RESPONSES OF THE HUNGARIAN DELEGATION TO THE QUESTIONNAIRE
elaborated with a view to the preparation of the Opinion No.6 (2011) of the CCPE on the relationships between prosecutors and prison administration, in particular in the light of the Recommendation Rec (2006)2 on the European prison rules
Ad 1. There is no Question 1 in the Questionnaire.
Ad 2 In the sense of Section 51, Subsection (2) of the Constitution and of Section 11 of Act V of 1972 on Prosecution Service of the Republic of Hungary, the public prosecutor shall assume the supervision of legality of all punishments, supplementary punishment, and penal measures, coercive measures applied in the course of criminal proceedings, measures, restricting liberty and confinement, ordered by authorities of public administration, custody applied under aliens legislation, or designated mandatory staying at the centres for immigration detainees, expulsion of foreign nationals irregularly staying in Hungary, post-release assistance for prisoners, of keeping the criminal and warrants of arrest records. While exercising these supervisory functions, the public prosecution service is entitled to control the legality of execution of the imposed punishments of deprivation of liberty, of community service work, of fine, of restraint of profession, of suspension of driving privileges, of expulsion; the legality of the imposed supplementary punishments of banishment from holding public office, and banishment from entering certain places; of penal measures of reprimand, of probation, of forced medical treatment, of seizure, of confiscation of property, of supervision by probation officer, of education in reformatory institution for juveniles, as well as of penal measures, ordered against entities with legal personality, and also the legality of the execution of apprehension, of warrant of compulsory attendance, of short term criminal or administrative detention, of the detention of foreign nationals, applied under immigration legislation (with a maximal duration of 72 hours, of preventive detention, of temporary forced medical treatment, of house arrest, at the authorities in charge of the execution of these penal measures (namely the institutions of the execution of punishments, police, probation service, immigration authorities, regional officer's service, National Office of Immigration and Nationality, national authority keeping criminal records). The public prosecutor shall have access to the instructions, relating to the conditions and regime of the detention and to the documents relating to the detention; shall hear the detainees (in private as well); shall review the complaints, submitted against the execution of decisions, rendered in criminal matters; shall supervise the legality of treatment of detainees and the enforcement of dispositions on the safeguard of rights. The supervisory visits at places of detention (i.e. prisons, police facilities, facilities of investigating authorities for apprehension of persons, guarded shelters for foreign nationals) once a fortnight (according to the CPT recommendation, since 2000; before, such visits had only monthly occurrence); the hearing of detainees in private on demand, and dialogue with detainees chosen at random; the settlement on the spot of a part of complaints, applications and allegations made by detainees and the solution of the rest of them later on, at the prosecutor's office - if it is necessary, concealing their person before the staff of the concerned institution with a view of their protection - have been proved to be both efficient and popular tools for remedy and protection of rights.
While effectuating inspections at places of detention, the prosecutor shall examine the regularity of documents serving as grounds for the detention, the legality of the execution of measures, laid down in these documents, the observance of deadlines determined for the detention, the treatment of detainees, the enforcement of the rights, and the enforcement of the obligations foreseen by legal norms. Exclusively the public prosecutor shall verify the execution of the latter dispositions that is that neither the parliamentary commissioner for human rights, nor non-governmental organizations shall have this responsibility. The inspection is also required for preventing favouritism, backstairs influence and corruption. An advantage, provided by such way in favour of certain detainees will be a disadvantage for other detainees, which will infringe the principle of equal rights and chances/opportunities.
While accomplishing legality supervision over the execution of punishments of imprisonment, the public prosecutor shall verify the legality and order of the execution process of admission to the prison, detention and release; as well as detainees' rights and obligations, material conditions of detention, medical care, gratification and retribution and work regime of sentenced prisoners. The public prosecutor shall also have information on whether the necessary measures have been taken with a view of continuing the execution of the remaining part of the punishment after the suspension, short time leave or pass; application of tempered prison regime, as well as after the expiration of the permission of leave the penal institution while being in a transitional regime before release. While accomplishing legality supervision over controlling condemned prisoners being in conditional release, the public prosecutor shall have access to the documents, hear the sentenced prisoners released conditionally; he/she shall address a request to the authority in charge of the control of the concerned prisoner having been conditionally released to give information on the conduct, work and personal circumstances of the latter. When additional information is required to prove the infringement of rules of conduct, prescribed for the detainee on conditional release, the public prosecutor asks for designation of subsequent evidence of the probation officer, or the police station, which is competent by the domicile or place of staying of the conditionally released prisoner.
