hungary's Ministry of Interior has a mandate to prevent and investigate crimes committed by members of the Police, the Border Guard, the National Directorate General for Disaster Management (which includes Civil Defence and national and local fire stations), the Customs and Finance Guard, and penal organizations, as well as the ministry-level bodies that supervise these agencies (Hungary n.d.d). The Service investigates such crimes as abuse of office and crimes committed by those acting in an official capacity (ibid.).

Prosecutor's Office

Article 51 of the Hungarian Constitution stipulates the mandate of the Hungarian Prosecution Service:

The Prosecution Service ensures the protection of the rights of the citizens, and shall prosecute to the full extent of the law any act which violates or endangers the constitutional order, the security and independence of the country (Hungary n.d.c).

This mandate provides for, among other responsibilities, the supervision of criminal investigations to ensure they are carried out legally (ibid.; Interpol 13 July 2005).

Information on the procedure to be followed by the Prosecutor's Office, including extracts from the Criminal Procedure law and a commentary on actual practice can be found in the Hungarian Helsinki Committee document attached to this Response.

Parliamentary Commissioner's Office

According to the Office of the Parliamentary Commissioner for National and Ethnic Minority Rights of Hungary, 2003 saw a decline in complaints directed at the police over previous years (2003). According to Country Reports 2004, in 2004, this office received "frequent" complaints from Roma alleging police abuse or misconduct (25 Feb. 2005, Sec. 1c). The Commissioner's 2004 report notes that measures to improve police procedures should take into account the fact that police officers have been "inclined to use a 'simplified' style with Roma, young people and the homeless," to "speak down" to these groups and to use the informal form of "you" with them, and that confidence between the Hungarian public and the police has yet to reach a level where "prejudice and ethnic discrimination" are not suspected in the carrying out of police procedures (Hungary 2004, 132).

The Website of the Parliamentary Commissioner for National and Ethnic Minority Rights states that any person can file a complaint with the Commissioner if he or she feels that as a result of a government "agency's decision, proceedings or negligence, a violation has taken place in her/his national or ethnic minority rights, or that the direct threat of such a violation is imminent" (Hungary n.d.b). Among the agencies covered by this policy include the police, the national security service, and the armed forces (including the army and border patrol) (ibid.). The "undue delay in handling [the complainant's] affairs" constitutes one example of a possible violation of national or ethnic minority rights (ibid. n.d.). The Website further provides detailed instructions on how to file a complaint, as well as appropriate addresses and contact information (ibid.).

According to Transitions Online, in August 2004, Jeno Kaltenbach, the parliamentary commissioner for national and ethnic minority rights, following the "sudden" death of a 19-year-old Roma man taken into police custody, initiated an investigation into police mistreatment of minorities, while his deputy, Albert Takacs, initiated a separate investigation focusing on police brutality (9 Aug. 2004).

In another incident, the Office of the Parliamentary Commissioner for National and Ethnic Minority Rights received a complaint from a man who felt that the circumstances surrounding the traffic death of his son, a Roma, had not been adequately investigated by the police (Hungary 2004, 133). The Commissioner sent the case to the chief prosecutor, whose investigation found that while the police had carried out an acceptable investigation into the traffic accident leading to the young man's death, there were mistakes in subsequent police procedures which prevented the police from delivering a resolution to the deceased man's family (ibid.). As a result, the chief prosecution office took the necessary steps to correct the situation (ibid.).

The Office of the Parliamentary Commissioner and the Deputy Commissioner for Civil Rights receives complaints from those who feel their constitutional rights either have been violated or are immediately threatened as a result of a proceeding, decision or omission by various government agencies, including investigative authorities such as the police, the tax-police or the investigation office of the general attorney (Hungary n.d.a). The Website of the Parliamentary Commissioner and the Deputy Commissioner for Civil Rights lists several categories of possible constitutional infringements, but stresses that complaints can be filed only with the Commissioner only after other possible legal measures have been exhausted (n.d.a).

Additional Avenues of Recourse

Amnesty International (AI) is among the non-governmental organizations (NGOs) that advocates on behalf of Hungarians (AI 2004). It has pushed for the investigation by the General Prosecutor of incidents of alleged police misconduct motivated by racism (ibid.). As well, the European Roma Rights Centre (ERRC), which is involved in, among other activities, "strategic litigation" in the defence of Roma rights (23 Feb. 2005), and the Legal Defense Bureau for National and Ethnic Minorities (NEKI), which initiates litigation and represents alleged victims of ethnic or national discrimination before Hungarian authorities (HRI n.d.), are available to protect the rights of ethnic minorities.

