The wrongful arrests of the fall of 2006 are still taking effect – changing court approach in the wake of the shattered demonstrations
The massive police attacks that followed the demonstration on the 23rd of October 2006 in central Budapest, as Hungary marked the anniversary of the 1956 anti-Soviet uprising, is still one of the worst divisive issues in Hungary. There is an aspect of the events though, which was not really mentioned on the recent 15th anniversary: the topic of wrongful arrests. The pre-trial detention is not a preliminary punishment: it only serves procedural purposes, even if the public opinion expects something entirely different than this. In the fall of 2006, incorrect decisions – then mostly overturned by the appellate court – were delivered in series. However, this chain of failures was partly the reason that led the investigative judge practice to the path of development – writes Tamás Matusik. The result can now be measured in numbers, even if this doesn’t please the public opinion in every case. Our guest-author, a judge, Head of the Investigative Judge Department of the Central District Court of Buda, elected member of the National Judicial Council, victim of previous press attacks, is not taking an official court position, but expresses his own opinion.
There are usually two types of criticism the investigative judge practice is subjected to: the professional one is that there are too many arrests, while in the social point of view the number of arrests is rather small. These are present in the public discourse at the same time, but not to the same extent. The topic came into focus due to the mass arrests during the anti-government demonstrations in 2006.
At that time, the public prosecution filed motions for the pre-trial detention of 177 protesters within a few weeks, 147 of whom were actually detained. The coercive measures imposed hastily by the investigative judges were significantly overturned by the appellate court, and the suspects were released. It is worthwhile to examine how and with what outcome the judiciary responded to the trauma caused by such an amount of erroneous deprivation of liberty decisions.
The arrest (also known as pre-trial detention) is not a preliminary punishment, not a punishment in advance; it rather serves only procedural purposes: the accused that is reasonably suspected of committing the crime does not escape, doesn’t have the opportunity to manipulate the evidence and is not to commit a new criminal offence. It can only be practiced based on individual examination and only for the time required. If these goals can be achieved with a milder restriction of liberty, then the judge should choose the latter.
The purpose of pre-trial detention cannot be a pressure to confession, cannot serve the convenience of the authorities, and cannot transmit social vengeance.
Social expectation often deviates from a legal decision at the latter point, since the former arises from a natural sense of justice, and it has no procedural guarantees. Taking a simple example: a person who finds his spouse at home in an unambiguous situation with someone else, is usually not keen on judging the unfaithful partner after a fair trial based on legal guarantees. Rather immediately. The same cannot be applied to the jurisdiction; instant trial does not exist. In the frequently very time-consuming process, the general rule is that the defense happens at large, and the deprivation of liberty is the exception, that can be ordered exclusively by the court in cases precisely set down by the law. This was already the situation in 2006.
So then how could such an amount of erroneous deprivation of liberty decisions occur in the fall of 2006? The strictly professional reasons (the lack of an in-depth examination of the evidence and personal circumstances, the conveyor-like decision making) were revealed in the 2007 research material created by the Head of the Criminal Chamber of the former Metropolitan Court, which was praised by the parliamentary sub-committee led by Gergely Gulyás in its report adopted in 2010, investigating the infringements of the fall of 2006. (The other most affected organization; the prosecution service faced the criticism publicly in 2011.)
However, the problem was deeper than this. Until the change of the Communist regime to democracy in Hungary, it was not the judge, but the prosecutor that had the authority to order a „preliminary” arrest during an investigation, and the judicial involvement was rather formal even in the 90’s. The institution of the investigative judge that we are common with today, only appeared in 2003 in the Hungarian legal system. This means that in 2006, the system was possibly lacking organizational experience, nor has there ever been an example of so many motions that had to be dealt with in such a short time.
Before 2006, the judiciary did not take the role of the investigative judge in the protection of fundamental rights seriously enough, and the importance of the later irreparable judicial decision resulting in immediate deprivation of liberty. In other words, good decisions must be taken swiftly and with a precise reasoning. This, in addition to working conscientiously, requires serious judicial competence; counter-selection is not an option.
After 2006, the judicial leadership realized that treating the investigative judiciary as a low prestige field is a „suicide tactic”. Thematic consultations have begun, central and local trainings were held, and professional articles were published. The change of perspective started from the capital, and by the end of the decade it has become more and more common to order a house arrest or a home curfew than an arrest. In their opinion of the chamber of 2011, and in their case-law analysis of 2016, the former Supreme Court, now Curia approached the issue on human rights grounds. In 2014, the judicial administration established a unified and centralized Investigative Judge Department within the Central District Court of Buda – with their more progressive decisions even back in 2006 – that has territorial competence over the entire capital.
As András Kristóf Kádár, co-president of the Hungarian Helsinki Committee praised by the previously mentioned parliamentary sub-committee, and who immediately protested against the mass arrests, said in a recent radio-interview: there have been systemic changes in the practice of pre-trial detention over the past 15 years, „significant progress has been made in some parts of the country, for example in Budapest, (…) there is indeed a judicial control now, and in my opinion that kind of exposure of the system in 2006 may have played a role in this.”