Whenever an incident happens at any place of detention or restriction of personal liberty, the public prosecutor shall be obliged to draw a rapport, on one hand, and to accomplish an inspection, on the other hand. An incident may be any action or omission, or any other event, which grievously disturbs the order of the detention. Such an event is for example cases of fire, suicide or escape tentative of detainees, etc. In case of a serious accident or sudden dead of the detainee, the public prosecutor shall appear on the spot as soon as possible and investigate the reasons leading to the emergence of the special event, evaluate the conclusions, made by the authority, accomplishing the detention, and the preventive measures taken.
The accomplishment of these duties means the guarantee for the protection of detainees. The public prosecutor - while promoting unified jurisprudence and expeditious settlement of criminal proceedings - participate in judicial proceedings connected to the execution of punishments (before the judge of execution of punishment /juge de l'application des peines, at first instance). He/she shall present motions and be present at the trial; is authorized to participate at the hearing, and to lodge appeal against judicial decisions. The public prosecutor has also the power to participate at hearings at second instance; has the duty to be present at the trial, and has the power to lodge motions.
The public prosecutor has to draw annual report on the evolution of the legality of the treatment of detainees, which shall cover all detention places in Hungary, as well as all criminal and disciplinary cases, complaints and information, made on this subject. Namely, while accomplishing visits once a fortnight at the places of detention, he/she shall simultaneously gather information - independently of the concrete subject of the actual inspection or investigation - on the respect of dispositions, enshrined in the European Convention on the Prevention of Torture and other Inhuman or Degrading Punishment or Treatment.
The powers of the Hungarian Prosecution Service are very similar to the scope, covered by the Recommendation Rec (2006)2 on European Prison Rules. The Hungarian public prosecutor has even more duties, while accomplishing not only supervision of legality over the execution of imprisonment, but he/she exercises the supervision of legality of the execution of all sanctions, relating to any restriction of liberty, and by its essence itself implies the interference by the State with the legal position of citizen.
The public prosecutor's power does not extend to the patients hospitalized at the psychiatric wards of civil institutions [the Rule 12 in the Rec (2006)2 extends this power equally to such patients, in accordance with the CPT practice]. Moreover, the CPT visits also - on the grounds of that large interpretation of powers - social welfare institutions for psychiatric patients where persons with restricted rights are accommodated.
Rule 92 stipulated in Part VI - entitled Inspection and monitoring, Governmental inspection disposes, that "Prisons shall be inspected regularly by a governmental agency in order to assess whether they are administered in accordance with the requirements of national and international law, and the provisions of these rules." Rule 93 - Independent monitoring imposes, moreover, that "The conditions of detention and the treatment of prisoners shall be monitored by an independent body or bodies whose findings shall be made public. Such independent monitoring body or bodies shall be encouraged to co-operate with those international agencies that are legally entitled to visit prisons." According to the Commentaries on the Prison Rules: "This Rule uses the neutral term ‘governmental agency’. This agency can be part of one ministry, e.g. the Ministry of Justice or the Ministry of the Interior, or can be an agency under the control of more than one ministries. The essential point is that such an agency or inspectorate is established by, and reports to, the highest authorities.
The ways in which governmental inspection is organised will vary from mere checking of the book keeping of prisons to in depth and on the spot audits, which take into account all aspects of prison administration and of the treatment of prisoners. What is important is that the results of these inspections are reported to the competent authorities and made accessible to other interested parties without undue delay.
These rules do not specify how planning and control systems and audits should be organized, as this is for the governmental authorities to decide. Concerning Independent monitoring: "In the member-states of the Council of Europe different models of independent monitoring of conditions of imprisonment can be found. In some countries, an ombudsman has powers in this respect; in other states, this task is entrusted to judicial authorities, often combined with the power to receive and handle complaints of prisoners. This Rule does not intend to prescribe one single form of monitoring but underlines the need for a high quality of such independent supervision. This presupposes that these monitoring bodies are supported by a qualified staff and have access to independent experts. It is important that the findings of these bodies, together with any observations that may have been submitted by the management of the prison concerned, are open to the public. Reports of the monitoring bodies may contain proposals and observations concerning existing or draft legislation.
