Hungary at Odds with Europe over Arrest Rights

Hungary was one of the first former communist countries of Eastern and Central Europe to embrace the freedoms and protections enshrined in the European Convention on Human Rights, which it ratified in 1992. But Hungary’s parliament has just passed an amendment to the country’s law on criminal procedure that represents a significant step back from the principles it happily embraced almost two decades ago.

The new legislation allows for suspects in serious crimes—including murder, kidnapping, and gang membership—to be held by police for up to 48 hours without access to defense counsel, and for up to 5 days without court review.

Previously, all suspects could seek immediate access to a lawyer, and they were guaranteed a court appearance within three days.

The amendment was passed by 255 votes for and 97 against, with the support of the ruling Fidesz-KDNP alliance led by Prime Minister Viktor Orban, and despite expressions of concern from both the Open Society Justice Initiative  and the Hungarian Helsinki Committee.

A draconian provision in an earlier draft of the law that would have permitted the police to question a suspect for 24 hours without the presence of a lawyer was eventually dropped—after the Supreme Court issued a statement saying that such a move would be unconstitutional.

The amendment as passed does allow a lawyer to be present if the police seek to question a suspect during the initial 48 hour period. But there is no guarantee of the kind of private consultation between lawyer and client that is a fundamental element of any proper criminal defense procedure in any system where the suspect is presumed innocent until proven otherwise.

Beyond the impact on the workings of a proper criminal defense, the denial of access to a lawyer immediately after arrest also removes a fundamental safeguard against ill-treatment of suspects by the police—something regrettably particularly possible in the investigation of emotionally charged crimes such as murder and kidnapping. Indeed, securing early access to a lawyer is one tactic employed by legal advocates fighting to end pervasive torture and abuse of detainees by police in the former communist states of Central Asia.

In contrast, the principle has just been enshrined in new legal aid legislation that just passed into law in Ukraine, Hungary’s neighbor to the east.

Hungary is also moving in the opposite direction from the rulings of the European Court of Human Rights (ECHR), which requires that suspects be given access to a lawyer as soon as they are deprived of their liberty (Dayanan v. Turkey).

It also goes against a sweeping trend in Europe. In the past months we have seen several European countries reforming their judicial systems so as to ensure early access to a lawyer, in accordance with rulings at the ECHR. Just last month, the European Commission proposed a directive aimed at standardizing the way member states approach the rights of suspects in criminal cases, with rules that would require that anyone accused of a crime should be granted access to a lawyer “as soon as possible” and “at the latest upon deprivation of liberty.”

Unfortunately, the move to curtail basic of arrest rights is only one of the recent challenges to rights guaranteed by the European Convention. In April this year, the Fidesz/KDNP alliance pushed through a series of amendments to the Hungarian constitution that comes into force in January 2012, despite opposition from the three main opposition parties.

The European Council's Venice Commission of legal experts subsequently expressed its concern over way the process was handled, and the lack of consensual debate.  It also raised questions about the new constitution’s approach to issues including nationality, civil rights, and media freedom.

Human rights and media freedom groups also warned earlier this year that the new constitution replaces the independent Data Protection and Freedom of Information Commissioner with an administrative authority will seriously weaken the right to access to information in Hungary.

In 1992, Hungary was the first country in central and Eastern Europe to adopt an access law—just as it was one of the first to sign the Human Rights Convention. Having taken a lead in embracing individual freedoms after 45 years of communist rule, it would be a tragedy for Hungary to turn back now.