New draft of the petty offence law contains absurd and unconstitutional measures

The Hungarian Civil Liberties Union and the Hungarian Helsinki Committee published a joint opinion on the new draft law on misdemeanors. The two NGOs point out a number of provisions in the draft that are unconstitutional or violate international law. The absurdity of the planned regulations is well illustrated by the following examples:

1. Anyone can end up in jail for two parking violations committed within a 6-month period.
2. A 14-year-old child can be imprisoned pursuant to a hearing where neither the legal representative, nor a parent was present.

The Government published the new draft law on misdemeanors, the misdemeanor procedure, and the misdemeanor registry system (Draft) on its website on 29 September 2011. The Government provided less than six working days for public consultation on the Draft. As this was insufficient for a comprehensive evaluation of the text, the HCLU and the Helsinki Committee only analyzed its procedural aspects. The Draft contains no substantive justification, which in and of itself breaches the Legislation Act adopted by the new Parliament.

A positive aspect of the new regulation compared to the old one is that community service appears as an independent form of sanction. However, several rather problematic regulations can also be found in the Draft. A few examples from among the rules that are unconstitutional, violate international law and are incomprehensible, as revealed by the NGO analysis:

1. The Draft maintains the measures that make confinement possible for juveniles, which violates the UN convention on the rights of the child. Children between the age of 14 and16, inaddition to receiving a warning, can be sentenced practically only to confinement, which cannot be fulfilled at a correctional facility but only at a penal institution. This clearly cannot serve the interests of the child or educative purposes.
2. The Draft makes it possible to apply confinement for the second misdemeanor within a 6-month period even if the law does not otherwise provide for it. In practice, this means that if someone parks illegally or commits a speeding violation, he can find himself in jail.
3. It is absurd that based on the Draft, the perpetrator of a misdemeanor may receive a community service sentence that is 20% longer than for a criminal act.
4. The Draft allows for automatically changing a fine or community service to confinement, despite a clear prohibition, by theConstitutional Court, of confinement without judicial approval. . Confinement without hearing the offender breaches the European Convention on Human Rights.

If the Draft comes into force, in some cases a perpetrator would be better off by committing a crime than a misdemeanor, as a criminal procedure provides more safeguards, more protection than the law on misdemeanors, and the sentence could also be lighter – notes András Kristóf Kádár, Hungarian Helsinki Committee co-chair.

Furthermore, the 8-page long NGO opinion points out other inaccuracies and contradictions. The joint NGO opinion can be found here.