Independent monitoring bodies should be encouraged to forward copies of their reports and the responses of the governments concerned to international bodies, authorised to monitor or inspect the prisons such as the European Committee for the Prevention of Torture. This would assist these international bodies to plan their visits and allow them to keep their finger on the pulse of the national penitentiary systems. Because of their limited financial resources and the increase of the number of states to be visited, international bodies must rely increasingly on communication with independent national monitoring bodies. In many penitentiary systems, individual prisons are being monitored in some way or another by boards of visitors, consisting of (professionally) interested volunteers recruited from the community. A common approach of these boards is that its members take turns to visit the prison, talk to prisoners about their worries and complaints and, in most cases, try to mediate between the prison management and the prisoners to find solutions for perceived problems.
Though it is self evident that the existence of local boards of visitors can be a guarantee for a more intensive and involved monitoring, in small countries with only a few prisons and a small prison population independent monitoring by a national authority could be sufficient." Moreover, in accordance with paragraphs 11 and 15 of the Annex to the Resolution 57/1990/1 EAC, adopted in Vienna, at 11th session of the Commission on Crime Prevention and Control of the Economic and Social Council of the United Nations, public prosecutors shall have an active role in the execution and the supervision of execution of judicial decisions; they have to devote a due attention to the cases of abuse of power and the grievous infringement of human rights.
In Hungary, Act XXXIII of 1871 - by which the first unified prosecution service was established - prescribed for the then Royal Public Prosecution Service to verify the effectuation of final judicial decisions.
The CPT emphasised in its rapport on the visit in 1994 in Hungary the importance of activities, which the public prosecution service had concerning the protection of rights in the field of execution of punishments, in assuring the fair treatment of detainees, whereas in 1999, it underlined the role of the Hungarian public prosecution service in the prevention of torture.
In its case 21.967/1993, the European Commission of Human Rights emphasized the public prosecution service role in lodging motions in the framework of its supervision of legality. The European Court of Human Rights recognized as an efficient way of remedy the complaint to be lodged to the public prosecutor in detention matters, which has to be exhausted before application to European mechanisms of protection (Kokavecz versus Hungary, decision 27312/95, 20 April 1999). The remedies, laid down by Section 11 item a), and Section 12 of Act V of 1972 (on Prosecution Service) guarantee also efficient tools for the protection of human rights and liberties in terms of Article 35, paragraph 1st) and Article 13 of the Convention.
The Recommendation (2000)19 of the Council of Europe to Member States, paragraph 4 proposes, that "States should take effective measures to guarantee that public prosecutors are able to fulfil their professional duties and responsibilities under adequate legal and organisational conditions as well as adequate conditions as to the means, in particular budgetary means, at their disposal. Such conditions should be established in close co-operation with the representatives of public prosecutors." Moreover, paragraph 24 of the same Recommendation contains, that:" In the performance of their duties, public prosecutors should in particular: ... respect and seek to protect human rights, as laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms; it is also clarified by the Explanatory Memorandum to this Recommendation, that public prosecution service should have a particularly important role concerning execution of punishments.
It has been worded as a recommendation at the meeting of the Council of Europe, held in 1996 on "Supervision of Legality of European Prisons" that - similarly to the Hungarian legal regulation - the supervisory role of the prosecution service as regard the execution of punishments should be reinforced.
Ad 3. Hungarian prosecution service has full authority in prison matters.
Ad 4. The public prosecutor has the power to give injunction (i.e. a kind of quasi instruction) to authorities belonging to the administration of the execution of punishments, which are absolutely independent of the prosecution service) when he/she observes the infringement of human rights or legislation as well as whenever he/she finds that norms regulating conditions of detentions are not respected. The public prosecutor calls the attention of the head of the competent authority, which shall be obliged to comply with the instructions given by the public prosecutor in relation to respecting the law and conditions of custody of the detainees under remand within 8 days. The heads of such authorities shall have the right to file, through their superior organ, a remonstrance with the superior public prosecutor against any instruction of the public prosecutor. Nevertheless, the remonstrance shall have no delaying force. The public prosecutor shall be obliged to release any person that has been kept detained without a lawful decision or for a time longer than provided in the decision.
The public prosecutor shall address signalization to the official charged with the implementation of the detention whenever he/she disapproves any circumstance of detention or observes shortcomings not constituting a breach of law, but menacing legality and in cases, when he/she detects a minor breach of law. While issuing such a signalization, the public prosecutor shall initiate a disciplinary, administrative, or criminal proceeding - depending on the seriousness of the observed shortcoming - against the official, implementing the deprivation of liberty, the responsibility of which should be established for the illegal act or negligence observed or there is a justified suspicion for the establishment of this responsibility.