Government Response

Country Reports 2004 claimed that the Hungarian government "actively pursued allegations of police abuse," and police officers and activists are trained in victim protection and are provided with a list of NGOs that provide protection to victims of crime (25 Feb. 2005, Sec. 1.c). However, in its report on events of 2004 in Europe, Central Asia and North America, the International Helsinki Federation (IHF) argued that police officers suspected of abuse were "rarely" indicted (2005). In addition, AI's 2004 report on events occurring in 2003 noted that few police officers who had allegedly abused Roma were prosecuted or appropriately punished (2004). According to AI, this lack of adequate follow-up on the part of the police discouraged some who claimed to have suffered ill treatment from police from reporting such incidents (AI 2004; see also IHF 2005).

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 for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Amnesty International (AI). 2004. "Hungary." Amnesty International Report 2004. http://web.amnesty.org/report2004/hun-summary-eng [Accessed 30 Aug. 2005]

Country Reports on Human Rights Practices for 2004. 25 February 2005. "Hungary." United States Department of State. Washington, DC. http://www.state.gov/g/drl/rls/hrrpt/2004/41685.htm [Accessed 2 Sept. 2005]

European Roma Rights Centre (ERRC). 23 February 2005. "What is the European Roma Rights Centre?" http://www.errc.org/About_index.php [Accessed 30 Aug. 2005]

Human Rights Internet (HRI). N.d. "Legal Defense Bureau for National and Ethnic Minorities (NEKI)." http://www.hri.ca/organizations/viewOrg.asp?ID=7826 [Accessed 30 Aug. 2005]

Hungary. 2004. Office of the Parliamentary Commissioner for National and Ethnic Minority Rights. Report of 2004. http://www.obh.hu/nekh/en/reports/reports.htm [Accessed 8 Sept. 2005]

_____. 2003. Office of the Parliamentary Commissioner for National and Ethnic Minority Rights. Report of 2003. http://www.obh.hu/nekh/en/reports/reports.htm [Accessed 8 Sept. 2005]

_____. N.d.a. Parliamentary Commisioner and the Deputy Commissioner for Civil Rights. "General Guide to the Parliamentary Commissioner's Office." http://www.obh.hu/allam/eng/index.htm [Accessed 2 Sept. 2005]

_____. N.d.b. Parliamentary Commissioner for National and Ethnic Minority Rights. "Information Sheet." http://www.obh.hu/nekh/en/index.htm [Accessed 2 Sept. 2005]

_____. N.d.c. Prosecution Service of the Republic of Hungary. "Tasks of the Prosecutor for Criminal Cases." http://www.mklu.hu/cgi-bin/index.pl?lang=en [Accessed 2 Sept. 2005]

_____. N.d.d. Ministry of Interior. Protective Service of Enforcement Agencies. http://www.bm.hu/rszvsz/en/rendeltetes.html [Accessed 8 Sept. 2005]

International Helsinki Federation for Human Rights (IHF). 2005. "Hungary." Human Rights in the OSCE Region: Europe, Central Asia and North America, Report 2005 (Events of 2004). http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=4057 [Accessed 2 Sept. 2005]

International Criminal Police Organization (Interpol). 13 July 2005. "Hungary." http://www.interpol.int/public/Region/Europe/pjsystems/Hungary.asp [Accessed 1 Sept. 2005]

Transitions Online [Prague]. 9 August 2004. Judit Szakacs. "A Brutal Police Force?" (Factiva)

Additional Sources Consulted

The Legal Defense Bureau for National and Ethnic Minorities did not respond to a requests for information within time constraints.

Internet Sites, including: European Country of Origin Information Network (ECOI), Geneva Centre for the Democratic Control of Armed Forces (DCAF), Habeas Corpus Working Group (HSM), Human Rights Watch (HRW), International Helsinki Federation for Human Rights (IHF), Journal of East European Law [New York], Open Society Institute (OSI), Public Interest Law Initiative (PILI) [Budapest], Radio Free Europe/Radio Liberty (RFE/RL), World News Connection (WNC).

Attachment

Hungarian Helsinki Committee (HHC). September 2005. András Kádár. "Avenues of recourse available to those with a complaint of police inaction in response to crimes, harassment or discrimination in Hungary." Correspondence sent to the Research Directorate 13 September 2005. Electronic Attachment

