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Introduction Introduction
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I. Historical Overview of the Juvenile Justice System of Hungary Between 1880 and 1990 I. Historical Overview of the Juvenile Justice System of Hungary Between 1880 and 1990
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A. “Csemegi Code,” Amendment of 1908, and Act VII of 1913 A. “Csemegi Code,” Amendment of 1908, and Act VII of 1913
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B. Youth Justice in the Socialist Era B. Youth Justice in the Socialist Era
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C. The Effect of the Political Transition on the Juvenile Justice System C. The Effect of the Political Transition on the Juvenile Justice System
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II. Contemporary Youth Justice II. Contemporary Youth Justice
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A. Penal Law A. Penal Law
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B. Criminal Procedure for Juveniles B. Criminal Procedure for Juveniles
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C. Juvenile Correctional Institutions C. Juvenile Correctional Institutions
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D. Other “Serious Misconducts by Young People” and “Children at Risk” D. Other “Serious Misconducts by Young People” and “Children at Risk”
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1. Regulatory Offenses 1. Regulatory Offenses
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2. Children at Risk 2. Children at Risk
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E. Child and Juvenile Criminality in Hungary E. Child and Juvenile Criminality in Hungary
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F. Sentencing Practices F. Sentencing Practices
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G. Main Characteristics of the Contemporary Juvenile Criminal Justice in Hungary G. Main Characteristics of the Contemporary Juvenile Criminal Justice in Hungary
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H. Evaluation of the Hungarian Juvenile Justice System H. Evaluation of the Hungarian Juvenile Justice System
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III. New Developments in the Control of Youth Behavior III. New Developments in the Control of Youth Behavior
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IV. Conclusion IV. Conclusion
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Acknowledgments Acknowledgments
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References References
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Notes Notes
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Youth Justice in Hungary During the 20th and 21st Centuries
Judge of the Constitutional Court of Hungary and Head and Professor of the Department of Criminology School of Law Eötvös Loránd University, Budapest
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Published:02 June 2016
Cite
Abstract
Juvenile justice systems are not static constructions but are highly dependent on the cultural, historical, and political environment. Therefore, analyses cannot provide a complete picture of them without explaining the effects of these to the development of the system. To encourage precise understanding on the main issues and institutions of the contemporary Hungarian juvenile justice system, this essay uses developmental and cultural perspectives, focusing on the introduction of formal law and legal practice. In this framework the author explains special characteristics of the Hungarian system, such as the traditional two-tiered justice system, the types and practice of deprivation of liberty of juveniles, the development of the consideration of culpability and maturity of delinquent children, and the limited overlap with child welfare. Beyond historical explanations, the author provides a contemporary evaluation of this development and points out the weakest areas with respect to international children’s rights.
Introduction
In 1914, whenever a 12-year-old with proper intellectual and moral maturity committed a robbery in Hungary, the juvenile court was only allowed to apply measures in his case instead of applying real punishment. In the traditional dualist sanctioning system, which already existed in Hungary at that time, the two forms of sanctions applied by the Penal Code were punishments and preventive measures. While the role of punishments is to repress crime, preventive measures (hereinafter “measures”) “have the function of special prevention of crime and a wider variety of criminal sanction” (Karsai and Szomora 2010 p. 110). A number of measures aim to educate those who can still be reformed, thus primarily juvenile delinquents (e.g., placement in a reformatory institution), while some aim to protect the society and eliminate risk (e.g., involuntary treatment in a mental institution). The measures available in 1914 were reprimand, probation, placement in a juvenile reformatory, or imprisonment. The juvenile judge was free to choose which one of these would, in his opinion, best serve the moral development of the juvenile.
In 1955, when a 12-year-old committed a robbery, the juvenile panel would apply measures in his case. The applicable measures were admonition (in practical terms, it meant the same as reprimand), probation, and placement in a juvenile reformatory. Intellectual and moral maturity was not a condition of the initiation of the procedure anymore, only the legal responsibility of the child. However, if during the process it became clear that the child’s intellectual and moral maturity was not appropriate, the court could order him or her to be placed in a special pedagogical institution; in case of the lack of ability to foresee the consequences of the given case, the court could dismiss the juvenile procedure.
In 1980, a 12-year-old who committed a robbery was perceived as a child delinquent, considering that the minimum age of criminal responsibility (MACR) was 14 at this time. The case was therefore dealt with by the child welfare system.
Since July 1, 2013, a 12-year-old committing a robbery is being registered as “juvenile.” According to the new Penal Code, which came into force on that day, the MACR was set at 12 in case of serious violent offenses. The case of a delinquent aged 12 is tried by a special judicial council, who are allowed to apply preventive measures if the delinquent is legally responsible. Juvenile penalties can only be applied against juveniles aged 14 to 18 years.
These examples illustrate the major changes in the juvenile justice system in Hungary during the past 100 years. The juvenile justice system was established by an act in 1908 and completed by another in 1913; at the time Hungary was part of the Austro-Hungarian monarchy. The juvenile court, which operated with significant autonomy, became the central institution of the welfare-oriented system, entitled to deal not only with criminal offenses but also with serious misconducts. However, delinquents of noncriminal acts were dealt with by the child welfare system.
After World War II, during the so-called dictatorship of the proletariat, the system underwent considerable changes both in its structure and goals. The juvenile court still operated as a part of the criminal justice system; however, according to the relevant legal rules of this period, it enjoyed only relative independence. The juvenile court no longer dealt with serious misconducts not falling under the Penal Code, and it was not allowed to apply child protective measures. The latter task was assigned to the child welfare system, which operated under the general public administration. This systematic buildup is still in force, but with ever-changing content. Systematic solutions of certain political periods are characterized by the peculiarities of political systems and their attention to welfare goals (Pruin 2010, pp. 1519–1523; Winterdyk 2015, p. 6).
The essay introduces the development of juvenile justice in Hungary since the 1880s. Section I provides a historical overview of the juvenile criminal justice system in Hungary from 1880 to 1990, as well as the changes that occurred in 1989 and 1990, in line with the political transition. Section II introduces the current system, gives statistics about child and juvenile delinquency, and describes the sentencing practice in Hungary. In introducing the systematic buildups I will focus on the following: (1) philosophy of the system, (2) structure of the juvenile justice system, (3) age limits, (4) other elements of criminal liability, and (5) sentencing. Section III deals with the latest developments in the policies of controlling the misconduct of youngsters in Hungary. Section IV gives a summary of the most important findings of this essay.
I. Historical Overview of the Juvenile Justice System of Hungary Between 1880 and 1990
A. “Csemegi Code,” Amendment of 1908, and Act VII of 1913
The Hungarian juvenile justice system was established as part of the general criminal justice system. The Penal Code of 1878, often referred to as the Csemegi Code after its drafter, Károly Csemegi,1 was the first penal code of Hungary. The Code, which came into force on January 1, 1880, did not contain special rules regarding juvenile delinquents, although it established the category of “juvenile” referring to children between 12 and 16 years, for whom it adopted almost the same sanctions as for adults, only slightly mitigated (Váradi-Csema 2011). The reason for the lack of special provisions for youths becomes obvious when we look at the Code’s leading principles. Premised on the idea of free will of the classical school of penal law, its most important principles were the focus on the act and the proportionality of punishment. Csemegi, consistently following the classical doctrines, did not give the judge the chance to disregard the act and individualize his decisions. Due to criticism the Code was amended by Act XXXVI of 1908,2 and the substantive regulation of juvenile justice had been embedded into the substantive criminal law. The professional and scientific criticism stemmed from the ideas of the school of Franz von Liszt, the development of juvenile courts and the foundation of child-saving movements in the United States, and the increasing number of delinquent acts at the time. The proportion of the boys aged 12 to 16 among male offenders more than doubled between 1896 and 1905, while the proportion of girls among female offenders more than tripled in this period. In 1896 the proportion of boy convicts younger than 16 was 2.40 percent among all male offenders, while the percentage in 1905 was 5.04 percent; the proportion for girls jumped from 1.36 percent of all female offenders in 1896 to 4.33 percent in 1905.3 The amendments of 1908 aimed to rescue and educate the juveniles with serious misconduct. Therefore, educational measures were introduced in the law, and the discretionary rights of the judge regarding the decision on the merits of the case were been extended. The latter meant that the judge had to take into consideration the personality of the juvenile rather than the offense committed by him or her and had to apply an appropriate measure accordingly (Balogh 1909).
The penal amendment, which came into force on January 1, 1910, set the MACR at 12 years, while the age of criminal majority was increased to 18 years. Raising the MACR to 14 or 15 years was also a matter of debate during the drafting. Finally, the age limit remained with regard to the fact that neither the civil nor governmental child welfare institutions were able to deal with these children, while the new regulation offered the judge the opportunity to apply the measure that best served the juvenile’s interest. Those who were not yet 12 years old when committing a delinquent act could not be tried in criminal procedure with regard to their “childhood” in criminal sense. These children could be punished, for instance, by the school (disciplinary confinement), or if they lived in “debauched” families, the child welfare authority had to decide about the appropriate measure. Parallel to this, the upper limit of the juvenile age was increased by the amendment. As it was argued, “intellectual and moral skills of those between the age of 16 and 18 are not mature enough to reach the requirements of full culpability;” furthermore, “juveniles of this age are physically and psychologically much closer to those under 16 than to the physically, intellectually and morally mature women and men” (Magyar Törvénytár 1909, p. 856).