The public prosecutor shall lodge an action for damages in cases when the infringement of law resulted also in damages, or have whenever the right to institute, if any important state or social interest is involved or when the person entitled is not able to defend his rights for any reason, a contentious or non-contentious civil procedure or to take measures aimed at protecting legality in any phase of the proceedings.
Should the public prosecutor notice any circumstance that gives rise to taking measure concerning the activity of the court for administrative correctional affairs, he shall initiate the action of the county (metropolitan) court’s president in order to ensure the prevailing the legal provision.
Ad 5. The Hungarian prosecution service has national competence, i.e. it has not only central, but also local organs, namely in the same town or nearly where there is an establishment or an institution of detention. Other organizations for protection of human rights do not have such local branches or units. The public prosecutor is competent not only in investigation of complaints or grief, or disadvantageous situations which have been alleged to him, but also he ascertains ex officio of such injuries while accomplishing inspections (once a fortnight, at least), investigations or hearing of detainees. Therefore, he is able not only to detect irregularities but also to find effective remedies for the eventual breach of norm within the shortest time.
The territorial proximity of places of detention and powers entrusted by the law, his competences in positive and procedural criminal law as well as in prison law and professional skills in law application enable the public prosecutor not only detect the breaches of law but also their eradication more quickly, professionally and efficiently than other organs effectuating protection of human rights. In case of eventual mistakes or non-observation of legal dispositions or deontological norms, the public prosecutor shall assume a very serious criminal, disciplinary responsibility and a liability for damages. That is not the same for other organisms assuming the protection of human rights. The public prosecutor shall be accountable for all inadvertence of cases of breach of law, and violation of human rights. As regards other organisms - especially non-governmental organisations - a similar accountability does not exist. The public prosecutor shall be able to identify all cases of eventual breach of law, the violation of the right of other detainees and the infringement of public interest, and take promptly the necessary measures for their elimination. The public prosecution service has an overview over all the phases of the criminal proceedings, i. e. from the opening of the criminal proceeding to the accomplishment of the post-release assistance for prisoners, moreover all along to the radiation of the entries to the criminal records. Due to this position, and taking advantage of his power to have prompt access to all necessary information via his colleges, proceeding in the criminal case, founding the detention on the person of detainee and reasons of his/her detention, the public prosecutor in charge of the supervision of legality of execution of punishments and protection of right, shall acquire all the necessary information, which provides an unique opportunity for the promotion of the rapid investigation and arrangement of the case. Whenever another organism asks for any information from the prosecution service, the latter have to examine whether it is competent to ask for that particular piece of information. Such restrictions encumber the other organs of protection of rights to take real and efficient measures concerning the criminal case, the legal ground for the detention, etc.
The powers of supervision, legal remedy and taking necessary measures, as well as legal competences, practical methods of the public prosecution service are much more positive and important than that which other mechanisms of legal protection dispose.
Ad 6. The legal protection system could be improved if there was a reinforced coordination between each organ assuming such tasks and if they considered each other as someone willing give a helping hand to their peers. The exchange of experience would be promoted by the organisation of common meetings, as it has yet been a practice in Hungary.
This part of activity of the prosecution service (namely, making frequent visits at and inspection of the places of detention, hearing in private of the detainees, consequent exercising of power to respond appropriately) is relatively independent from other parts of prosecutorial activities; therefore, no interference shall be made from public prosecutors, proceeding in other fields.
Ad 7. In Hungary, the public prosecutor is competent /has jurisdiction to pursue investigation concerning the rights of all persons, the liberty of which has been restricted. He is expressly obliged by special legal dispositions to investigate whether human rights, procedural rights and other institutional rights of persons being apprehended or put in pre-trial detention are respected; and also to verify whether the human rights, other institutional rights and all those constitutional rights of the sentenced detainees are guaranteed, which have not been expressly restricted or suspended by laws for the period of the execution of the imprisonment. Moreover, the public prosecutor shall supervise the observance of the human rights and other legal rights of those, to whom a restriction of liberty has been imposed while held in a facility for apprehended persons by the investigating authority, administrative confinement, inflicted in an administrative procedure, custody applied under aliens legislation, or designated mandatory staying at the centres for immigration detainees of foreign nationals.