Hungarian Helsinki Committee (HHC). September 2005. András Kádár. "Avenues of recourse available to those with a complaint of police inaction in response to crimes, harassment or discrimination in Hungary." Correspondence sent to the Research Directorate 13 September 2005.
Avenues of recourse available to those with a complaint of police inaction in response to crimes, harassment or discrimination in Hungary
András Kádár, attorney at law, international project coordinator
Hungarian Helsinki Committee
The law
The procedure to be followed if a report on a criminal offence is filed with the police is regulated by the Hungarian law as set forth below.
Under Article 170 of Act XIX of 1998 on the Criminal Procedure (CCP), the investigating authority has three days to decide whether to launch an investigation on the basis of a report submitted by the victim (or any other person) about the crime. In terms of Article 174 Par (1) of the CCP, the investigating authority rejects the report if it can be established that
(a) the reported behavior is not a criminal offense;
(b) the suspicion of a criminal offense is lacking;
(c) the offender may not be punished due to reasons excluding culpability (e.g. self-defense; the perpetrator is a minor or mentally disabled; and so on);
(d) if the procedure may not be carried out due to the perpetrator's death, the statutes of limitation, or an amnesty;
(e) if the procedure may only launched on the basis of a report of a special person or body;
(f) if the offense has already been adjudicated.
The investigating authority shall make a formal decision about the rejection of the report (Article 169, CCP). If the investigation is launched, the person making the report is not formally notified. He/she can only conclude that the investigation is on the way from the fact that the report has not been rejected in the first three days. If however the person making the report is not the victim of the crime, the victim shall be formally notified about the launching of the investigation.
In terms of Article 190 Par (1) of the CCP, the investigation may be terminated if
(a) the behavior in question is not a criminal offense;
(b) based on the results of the investigation, the committing of an offense may not be established, and no results may be expected from the continuation of the investigation;
(c) it may be established that not the suspect committed the offense, or if based on the results of the investigation it may not be established that the suspect committed the offense;
(d) if a reason excluding culpability may be established;
(e) due to the perpetrator's death, the statutes of limitation, or an amnesty;
f) other legally determined reason terminating culpability;
(g) lack of a necessary declaration from the victim or the competent authority;
(h) if the offense has already been adjudicated;
(i) if two years have passed since the launching of the investigation against a certain person.
The investigating authority shall make a formal decision about the termination of the investigation (Article 169, CCP).
The person concerned by the rejection of the report or the termination of the investigation is entitled to file a complaint against the decision of the investigating authority. The complaint is adjudicated by the public prosecutor as the prosecutor is ultimately in charge of the investigation, and is responsible for its lawfulness. Prosecutors may also conduct investigations, if – in such a case – the rejecting or terminating decision is delivered by the public prosecutor carrying out the investigation, decision about the complaint is made by the superior prosecutor.
No further remedy exists if the complaint is rejected by the prosecutor or the superior prosecutor, however, the aggrieved party may act as a supplementary private prosecutor if
(a) the report was rejected in terms of Article 174 Par (1) (a) or (c); or
(b) the investigation was terminated in terms of Article 190 Par (1) (a) – (d) or (f).
The supplementary private prosecutor exercises the rights of the public prosecutor. He/she may inspect all the case files and may submit a private bill of indictment to the court within 30 days from the serving of the formal decision rejecting the complaint.
Under Article 231 of the CCP, the court accepts the private bill of indictment if there is no reason to reject it. The court shall reject the private bill of indictment if
(a) it is submitted with delay;
(b) the supplementary private prosecutor is not represented by an attorney;
(c) the private bill of indictment is not submitted by the person entitled to do so;
(d) its legal or factual ground is evidently missing.
If the court accepts the private bill of indictment, the procedure carries on in accordance with the ordinary rule, with the exception that the supplementary private prosecutor acts as the prosecutor. Under Article 233 of the CCP, no appeal is possible against the court's decision rejecting the private bill of indictment.
In terms of Article 51 of the CCP, the victim is entitled
(a) to be present at the procedural acts (except when the law stipulates otherwise); and look into the files concerning him/her;
(b) to make motions and remarks in any phase of the procedure;
(c) to be informed about his/her procedural rights by the court, the prosecutor, and the investigating authority;
(d) to seek remedy in cases stipulated in the law.
In fact, during the investigation phase the victim's right to be present at procedural acts is very limited, and so is his/her right to inspect case files. After the investigation phase, i.e. mostly before the court, the right to presence and the inspection of the files is almost unlimited. As it was outlined above, if the victim acts as a supplementary private prosecutor, the right to inspect case files is not limited at all.
Victims also have the right to retain a lawyer to act as their representative in the procedure. The lawyer possesses all the rights that are available for the victim, i.e. he/she may also file a complaint against the termination of the investigation or the rejection of the report, and so on. As we pointed out above, in order to act as a supplementary private prosecutor, one must retain a lawyer.
An interesting question is what happens, when police inactivity is not manifested in a formal decision on the rejection of the report or the termination of the investigation, i.e. if the police are simply sabotaging the investigation and no formal rejecting or terminating decision is delivered. The problem is that in such cases the victim's right to file a complaint and eventually act as a private prosecutor is not in guaranteed by the law.
Under Article 196 of the CCP, a person concerned by an action or inaction of the investigating authority or the prosecutor, may submit an objection. The CCP claims that based on the objection, the investigating authority or the prosecutor shall take the necessary measures. As the prosecutor is responsible for the lawfulness of the investigation, we may conclude that if a victim who finds police inaction injurious submits an objection to the prosecutor, the prosecutor will decide on the issue, and act if necessary.
However, under Instruction 11/2003 of the Chief Public Prosecutor, the objection shall be forwarded to the person against whose action or inaction was submitted. This means that the objection is adjudicated by the very entity, the action or inaction of which is found injurious by the aggrieved party. (Based on Decree 23/2003 of the Minister of Interior, in the case of the police it is the head of the concerned police unit, who decides whether any measure should be taken on the basis of an objection.)
Although the above quoted Instruction of the Chief Public Prosecutor authorizes the prosecutor receiving an objection against the action or inaction of the investigating authority to look into the matter him/herself, and take the necessary action, according to our sources, the practice is that prosecutor's routinely forward such objections to the competent police organ, whereas objections submitted by the victim directly to the investigating authority, are never forwarded to the prosecutor (as a result of the above cited Ministerial Decree, which declares the competence of the head of the police unit with regard to deciding on objections).
The practice
We do not have reliable information on the degree of police inaction in response to crimes in general, harassment or discrimination in Hungary, however, in our practice we feel a certain degree of reluctance on the part of the authorities to invoke "Violence Against a Member of a National, Ethnic, Racial or Religious Group" even in cases where racist motivations of the perpetrators are obvious or highly probable. This offense is regulated by Article 174/B of the Penal Code (Act IV of 1978) as follows: "A person who assaults somebody else because he belongs or is believed to belong to a national, ethnic, racial or religious group, or coerces him with violence or menace into doing or not doing or into enduring something, commits a felony and shall be punishable with imprisonment up to five years. The punishment shall be imprisonment from two years to eight years, if the act of crime is committed a) by force of arms, b) in an armed manner, c) causing a considerable injury of interest, d) with the torment of the injured party, e) in groups, f) in criminal conspiracy."
The Hungarian Helsinki Committee (HHC) had a case when a person of African origin was not allowed to enter a bar, and when he called the police, he was pushed around and hit in the face by the bar's security guards. He was also verbally abused, called a "black monkey", and was told to "go back to Africa, where he came from". The prosecution originally pressed charges for "violence against a member of national, ethnic, racial or religious group", but since the guards firmly denied that they were led by racist motives, and since the court was apparently reluctant to look into the motivations of the offence, finally the prosecution modified the charges and the guards were convicted for "violent behavior" punishable with imprisonment up to three years. (In the concrete case each security guard was punished with a fine of HUF 60,000.)
The table below shows the statistics for reports on and investigations into Article 174/B offenses. The source is the Department of Computer Application and Information of the Chief Public Prosecutor's Office.
Violence Against a Member of a National, Ethnic, Racial or
Religious Group (Penal Code, Article 174/B)

