In response to the Questionnaire for the preparation of the CCPE Opinion No. 12 (2017) titled “The rights of victims, witnesses and vulnerable persons” of the Consultative Council of European Prosecutors (CCPE) my replies are the following:
1.1. Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?
Yes, there is, and relevant rules and legal provisions are included in various Acts of Parliament (Section 1 of Act CXXXV of 2005 on Crime Victim Support and State Compensation giving a definition of victims; Section 51 (1) of Act XIX of 1998 on the Criminal Procedure Code (hereinafter: CPC) specifying rules on victims; Section 62/C. of CPC containing provisions on victims with specific protection needs and Section 79 (1) of CPC specifying rules on witnesses).
1.2. Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them?
Yes. Victims of these crimes can be considered as victims with specific protection needs owing to the nature of these crimes or the circumstances of their commission. If such crimes are committed, courts, prosecutors and the investigation authorities need to treat victims with specific protection needs with utmost care and sensitivity during the proceedings, and procedural acts affecting them should be prepared and carried out in view of their needs. Investigation authorities and courts should also strive to avoid unnecessary meetings between victims and offenders, and they shall ensure the separation of the two. Interviews of victims and any investigative acts carried out with their involvement should preferably be sound or video recorded or recorded by any other means. Interviews of witnesses below the age of 14 should always be recorded in such ways. Interviewing these victims over and over again or by several authorities should be avoided, and if justified, they should be interviewed via CCTV (closed-circuit-television).
During criminal investigations persons under the age of 14 should be interviewed in premises fit out for the purpose of interviewing them (i.e. for the purpose of interviewing such persons).
1.3. Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments?
If crimes are committed against such persons, they are considered to be victims with specific protection needs. The general definition of victims with specific protection needs is provided for by the Criminal Procedure Code. The Office of the Prosecutor General of Hungary has given a detailed guideline about persons who can be considered as victims with specific protection needs in addition to the statutory definition of CPC. There is no definition of vulnerable persons within the framework of criminal procedure, but the category of vulnerable persons should include persons under the age of 14 and persons who are in need of assistance because of their mental disability or other state/condition.
2. The rights of victims, witnesses and vulnerable persons
2.1. Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?
Yes.
2.2. If yes, are they established in the law or other legal instruments?
The Criminal Procedure Code provides for rights of persons participating in criminal proceedings including the rights of victims and witnesses. Vulnerable persons participate in criminal proceedings either as victims or witnesses.
2.3. Please, enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights).
Victims usually participate in criminal proceedings as criminal complainants or witnesses, but their procedural rights derive from their victim status and are more extensive that the rights granted to witnesses. Procedural rights of victims are: to be present at procedural acts, access and consult case files and records, make motions, petitions or observations during the proceedings, to be informed and notified and to appeal. Victims can also exercise their rights through their representatives, and in cases specified by law they can participate as substitute private accusers in proceedings. Upon their requests victims and persons exercising victims’ rights are entitled to be notified of the offender’s release or escape with regard to the crime having been committed against them. Victims with specific protection needs may request to be interviewed by officers of the same sex during criminal investigations into crimes against sexual freedom, sexual crimes and crimes committed against relatives.
Witnesses have the right to: refuse to give testimonies in cases specified by law, have legal counsels representing them, make written statements, have the costs and expenses arising from their attendance reimbursed, have their personal data confidentially processed, and where appropriate, to get personal protection.
2.4. How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?
In accordance with the Criminal Procedure Code investigation authorities, prosecutors and courts shall inform victims and witnesses of their rights. It should be an aim that officers of competent authorities should advise persons concerned of their rights and obligations in a way which is clear and comprehensible for them, and they should make sure that the persons concerned have understood them. If not, officers of competent authorities should explain the rights and obligation to persons concerned. Records/templates of witness and victim interviews used in the course of criminal investigations include detailed information and advising of their rights and obligations. In addition, victims and witnesses may request competent authorities to advise them of their rights in any phase of the proceedings. Authorities shall comply with such requests, and victims and witnesses may also request the assistance of their legal counsels representing them. When victims are first contacted by the police, the police shall give them a leaflet informing them about victim’s rights and shall call their attention to the possibility of victims support services. Receipt of this shall be certified by victims’ signatures. Information regarding victims’ support services is available on the website of the Police and the Justice Support Services Office, whereas information on procedural rights is accessible on the courts’ website, and information in this respect can be requested either orally or in writing.
