The codification of criminal law and current questions of prison matters

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1 The codification of criminal law and current questions of prison matters Kondorosi Ferenc Under Secretary of State Ministry of Justice Hungary Criminal law is the branch of law, in which society s expectations come forward on the most direct way. Who would not care about the dangers of violent crimes? Who would not want to improve the status of the victim, if the children and elderly are hurt? Who would not want more effective measures regarding crimes against property? The expectations of society make it more difficult for the government to make the kind of decisions regarding reforms in criminal policy, which would enable the state to meet the expectations of society and international commitments on effective law enforcement. The national criminal policy has tried several ways to react to the challenges of crime in the past fifteen years. Since the change of the Hungarian regime, a fluctuation of criminal policy can be noticed. The initial decriminalisation caused by the ideological political circumstances of the change of regime had later been substituted by the criminal policy based on more strict punishments in the mid nineties, although such strict policy was not able to fulfil the expectations. Hungarian crime is stabilised on a high level since the late nineties. Although the ratio of violent crimes was lower than that of crimes against property in the last two decades, the number of violent crimes broken down to one hundred thousand people had increased by 47 percent. Hungary with its ratio of 333 violent crimes per people belongs to the average of European ratios. Altogether we may say that the structure of domestic crime has adjusted to the society based on market economy. In accordance with this, crimes satisfying needs and taking economical risks have dominated the category, and the new ways of conflict solving behaviours have also increased. The said transformation of crime creates a turning point regarding the content and direction of reforms in criminal policy. My point of view is that there is no one particular good choice among criminal policies. Neither of the criminal policies is able to fight crime alone or to satisfy the expectations of 33

2 the society. Instead of a criminal policy emphasizing the power of punishments and placing retaliation in the core or another criminal policy focusing only on the restoration type of criminal justice and placing the partnership between the state and community structures in the core, a holistic criminal policy is needed, which amalgamates the results of the particular criminal policy models. The various kinds of expectations of the society regarding the actions against crime by the state may only be satisfied through the combination of the particular elements of different criminal policies. The society expects the punishment of the offender, but also the compensation of the damages caused. The society requires the improvement of public security, as well as law and order, but also requires from the state to take an active role in decreasing the chance of a person becoming a criminal offender, to ensure free legal counselling and legal representation for the ones being socially in need of that. Thus, in the course of the remodelling process of our system of criminal justice, we shall endeavour to establish a situation in which these goals may be achieved simultaneously. The extensive reform of the Hungarian criminal law has been a topic for years now. The reason of this reform primarily is that the political and economical conditions of Hungary have changed entirely since the change of regime; Hungary has become a democratic state. The success of this process is also indicated by our membership in the European Union. This decisive transformation of the country s fate automatically caused the transformation of its institutional system and economic law. Institutions for the democratic control of powers have been established, thus the Constitutional Court and the ombudsmen operate with wide sphere of action, a democracy based on political plurality has come to life and market economy functions with all of its advantages and disadvantages. The changes beyond reforms entail the question: to what extent may the forms and goals of our criminal justice be legitimated and what is there to be changed? I would like to emphasize the fact that not only our legislation has to face the said problems. As result of the political changes of regimes, all of the former communist East European countries have adopted new Criminal Codes with the exception of Hungary since the previous criminal laws became outdated during the new economical social circumstances. We only need to look at our neighbouring countries, since there is a new Criminal Code in Slovakia, in the Czech Republic, in Poland and also in Slovenia. The fact that no new Criminal Code has been passed in Hungary yet does not mean that our criminal law ignores the changes occurred in the economy, society and the structure of crimes. 34

3 The Code in force was altered or supplemented by no less than 58 Acts following the change of regime, and the regulations considered unconstitutional were terminated by 11 resolutions of the Constitutional Court. These changes affected more than a thousand provisions of the code. The said volume of modifications is justified by the change in ideological approach following the change of regime and also by the approximation of law required for the EU accession. As a result of the modifications, our criminal law has changed according to the requirements of a constitutional state, but unintentionally disturbed the internal balance of the Criminal Code, as well as the harmony of penalty system and the particular sentences. Thus the creation of a new Criminal Code based on constitutional requirements has become immediately due. A committee was established on the 14th of March 2001 in order to review the Code currently in force and to prepare a new one. The committee consisted of the following theoretical and practical experts of criminal law: university professors, judges, public prosecutors, barristers and employees of the Ministry of Internal Affairs and Ministry of Justice. The assembled parties held 17 meetings, in which they had discussed the more significant questions, which had emerged regarding the reforms of both the general and special part of the Criminal Code. Our country is considered lucky due to the number of outstanding criminal experts. This statement is true not only regarding the past few centuries, particularly the end of the 19th century, but also today s conditions. There are several legal experts among our criminal lawyers having a personality enabling them to attract followers and found schools. As a result of this tradition and the work of the codification committee, three drafts on the general part of the criminal code had been created and one draft of the special part thereof is in process. However, codification of criminal law is a time consuming process, which cannot be affected by the daily needs of politics. The cornerstones of the codification of criminal law are primarily set by the resolutions of the Constitutional Court. We shall emphasize some Constitutional Court resolutions, namely that had built the test of necessity established in the practice of the Court of Human Rights of Strasbourg into the Hungarian criminal legislation. The Constitutional Court points out that the declaration of an act as crime and the use of criminal sanctions shall be made in proportion to the suffered damages. The cause of this is that the declaration of an act as crime and the use of criminal sanctions severely restrain human rights that have been protected by international regimes for a long period of time. Thus, in the course of enforcement of the national criminal 35