According to this quotation, determination of culpability and therefore punishability had one another condition beyond legal age, namely the delinquent’s moral and intellectual maturity. This legal requirement replaced the concept of legal responsibility of the Csemegi Code. Legal responsibility remained a condition of punishability of adult offenders after the Amendment of 1908. Moral and intellectual maturity were not defined by the amendment, but Jenő Balogh summarized its meaning for the purpose of practice as follows: “The juvenile had to be mature enough to be able to draw a distinction between good and bad, legal and criminal, virtuous and vicious” (Balogh 1909, p. 135). Whether or not the juvenile was in possession of this maturity at the time of the offense was the judge’s responsibility to determine. If, according to his decision, the juvenile was intellectually and morally not mature enough, he could not be held responsible and the case would be dismissed. The child’s supervision at home, disciplinary measures at home or at school, or even placement in a reformatory institution was, however, applicable even in this case as a preventive action. If the juvenile was mature enough, one of the following measures was to be applied by the judge: reprimand, probation, placement in a juvenile reformatory, or deprivation of liberty in jail. From 1914, a fine was also applicable in addition to the above. From those applicable to adults, the death penalty, a fourth-level prison sentence, a fine, deprivation of office, and suspension of political rights were not to be imposed in juvenile cases. The judge had legal permission to choose the most promising measure concerning the behavior and moral development of the child. But the Amendment of 1908 introduced further exceptions for juveniles; for instance, deprivation of liberty in jail was imposed as a measure and not as a punishment, as happened in adult cases. It was a significant mitigation because following from the mitigated punishment, the youth’s offense was perceived as only a minor offense and not a major offense in the dual criminal system of the Hungarian law. Furthermore, a delinquent act that was to be punished with a reprimand, probation, or placement in a juvenile reformatory was not registered as reoffending. When this regulation came into force on January 1, 1910, juvenile courts were not yet established in Hungary. Therefore, a statute from the Minister of Justice ordered that juvenile cases be tried apart from those of adults at criminal courts, by means of which he enabled the enforcement of the new regulation.4
Act VII of 1913 established the system of juvenile courts in Hungary. According to the procedural act, juvenile courts had to be organized at each royal county court (court of appeal), while at regional courts (court of first instance, local level), the Minister of Justice was entitled to organize juvenile jurisdiction in case of an increased number of delinquents or another important cause. “Juvenile court” referred to the jurisdiction of the judge, who was appointed by the Minister of Justice among the judges of the regional court or the court of appeal for a three-year term. The title might be renewed. The juvenile court was entitled to deal with cases of juveniles who committed crimes or misdemeanors; children who committed crimes or serious misconduct; minors less than 18 years of age living in a risky environment or having a risky lifestyle; and their parents and legal guardians, who were to be held responsible with regard to their neglectful behavior (Szabó 1961, p. 63). Cases were prosecuted at court by “juvenile prosecutors” appointed by the Royal Office of the Prosecutor. Probation officers appointed by the Minister of Justice and volunteers working at child protection patronage associations provided important help for the judges during the whole procedure.
The rules of the Act on Criminal Procedure of 1896 were applied with the modifications disposed by the Act of 1913 in juvenile procedures. The supplementary rules aimed to avoid stigmatizing the juvenile, to uncover his or her family background, and to find the measure that would better serve his or her development in the future. The procedure was therefore less formal than the general procedure. Its most important part was the so-called preliminary procedure, where the judge, who was also entitled to lead judicial investigation, investigated the child’s personality with the help of the probation officer in order to be able to deliver a judgment suitable supporting his development in a positive way. He delivered a sentence when imposing reprimand, deprivation of liberty, or a fine, or when he cleared him of the charges. However, he placed the juvenile in a reformatory institution or dismissed the case with a judicial order. The motion of the prosecutor regarding the content of the sentence or the order did not bind the judge, but the prosecutor could appeal the decision. The appeal was tried in front of a permanent council of three judges of the court of appeal. In contrast to the adult procedures, the presence of defense counsel in the juvenile trial was obligatory, and based on the regulation of 1913, the rights of the public were notably narrowed. Any document connected to the case was, for instance, only allowed to be published with the permission of the relevant authority and only if the name or initials of the child did not appear on it. The public could also be excluded from the hearings at the judge’s discretion (Szirota 2014).
The juvenile criminal justice system of Hungary, determined by Act XXXVI of 1908 and Act VII of 1913, was significantly influenced by the juvenile courts developed in the United States.5 However, it differed in many respects from the juvenile justice system of the Progressive Era (Feld and Bishop 2012, pp. 3–5). Differences between the Hungarian and the American system originate in the limited emergence of the parens patriae principle in the drafting of the Hungarian juvenile justice code. Legal restrictions placed limits to the jurisdiction of the juvenile court higher than in the United States. Accordingly, only criminal and regulatory offenses belonged to the juvenile court, while cases of neglected children were dealt with by the child welfare system. Furthermore, the juvenile court was not separated from the general criminal justice, but it remained its specialized unit; however, this specialization did not extend to the special education of juvenile judges and prosecutors, to whom it was enough to obtain a general law degree. Procedural safeguards were just the same in juvenile procedures as in adult procedures.
In conclusion, it seems clear that this juvenile justice system, operating from about the second decade of the 20th century up until the 1950s, throughout the parliamentary monarchy and later in a regime with limited parliamentary power (Horthy regime), served as the judicial forum for criminal offenses of juveniles as well as a number of child protective tasks. The system had a strong welfare orientation, and as such it aimed to respond primarily to the personal needs of the juvenile delinquent.
B. Youth Justice in the Socialist Era
After World War II, Hungary became a member of the Soviet bloc. In the authoritarian system, legal regulation was an important tool for change, so in line with the political system, the legal system of the country was altered significantly. Draconian rules of the substantive criminal law were of particular importance in the new legal system.
Political-legal changes reached juvenile justice as well. The Amendment of 1908 and the act on the juvenile courts of 1913 were repealed in 1952; as a consequence, juvenile courts were abolished. Starting on January 1, 1952, a new decree came into force that regulated both the substantive and procedural aspects of the juvenile criminal justice system.6 The new law was based on the concept of juvenile justice being part of the criminal justice system. Although the central goal of the procedure was still the education of juveniles, it was essentially still criminal law; accordingly, the substantive and procedural rules of general criminal law applied to the only relatively autonomous juvenile judge as well.
The Law Decree of 1952 distinguished two groups of juveniles: juveniles of 12 and 13 years and of 14 to 18 years. Intellectual and moral maturity was not a condition of criminal liability beyond MACR anymore, but the new law introduced the phenomenon of “danger to society.” The investigation should be dismissed and the judge should clear the juvenile of all charges if his or her intellectual maturity was not appropriate to foresee the dangerousness of his or her actions to society. For juveniles of 12 or 13, only educational measures were to be imposed, while for 14- to 18-year-olds, these measures had only a supplementary role next to the applicable punishments. The severity of punishments did not reach that for adults, but it was increased compared to the available punishments in the Amendment of 1908. For instance, the Amendment of 1908 maximized the deprivation of liberty to 10 years, while the minimum term was one day. In contrast, under the Law Decree of 1952 juveniles could be deprived of their liberty for a minimum length of 30 days up to a maximum of 15 years. In exceptional cases it was possible to apply life imprisonment or even the death penalty for juveniles older than 16 years. The criminal courts established by the new law operated still as specialized units of the criminal judicial system. A juvenile judge could only become the judge appointed by the Minister of Justice, and the judge might try the cases in a so-called juvenile council together with two laypersons: a teacher and a woman delegated by a women’s association. This council did not deal with child delinquents or child protective tasks; thus, it operated exclusively as a juvenile court. In an authoritarian system, this severe criminal law applied to both juveniles and adults, without any reference to welfare characteristics.
After the revolution of 1956, the dictatorial power had softened, and the consolidation of the socialist system began from the mid-1960s. These political changes appeared also in the alteration of the legal system, and therefore in the juvenile justice system. The Law Decree of 1952 was repealed, and the system of juvenile justice was reregulated and slightly modified. Substantive law was incorporated into the new Penal Code of 1961, while procedural rules were specified by the Code of Penal Procedure of 1962. The new regulations did not want to uproot the rules regarding juvenile justice from the general codes of substantive and procedural criminal law. At the same time, however, the law had to take into consideration the special social status of youngsters as well as their psychological characteristics, and it had to ensure the “different treatment” of juveniles compared to adult offenders.
According to the Penal Code of 1961, a juvenile was a child aged 14 to 17 who committed a criminal offense. Conditions of determination of criminal responsibility were the juvenile’s age and the criminal liability. Intellectual and moral maturity as a condition of responsibility had been abolished.
The Penal Code of 1961, even though it meant the end of a formally independent juvenile justice system represented by the unified substantive and procedural juvenile law, was a considerable improvement over the Law Decree of 1952. It compelled courts to apply educational measures in juvenile cases, prohibited the application of the death penalty against juvenile defendants, decreased the maximum length of imprisonment, and aimed to provide better conditions for the integration of juveniles through its softer rules on criminal record. The Penal Code of 1961 and the Code of Penal Procedure of 1962 established a juvenile justice system in Hungary that is best described by the justice model of juvenile justice systems. Although this system was altered later by the Penal Code of 1978 and the Code of Penal Procedure of 1973, mainly in its penal policy content, the main structure of the 1960s model still characterizes the Hungarian system.
C. The Effect of the Political Transition on the Juvenile Justice System
The democratic political transition of 1989 and 1990 in Hungary did not have an altering effect on the structure of the juvenile justice system. Nevertheless, some changes occurred within the formerly established justice model thanks to the recognition of the rule of law and the ratification of the United Nations Convention on the Rights of the Child in 1991. The most important new institutions were diversion and depenalization. Suspects could be diverted through the postponement of indictment on the one hand and in the case of drug use on the other hand. Postponement of indictment meant, and still means, that the prosecutor can postpone his indictment for a one- to two-year probationary period, if the maximum punishment for the crime of the suspect was punishable by no more than five years of imprisonment and if the postponement seems to be sufficient to support the correct development of the child. During this period the juvenile is supervised by a probation officer. In minor and exclusively drug-related crimes, both juvenile delinquents and adult offenders could choose “treatment instead of punishment.” The rule, which defined deprivation of liberty as an ultima ratio sanction against juvenile delinquents (a sanction of the last resort), was incorporated into the law in 1995 in support of decriminalization.
As we have seen, these rules reintroduced a welfare orientation into the juvenile justice system of Hungary.
II. Contemporary Youth Justice
A. Penal Law
The Penal Code of 1978, which had been amended more than 100 times, was repealed by the Parliament in 2012 and replaced by Act C of the Penal Code of 2012. The new law came into force on July 1, 2013.
In countries belonging to the civil law system, the “codes” that serve as a collection of fundamental rules of a certain legal field are presented to the Parliament after a years-long drafting period. The process called “codification” begins typically with formulation of goals and objectives, followed by theoretical debates and collection of recommendations from the practice. Ideally, drafting begins only after debating these theoretical views and opinions, and it ends with an academic and professional debate about the first written draft. The bill that is formulated from the previous negotiations comes in front of the Parliament, where, after new recommendations and proposals, the majority of the Parliament adopts it.
The Penal Code of 2012 was not codified according to this schema, however. The governmental coalition of FIDESZ (Hungarian Civic Alliance) and KDNP (Christian Democratic People’s Party) decided in 2011 that a new penal code was needed, and on July 25, 2012, the act of 463 articles was adopted by the two-thirds majority of the representatives in the Parliament. Under these circumstances the law may be perceived as a result of legislation instead of codification. Regarding juvenile justice, this rapid enactment of the law led to the avoidance of the academic and professional debate about the most important theoretical questions and legal provisions that appeared later in the Code. As for the problematic theoretical questions, the law did not take into consideration the following:
Shall juvenile justice be regulated within the Penal Code as an exceptional process, or is it reasonable to codify a separate “juvenile act”?