2.5. What kind of penalties and sanctions are established for violation of these rights?
Should any of the rights be violated, complaints can be lodged during criminal investigations, as a result of which the violation can be remedied. Violation of the rights can result in disciplinary or criminal sanctions or liability for damages depending on the nature of the violation.
2.6. Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?
Yes. Persons under 14 years of age may only be interviewed/heard as witnesses if the evidence expected to be provided by their testimony cannot be substituted by any other means. Persons under the age of 14 should be interviewed in premises fit out for the purpose of interviewing them (i.e. for the purpose of interviewing such persons). If such persons are heard by investigating judges, suspects and their legal counsels should be notified of this after the hearing, and they should be reminded that they have the right to consult the written records of the hearing at the prosecutors. Those who have limited capacity to understand the consequence of refusing to testify as witnesses due to their mental or other state may only be heard as witnesses if they wish to testify and their legal representatives or the relatives designated by the witnesses consent thereto. If such persons or persons under the age of 18 are to be heard as witnesses, their legal representatives, supporters or caretakers may be present at the hearing.
The Criminal Procedure Code stipulates that in case of persons under the age of 18 courts, prosecutors and investigation authorities shall take actions with special diligence in view of those persons’ age and maturity, while in case of persons with hearing impairments, deaf-blind, blind or speech impaired persons, or persons who – regardless of their legal responsibility – are mentally impaired – should exercise special diligence during their actions in view of their state/condition.
2.7. When a decision in criminal matters is likely to affect the rights or the situations of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?
Our experience shows that information does not flow effectively between the competent authorities.
2.8. Can such vulnerable persons bear testimony alone or only following authorization by their legal representatives, and in this latter case, in what conditions?
Legal representatives’ statement of consent needs to be obtained in accordance with Point 2.6 only for persons who have limited capacity to understand the consequence of refusing to testify as witnesses due to their mental or other state. If there are no reasons that would exempt persons under the age of 14 from bearing testimonies, the obligation to testify as witnesses unconditionally prevails.
2.9. Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?
Persons who apparently cannot be expected to give correct testimonies due to their physical or mental conditions cannot be interviewed or heard as witnesses. Defendants’ relatives or persons who would incriminate themselves with their testimonies are entitled to refuse to bear testimonies. As mentioned above, persons under 14 years of age may only be interviewed/heard as witnesses if the evidence expected to be provided by their testimonies cannot be substituted by any other means.
2.10. Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?
Evaluation of victims is carried out by the police in accordance with criteria and a questionnaire specified by a Decree issued by the Minister of Interior. The evaluation is carried out with the victims’ involvement, and based on the outcome of the evaluation the police decide if the victim is to be considered as a victim with specific protection needs.
2.11. Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?
Yes. Prosecutors, investigation authorities and investigating judges may order that witness testimonies should be audio- and video recorded. If witnesses below the age of 14 are heard by investigating judges, their testimonies should be audio- or video recorded or recorded by any other means. On the copy of the recordings, individual features of the witnesses suitable for identification (e.g.: face, voice) may be distorted by technical means. If specific conditions are met, the Criminal Procedure Code allows for witnesses to be considered as highly protected witnesses. In such cases, only investigating judges and prosecutors interviewing or hearing the witnesses know their identities, other participants of the criminal proceedings can only consult the written records of the testimonies.
2.12. How is the prevention of repeated victimization ensured?
Crime victims support and the prevention of repeated victimization is part of the National Crime Prevention Strategy. This is implemented with the involvement of the police, the ministries and agencies responsible for victims support, NGOs, the local, regional and national media, and primarily by extensively informing the public. In the past few years several local projects aimed at preventing nationals’ victimization have been implemented with EU support. The Prosecution Service plays no specific role in the prevention of victimization.
2.13. Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?
In the territory of Hungary the rights of victims, witnesses and vulnerable persons are foreseen and guaranteed for everyone, irrespective of nationality.
