What is the problem with unlimited pre-trial detention?

In 2013, two defendants of a high-profile case awaiting trial for murder were put under house arrest after the maximum term of pre-trial detention possible without a first instance court decision, being currently four years, expired in their case, and no first instance decision has been delivered. The delay in the procedure was partly due to the fact that the necessary expert opinion was submitted after an unreasonably long period and that in the course of the procedure the case was assigned to a new judge, and procedural elements had to be repeated. Last week, the defendants escaped from the house arrest and fled the country.

As a reaction, politicians of the governing party announced on 9 October that the party will propose the amendment of the Criminal Procedure Code, in order to achieve that in case of the most serious crimes (crimes against life, punishable with at least 15 years of imprisonment) pre-trial detention is unlimited.  Furthermore, they stated that the governing party would set a 60-day deadline for preparing expert opinions and in case the motion for pre-trial detention is refused by the court, the prosecution shall be obliged to propose the use of an electronic monitoring device in case of serious crimes.

The opinion of the Hungarian Helsinki Committee is the following on the above legislative amendments, presented so far only orally:

1. The state shall guarantee that criminal procedures (the investigative phase and the first instance trial) are finished within reasonable time. Four years should be enough for that under every circumstance. Increasing the maximum period of pre-trial detention or making it unlimited may not be justified neither in the case of defendants suspected of or charged with committing a grave criminal offence.

2. Citizens shall not be punished for the impotence of the state, even if they are charged with a grave criminal offence. The HHC recalls that earlier this year the European Court of Human Rights ruled in four cases that the applicants’ (suspects or defendants) pre-trial detention in Hungary was of unreasonable length. Miklós Hagyó was in pre-trial detention for nine months, X.Y. for less than 7 months, István Baksza for 29 months, and A.B. for 23 months, thus they were all released within the statutory deadline. However, the Strasbourg court found that their pre-trial detention was unnecessary and was of unreasonable length, thus Hungary violated the European Convention on Human Rights and had to pay a just satisfaction to the applicants.

3. The possibility of unlimited pre-trial detention would allow the authorities to prolong procedures unnecessary. Thus, in case of adopting the proposed rules, the governing party will reach a result contrary to its declared goal, and procedures concerning grave criminal offences will be slower instead of getting faster.

4. It is appropriate to set time limits for preparing and submitting expert opinions. However, for complying with a strict deadline, it is necessary to strengthen the network of experts, especially the Hungarian Institute for Forensic Sciences, which would cost money.

5. The HHC deems it appropriate to apply electronic monitoring device in case of defendants suspected of or charged with committing especially grave offences if the motion for pre-trial detention is rejected by the court; the monitoring device replacing the unnecessary and expensive pre-trial detention. However, appropriate guarantees on behalf of the defendant shall be established regarding the use of the device.