Shall legal responsibility still be based only on the age of the offender or should it take into account intellectual and moral maturity as well?
Shall the law regard young adulthood (offenders aged 18 to 21)?
Shall the law extend to serious misconducts of children? If so, shall the treatment of troubled youth be assigned to the juvenile judge?
The legislature lowered the MACR without any professional debate from 14 to 12 years in those cases where a serious violent offense listed by the law was committed by a child.
The Penal Code of 2012 did not change significantly the existing system of juvenile justice regulated by the Penal Code of 1987. Generally speaking, the law brought few changes compared to the rules in force in 2012, with the exception of lowering the MACR.7
The following is an overview of the rules on juvenile justice regulated by the Penal Code of 2012. According to the Code juveniles are persons under the age 18 who committed a crime and who had already reached 14, or 12 in the case of exceptional, serious violent offenses. General rules applicable for adult offenders are also applied to juveniles, but with certain mitigations. For instance, if a robbery is committed by an adult offender who may be punished with 2 to 8 years of imprisonment according to the law, then in the case of a 14- to 17-year-old, the judge may sentence him to imprisonment for 1 month to 5 years, or even probation. For juveniles aged 12 or 13, the judge may only apply measures such as special education in a reformatory institution.
The general MACR is 14 in Hungary; therefore, younger children are officially not punishable with regard to their lack of maturity. Child delinquents are dealt with by child welfare authorities, who may apply measures based on the rules of the Code on the Administration of Child Protection and Guardianship of 1997 (see II.4.2. of this essay). Since July 1, 2013, if a child aged 12 or 13 commits homicide, homicide committed in an impulsive mental state, aggravated bodily injury resulting in death, robbery, or plundering, and he or she is mature enough to foresee the consequences of his or her actions, he or she is responsible for these acts as a juvenile. Rules applicable to juveniles apply to the 12- or 13-year-old delinquent as well (Chapter XI of the Penal Code), with the exception of the prohibition of imposing a punishment in his or her case: only preventive measures may be applied (see Table 4).
Lowering the MACR and its legal implementation were justified as follows:
Prevalence of the violent enforcement of personal interests among children of 12–14 has increased, and therefore alteration of MACR, sentencing of children who committed extremely violent crimes and crimes against life and lowering MACR to 12 years are necessary legislative steps. The behavior of the children who commit these crimes indicates that if they do not get proper support, they will not be able to integrate into the society in the future and lead a law-abided lifestyle, and therefore it is necessary to apply criminal law as special prevention in their cases. (Reasoning of the “Legislator” to Article 16 of the Penal Code)
In contrast, the United Nations Convention of the Rights of the Child suggests that countries shall favor the improvement of child protective institutions instead of using criminal law by mean of lowering the MACR to deal with this target group.
The relevant article of the Penal Code orders obligatory transfer of 12- or 13-year-old juveniles who committed these crimes. Accordingly, children who committed these crimes may not be dealt with by the child welfare authorities but must be dealt with by the criminal justice system, based on the special rules of the Penal Code and the Code of Criminal Procedure.
There is one more procedural condition, namely the mental ability of the child delinquent. This is an additional rule compared to what applies to adults and older juveniles (aged 14 to 17), since in their case the only condition is their legal liability. Neither the Penal Code nor the Reasoning of the Legislator contains more detailed information about the definition of the mental ability than is explained by Article 16 of the Penal Code, namely that the child must be able to foresee the consequences of his or her actions at the moment of committing the crime. To avoid confusion and controversial practices, the Prosecutor General published his obligatory guidelines about this matter in 2013. According to the main conclusions of these guidelines, the prosecutor must dismiss the case if (a) the psychiatric expert concludes that the suspect aged 12 to 14 was not capable enough to be held responsible, and in this case legal responsibility should not be the matter of examination; however, if (b) the child was indeed capable enough to be held responsible, the judge must take into consideration the reports of the psychiatric expert, the psychological expert, the child psychologist, the social inquiry report, and pedagogical and further evidence about the child protective measures applied earlier, possible health problems, and the suspect’s physical and psychological status. If necessary, the child must be heard by the prosecutor, who shall decide if he or she was able to foresee the consequences of his actions. Finally, (c) the lack of maturity/capacity leads to dismissal of the case, while if there is enough and proper evidence exists as well, prosecution of the case ensues (Guidelines of the Vice-General Prosecutor of Criminal Matters, 5/2013 [VII.31]).
The Penal Code presumes that 14 is the age when people in general possess the intellectual and physical maturity for being held responsible. The rules applicable to the juvenile are determined by the time when the crime took place and not the time of judicial consideration. While “young adult” is not an official legal category according to the Penal Code and other relevant laws, judges in practice consider the young age (18 to 21) of the offender as a mitigating factor in sentencing, especially if the accused is a first-time offender.
Chapter XI of the Penal Code contains the regulation regarding juvenile justice. These are special rules to be applied in juvenile cases, replacing the general rules. In Tables 1 through 4, I compare these special rules with the general regulations. The reason for this construction is that, as according to the widely accepted theoretical standpoint among criminal lawyers, juveniles represent a “transitional social position” between childhood and adulthood (Szabó-Sebes 1980, p. 689). Their maturity exceeds the maturity of children in biological, psychological, intellectual, and moral terms, and they have adapted to a higher level of social norms as well. However, their set of moral values and intellectual skills are still developing in this period, and therefore their equal treatment to adult offenders is not appropriate (Reasoning of the Penal Code about Article 105 and 106). This transitional period is respected by the “legislator” through the special rules.
Based on Article 107, Paragraph 2, of the Penal Code, the rules of Chapter VII shall precede the general rules; thus, they may exclude or limit their applicability. Accordingly, the provisions of Chapter VII may be categorized regarding to altering force as follows:
Certain general provisions are not applicable to juvenile delinquents (e.g., a juvenile cannot be imprisoned in a maximum-security prison).
Certain special provisions are applicable exclusively to juveniles (e.g., the regulation on the special education in a reformatory institution).
Certain special provisions of Chapter VII modify general rules (e.g., the additional rules on imposing fines for juvenile delinquents).
The following comparisons focuses on the sanctioning system because most of the special provisions regulate this area (I referred to the relevant articles of the Penal Code in my comparison8).
General Rules . | Special Rules for Juveniles . |
---|---|
Aims of penalty (Article 79) | Aims of penalty and measure (Article 106, Paragraph 1) |
Principles of sentencing (Article 80) | Principles of sentencing (Article 106, Paragraphs 2 and 3, and Article 108) |
General Rules . | Special Rules for Juveniles . |
---|---|
Aims of penalty (Article 79) | Aims of penalty and measure (Article 106, Paragraph 1) |
Principles of sentencing (Article 80) | Principles of sentencing (Article 106, Paragraphs 2 and 3, and Article 108) |
Table 1 shows that the goals of the sanctioning system for juveniles differ fundamentally from the adult system, thanks to the dominance of educational ambitions in the criminal policy for juvenile delinquents. Article 106, Paragraph 1, of the Penal Code refers to these goals when it declares that any punishment or preventive measure applied to a juvenile aims to support his or her appropriate development in the hope that he or she will become a useful member of society. Out of the general goals of punishment set in Article 79 of the Penal Code (special and general prevention in protection of society), Article 106, Paragraph 1, considers special prevention as the primary aim, paying special attention to the education and protection of the juvenile. In line with these goals, Paragraph 2 of the same Article highlights the primacy of preventive measures compared to imposing punishments. In addition to these two forms of sanctions, exclusion from participation in public affairs (e.g., exclusion from parliamentary/local elections) is mentioned as a “subsidiary punishment” in the law, applicable only together with immediate imprisonment. As mentioned above, if a case of a 12- or 13-year-old delinquent is dealt with in criminal procedure, only preventive measures may be applied according to Article 106, Paragraph 2.
Article 106, Paragraph 3, clearly stands for the requirement that follows from the United Nations Convention on the Rights of the Child that deprivation of liberty of children must be ultima ratio, the measure of last resort, whether it is a custodial penalty or a preventive measure. Therefore, the court is bound by the following order when applying a sanction to a juvenile delinquent:
Noncustodial preventive measure (e.g., probation order)
Custodial preventive measure (placement in a reformatory institution)
Noncustodial punishment (e.g., fine, suspended imprisonment)
Custodial penalty (e.g., immediate imprisonment)
Table 2 compares the general provisions of the Penal Code and the special provisions for juvenile delinquents.
General Rules . | Special Rules for Juveniles . |
---|---|
Imprisonment (Articles 30–45) - Life imprisonment - Imprisonment lasting for a determinate period | Imprisonment (Articles 109 and 110) (only to determinate, mitigated minimum and maximum terms and wards) |
Confinement (Article 46) - Minimum 5 days, maximum 90 days | Confinement (Art. 111) - Minimum 3 days, maximum 30 days |
Community service (Articles 47–49) | Community service (Article 112) (if he or she has reached 16 years) |
Fine (Articles 50 and 51) | Fine (Article 113) (if he or she has income or respective assets; lower amount; converted to imprisonment or community service if convict is incapable or unwilling to fulfill the payment) |
Disqualification from a profession (Articles 52–54) | No special rule |
Disqualification from driving motor vehicle (Articles 55 and 56) | No special rule |
Ban on entering certain areas (Article 57) | Ban on entering certain areas (Article 118) (the juvenile cannot be banned from a town where his or her family lives, if they offer a sufficient living environment for him or her) |
Prohibition on visiting sporting events (Article 58) | No special rule |
Expulsion (Articles 59 and 60) | Expulsion (Article 114) (if the child has been sentenced to imprisonment of 10 or more years, in case of staying he would be a threat to public safety and his or her right to family life is not violated by the sentence) |
General Rules . | Special Rules for Juveniles . |
---|---|
Imprisonment (Articles 30–45) - Life imprisonment - Imprisonment lasting for a determinate period | Imprisonment (Articles 109 and 110) (only to determinate, mitigated minimum and maximum terms and wards) |
Confinement (Article 46) - Minimum 5 days, maximum 90 days | Confinement (Art. 111) - Minimum 3 days, maximum 30 days |
Community service (Articles 47–49) | Community service (Article 112) (if he or she has reached 16 years) |
Fine (Articles 50 and 51) | Fine (Article 113) (if he or she has income or respective assets; lower amount; converted to imprisonment or community service if convict is incapable or unwilling to fulfill the payment) |
Disqualification from a profession (Articles 52–54) | No special rule |
Disqualification from driving motor vehicle (Articles 55 and 56) | No special rule |
Ban on entering certain areas (Article 57) | Ban on entering certain areas (Article 118) (the juvenile cannot be banned from a town where his or her family lives, if they offer a sufficient living environment for him or her) |
Prohibition on visiting sporting events (Article 58) | No special rule |
Expulsion (Articles 59 and 60) | Expulsion (Article 114) (if the child has been sentenced to imprisonment of 10 or more years, in case of staying he would be a threat to public safety and his or her right to family life is not violated by the sentence) |
Table 2 shows that juveniles may be sentenced exclusively to a definite term of deprivation of liberty, since life imprisonment may only be imposed for an adult older than 20 years in case of committing a serious offense. Since 2013 there have been two forms of deprivation of liberty: confinement and imprisonment. Confinement, similarly to confinement in case of regulatory offenses, is a short-term deprivation of liberty applicable in minor criminal offenses.
