- 29 Jun 2012 9:00 AM
The purpose of the new penal rules is to create effective, simple, modern and stringent rules equally for crime victims, perpetrators and the administration of justice. The fundamental principle of punishment is that it must be just, proportionate to the crime committed and consistent. With the passage of the new Penal Code, the Government has delivered on one of its most important undertakings.
The perpetrators of crimes which irritate Hungarian society most and pose the greatest risk to society in general may expect punishment that is in proportion to the crime committed. Accordingly, the new legislation contains a number of essential changes in the case of crimes against public order, sexual offences, crimes committed against children and the fairness of public life. More stringent sentences await repeat offenders, those committing crimes against public officials and persons performing public duties (e.g. teachers, paramedics, staff members of educational institutions), the perpetrators of violent crimes and those responsible for economic crimes.
As part of the discussion of the new Penal Code, the issue of the death penalty was also raised in the course of the debate in Parliament; however, the application of the death penalty will continue to remain excluded in Hungary in observance of Hungary’s Fundamental Law, the Charter of Fundamental Rights of the European Union, the UN’s International Covenant on Civil and Political Rights and other international commitments.
Wide-ranging social and professional consultations
The drafting of the new Penal Code was preceded by wide-ranging social and professional consultations. The Ministry of Public Administration and Justice presented the draft for a one-month social consultation on 8 February. The Ministry also conducted personal consultations regarding the draft of the new Penal Code with some prominent professional organisations (e.g. National Judicial Office, the Supreme Prosecutor’s Office, Hungarian Bar Association). Hundreds of comments and proposals were received in response to the draft. The bill presented to Parliament was prepared with a view to these remarks.
More stringent rules to sanction crimes of corruption
Since its entry into office, the Government has implemented the most intensive series of measures of the past twenty years because organised corruption left unpunished in the last few years and those who turned a blind eye to corruption play a major role in the development of the country’s current economic and financial situation and the depreciation of morals and trust in general. The Government is committed to increasing the trust of citizens in the State and guarantees with all possible means at its disposal that the nation’s assets and public funds will be managed in a responsible fashion, cases of corruption will be uncovered and the guilty will be held accountable. To this end, the Government has adopted a number of measures in the past two years.
In harmony with these measures, the new Penal Code takes a further step towards creating rules that are capable of protecting fairness in public life. The new Penal Code simplifies the relevant factual scenarios in its structure; for instance, it regulates crimes against the fairness of public life and the fairness of international public life in a single chapter.
Further loopholes are being closed in the areas of corruption and crimes posing a threat to the fairness of public life by virtue of the fact that the legislation establishes new factual scenarios in its specific part in the wake of international conventions and recommendations also endorsed by Hungary. One of these is, for instance, the act of bribery in judicial or official proceedings which will in the future render the act of bribery in relation to the European Court or the International Criminal Court a crime as well.
It is now a qualified case under the new Penal Code where an act of active economic bribery is committed in an organised or business-like fashion. In the interest of preventing the registration of companies led by straw men, it will be possible to impose penal sanctions on persons who participate in the registration, as the owner of a business, of a private individual or business association whose place of residence or head office is unknown or cannot be found or who or which is not the actual owner of the business.
Crimes committed to the detriment of the central budget have been elevated to a higher crime category by virtue of the fact that these now constitute a separate chapter. These include crimes such as budgetary fraud, a category created in the course of the 2011 amendment of the Criminal Code.
A new factual scenario is coming into being under the description of economic fraud. The managers of business associations, typically in state ownership, have in recent years repeatedly engaged in activities which caused their businesses losses in the magnitude of billions. Neither the factual scenario of fraud, nor that of fraudulent mismanagement was able to handle these cases appropriately. It was therefore necessary to introduce sanctions under criminal law in respect of misleading practices which were manifested in the pursuance of fictitious economic activities for the purpose of gaining unlawful benefits.
The new Penal Code is able to offer adequate answers to the challenges of today, including, for instance, computer crime of an economic nature and the modern-age slavery of exposed individuals (so-called forced labour). It also responds to cases where it was previously difficult to take action under criminal law; these include doping offences or medicine counterfeiting.
Child protection reinforced in a number of areas
With regard to international conventions and the practice of the European Union, sexual offences as a single category will come into being as a new factual case combining the factual cases of rape and sexual assault under the Criminal Code currently in force. In response to international expectations, the wording of the provisions relating to crimes against sexual morality is changing significantly, sentences are becoming more stringent and, in the case of several offences (e.g. rape committed against a person not having completed the age of eighteen years), the need for a private motion will be done away with. These, together with several other rules designed to protect children, will enter into force this year.
The lower age limit for punishability will not change under the general rule, and will remain 14. In the event of the commission of exceptionally grave crimes, the law permits the reduction of the minimum age of punishability from 14 to 12 years in highly limited circumstances. These exceptionally grave cases include murder committed by minor children, when it is, under any circumstances, necessary to examine the perpetrator’s sanity and to ensure the availability of professional treatment.