Ad 8. The legal regulation assures for the public prosecutor to have hearings in private with detainees to establish whether torture or other inhuman or degrading treatment or punishment was applied to the prejudice of the detainee. The public prosecutor shall provide such a hearing at least once a fortnight. On these occasions, he is hearing not only detainees who asked for, but while visiting the establishments, he chooses himself the detainees, whom he wishes hear. He may also mingle with a group of 20-30 detainees, offering the opportunity for lodging application for those who really wishes to lodge a complaint without disclosing their persons before the management of the prison and thereby avoiding eventual staff's retorsion because of the complaint. Before the opening of the relevant procedure, the prosecutor even takes orders to transfer the applicant and witnesses to another prison. That is a much-approved practice in Hungary. The legal regulation of the latter measure - id est that on the transfer - has to be enacted to legally assure their protection.
Ad 9. Every year, the public prosecutor shall conduct special inspection concerning the conditions of detention, and whether standards and recommendations of the Council of Europe, and especially those formulated by European Committee for the Prevention of Torture (CPT) are observed. The observance of the rules concerning overcrowding and separation of different categories of detainees shall be controlled once a fortnight. He had to exercise his power of issuing instructions due to breaching of the latter, which shall be executed immediately. He must regularly issue a signalization as regard the overcrowding of the places of detention.
In response to these signalizations, the heads of the concerned institutions have declared in the recent years that the necessary renovations and reparations could not be effectuated without external resources, only from their own financial found. Naturally, these responses must not be satisfying for the public prosecutor, therefore the public prosecution service addressed general /summarizing reports to the central authorities on the issue of general picture on prisons overcrowding. The competent central authorities replied that the renovation and the enlargement of prisons would be effectuated depending on financing resources, but there was no financial provision even for repairing shortcomings, but the problem would be placed on the agenda. As concerns the public prosecutor, he has the same attitude: conducts regular inspections, takes the necessary measures even towards the authorities at national level in order to attain the remedy of shortcomings. The Prosecutor General emphasises the problem in his annual report to be lodged to the Parliament, and therefore he is able to exercise some influence to the Members of the Parliament when they vote about the national budget.
Ad10. The public prosecutor shall be entitled to give binding instructions to the authority of the Execution of punishments or officials if they do not enforce properly the decisions of the court or the prosecutor; in Hungary, such instructions are denominated as "order"/utasítás. The only exceptions are the courts to be bound by such orders. While issuing an order, the public prosecutor disposes on the immediate cessation of the breach of law. The heads of such authorities shall have the right to file, through their superior organ, a remonstrance with the superior public prosecutor against any instruction of the public prosecutor. The remonstrance shall have no delaying force. The suppression of an illegal situation represents a more important value at the level of the rule of law and human rights than the suspensory/delaying effect attached to the right of legal remedy of the person, who is responsible for the existence of the violation of law. The public prosecutor shall be entitled to initiate criminal or disciplinary, or administrative-misdemeanour proceedings - depending on the seriousness of the observed shortcoming - against the responsible official and the official, having committed the breach of law, and to lodge an action for damages in a civil judicial procedure.
The public prosecutor shall address signalization to the official charged with the implementation of the detention whenever he/she observes a situation, menacing legality.
Ad 11. The public prosecutor shall conduct monitoring visits twice a month at the places of detention (i.e. in prisons, police facilities, and facilities for apprehended persons) as well as at places, enforcing custody of foreigner nationals under immigration legislation and guarded shelters. Each of such monitoring visits has its special prefixed purpose and programme, but the public prosecutor shall investigate all breaches of law, if observes any irregularity while conducting his regular monitoring visit. An illustration may be the example, when the subject of the inspection is to verify whether possibilities for contacts of the detainees with the outside world are provided, but the public prosecutor observes accidentally the breaching of the right to exercising legal remedies, he shall investigate also the latter problem - along with the planned in advance matter. The public prosecutor shall draw an official rapport on his findings made during inspection, which shall be entered to the roll of each prosecutor's organ and sent to the head of the inspected institution.
Whenever the public prosecutor observes any shortcomings or breach of law at his monitoring visit, he shall give a detailed description of it in a memorandum and attaches to the letter to be addressed to the competent authority or official a copy of the prosecutorial measure to be taken in order to put an end to them (order, signalization, motion for initiating criminal or disciplinary or administrative-misdemeanour proceedings or lodging civil action for damages).
He must not indicate the detainee's name, having made the application/complaint neither in his memorandum nor in the letter and instruction to be sent to the head of the concerned institution for preventing eventual reprisal against the detainee for his complaint. The name of the latter shall be entered to the domestic/confidential documents of the prosecutor with a view to reaching him eventually during subsequent phases of the procedure. While conducting the next visit, the public prosecutor shall especially gather information whether he has suffered any reprisal of the prison staff for his complaint. Therefore, the method of hearing in private a few numbers of detainees at the same prosecutor's monitoring visit seems to be approved and useful.