In contrast, imprisonment is applicable in the case of major criminal offenses. It may be applied for a juvenile delinquent for a shorter period, and therefore its minimum and maximum terms are both set lower than for adults. The shortest possible period is one month, irrespectively of the statutory penalty range belonging to any criminal offense in the Special Part of the Penal Code. It is also unrelated to the age of the juvenile. Accordingly, a juvenile who commits (the basic form of) robbery (Article 365, Paragraphs 1 and 2) might be sentenced to imprisonment for two to eight years. The minimum length of imprisonment applicable in this case is one month.
The applicable maximum term of imprisonment depends on the legal maximum prescribed in the Special Part of the Penal Code on the one hand and on the age of the juvenile on the other hand. The maximum sentence applicable to juveniles under the age of 16 is 10 years, also in case of committing a crime generally punishable with, as in the most serious cases, life imprisonment (e.g., second-degree murder). If the juvenile has reached the age of 16, a maximum of 15 years of imprisonment may be imposed if the crime is punishable with life imprisonment, while the maximum for crimes punishable with imprisonment of more than 10 years is reduced to at most 10 years of imprisonment.
With the exception of these serious cases, imprisonment of juveniles cannot exceed five years if the special maximum prescribed by the Special Part exceeds five years. For instance, in the above case of robbery, the judge may sentence a 14-year-old delinquent to a maximum of five years of imprisonment.
If the special maximum in the Special Part does not exceed five years of imprisonment, the upper limit for juveniles equals the general maximum. Thus, both juvenile and adult offenders of serious bodily harm (Article 164, Paragraph 3, of the Penal Code) may be sentenced to a maximum of three years of imprisonment.
In addition to the above, a cumulative sentence or a subsequently aggregated penalty alters the maximum as follows: (1) if the general maximum applicable to the crimes is 5 years, a maximum sentence of 7 years and 6 months is to be applied; (2) if the general maximum is 10 years, the cumulative/aggregated maximum is 15 years; and (3) if the general maximum is 15 years, the cumulative/aggregated maximum is 20 years.
The Penal Code provides two levels of imprisonment for juvenile delinquents: jail and juvenile prison. Juveniles cannot be sentenced to serve their sentence in a maximum-security prison. The prison security level depends on the length of imprisonment, the criminal record of the juvenile, and the sanctions that may have been applied for him or her previously.
The “mildest” form of deprivation of liberty is confinement. Minimum and maximum terms are 3 days and 30 days in juvenile cases.
Community service may be applied to a juvenile delinquent who committed the crime as a juvenile and at the time of the final judgment (whether it is the court of first, second, or third instance) has reached the age of 16. The premise is in line with the relevant rule of the Labor Code, according to which a person may be employed if he or she has reached 16 years.
A fine can be applied if the juvenile
has his or her own income, meaning that he or she is employed or works permanently for a regular wage, which allows him or her to pay the fine from own sources
has any other income (e.g., a scholarship)
has enough property to cover the fine.
The minimum and maximum amount to be paid is lower for juveniles than for adults: the minimum is HUF 7.500 (approximately US$26 [US$1 = 290 HUF]) and the maximum is HUF 12,500,000 (approximately US$43,103). If the juvenile does not fulfill the payment, the authorities shall attempt to collect it as debts. If this procedure is not successful, and thus the juvenile’s assets do not cover the debt, the sentence may be converted to community work or imprisonment.
Special conditions of expulsion and a ban on entering certain areas are listed in Table 2, while the three prohibitive punishments do not differ from the general rules. Expulsion as a secondary punishment can only be imposed in juvenile cases for willful crimes that are punishable with imprisonment for more than one year (Table 3). Otherwise general rules apply—namely, it shall be imposed for 1 to 10 years. Accordingly, if a juvenile of 17 years has been sentenced to 2 years of imprisonment and expelled for 2 years, he will not be allowed to participate in the next elections after his 18th birthday.
General Rules . | Special Rules for Juveniles . |
---|---|
Exclusion from participation in public affairs (Articles 61 and 62) (This penalty may only be imposed in addition to immediate imprisonment.) | Exclusion from participation in public affairs (Article 115) (Only if the juvenile has been sentenced to immediate imprisonment of over one year) |
General Rules . | Special Rules for Juveniles . |
---|---|
Exclusion from participation in public affairs (Articles 61 and 62) (This penalty may only be imposed in addition to immediate imprisonment.) | Exclusion from participation in public affairs (Article 115) (Only if the juvenile has been sentenced to immediate imprisonment of over one year) |
General Rules . | Special Rules for Juveniles . |
---|---|
Admonition (Article 64) | No special rule |
Probation order (Articles 65 and 66) | Probation order (Article 116) (significant difference compared to the general rules) |
Restorative work (Articles 67 and 68) | Restorative work (Article 117) (if he or she has reached 16 years at the time of the sentence) |
Probationary supervision (Articles 69–71) | Probationary supervision (Article 119) |
Forfeiture (Articles 72 and 73) | No special rule |
Confiscation (Articles 74–76) | No special rule |
Permanent restriction of the right to disposal of electronic data (Article 77) | No special rule |
Compulsory psychiatric treatment (Article 78) | No special rule |
Special education in a reformatory institution (Articles 120–122) |
General Rules . | Special Rules for Juveniles . |
---|---|
Admonition (Article 64) | No special rule |
Probation order (Articles 65 and 66) | Probation order (Article 116) (significant difference compared to the general rules) |
Restorative work (Articles 67 and 68) | Restorative work (Article 117) (if he or she has reached 16 years at the time of the sentence) |
Probationary supervision (Articles 69–71) | Probationary supervision (Article 119) |
Forfeiture (Articles 72 and 73) | No special rule |
Confiscation (Articles 74–76) | No special rule |
Permanent restriction of the right to disposal of electronic data (Article 77) | No special rule |
Compulsory psychiatric treatment (Article 78) | No special rule |
Special education in a reformatory institution (Articles 120–122) |
In the following discussion I will introduce the rules covering special education in a reformatory institute and preventive measures of the Penal Code shaped specifically to juvenile offenders.
Dispensing probation without delivering a sentence is an example of conditional sentencing in the Hungarian criminal law. As a conditional sentence it means that although the court has already established the liability of the defendant for committing a criminal offense and pronounced his guilt, the imposition of the penalty is delayed for a certain term. Adults may be diverted with this method9 if they have committed a misdemeanor or a felony punishable by no more than three years of imprisonment.10 Juveniles, however, may be diverted irrespectively of the abstract gravity of their offense. The broad opportunity for its application explains why half of the sentences of Hungarian juvenile courts tend to be probation. In 2013, for instance, 2,640 out of 5,164 sentences imposed probation.11
Further differences from the general rules that apply to adult offenders are as follows:
The probationary period is one or two years instead of one to three years.
During their probationary period, juveniles must be supervised by a probation officer, which is only an option in the case of adult offenders.
If probation is revoked (e.g., the juvenile is sentenced for another offense or fails to comply with the behavioral rules), the court may impose not only punishment but preventive measure as well.
Restorative work may only be imposed for a juvenile who has reached the age of 16 at the time of the sentence, similarly to community work.
Probation supervision is a preventive measure that cannot be imposed independently, but only for the time of the probationary period and restorative work, as a so-called subsidiary punishment.
Probation supervision, when literally translated from Hungarian, means “patronage by supervision;” thus, its goal is protection and control. In adult cases it is just an option for the sentencing court to apply supervision, when the court believes that supervision will support the fulfillment of the probationary period.
The court is obliged to mandate supervision in juvenile cases:
For the duration of conditional release
For the probationary period of the probation measure
For the probationary period of the suspended sentence
For the time of temporary release from a reformatory institution
For the period of restorative work.
When the indictment is suspended by the prosecutor, ordering supervision is compulsory. Some of the behavioral rules for the probationary period specified in the Penal Code, whether they be obligations or prohibitions, are compulsory, while others are at the discretion of the sentencing court or the prosecutor. Compulsory rules are the same for adults and juveniles; thus, for instance, both juveniles and adults must keep in contact with their probation officer during the probationary period according to the Penal Code. Beyond these, the judge is allowed to prohibit both juveniles and adults from keeping in contact with a particular person and drinking alcohol in public places or can order them to stay away from his or her victim or to enroll in a particular school or educational course.
Special education in a reformatory institution is a custodial measure to be imposed only for juveniles. It may be imposed for any criminal offense; the only limit is that the juvenile delinquent cannot be more than 20 years old at the time of the court decision.
The court has to consider the need to take the juvenile out of his or her environment and place him or her in an institution in order to serve the term of special education. The special education may be imposed for one to four years, and its term is to be determined in years and months.
Temporary release can be allowed by the court during the term of special education if the juvenile has already completed half of the term, and
He or she has spent a minimum of one year in the institution
It is very likely that the goal of the preventive measure can be realized outside of the institution with the supervision of a probation officer as well.
The minimum term of temporary release is one year. The court may terminate temporary release if the juvenile is sentenced to imprisonment or the court applies a special education measure for him or her. If the court imposes another punishment or preventive measure, the temporary release may be terminated.
B. Criminal Procedure for Juveniles
Criminal procedure for juvenile offenders is regulated in Chapter XXI of the Code of Penal Procedure of 1998.12 Consequently, Hungary does not have a separate juvenile justice act, and we cannot really speak about juvenile courts either: judgments in juvenile cases are delivered by judicial councils. The juvenile procedure is regulated similarly in the Code of Criminal Procedure as it was introduced by the substantive rules in the Penal Code. Accordingly, the rules of Chapter XXI are special compared to the general provisions and therefore overrule the contradicting general parts. Before providing an overview about the rules on juvenile procedure, I will introduce those general rules of the Code of Criminal Procedure, which may be relevant for understanding the specialty of the juvenile procedure.