3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons
3.1. How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?
If criminal investigations are conducted by prosecutors, the rights of victims, witnesses and vulnerable persons within the framework of criminal procedures are enforced and guaranteed by prosecutors in accordance with the Criminal Procedure Code. In addition, prosecutors give victims a leaflet informing them about the possibility of victims support services prepared by the justice support services and issue certificates which are needed if victims want to claim support. If investigation authorities conduct criminal investigations on their own, prosecutors supervise investigations and ensure that during investigations provisions of laws and procedural rights are respected. If during the supervision of investigations prosecutors learn that investigation authorities have violated the law or failed to fulfil their responsibilities, prosecutors shall take measures to eliminate such violations or omissions, or shall instruct the given investigation authority to conduct the criminal procedure in compliance with law. Appeals can also be lodged to prosecutors against decisions, measures or omissions of the investigation authorities if rights of the above mentioned persons are violated.
3.2. Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?
Rules regarding the role of prosecutors are established in the Act on the Prosecution Service, the Criminal Procedure Code and several Orders issued by the Prosecutor General of Hungary. Such Orders issued by the Prosecutor General of Hungary contain provisions which are binding on prosecutors.
3.3. How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?
In a substantial part of the criminal proceedings prosecutors supervise the legality of criminal investigations. As explained in Point 3.1. prosecutors monitor that the investigation authorities comply with provisions of the Criminal Procedure Code and conduct criminal proceedings appropriately. Within the framework of supervision of investigations prosecutors may address observations to the investigation authorities and can give them instructions. Prosecutors monitor if during the investigations witnesses (and defendants) have been advised of their rights and exemptions in accordance with law, and in view of this, if their testimonies can be used as admissible evidence. Prosecutors themselves may initiate that victims should be deemed/qualified as victims with specific protection needs and that further procedural acts should be carried out in line with this. Prosecutors take special care that victims and witnesses below the age of 14 are heard by investigating judges as soon as possible in order to avoid further traumas.
A prosecutor gives the victim the leaflet informing him about the possibility of victims support services prepared by the justice support services if the victim has filed his criminal complaint with the prosecution office or if the criminal investigation is conducted by the Prosecutor Service and the leaflet has not been given to the victim earlier. Upon the victims’ requests prosecutors issue certificates necessary for them to claim victim supports. If in a criminal case a prosecutor has issued a certificate needed for the victim to claim victim support, the prosecutor shall inform the justice support service about his decisions on the merit including the decision on indictment, the prosecutorial termination of investigation, or the results of the indictment postponement or mediation.
If criminal investigations are conducted by prosecutors, the tools used to guarantee victims – including victims with specific protection needs – that proceedings concerning them are properly conducted corresponding to their needs primarily comprise the treatment of victims with empathy and flexibility as well as the advising of witnesses of their rights and exemptions specified by law and the possibilities of victims support in a way which is adequate, clear and comprehensible for them. Such special treatments may include cases when witnesses are interviewed outside of office hours and in separate office premises that cannot be linked to investigative prosecution offices, serving a subpoena to an address indicated by the victim, the possibility of contacting competent prosecutors by cell phone out of office hours, and, if needed, actions taken for the personal protection of victims and witnesses. Furthermore, it is also an important criterion that victims of sexual crimes or minor victims of criminal offences should be interviewed or heard by officers of the same sex in proceedings.
3.4. Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?
Yes.
3.5. Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?
Yes, within the framework of criminal proceedings and primarily within the framework of child protection measures.
3.6. Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?
In this regard the Act on the Prosecution Service entrust prosecutors with the task of initiating proceedings to assert minors’ rights and to take necessary child protection measures. Prosecutors may also notify other state and municipal authorities carrying out social welfare and social care tasks if it seems necessary for the protection of the rights of persons concerned. Upon requests of other state bodies and agencies, private entities or non-governmental bodies the Prosecution Service may give information within the framework of the Criminal Procedure Code.
3.7. Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?
Yes. Trainings organized by the Prosecution Service generally include issues like the protection of the rights of victims and witnesses. Trainee prosecutors, junior prosecutors, prosecutors and senior prosecutors all participate in those trainings. In addition to prosecutor trainers, trainers of the trainings include criminologists, psychologists as well as staff members of the Police and the Justice Support Services Office who have expertise in victims’ protection. Prosecutors also have the opportunity to attend trainings organized by the Justice Support Services Office, the office playing a major role in victims’ support.