Ad 12. Yes, the public prosecutor has the power to enter any time (even at night) all places of detention or guarded shelters for foreign nationals while conducting his supervisory duties. That power is enshrined in legal disposition.
Ad 13. Yes, whenever special competences are required, he shall have recourse to experts. In Hungary, in case of a detainee's death, when the expertise laid down in the official necropsy record or other facts of which the prosecutor get knowledge does not justify reassuringly the death by natural reason, or the adequacy of the medical care, the prosecutor shall be entitled to designate ex officio en expert in forensic medicine. In case of industrial accident, he is entitled to designate an expert in protection of labour safety, and in all matters, concerning alimentation or other material conditions or hygiene, he designates an expert in hygiene.
Ad 14. Public prosecutors treat complaints and/or denunciations regarding criminal and administrative detention independently of any relevant authority, when he is not able to remedy the complaint or the denunciation immediately, on the spot. In case of minor breach of law, which may be remedied simply and easily, he also has the faculty to send the complaint to the head of the concerned institution, and in such cases, he ask for a report on the way of remedy of the complaint. The public prosecutor in charge of the supervision of legality of the execution of punishments shall pursue an inspection, but not an (criminal) inquiry/investigation. While conducting an inspection, when he perceives suspicion of the perpetration of a criminal offense; he shall inform the investigative prosecution office – which belongs to the unified prosecution service too - on his observations and suspicion, meanwhile he shall inform the competent military prosecution office – which is also part of the unified prosecution service - on his suspicion as regards the prison officer, concerned by the complaint/denunciation. The public prosecutor in charge of the supervision of the legality of the execution of punishments may promote the investigation in such cases by drawing a record on the denunciation and the hearing of witnesses. Naturally, the public prosecutor shall proceed in a manner that the prison staff could not have any information on the content of these documents. The former practice has been ceased, according to which the public prosecutor followed the complaints to the prison officers/employees against whom the complaint directed. However, it may still sporadically emerge with a view of diminishing the workload, but that method seems to be inacceptable both in the approach of the efficient legal remedy and the requirement of the fair proceeding.
Ab 15. If the public prosecutor acquires information on the death of the detainee, he shall appear on the scene of the death as soon as possible and inspect the conditions under which the death has set in. When there is suspicion of a criminal offence, he shall order a necropsy by an expert in forensic medicine. The costs of the latter shall be to the charge of the prosecution service. When there is a justified suspicion that the death of the detainee was caused by a criminal offense, only the public prosecutor is authorized to issue a permit for the burying of the body when the necropsy by an expert in forensic medicine has been accomplished. The public prosecutor shall also verify the findings made by the authority in charge of the detention concerning the death of the detainee. If the responsibility of a prison staff member/employee for the death or the examination of its causes and circumstances emerges, the public prosecutor shall initiate the establishment of his/her responsibility (in criminal, or disciplinary or administrative-misdemeanour proceedings, or in civil judicial procedure).
If the public prosecutor acquires information on the accident of the detainee, he shall appear on the scene of the accident within 8 days of the accident and inspect the conditions under which the accident has happened as well as its causes. Ha shall also evaluate the findings made by the authority in charge of the detention in the framework of the verification, as well as the measure taken by the latter. If the accident or poisoning has caused the death or fatal injury of the detainee, the public prosecutor shall appear at the scene of the accident as soon as possible with a view to accomplish the above duties. If the responsibility of a prison staff member/employee for the accident or concerning the clearance of its causes and circumstances emerges, the public prosecutor shall initiate the establishment of his/her responsibility (in criminal, or disciplinary or administrative-misdemeanour proceedings, or in civil judicial procedure).
If the detainee commits criminal offence to the prejudice of another detainee or a member of the prison staff, the incident shall be qualified as unordinary event, and the case shall be investigated – as independent authority – by the public prosecutor in charge of the supervision of the execution of punishments, while the criminal inquiry shall be conducted by an investigating authority – in the person of another prosecutor – and the legality of the criminal inquiry shall be supervised by the prosecutor in charge of the supervision over the legality of criminal inquiries and investigations.