Article 6 of the Code of Criminal Procedure defines the principle of an ex officio procedure. Based on this principle, the investigating authority, the prosecutor, and the court initiate and conduct the criminal procedure if the legal conditions of the procedure are fulfilled. If any of these conditions are not fulfilled, authorities do not have discretionary power to decide whether to launch the proceedings (Karsai and Szomora 2010). However, the Code contains rules that give ultimate priority to the principle of opportunity. Among these admonitions, suspension of the indictment and the mediation procedure are the most important regarding the juvenile procedure.
Chapter XXI declares that juvenile procedures shall take into consideration the juvenile’s age, and they have to be conducted in an appropriate manner to motivate the juvenile to respect the laws (Article 447, Paragraph 1). This goal is to be served by the provisions on the specialized members of the court and the “juvenile prosecutor.” The chapter on the “juvenile court” is actually regulating the requirements of the special judicial council. According to this, a professional judge appointed by the Head of the National Judiciary Office shall be the chair of the council in the court of first instance, and a member of the council in the court of second instance. However, conditions of the appointment are set in neither the Code nor any other law. In the court of first instance, two lay assessors support the judge, one of whom has to be a pedagogue.
Until August 31, 2011, it might be claimed that these courts were “juvenile courts,” since judges appointed to this position dealt exclusively with juvenile cases. This exclusive nature has been changed by the amendment, which abolished the exclusive venue of the court, according to the reasoning of the law in order to serve the balanced division of cases among courts and to speed up the procedures. Now a judge in Budapest may try a juvenile case on Monday and deliver a sentence in an adult case on Wednesday. The Code also allows that a “juvenile court” can try an adult case if it is connected to the juvenile’s case.
Only a prosecutor appointed by the superior prosecutor is allowed to act in juvenile cases. The “juvenile prosecutor” is obliged to enforce the relevant criminal and procedural rules and to promote the appropriate development of the juvenile.
The following rules are the most important special procedural rules:
Defense is compulsory.
The legal guardian of the accused juvenile has some special rights (e.g., right to review documents); the legal guardian can be questioned as a witness as well.
The social inquiry reports prepared by the probation officers and the opinion of the juvenile’s school or workplace must also be taken into consideration; the goal is to explore the juvenile’s personality, mental capacity, and living conditions.
The maximum duration of pretrial detention is 2 years for a juvenile who is more than 14 years old and 1 year for the juvenile less than 14 (3 years is the general rule for adults); pretrial detention may be ordered only if it is necessary with regard to the severity of the offense.
Pretrial detention is executed in a reformatory institution or in a detention center for juveniles.
There are more possibilities for having closed sessions than in adult cases.
The indictment can be postponed if the crime is punishable with a maximum of five years of imprisonment (three years is the general rule for adults).
The case can be transferred to a mediation institution if the given crime is punishable with a maximum of five years imprisonment (three years is the general rule for adults).
The right to trial cannot be waived (Váradi-Csema 2011).
C. Juvenile Correctional Institutions
Imprisonment, special education, and other sanctions amounting to probation supervision are regulated by the Code of Enforcement of Penalties, Preventive Measures and Other Pretrial Measures and Confinement of 2013.13 Based on the Code of Enforcement, juveniles shall be imprisoned in a separate institution or at least in a separate ward of the adult institution. Hungary has four correctional institutes for juveniles. Rules on juvenile prisoners are less rigorous than those for adult prisoners, aiming to ensure the development of their personality and their education and improving their professional skills. According to the Code of Enforcement, juveniles shall be given the opportunity to participate in professional education or training, and they shall be offered the opportunity to finish their secondary education (Article 193, Paragraph 1). Provisions for the rehabilitation of juveniles make it possible for them to keep in contact with their families and the teachers of their schools. The everyday life in juvenile correctional institutes is less strictly regulated than in adult institutions. For instance, juveniles pay a certain contribution to their maintenance only if they work in prison and therefore have a regular income, or receive a scholarship (Article 202, Paragraph 1). Juveniles receive free medicine and medical care (Article 192, Paragraph 5).
According to the Code of Enforcement, prisoners who reached the age of 18 but who are younger than 21 are also considered juveniles (Article 82, Point 1).
The Code of Enforcement regulates the preventive measure of special education in a reformatory institution in detail. Hungary has four such institutions: one for girls and three for boys. One of the latter serves as a center for exclusively pretrial custody.
While prisons and jails are under the regulatory power of the Ministry of Internal Affairs, reformatories belong to the ministry responsible for youth and child welfare, at the moment the Ministry of Human Capacities. The Minister of Internal Affairs has control only over the security of the reformatories. The structure underlines the idea that although youngsters are placed here with regard to their criminal acts, the focus of the measure must be on their education and rehabilitation.
Accordingly, the Code of Enforcement declares that the aim of reformatories is to support the integration of juveniles into society, and therefore to mitigate retaining factors, stabilize their psychological status, educate them, provide them with professional training, establish moral standards, and prepare them for a healthy lifestyle (Article 344).
The rules on the realization of special education reflect the approach of the United Nations Convention on the Rights of the Child and respect human rights requirements accordingly. The Code of Enforcement lists (1) those rights that shall not be granted to the juvenile for the duration of his or her special education (e.g., right to free movement), (2) those rights that are limited (e.g., right to work, right to culture, right to property), and (3) those rights that are to be granted fully, such as maintenance determined by the needs of his or her age, care and supervision, payment for his or her work, which is established in the regulation of the reformatory institution, and use of the Internet once a week for 30 minutes (Articles 353 to 355). The juvenile’s obligations are also established in the Code of Enforcement: the juvenile must observe the house rules of the reformatory, obey security and hygiene requirements, stay in the group appointed to him or her by the director. and follow compulsory education until reaching a certain age (Article 356).
The Code of Enforcement uses different expressions compared to those that are recognized in prison custody, highlighting the difference between punishment and preventive measures (e.g., “bedroom” instead of “cell”).
Practically every juvenile delinquent is familiar with the institution of probation supervision and the probation officer. The Code of Enforcement supplies detailed regulation of this preventive measure as well. There are no major differences compared to the rules applicable for adult offenders. The main difference is that the juvenile probation officers have to be appointed for this task (Article 315, Paragraph 2). According to the Code, the probation officer for both juveniles and adults shall (1) contribute to the prevention of reoffending through supervision and direction, (2) provide support in resocialization while helping in adopting new skills and establishing appropriate conditions, and (3) participate in the enforcement of the rights of the victim (Article 310, Paragraph 1).
Probation officers in Hungary are government officials. Their groups, specialized for juvenile delinquents and for adult offenders, operate in 19 county offices and in Budapest as units of the justice departments of the county governmental bureaus. Legal and professional control over probation officers is the task of the minister responsible for justice matters. The Ministry Justice enforces these tasks through the Central Bureau of Justice.
Apart from fulfilling supervisory tasks determined in the Penal Code, probation officers for juvenile delinquents also make environmental studies for the police, the prosecutor, and the court; prepare social inquiry reports in the juvenile cases; contribute in the realization of the preventive supervision and community work; and play an important role in mediation.
The environmental study is compulsory evidence in the juvenile procedure according to the Code of Criminal Procedure. Its function is to provide information for the police, prosecutor, or court about the juvenile’s life situation, environment, and personal relations and the criminogenic risk of these, facilitating their decisions. Since January 1, 2015, it has been obligatory to include a crime-preventive risk assessment in this document. The social inquiry report of the probation officer is also evidence. The prosecutor is obliged to ask the probation officer before suspending the indictment to prepare his or her opinion in writing, about, among others, the reasonableness of suspending the indictment and the willingness of the juvenile to make restitution and the willingness of the victim to accept this. The probation officer closes the opinion with recommendations on the most effective measure in light of the goals of crime prevention.
A special group of probation officers belong legally to the prison system. Their task is to prepare convicts for release, to supervise convicts during their conditional release, and to support the reintegration of juveniles and follow up on their behavior.
D. Other “Serious Misconducts by Young People” and “Children at Risk”
1. Regulatory Offenses
The system of criminal acts has been established by Act II of the Code of Regulatory Offenses, which came into force on April 15, 2012. The offenses regulated by this law are per se dangerous to society, although their severity does not reach the level of a misdemeanor or felony (Article 1). Typical regulatory offenses are minor traffic violations, minor cases of drunken driving, begging, property rights violations, or unauthorized hunting. The authority for these cases is typically a police officer, who prosecutes the case and imposes a penalty as well. Nevertheless, if the regulatory offense may be punished with confinement (e.g., property rights violations), the most serious penalty under the Code of Regulatory Offenses, the procedure is in the court’s power. This refers to the jurisdiction of local courts, although not necessarily the jurisdiction of judges, since regulatory offense cases may also be dealt with by clerks. Judicial clerks are legal assistants at court who have finished law school and are awaiting to be appointed to be a judge. Their jurisdiction appears to be problematic: while minor thefts are very unlikely to be punished with deprivation of liberty in a criminal procedure, a clerk may easily impose a confinement of 30 days for pickpocketing (Párkányi 2013).
The Code of Regulatory Offenses contains special rules for juveniles as well. Based on the Code, a person is a juvenile if he or she has reached the age of 14 but has not reached 18 yet. The special rules applicable to juvenile cases are the following:
A maximum of 30 days of confinement may be applied in juvenile cases (it is 30 days for adults, which may be increased to 45 in case of cumulative penalty). The minimum is 1 day for juveniles and adults alike.
The juvenile shall be heard during the procedure, if either confinement or community work or a fine is likely to be imposed in the procedure based on the available evidence (in adult cases, a fine may be imposed based on exclusively the written documents).
Rules on repeated offending and the applicable increased penalty shall not be applied in juvenile cases.
Community sanction may be imposed for those juveniles who have reached 16 years.
The proceeding’s authority may initiate child protective measures at the child protection authority, in addition to imposing sanctions for a regulatory offense (Király-Erdei 2013).
Although it would be desirable to present data about the number of juveniles who commit regulatory offenses, and more importantly the number who are punished with deprivation of liberty, comparable data are not available. The law on the establishment of the national registry of regulatory offenses came into force on the same day as the new Code, so it does not contain enough data for a proper analysis. Before the establishment of this registry, local authorities prepared yearly reports about their activity.
2. Children at Risk
As already mentioned, delinquent juveniles are dealt with by the criminal justice system, juveniles committing regulatory offenses are dealt with by the relevant authorities, and children under 18 who did not commit a crime but are “children at risk” according to the law, or children under 14 who are delinquent but not punishable, are dealt with by the child welfare system.