4 policy, criminal laws may only be passed within the guiding lines determined by the Constitutional Court. The judicial practice of the Constitutional Court affects not only substantive law, but law of criminal procedure and law on the implementation of penalties, as well. Hungary seems to be able to show more results regarding the two latter areas of criminal law. The country has a new Code of Criminal Procedure and the draft of a new Code on the implementation of penalties. Naturally, in a parliamentary democracy criminal disputes shall be held prior to the criminal legislation. Needless to say, that the Code of Criminal Procedure and the Code on the implementation of penalties were preceded by disputes; however, these disputes were primarily of professional nature where consensus regarding criminal policy might be easily reached. However, the criminal policy behind the Criminal Code is closely related to the certain social, economical, moral and political aspects of the society. The above mentioned criminal disputes can be directly traced back to these opposing philosophical and political approaches. This type of discussion may not be and should not be corrected in a parliamentary democracy. The negotiation process takes a long time though, since the main aspect of the codification is based on the harmonization of many different points of view. During the process of passing a criminal law not only the often opposing domestic approaches shall be conciliated, but the type of modern philosophical and political aspects that are shown in the resolutions and recommendations of the European Union and other international organizations, as well. With regards to the fact that criminal law aims to achieve its objectives primarily by the enforcement of criminal sanctions, the question regarding the purpose and extent of penalties becomes a main factor in shaping the future Hungarian criminal law. Since the age of enlightenment, it is accepted all across Europe that the sense of a penalty is set by the cause it serves, thus the protection of society against crime that is the prevention of further crimes by means of the effect of the sanction on either offenders or on other members of society. In this aspect, penalty is not retaliation against the offender, rather the defence of the society. A statement of Beccaria still has significance regarding this matter, saying that it is better to prevent crimes, than to penalise them. Thus, the purpose of the penalty may not be else than to prevent the offender from causing more damage to his mates and to prevent others from bringing about similar damages. However, even the age of enlightenment was not able to completely eliminate the thought of retaliation. In the determination of the legal bases of punishment, the theory of Grotius still has effect, according to which a severe crime may not stay unpunished and an offender shall take 36

5 into account that in case of breaking the law he shall submit himself to the punishment. I believe that the philosophical explanation of the purpose of penalties is not a duty of the government. Instead of this, the legislator shall accept the plurality of purposes of penalties, and shall enforce it in the complete system of criminal justice according to the method of actions against crime. There are three ways criminal law may take actions against an individual offender: threatening with penalty, sentencing and executing a sentence. These possible ways of the state s criminal justice lead to the differing significance of certain punishment objectives. The punitive provisions have general preventive nature primarily in the state of threatening with a penalty. Sentencing also contains preventive elements; still, the aim of legal actions against crime shall be recognised mainly in the protection of society and legal order. On the other hand, the implementation of a sentence shall concentrate on special prevention. This is why punishment is a multifunctional institution of society: it is an instrument of controlling crimes, and also a limit of action regarding the state and individuals. Thus, both the collective wisdom and the society s opinion are expressed in punishments. During the establishment of the criminal sentencing system, not only the tasks of that system shall be taken into account, but also the recommendations of the UN, the Committee of Ministers of the Council of Europe and the European Union. The said recommendations consist of the following principles of criminal policy: Imprisonment shall be considered a last resort, which may only be used if no other penalty is considered reasonable according to the severity of the crime, short term imprisonments shall be avoided, the extensive use of community sanctions and measures shall be supported, the penal system shall be differentiated, so that the type, extent and severity of the sanctions may be more in compliance with the specific circumstances of the crime and its offender, new means of punishments not depriving the offender of his freedom shall be introduced, and the right for mediation and compensation must be ensured. The draft of the new Code on the implementation of penalties contains these international standards completely, and wishes to ensure the society s right for security, and to respect the convicted person s human dignity. The draft 37

6 of this new Code permanently leaves the prison preferring approach behind that existed prior to the change of regime, and wishes to terminate the overcrowding of the penal institutions according to the European requirements. The level of prison population density directly affects the quality of placement, the side effects of coercive measures taken in the prevention of security, the number of employable prisoners, the supply of leisure time, and the rate of individuality regarding the correctional education of prisoners. The draft of the Code is based on a philosophical theory, saying that the state does not have unlimited means of intervention regarding the life of the offender, and these limits are set by the level of criminal responsibility. The draft which had been prepared by years of work is a great example for reaching a successful compromise between national criminal policy and international aims. The purpose of the government is to create a Code, which is suitable for realizing the prognostic declarations necessarily concluded in judicial sentences both in order to protect the society and with respect to the offender s human dignity. A good penalty execution does not only realise the declarations of a sentence, but is also able to use the declarations in a way that the penalty would not aim primarily to cause harm to the offender. Thus, a good penalty execution is characterised by the need to execute the punishment in accordance with the particular case and the particular offender. In case these thoughts will be reflected in the course of this conference, this presentation has made its point. I believe that it is in our interest, to find the bridge uniting the different criminal policies, on which a new Hungarian criminal law can be built, and which will determine the Hungarian penalty execution laws. 38

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