• 2003
• 2004
  

number

%

number

%
Reports all together:

19

100.0

9

100.0
out of which:

rejection of the report

5

26.3

0

0.0

out of which: reported behavior is

not a criminal offense

2

10.5

0

0.0

the suspicion of a criminal offense

is lacking

3

15.8

0

0.0

termination of investigation

3

15.8

2

22.2

out of which: the committing of an

offense may not be established

2

10.5

1

11.1

lack of necessary declaration

1

5.3

0

0.0

termination of the investigation

after the postponement of pressing

charges

0

0.0

1

11.1

pressing charges

7

36.8

5

55.6

other

4

21.1

2

22.2

out of which: the perpetrator's

identity may not be established

1

5.3

2

22.2

suspension due to any other reason

1

5.3

0

0.0

with
postponement

210.500.0

When assessing the above data one has to take into consideration the above mentioned factor, namely that authorities are reluctant to invoke Article 174/B of the Penal Code. Therefore, if someone believes that a criminal offense was committed against him/her due to his/her ethnic affiliation, but the investigating authority does not qualify the offense as one falling under Article 174/B, it will not appear in the statistics as such, and if investigation into such an offense is terminated, this will not appear under the heading of Article 174/B, but will be recorded among, let us say, the numerous cases of "violent behavior". Therefore, the data may look nicer than what the truth is.

Assistance offered by the HHC

In the framework of the HHC's Human Rights Legal Counseling Office, legal representation for victims of racist crimes is available for free. This is however provided on the basis of the discretionary individual decision of the HHC's legal board, taking into account the workload of the lawyers employed by HHC.
Representation for victims is also offered by other Hungarian NGOs, such as the Legal Defence Bureau for National and Ethnic Minorities (also on a discretionary basis). The key problem in this aspect is that institutionalized access to such legal assistance by indigent victims is not provided by the State, which often prevents members of the most vulnerable groups from effectively asserting their rights.
In theory, the appointment of a pro bono attorney for indigent crime victims will become possible from 1 January 2006 under Act LXXX of 2003, however, due to budgetary restrictions, it is possible that the coming into force of the Act's relevant provisions will be postponed.