The responsibilities of the authorities regarding children at risk are regulated in the Code of Administration of Child Protection and Guardianship of 1997. Based on the law, everybody who has not reached the age of 18 yet is a “child.” In particular cases this Code includes rules on young adults of 18 to 24 years (e.g., in case of the follow-up care of children living in child protective settings).
The child is at risk, according to the Code, if his or her behavior or somebody else’s behavior, negligence, or circumstances hinder or encumber his or her physical, emotional, or moral development (Article 5, Point n). Child welfare practice separates the groups of children under 18 who are at risk due to behavioral, financial, or health reasons or environmental circumstances.
Delinquency of a child under 14, other deviancy (e.g., alcohol or drug use) of any child under 18, and psychological problems or (domestic) abuse of a child are all legal grounds for the increased protection of children at risk. Children under 18 who are absent from school more than 50 times and cannot justify this may also be recorded as being at risk because of environmental circumstances due to a 2010 regulation. It is the task of the child welfare authorities to decide whether it is necessary to place a child into professional care or they can provide him with an adequate protective care measure.
Professional child welfare authorities provide substitute protection and care for children who have to be removed from their homes for any reason and offer homelike circumstances. There are three types of settings for “personal” care: foster care, children’s home, and apartment home.
Children who have serious psychological problems, who have antisocial behavioral disorder (e.g., delinquent children under 14), who have trouble with integration, or who consume alcohol, drugs, or other psychoactive substances shall be placed in special institutions where they can get treatment for their problems. This special treatment includes education, professional treatment, work opportunities, and medical care, (re)socialization, and rehabilitation (Article 53).
If parents fail to fulfill their obligation to provide proper protection or if they neglect the child, welfare authorities shall apply appropriate child protective measures through their local bureaus in the best interest of the child. These child protective measures are (1) family supervision, (2) placement in a host family, (3) temporary placement, (4) placement in permanent care, (5) supervised care in children’s home, (6) after-care, and (7) follow-up care for young adults. Child protective measures can be divided into two groups based on their goals and tools. On the one hand they may be preventive measures (e.g., family supervision). Their goal is to keep the child in the family. If they are unsuccessful, the other group of measures shall be considered (e.g., placement in a host family, temporary placement, placement in permanent care, supervisory care, after-care, or follow-up care).
The Code mentions expressly that family supervision may be applied if the child has committed a delinquent act or regulatory offense, especially if the child has not reached the age of 14 years. When applying family supervision, the child protection authority believes that the family is able to support the right development of the child with the help of social services. Therefore, the measure is coordinated by the child welfare services, who also report about its effectiveness to the authority and may suggest appointing a social worker for the family. The measure does not influence parental rights, although they must obey the orders of the child welfare authority that aim to eliminate the dangerous situation and to support the development of the child.
The child welfare authorities may prohibit certain objectionable behavioral patterns of the child or mandate him or her to participate on conflict-resolution training. If family supervision measures fail to eliminate the risky circumstances and it is likely that the situation cannot be resolved with family-based child care, or if the family supervision measure has been in force for two years, the authority must take further legal steps. The child may be placed in the family of the separated other parent or a family member. If this is not possible, children younger than 12 have to be placed principally with foster families, while children older than 12 may be placed in institutional care, namely to a special children’s home, a special apartment home for children, or a special institution for mentally handicapped people and psychiatric patients, if it is reasonable with regard to the youth’s psychological state or behavioral problems (Article 72).
The legal connection between juvenile justice and child welfare is established by Article 447, Paragraph 2, of the Code on Criminal Procedure. This article obligates the police, the juvenile prosecutor, and the judge handling the case to initiate imposing child protective measures, taking the juvenile into care, or taking steps against the person who failed to fulfill the duty of care, whatever appears to be the best interest of the juvenile.
E. Child and Juvenile Criminality in Hungary
As shown in Table 5, both the number and the frequency rate of recorded child offenders have declined in Hungary between 2009 and 2014.
Year . | Recorded Offenders . | ||||
---|---|---|---|---|---|
Total . | Recorded Child Offenders . | ||||
Number . | % . | 12 or 13 years old . | Per 100,000 inhabitants under age of 14 . | ||
2009 | 120,083 | 2,573 | 2.14 | 1,676 | 186.6 |
2010 | 129,945 | 2,607 | 2.01 | 1,655 | 190.9 |
2011 | 120,529 | 2,714 | 2.25 | 1,690 | 200.7 |
2012 | 108,306 | 2,604 | 2.40 | 1,707 | 193.9 |
2013 | 109,876 | 2,196 | 2.00 | 1,427 | 164.7 |
2014 | 108,475 | 1,482 | 1.37 | - | - |
Year . | Recorded Offenders . | ||||
---|---|---|---|---|---|
Total . | Recorded Child Offenders . | ||||
Number . | % . | 12 or 13 years old . | Per 100,000 inhabitants under age of 14 . | ||
2009 | 120,083 | 2,573 | 2.14 | 1,676 | 186.6 |
2010 | 129,945 | 2,607 | 2.01 | 1,655 | 190.9 |
2011 | 120,529 | 2,714 | 2.25 | 1,690 | 200.7 |
2012 | 108,306 | 2,604 | 2.40 | 1,707 | 193.9 |
2013 | 109,876 | 2,196 | 2.00 | 1,427 | 164.7 |
2014 | 108,475 | 1,482 | 1.37 | - | - |
The terms “recorded child offenders” refers to those children younger than 14 who have committed a statutory criminal offense under the Special Part of the Penal Code but are not criminally liable with regard to their age. Exceptions to this rule were mentioned earlier. Criminal statistics in Hungary do not include figures about regulatory offenses committed by children younger than 18 or serious misconducts of children younger than 14, regulated in the Code of Administration of Child Protection and Guardianship.
Sixty-five percent of the recorded child offenders are 12 or 13 years old, while the proportion of those who are 9 and younger is about 20 percent. Child offenders are typically boys; their proportion has reached 83 percent in multiple years in the past decade. The majority of the recorded cases of child offenders are property crimes, although the proportion of these has declined persistently. While in 2009 more than two-thirds (67.9 percent) of the recorded offenses of child offenders were property crimes, the proportion of the same crimes committed in 2013 was only about 60 percent. These structural changes had a conspicuous effect on violent crimes and public disturbance, the proportion of which increased from 30 percent in 2009 to 35 percent in 2013.14
Table 6 shows the figures of juvenile delinquency in light of the total number of recorded crimes in Hungary.
Year . | Recorded Offenders . | |||
---|---|---|---|---|
Total . | Registered Juvenile Offenders . | |||
. | Number . | % . | Per 100,000 inhabitants aged 14–17 . | |
2009 | 120,083 | 10,179 | 8.48 | 2,143.0 |
2010 | 129,945 | 11,497 | 8.85 | 2,494.7 |
2011 | 120,529 | 11,378 | 9.44 | 2,553.8 |
2012 | 108,306 | 10,418 | 9.62 | 2,428.1 |
2013 | 109,876 | 10,473 | 9.53 | 2,469.8 |
2014 | 108,475 | 8,791 | 8.10 | 5,451 |
Year . | Recorded Offenders . | |||
---|---|---|---|---|
Total . | Registered Juvenile Offenders . | |||
. | Number . | % . | Per 100,000 inhabitants aged 14–17 . | |
2009 | 120,083 | 10,179 | 8.48 | 2,143.0 |
2010 | 129,945 | 11,497 | 8.85 | 2,494.7 |
2011 | 120,529 | 11,378 | 9.44 | 2,553.8 |
2012 | 108,306 | 10,418 | 9.62 | 2,428.1 |
2013 | 109,876 | 10,473 | 9.53 | 2,469.8 |
2014 | 108,475 | 8,791 | 8.10 | 5,451 |
As noted earlier, criminal statistics do not include figures about regulatory offenses or serious misconducts regulated by the Code of Administration of Child Protection and Guardianship committed by children aged 14 to 17.
The number and prevalence of recorded juveniles have slightly increased between 2009 and 2013. On the average, 9 percent of the total recorded offenders were juveniles during these 5 years. Almost one-third of the juveniles were 17 at the time of the offense, while the proportion of boys and girls was similar to what we saw for child offenders. Property crimes were still dominant, but their proportion was lower than for child offenders: it was somewhat above 50 percent but has declined persistently. Also similarly to figures for child offenders, the proportion of violent crimes and public disturbance committed by juveniles increased from 26.2 percent in 2009 to 30 percent in 2013. Nevertheless, the most frequently committed offense, both by child offenders (every fifth offense in the past years) and juvenile offenders (every fifth offense in the past years), is theft.15
According to criminological studies on the social background of juvenile offenders, most of these youngsters live in intact families with two parents. The parents usually work as unskilled or skilled employees, while a significant part of them are unemployed or permanently disabled and therefore dependent on social benefits. Juveniles participating in these studies have usually not finished primary school yet, although the 8 years of primary school last principally until age 14 in Hungary. Almost 50 percent of the recorded juvenile offenders in Hungary have studied at trade schools. A great part of them come from disadvantaged, deprived social groups (Váradi-Csema 2011, p. 678; Rosta 2014, p. 142).
F. Sentencing Practices
Proceedings against juveniles end with the decision of the prosecutor or the court, similarly to adult cases. Different forms of the settlement by the prosecutor follow from the principle of opportunity. Warning, postponement of indictment, and mediation have significant roles in juvenile procedures.
A warning is a preventive measure, the mildest sanction offered by the Penal Code. Both the judge and the prosecutor may impose it, if the conduct of the juvenile at the time is adjudicated is no longer dangerous for society or its dangerousness for society became so negligible that the imposition even of the mildest penalty or the application of any other preventive measure is unnecessary in the opinion of the judge or the prosecutor (Article 64, Paragraph 1, of the Penal Code).
Postponement of indictment means that the suspect will not be indicted conditionally for a probationary period (Bárd 2007, p. 230). It may be imposed in three cases. Usually it is applied based on the general rules set in the Code of Criminal Procedure as “postponement of indictment” (Articles 222 and 459, Paragraphs 1 and 2). If the accused person is a juvenile, it may be applied in the coexistence of the following conditions:
The crime committed by the juvenile is punishable by imprisonment for no more than five years.
There are “remarkable” mitigating circumstances.
Positive changes can be presumed in the behavior of the suspected juvenile after the criminal procedure.
Dismissal is in the interest of the juvenile’s development (Váradi-Csema 2011, pp. 681–682).
Before deciding about the postponement, the prosecutor must ask the opinion of the probation officer. The postponement may last one to two years. The prosecutor may order the suspect to follow specific behavioral rules, such as taking part in a treatment program for alcohol addicts. If the postponement period was accomplished by the juvenile, the prosecutor dismisses the case.