Public prosecutors have also an important role in conducting of criminal inquiries. They conduct both criminal inquiries in cases belonging to the exclusive investigating competence of the prosecution service, on the one hand, and supervise inquiries in other criminal cases – which are conducted by other investigating authorities – on the other hand. Criminal cases, belonging to the exclusive investigating competence of the prosecution service, are exhaustively enumerated by Act on Criminal Proceedings, Section 29. Among the large number of criminal offences, listed by the Act have special relevance those, which are non-military crimes committed by persons being members of the professional staff of the Police or members of the professional staff of the penitentiary service in relation to the service. Military criminal proceedings shall apply in the case of a criminal offence committed by permanent staff member of a penal institution at his post or in connection whit his duty [Act on Criminal Proceedings, Section 470, Subsection 1st and item c)].
Ad 16. The public prosecutor shall be entitled to take action – and there were concrete examples too – in procedures concerning the lack of remedy against a decision on placement of the detainee in a high risk degree unit. He also has the power to initiate the revision of the relevant decision. However, the decision will be rendered by a Committee constituted by the administration of the penitentiary, and the head (director) of the concerned prison shall be responsible for the execution of the rendered decision. Consequently, the public prosecutor does not participate in such decision-making; the only exception being the execution of pre-trial detention. During the execution of the pre-trial detention, the public prosecutor shall have power of disposition concerning the execution until the lodging of the bill of indictment, as well as in the preparatory phase of the trial – until the rendering of decision; after that, this power shall be transferred to the court, where the bill of indictment has been lodged. During these phases, the power of disposition covers the order or the revocation of the so called “reinforced custody” for pre-trial detainees, who already had suicide-tentative, or are presumed to have it, or manifested a comportment, dangerous both for themselves and the public, or are presumed to manifest such a comportment, or there is a justified suspicion that they committed a criminal offence for which life imprisonment may be inflicted under the Criminal Code. As regard pre-trial detainees, the “reinforced custody” regime means at the same time a category of “high risk”. Its application may be challenged – in the prosecutorial phase of the proceeding - by lodging a complaint to the hierarchically superior prosecutor, and in the judicial phase of the proceeding – considering that it was ordered by the court – by lodging an appeal to the superior judicial instance.
Ad 17. The public prosecutors in charge of the supervision of legality working at the Office of Prosecutor General accomplish their work autonomously – as from 1998 - in order to protect them of any undue interference. Such independence has been reinforced in 2000, and their status reappears also in the denomination of the Division where they work: Independent Division for Supervision of Legality of Prison Administration and Protection of Rights. They are subordinated only to the Deputy Prosecutor General, and when international affairs are concerned, they are directly subordinated to the Prosecutor General. At local level, County Prosecution Offices (20) accomplish these duties – with the same territorial competence that judges of enforcement of sentences /juges de l’application des peines have. County level public prosecutors in charge of the surveillance of legality assume their duties under the guidance of the deputy chief prosecutor of the County. There are some county prosecution offices, where they work directly under the guidance of the chief prosecutor of the county. So, they are not subordinated to any of their colleagues, working in other fields.
Ad 18. Hungarian public prosecutors shall supervise the legality of the execution of decisions on pardon and amnesty. During the (individual) pardon procedure, public prosecutors having proceeded in the concrete criminal case shall give written opinion. The legality of the release is constant subject of systematic legality supervision. Only the execution of imprisonment punishment inflicted to grievously and incurably ill detainees has been interrupted on the ground of negative/harmful effects of the punishment.
Public prosecutors accomplish legality supervision: they conduct inspections twice a week in the National Office of Criminal Records.
Ad 19. If "special qualifications and training" mean whether public prosecutors, assuming supervision of legality of the execution of punishment have special mandate for accomplishing this task, the answer is yes. Namely, the opinion of the head of the competent field of law at the Office of the Prosecutor General has to be acquired before his/her appointment to this post. There are many prosecutors in this field, who regularly follow post-gradual special education, especially in prison psychology, criminal- pedagogy and sociology. There are others, who acquire a second university diploma as professors, philosophers, economists, etc. and pass proficiency examination in foreign languages.
Every year, the Prosecutor General Office at its Centre for Postgraduate Education of Public Prosecutors organizes a three-day special residential course/training on the thematic of duties, related to the detention and custody. Both eminent Hungarian specialists and also a few lecturers of the Council of Europe deliver lectures on these occasions.