Therefore, in the judiciary, the events of 2006 certainly had consequences that were even recognized by others. But this was not the sole reason for the legal development.
Around this time, numerous decisions were rendered in Strasbourg condemning Hungary, by which the State was obliged to pay substantial compensation for the wrongful arrests ordered in previous criminal proceedings. In these judgments, the European Court of Human Rights set out firm expectations for the rule of law minimum standards in pre-trial detention, which were included in the judiciary’s training materials. The judges themselves have changed a lot in the meantime.
Technical tracking devices were perpetuated at the police in 2013, providing the judge with a wider range of decisions through the possibility of continuous control. In the meantime, the EU directive was also passed, saying that the defense shall have access to the evidence referred to by the prosecution before the hearing of the investigative judge. As an important cornerstone of the process, the new act on the Hungarian criminal procedure entered into force in 2018, which by respecting the Strasbourg case-law, sought to reduce the use of arrest and give priority to criminal supervision through consistent wording that is an even more flexible coercive measure to replace the previous house arrest and home curfew.
Where are we now, in 2021? Let’s approach the question from a different perspective, through objective data and concrete examples. Figures can be obtained from the annual statistical information available on the Prosecutor General’s website. It is visible from this data that while in 2006 motions proposing arrests were granted by investigative judges in 92% nationwide, this rate dropped to 88% by 2019. It doesn’t seem to be a great difference, but it is much more significant if we look at the annual number of arrests ordered, which fell sharply (from 5000 to around 3300) between 2016 and 2019, and the excessive length of the detentions has also become less common. So the prosecution has initiated fewer and fewer arrests, and even with fewer motions, the number of judicial decisions ordering arrest has steadily declined. In the capital with the highest caseload, this rate decreased from 86% to 78% within the same period.
Is that too high? If the expectations were „fifty-fifty”, then indeed, except that the prosecutor’s office is also carefully considering whether to make a motion and not just deciding by a coin toss. Bearing the numbers in mind, there is no need to fear that judges are done with ordering arrests when it is justified. At the same time, while the success rate (that is, the proportion of convictions compared to the motions) is increasing each year for various reasons, the arrest rate is declining.
The number of cases available to anyone in the media proves that investigative judges decide independently in a wide range of cases, they don’t just “stamp the seal” on the prosecution’s motion. Here are some examples: the main defendant of the red mud trial, the three people accused of beating a football club’s former midfield, a woman suspected of committing tricky theft during the lockdown were all pleading at large, despite the prosecutor’s motion for arrest; or placed under criminal supervision like the Ukrainian captain accused of the deadly boat collision on the Danube, a truck driver from Miskolc responsible for a fatal incident, a man suspected for killing a reality show contestant, the drug-dealer that presumably sold the drugs to the boy protruding from the window and the doctor dealing with the coronavirus-drugs or even the businessman known as the „king of fertilizers” . There is a long list of examples, and although several decisions may have caused controversy in the public opinion, I cannot stress enough the fact that: the pre-trial detention cannot be ordered as a preliminary punishment.
An excellent example of judicial protection was achieved when the investigative judge rejected the prosecutor’s motion and released the three juveniles that were accused of committing robbery, after considering the suspicion unfounded following a conscientious examination. Months later, the police also found that it was not these juveniles who had committed the crime. And there are so many more cases that are out of the public eye.
Although there are still professional opinions saying that the work of the investigative judges is automatic, and its quality is generally lousy, this can be contradicted by data from many years and long lists of examples.
The fundamental rights approach is becoming more and more common when it comes to the work of investigative judges. It is possible that one could still find „outdated practice” in certain decisions; however, it would not be the correct conclusion to draw from a few unpleasant decisions, nor to proclaim a final victory over the old innervations.
It is not the time to lay back with satisfaction: ensuring the proper standards requires a continuous effort on the part of all decision-makers. Especially, those since the beginning of 2020, i.e. the outbreak of the coronavirus pandemic, the number of motions have been increasing again. The rate of orders imposing arrest did not increase anyway, but after several years a growth is experienced in the number of arrests.
Erroneous individual decisions may always occur, however, there is no longer a fear that the legal guarantees would be disregarded by the investigative judges too often. The judiciary learned their lesson from 2006, and the investigative judiciary has been on a path of continuous progress over the past 15 years as a result of several factors. I hope this will continue in the future, and in addition to the critical voices following each case – and also thanks to providing information to the public correctly – both the public and the professional opinion can get the impression of a consistent adjudication of the investigative judiciary.
Cover picture: protesters resist a blast of a police water cannon during a demonstration 23 October 2006 in central Budapest, as Hungary marked the anniversary of the 1956 anti-Soviet uprising amid the worst political divisions in the country since the end of communism (photo by AFP/Magyar Nemzet/Péter Máté)