Indictment may also be postponed for cases of drug possession (Article 178, Paragraph 6 of the Penal Code) and failing to pay alimony (Article 212, Paragraph 1). Certain forms of drug possession establish the opportunity of diversion (Article 180, Paragraph 1 of the Penal Code), which is regulated on the procedural level as postponement of indictment (Article 222, Paragraph 2 of the Criminal Procedure CodeP). The prosecutor postpones the indictment for one year, if the procedure was suspended in the case of a nonaggravated drug possession crime and the offender provides medical proof of his or her participation in special treatment program. If this treatment has been followed as required, the case will be dismissed. In case of failing to pay alimony, the prosecutor shall also postpone the indictment for one year if it is likely to encourage the payment of alimony (Article 222, Paragraph 3).
Mediation may be applied in the juvenile procedure if the juvenile has committed bodily injury, drunken driving, or theft (Article 221/A, Paragraph 1 of the Criminal Procedure Code), which is punishable by no more than five years of imprisonment, and both the suspect and the victim agree on the procedure. If these conditions are fulfilled, the prosecutor suspends the criminal procedure for a maximum of six months. If the juvenile has accomplished the obligations imposed in the procedure, the prosecutor dismisses the case. If the obligations have not been met, the prosecutor may consider whether to postpone the indictment for one to two years or bring an accusation (Article 459, Paragraph 4 of the CCP). In the mediation procedure for juvenile offenders, the participation of the legal representative is compulsory with regard to the interests of the child (Article 459, Paragraph 3 of the CCP).
Prosecutors receive about 13,500 indictment proposals from the police per year, based on the figures from 2008 to 2012.16 In 12.5 percent of these cases the prosecutor decided to postpone the indictment, and the postponement period was accomplished in 59 to 86 percent of the cases. This meant the following in 2012: 12,596 indictment proposals arrived to the juvenile prosecutor; the indictment was postponed in 1,840 cases; of these, charges were brought against 370 juveniles, while 1,582 cases were dismissed after the accomplishment.17
Table 7 shows the sentencing practice of the Hungarian courts in juvenile cases.
Year . | Number of convicted juveniles† . | Imprisonment . | Suspended . | Fine . | Secondary Penalties and Independently Applicable‡ Preventive Measures . | ||||
---|---|---|---|---|---|---|---|---|---|
Sum . | % . | Sum . | % . | Sum . | % . | Sum . | % . | ||
2009 | 6,039 | 1,762 | 27.9 | 1,330 | 75.5 | 271 | 4.3 | 3,933 | 62.3 |
2010 | 6,007 | 1,790 | 29.8 | 1,385 | 77.4 | 196 | 3.3 | 3,560 | 59.3 |
2011 | 6,312 | 1,867 | 29.6 | 1,465 | 78.5 | 113 | 1.8 | 3,755 | 59.5 |
2012 | 5,279 | 1,595 | 30.2 | 1,259 | 78.9 | 53 | 1.0 | 3,015 | 57.1 |
2013 | 5,164 | 1,403 | 27.2 | 1,092 | 77.8 | 40 | 0.8 | 2,884 | 55.9 |
2014 | 5,451 | 1,422 | 26 | - | - | 59 | 1.1 | 2,919 | 53.3 |
Year . | Number of convicted juveniles† . | Imprisonment . | Suspended . | Fine . | Secondary Penalties and Independently Applicable‡ Preventive Measures . | ||||
---|---|---|---|---|---|---|---|---|---|
Sum . | % . | Sum . | % . | Sum . | % . | Sum . | % . | ||
2009 | 6,039 | 1,762 | 27.9 | 1,330 | 75.5 | 271 | 4.3 | 3,933 | 62.3 |
2010 | 6,007 | 1,790 | 29.8 | 1,385 | 77.4 | 196 | 3.3 | 3,560 | 59.3 |
2011 | 6,312 | 1,867 | 29.6 | 1,465 | 78.5 | 113 | 1.8 | 3,755 | 59.5 |
2012 | 5,279 | 1,595 | 30.2 | 1,259 | 78.9 | 53 | 1.0 | 3,015 | 57.1 |
2013 | 5,164 | 1,403 | 27.2 | 1,092 | 77.8 | 40 | 0.8 | 2,884 | 55.9 |
2014 | 5,451 | 1,422 | 26 | - | - | 59 | 1.1 | 2,919 | 53.3 |
The new Penal Code came into force on July 1, 2013, so Table 7 shows the sentencing practice based on the sanctioning system of the Penal Code of 1978. However, as mentioned earlier, the sanctioning system of the new Penal Code does not differ significantly from the rules in the Penal Code of 1987.
Based on the figures in Table 7, the sentencing practice appears to be corresponding to the principles of both the old and the new codes on juvenile justice: preventive measures are applied in more than half of the cases, while custodial sanctions are imposed only as last resort, as is required.
Figures show that courts impose mainly preventive measures in juvenile cases, typically probation combined with compulsory supervision. Courts ordered probation basically in every second convicted juvenile case between 2009 and 2013: for 2009, 3,403 (54 percent); for 2010, 3,136 (52 percent); for 2011, 3,321 (53 percent); for 2012, 2,677 (51 percent), and for 2013, 2,640 (51 percent). The proportion of custodial sanctions per year, meaning the imposition of imprisonment and special education in a reformatory institution, varied between 10.5 percent (2009) and 8.8 percent (2013).
Although the distribution of all imprisonment sentences imposed according to their length would provide valuable information on the approach of judges, reliable data on the length of prison sentences of juvenile convicts are not available.18 Nevertheless, it seems that courts do indeed consider imposing custodial sanctions only as a last resort. Courts in Hungary are also likely to suspend sentences; indeed, this the second most frequently used sanction, while the third one is community service. The number of the latter has increased consistently since 2009 (2009, 374; 2013, 792), while the number of fine sentences has dropped.19 The increasing frequency of community service sentences may be explained by the improvement of the circumstances and the involvement of the probation officers into its realization. The decrease in fine sentences shows the declining financial circumstances in the families of the juvenile offenders.
G. Main Characteristics of the Contemporary Juvenile Criminal Justice in Hungary
This essay has provided an overview of contemporary “youth justice” in Hungary and introduced the figures of juvenile criminality and sentencing practices regarding juvenile offenders. The most important characteristics of the system are the following.
Hungary does not really have a system of “youth justice,” since the institutions for juveniles established within the criminal justice are not labeled as “juvenile justice system.” In this system child welfare institutions reacting to “misconducts,” child delinquents, and troubled children “at risk” are strictly separated from the justice system for juvenile offenders, which is activated if a criminal offense has been committed. Regulatory offenses of juveniles are dealt with in a third system, where the relevant authority is mostly the police and occasionally the court, but not criminal court. The connection between these separate systems is established by the obligation of the police, the juvenile prosecutor, and the judge handling the given case to initiate imposing child protective measures, taking the child into care or taking steps against the person who failed to fulfill the duty of care, whenever it appears to be the best interest of the juvenile.
In the Hungarian system of dealing with delinquent youth, “juvenile criminal justice system” may be the best term. Hungarian substantive criminal law, criminal procedural law, and correctional rules contain special provisions for juvenile delinquents with regard to their age and the primacy of the aim of education and resocialization in their sanctions. There rules, however, are not collected in one separate law but are incorporated into the Penal Code, the Code of Criminal Procedure, and the Code of Enforcement as “special rules for juveniles.” General rules may not be applied instead of juvenile rules, irrespective of the gravity of the crime or the fact that the juvenile is reoffending. Conclusively, whenever special rules are set in law, the transfer of general rules is impossible.
Procedures for juveniles who have committed a criminal offense are real criminal procedures. If it is reasonable, the prosecutor charges the offender and the court delivers its judgment, imposing punishment or a preventive measure. The juvenile spends the imposed prison sentence in a juvenile penitentiary institute, either a prison or jail. While there is a “juvenile prosecutor” appointed in this system, there is no specialized “juvenile court.” The tasks of the latter are fulfilled by judges appointed to process juvenile cases, and judicial councils proceeding in juvenile cases. Neither the appointment of the “juvenile prosecutor” nor the appointment of “juvenile judges” is bound by legal requirements.
Probation officers are state employees, working at the probation services organized within the public administration.
The key persons in the juvenile criminal justice in Hungary are the juvenile prosecutor and the probation officer.
The current face of the Hungarian juvenile criminal justice system corresponds to the justice model of juvenile systems (Wynterdyk 2015, p. 6). However, the system shows welfare characteristics in its approach supporting the principle of opportunity and the sentencing practices, which recognize the importance of the goal of resocialization. Unfortunately, the laws of the past years embedded such institutions to this system, which shape it rather toward the crime control model. Examples are lowering the MACR in case of these serious offenses with regard to the goal of protecting society and the new institution of preventive supervision. The sanctioning system of the regulatory offenses of juveniles has also become more severe. The penalty of confinement could not be applied to juveniles before 2010; since 2010, this has been possible, and even an unpaid fine may be converted to confinement.
These legal institutions contradict the spirit of Article 37 of the United Nations Convention on the Rights of Child, namely that deprivation of liberty shall be the measure of last resort, applied only for the shortest appropriate period of time, not only in case of imprisonment imposed for criminal offense but every form of deprivation of liberty (CRC General Comment No. 10, 2007, point F).
H. Evaluation of the Hungarian Juvenile Justice System
The contemporary system of juvenile justice was established in the second half of the 1990s and has been changed only slightly since then. In this section I will quote the evaluation of the United Nations Committee on the Rights of the Child on this system published in the Committee’s concluding observations in reaction to the governmental periodic report of 2013–2014 about the implementation of the Convention on the Rights of the Child. I will then summarize the view of the contemporary Hungarian academic literature about the alternatives to this system.
The recommendations of the UN Committee on the Rights of the Child are, with regard to the Hungarian ratification of the Convention on the Rights of the Child on November 6, 1991,20 normatively significant measures of the system. The Committee published its concluding observations of the state of children’s rights in Hungary on October 24, 2014, after the formal evaluation. This document mentions, among others, as a positive development that (1) Act C of 2012 on the New Criminal Code, on July 1, 2013, replaced the former Criminal Code and introduced several provisions regarding children’s rights; and (2) the Fundamental Law of Hungary, on January 1, 2012, provides a legal base for child protection (Part II. 4 c, and d, of the Concluding Observations). However, the Committee expressed its concerns about the following regarding the administration of juvenile justice:
“The suspension of juvenile courts and the transfer of cases concerning children in conflict with the law to the courts of general jurisdiction21;
The lowering of the age of criminal responsibility from 14 to 12 years, for a number of offenses;
The lengthy pretrial detention of children, including at the age of 12 years, which may take up to 1 year;
Children being sentenced to deprivation of liberty for committing petty crimes [regulatory offenses], including in situations where they are unable to pay fines;
The low number of cases where restorative justice has been applied;
The lack of psychologists provided to children in conflict with the law and the lack of measures to reintegrate such children into society.”