It is important to stress that, in these cases, perpetrators over the age of 12 years will not receive a punitive sentence but will be subjected to measures, and only in cases involving gravely violent offences (e.g. homicide, grievous bodily harm or bodily harm resulting in death), and it is a further condition that sanity and accountability must be provable. Also in the future, these measures will not represent imprisonment but the court may order the perpetrator’s education in a correctional facility. Education in a correctional facility will continue to remain the most serious sanction that may be imposed on perpetrators younger than 14 years. There are similar rules applicable to young people under the age of 14 years in several European countries: children committing crimes may be held accountable from the age of 12 to 13 years (e.g. in the United Kingdom, France and Holland), while in extreme cases, from an ever earlier age, from 9 to 10 years (in Ireland and Malta).
With regard to international conventions and the practice of the European Union, sexual offences as a single category will come into being as a new factual case combining the factual cases of rape and sexual assault under the Criminal Code currently in force. Not only the act of forcing an individual to engage in sexual intercourse will be punishable; acts committed in violation of human dignity (e.g. touching an intimate body part of the injured person) will also result in punishability.
A sexual offence committed to the injury of a person not having completed the age of 18 years has become a qualified case, in contrast to the legislation currently in force where only an act of rape committed to the injury of a child not yet having completed the age of 12 years was deemed a qualified case. In response to international expectations, the wording of the provisions relating to crimes against sexual morality is changing significantly, sentences are becoming more stringent and, in the case of several offences (e.g. rape committed against a person not having completed the age of eighteen years), the need for a private motion will be done away with.
Rules protecting the environment and nature are becoming more emphatic
The poaching of game and fish and abuses involving ozone depleting substances will constitute separate factual cases. The illegal acquisition of arable land and the violation of obligations related to genetically modified plant species, too, will constitute new factual scenarios.
Protection of social groups
The new code will severely punish the perpetrators of crimes based on prejudice or hatred, whether these acts are committed against a national, racial, religious or ethnic group or any other specific group of the population. Therefore, crimes committed against the Roma or other communities as well as against members of the majority community will equally not go unpunished. The new legislation words the chapters concerning crimes against humanity and war crimes in accordance with the provisions of the Rome Statute (Statute of the International Criminal Court).
Wider scope for lawful self-defence
In harmony with Hungary’s new Fundamental Law, the penal legislation widens the realm of scenarios of lawful self-defence in order to afford more effective action against serious, violent crimes. Lawful self-defence is permitted also at present, and based on the authorisation of the Fundamental Law, the new Penal Code, in agreement with the legislation in force at present, excludes the punishability of a person who acts in his/her own defence, in defence of others, in defence of his/her property or for the protection of public interests, even if his/her act exceeds the necessary extent, for instance, on account of fear.
Based on the judicial practice of decades, the new Penal Code provides a wider scope for self-defence in cases where the assaulted person has reason to presume that the attack may even be directed against his/her life. These instances may be when someone is attacked at night, or by an armed individual or by an individual carrying a weapon that may be capable of extinguishing his/her life or is attacked by a group (minimum three individuals), or when an armed individual forces entry into someone’s home or into a fenced area forming part of someone’s home. It is important to note in this context that the rules regarding the use of weapons will not change, and these do not form part of the Penal Code.
Three strikes law, uniformed crime
The new Penal Code adopts the 3 strikes law introduced in the summer of 2010 for the punishment of those committing violent crimes, thanks to which the number of apprehensions has increased by 30 per cent.
The statutory rule passed in 2010 which made the denial of the crimes of the communist regime punishable the same way as the denial of the Holocaust will remain in force.
„Uniformed crime” continues to remain punishable unchanged. A person who manifests a highly anti-communal practice due to another person’s affiliation or presumed affiliation to a national, ethnic, racial or religious group or to specific groups of the population which is capable of inducing panic and fear commits a crime and is punishable by imprisonment for up to three years. „Uniformed crime” is identifiable not only on the basis of acts of violence committed against the members of the communities referred to above but also with regard to the crime of the illegal organisation of law enforcement activities. This crime category is retained in the new Penal Code as well.
Increased consumer protection
Consumers will also enjoy increased protection; crimes committed to the detriment of consumers will constitute a separate chapter. The misleading of consumers will fall into a more serious category if it is committed in connection with the effect of a product on health and the environment, the hazards and risks of products or features related to product safety.
The need for drafting a new Penal Code also emerged earlier, during several previous cycles of government. During the period between 2001 and 2006, a ministerial commissioner was appointed to oversee the relevant legislative work; however, the passage of a new penal code failed every time. At the time of the drafting of the Criminal Code currently in force, in the nineteen-seventies, crime patterns were completely different from the structure of crime today.
While on average 120,000 crimes were uncovered annually and violent crimes only accounted for 6% earlier, in 2010, almost 450,000 registered crimes occurred and the number of violent crimes and cases of organised crime is on the rise continuously. In previous years, there was no standard concept in place; the codification committees served as a forum for legal experts, mainly theoreticians representing different schools of penal law, to present their clashing views over and over again. The Penal Code now passed was codified on the basis of standard penal policy principles, and was developed more with a view to the opinions of those applying the law in practice as it will serve primarily as a „tool” for their work.