Ad 20. In Hungary, the institution of the judge of execution of punishments /juge de l'application des peines exists, and the public prosecutor participates in proceedings before him/her. The public prosecutor shall obligatorily attend the trials, and his/her participation is facultative in the hearings. The public prosecutor has the power to present motions concerning revoking parole, carrying provisionally into effect the remaining part of imprisonment, issuing of an arrest warrant, revoking the provisory release from reformatory (juvenile delinquents), ordering probation, conversion of general interest work into imprisonment, designation of a new place of work or of a new kind of work in case of punishment of general interest work, declaration of the enforceability of the punishment of general interest work, and declaration of the impossibility of enforceability of the execution of the measure of expulsion. Between the 19 different kinds of decisions, constituting the competence of the judge of execution of punishment, there are only two (administrative) types of decisions, which may not be appealed by either the public prosecutor, or the defence counsel, while there are 17 others, which may be challenged. The public prosecutor has the power to participate and lodge motions in proceedings of second instance.
Ad 21. The relationship with the ombudsman consists in sending the ombudsman's rapports to the Office of the Prosecutor General on the examination of complaints from institutions of execution of punishments. The Office of the Prosecutor General, on its part, sends the summarizing rapports on each inspection to the Ombudsman's Office. It happens too, that the ombudsman asks for opinion on certain legal issues or interpretation of law, and for the examination of complaints, he received. He also invited the competent leading prosecutors to the conference he organized on the standing of the execution of punishments, and he participates in major events of the prosecution service.
One of the duties of the Ombudsman is that he examines the anomalies concerning constitutional rights of citizens he was acquainted with, and initiate general or individual measures with a view of their remedy. He conducts examinations only in cases, when it is necessary and not regularly, therefore his individual examinations may not be considered as supervision, therefore they produce a weaker preventive influence. The Ombudsman does not appear on the inspected places, he does not have a global overview on their functioning as a whole, and he does not participate in the process of the administration of criminal justice. However, the major part of grieves may be derived from the criminal proceedings. The Ombudsman's role is therefore not accomplishing supervision of legality, but assuring an instance for the protection of human rights. The role of the public prosecutor and that of the Ombudsman are different, but they mutually reinforce each other.
Non-governmental organizations address applications to the prosecution service concerning detainees' complaints and interpretation of laws. They systematically invite members of the prosecution service to their professional events. One of the most important NGO is the Hungarian Helsinki Committee, which has been implementing its program for visiting police facilities and prisons for nearly twenty years, in the framework of a convention, executed by the National Police Department and the Commandant of National Prison Administration. A great number of lawyers/defense counsels are working for them. Their attention concentrates principally on the conditions of detention, treatment and contacts of the detainees with the outside world. They inform mass media every year on their observations and experience. There are nearly thirty other organizations, with which the National Prison Administration signed an individual convention, but their missions aim principally at the support and reintegration of the detainees to the society. They forward also detainees' complaints and applications to the prosecution service. The control by the society shall not be equal to the supervision of the legality, because NGO are not repressive or other authorities. Therefore, they are not able to resolve serious problems neither in the field of positive or procedural criminal law, nor those of legality of prison law; and especially not without delay, but they may forward these problems to the authority, possessing adequate professional competence and means.
Ad 22. There are a few numbers of prisons in Hungary, which operate with utilizing private founds of capital. In such penitentiary institutions, it is also necessary to subject the protection of detainees' human rights to the supervision of legality, implemented by the prosecution service. It is crucial to prevent that such institutions become merely so called "stocks of human beings" and guarantee that prisoners' work remain between legal limits, the healthy alimentation, and human rights of the detainees are maintained.
It may be a helping guideline not only for prosecutors, assuming supervision of legality of the execution of punishments, but also for those, conducting criminal inquiries and assuming supervision over the criminal inquiries, if Opinion No. 6 (2011) of the CCPE covers also the scope of the power of disposition during pre-trial detention, attributed to the public prosecutor, conducting criminal inquiry. It would be very useful if the said Opinion contained a point of view concerning contacts of pre-trial detainees with outside world (by enumerating persons, contact with whom should be prohibited or restricted; manners and forms of ordering of such prohibitions and restrictions; in case when the public prosecutor, conducting criminal inquiry has reserved to himself the power of control over such prohibitions and restrictions and not delegated this power to the penal institution, whether only he is authorized to accomplish such control or another public prosecutor, or eventually a trainee-public prosecutor has also the competence to accomplish such control; should he have the power to designate the place of execution of the pre-trial detention, and the transfer of the concerned pre-trial detainee should be effectuated only with his approval – except for cases of grievous illnesses, necessitating urgent hospital care - ; should he authorize the transfer of such pre-trial detainee to the investigating authority, conducting criminal investigation in another criminal case; the ordering of the reinforced custody; authorization of the participation in the funeral ceremony of a close relative, etc.