The Committee urged Hungary to bring its juvenile justice system fully into line with the Convention, in particular Articles 37, 39, and 40, as well as with other relevant standards and the Committee’s general comment No. 10 (2007) on children’s rights in juvenile justice. In particular, the Committee urged Hungary to:
“Reinstate the juvenile courts with judges who have undergone special training;
Take measures to raise the age of criminal responsibility from 12 years back up to 14 years, even for the most serious crimes;
Ensure that detention of children is used only as a measure of last resort and for the shortest possible time;
Abolish the practice of sentencing children to prison terms for petty crimes, in particular by eradicating the practice of converting fines to prison terms;
Take measures to ensure a wide application of restorative justice in cases involving juvenile offenders; and
Increase the number of psychologists available for children in conflict with the law and provide reintegration measures based on the individual needs of each child.” (Concluding Observations, 2014)
These recommendations of the Committee remained unincorporated when drafting Act LXXXVI of 2015, which amended the Penal Code, the Code of Criminal Procedure, and the Code of Enforcement. This Act does not contain rules corresponding to the recommendations. Accordingly, there is only one of these concerns where significant changes are to be expected, and this is the special training of juvenile judges, juvenile prosecutors, and child protection lawyers, although independently from the legal changes. The Law School of the Pázmány Péter Catholic University has established a postgraduate training program of two semesters about juvenile matters.
Academics and professionals working in the field of juvenile justice in Hungary have for years suggested basically the same changes as the Committee’s recommendations, integrating the idea of a separate juvenile court as well, corresponding to the juvenile institutions established by the Acts of 1908 and 1913. The Codification Committee for the new Penal Code, which was established in 2000 to prepare for the replacement of the old Penal Code of 1978, has received the same the proposal on the juvenile justice system in Hungary (Csemáné Váradi-Lévay 2002). The study has urged the Committee to establish a juvenile justice system with a separate and comprehensive Code of Juvenile Justice and actual juvenile courts, where the “different treatment” of juveniles becomes possible. The first draft of the “Concept of the New Code of Juvenile Criminal Justice” was published in December 2006 (Ligeti 2006; see Váradi-Csema 2011 for detailed critiques). However, this draft did not go through. The governments between 2006 and 2010 did not feel the pressure to propose a new draft of the Penal Code to the Parliament (Gönczöl 2015, p. 335), while the governmental coalition elected in 2010 did not intend to make major changes in the juvenile criminal justice system while drafting the new Penal Code in 2012. Concerning the juvenile justice system, the legislature surprisingly regarded the Penal Code of 1961 as traditional regulation according to the Reasoning of the Penal Code (Legislative Reasoning to the Chapter XI of the Penal Code 2012).
III. New Developments in the Control of Youth Behavior
Apart from the changes in the juvenile criminal justice system, multiple legal amendments have been passed aiming to strengthen control of youth deviances in the past four years in Hungary. One example is the provision in the Act on Public Education about the full-day education in primary schools (Article 27, Paragraph 2, of Act CXC of 2011). According to the provision, lessons for children in primary schools shall be held until 4 p.m. and further supervision shall be provided if necessary until 5 p.m.
Another new law was adopted in 2012 aiming to prevent truancy by means of increased attention of the police. It became possible to hire police officers to keep order on primary and secondary school campuses if the school director believe it is needed. Moreover, under the new law, police officers can contact schools directly and escort truant children younger than 14 to the director of the school (Article 28, Paragraph 1, Point 18, and Article 28, Paragraph 6, of the Law CXX of 2012).
In connection to the above rules, it is also a regulatory offense to let children miss more than 50 hours of school or more than 20 hours of kindergarten without an excuse (Article 247, Point c, of the Code of Regulatory Offenses). The penalty for this act shall be imposed on parents.
An amendment to the Code of Child Protection established the institution of preventive supervision within the child welfare system. The measure of preventive supervision may be imposed by the child welfare authority for children under or above 14 who are arrested with regard to a suspected criminal offense or a regulatory offense for which confinement may also be imposed. According to the official reasoning of the law, the preventive measure aims to support socialization and prevent reoffending in an “early phase/” This is necessary, the legislature reasons, because juveniles do not get enough help to prevent reoffending and to support resocialization during the long judicial process. Now, if the child is at serious risk according to the crime prevention evaluation of the probation officer, the child welfare authority must impose preventive supervision together with behavioral orders to the child and the parents. The need for the measure shall be reconsidered at least once a year. It may be dissolved if, among other conditions, the child has accomplished a minimum of six month under preventive supervision (Article 68/D of the Code on Child Protection). Accordingly, preventive supervision is a tool of crime control in the child welfare system (Párkányi 2013, pp. 307–308).
IV. Conclusion
In its strict legal meaning, Hungary has never had a youth justice system dealing exclusively with serious misconducts of juveniles. Minor misconducts and acts similar to status offenses in other countries (e.g., truancy) are dealt with by the child welfare system. More serious acts, which are still not criminal offenses, are dealt with by the authorities responsible for regulatory offenses. The “juvenile justice system,” therefore, processes only criminal cases of juveniles.
The system that deals with delinquent youngsters in Hungary has been the “juvenile justice system” since the beginning of the 20th century. Its core elements over more than a century have been special regulation compared to the general rules, and their unavoidable nature (with the exception of the 1950s; see the Law Decree of 1951), diminished responsibility of the juvenile, the primacy of education and resocialization, reserving custodial sanctions as the last resort, and establishing special juvenile institutions (e.g., juvenile court and reformatories). Changes in the legal regulation of juvenile justice follow the political changes in Hungary and therefore reflect the considerable changes in the attitude of the system as well. The difference is based on the digression of the juvenile substantive and procedural laws from the general rules applicable to adults and sentencing practices. Namely, they reflect the opportunity to and practice of “different treatment” with special respect to the implementation of the legal institutions of education and resocialization. In this respect we might call the period of the laws of 1908 and 1913 the most favorable. Unfortunately, the new Penal Code missed the chance to return to its traditions, and it is also very unlikely that the not-yet-published draft of the new Code of Criminal Procedure is going to take a step toward them.
Hungarian juvenile justice still has to deal with a very different monster. This is penal populism, which has become general in the penal policy of Hungary lately and seems posed to begin invading juvenile justice as well (Lévay 2012; Gönczöl 2015). If nothing else, it is hoped that the United Nations Convention on the Rights of the Child, which has been ratified by Hungary, will impede the emergence of populist tendencies.
Acknowledgments
The author thanks Eszter Párkányi (lecturer of the Department of Criminology at Eötvös Loránd University) for her tremendous job in relation to the English text of the article and comments on the draft. The author also thanks Krisztina Lukács (legal advisor of the Constitutional Court of Hungary) for her assistance in collecting statistics on children and juvenile criminality and sentencing practices and for drafting the section “Children at Risk.”
References
Balogh, Jenő.
Bárd, Károly.
Csemáné, Erika Váradi, and Miklós Lévay.
CRC General Comment No. 10.
Feld, Barry C., and Donna M. Bishop. 2012. Juvenile Justice. Oxford Handbook Online. Downloaded January 7, 2014.
Finkey, Ferenc.
Gönczöl, Katalin.
Karsai, Krisztina, and Zsolt Szomora.
Király, Eszter, and Árpád Erdei.
Lévay, Miklós.
Ligeti, Katalin.
Magyar Törvénytár. 1908.
Párkányi, Eszter.
Pruin, Ineke.
Rosta, Andrea.
Szabó, András.
Szabó, András, and Ágnes Sebes.
Szirota, Szilvia. 2014. Development of Juvenile Criminal Law in Hungary in the Beginning of the 20st Century. PhD thesis, Miskolc: University of Miskolc. [In Hungarian.]
Váradi-Csema, Erika.
Winterdyk, John A.
Notes
Act V of 1878.
Act XXXVI of 1908. The provisions about juvenile delinquents came into force on January 1, 1910.
Reasoning of Act XXXVI of 1908. Magyar Törvénytár (Budapest: Franklin Társulat, 1909), 854.
Governmental Order No. 27.100 supplemented the first Hungarian Code of Criminal Procedure of 1896 (Act XXXIII of 1896).
One of the leading criminal justice academics in Hungary, Ferenc Finkey, had a study visit in the United States in 1911. He mentioned this effect as well when he wrote: “The institution of probation, the juvenile court, the juvenile reformatories, part of which we took over directly, or reformed it with regard to the American examples …” (Finkey 1913).
Law Decree 34 of 1951, which was modified by Law Decree 23 of 1954 (“Fvtvr”).
See Váradi-Csema (2011) about the juvenile justice system in Hungary before 2013.
I will follow the English terminology of legal texts used in the book of Karsai and Szomora (2010) and the study of Váradi-Csema (2011). Here I also take into consideration that these expressions are based on the state of 2010 of the Penal Code of 1978, and therefore they might not refer to the same phenomenon in the new Penal Code.
The Penal Code prohibits probation in particular cases (e.g., reoffending).
According to the Penal Code there are two categories of statutory criminal offenses: felony and misdemeanor. A felony is a statutory criminal offense that is intentionally committed and punished by the Penal Code with imprisonment exceeding two years. Misdemeanors are either intentional offenses punishable with imprisonment not exceeding two years or all of the negligence statutory offenses.
Act XIX of 1998 on the Code of Criminal Procedure.
Act CCXL of 2013 on Enforcement of Penalties, Preventive Measures, Pretrial Detention and Other Pretrial Measures, and Confinement.
Source: Information booklet on child and juvenile criminality (Budapest: Chief Prosecutor Office, 2013) [in Hungarian]; Hungarian Statistical Yearbook 2014.
Source: Information booklet on child and juvenile criminality (Budapest: Chief Prosecutor Office, 2013) [in Hungarian].
Figures for 2013 are not available yet.
Source: Information booklet on child and juvenile criminality (Budapest: Chief Prosecutor Office, 2013), Tables 27, 29, and 31 [in Hungarian].
The data on this matter that are provided by the Hungarian Central Statistical Office contradict the data on all sentences imposed when showing significantly fewer imprisonment sentences than expected. Therefore I consider these data invalid.
Source: Information booklet on child and juvenile criminality (Budapest: Chief Prosecutor Office, 2013) [in Hungarian].
This comment is not correct. Only the exclusive nature of the “juvenile court” has been changed; transfer to general jurisdiction is not possible.
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