The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Legal supervision of the execution of punishments as a task for the prosecution service is provided in the Constitution (Sect. 51 subs. 3) and detailed rules are set in the Act on the prosecution service, Law Decree No. 11/1979 on the Execution of Punishments, and Order No. 1/1990 of the Prosecutor General.
Supervision of legality covers not only implementation of the final judgments of criminal courts and the execution of coercive measures restricting liberty, but also detention ordered in immigration-related proceedings, compulsory confinement in community hostels of the Office of Immigration and Naturalisation, aftercare, the criminal record and confinement due to non-payment in the procedure related to administrative offences.
A rule of general application in the Act on the prosecution service makes it the task of the prosecutor to release any detainee having been kept confined without lawful decision or for a time longer than that provided in the decision. Another provision aimed at ensuring smooth operation of supervision place the heads of the penitentiary institutions under the duty to comply with the instructions given by the prosecutor in respect of observing the law and the conditions of custody. They have, however, the right to file, through their superiors, an objection to the superior prosecution office, but this complaint shall have no delaying force.
Methods of supervision
In order to ensure the legality of the execution of punishments, the prosecutor:
- shall hear the detainees upon request, examine their complaints and should suspicion of an infraction of the law arise, he shall initiate the appropriate proceedings;
- shall hold regular inspections of the detention facilities, conduct official inquires regarding extraordinary events such as accidents, death of a detainee, or use of firearms against a prisoner;
- shall participate in court proceedings relating to the execution of punishments (e.g. revoking of parole), in the course of which he exercises the general rights of the prosecutor, i.e. he may peruse the documents, submit motions and appeal against decisions.
Supervision of the implementation of imprisonment
The execution of imprisonment is effected by the prison service under the direction of the Minister of Justice. In addition to the internal control of the prison service, the prosecutor supervises the legality of execution. The main concerns of supervision are the legality of the reception, detention and release, compliance with the rules relating to the regime of the institution, the rights and duties of prisoners, material circumstances of detention, health care, rewards and disciplinary measures, and fulfilment of labour regulations.
Release on parole, suspended imprisonment and probation
Under the Hungarian system the earliest time for release on parole varies from two-thirds to four-fifths of the sentence according to the regime of the execution which has to be determined by the court in the judgement. Under extraordinary circumstances the judge may permit parole after the prisoner has served half of the sentence, provided the whole sentence does not exceed three years. Clearly, parole is only an option, even if the minimum period has been passed. The decisive point is whether the aims of the punishment can be achieved without further detention, taking into account the prisoner’s former behaviour and internal disposition for smooth adaptation to society.
Upon the expiration of the statutory minimum, the head of the prison shall make a recommendation to the court on the question of parole. The court shall send the file to the prosecutor, who, after the perusal of the documents, shall make a motion on parole to the court and usually participates in the court hearing.
When granting parole, the court may place the prisoner under the supervision of a probation officer which entails the obligation of observing certain general rules of conduct prescribed by law e.g. he is obliged to appear before the probation officer and the police regularly, he has to report if he intends to change his dwelling place or place of work etc. In addition the court may impose further behavioural rules such as prohibition from consumption of alcohol in public places, or visiting certain specified places, or the obligation of pursuing certain studies etc. If the court orders parole without the supervision of a probation officer, the prisoner has only the obligation not to commit another crime.
The prosecutor has more extensive powers in relation to revocation of parole. According to the Criminal Code, parole has to be revoked if the person on parole has been sentenced to imprisonment for an offence that was committed while on parole. When other punishment has been imposed or in the case of serious breach of the rules of conduct, revocation is at the judge’s discretion.
Compliance with prescribed rules is controlled by the probation officer and the police; should an infringement come to their notice, they shall initiate the revocation procedure with the competent prosecutor who shall examine whether the breaking of rules has been proven or not. Provided the evidence is sufficient, the prosecutor has several options. If the nature and gravity of the infringement necessitates revocation, he shall make a motion to the court, otherwise he may caution the person concerned or initiate the modification of the behavioural rules at the court.
The judge shall decide on revocation of parole or modification of the rules of conduct at a hearing, and the prosecutor may appeal against the decision. If the revocation is justified by the commission of a further offence while on parole, the court competent in the new case shall decide on the revocation.
Similar provisions apply to suspended imprisonment and probation. In both cases the basic requirement is merely to desist from the commission of offences, but, in addition, the court may place the defendant under the supervision of a probation officer and behavioural rules may be set at the discretion of the judge. Serious violation of the rules may warrant the execution of suspended punishment, or passing on sentence instead of probation.
Legal supervision of other punishments and measures
The implementation of community service is controlled by the probation officer. If he detects that the convicted person does not fulfil his obligations at his workplace, he must submit a report to the court, which will be forwarded to the prosecution office. The prosecutor shall decide whether to bring the case to court with a proposal of replacement of community service with imprisonment or designation of another place of service.
The whole execution process is supervised by the prosecutor who may examine the documents relating to the execution, hear the convicted person, his fellow-workers, and his superiors and who, if a violation of legal rules is established, shall initiate the appropriate proceedings.
A fine is to be implemented by the Courts of Appeal by sending a call for payment to the convicted person. If the fine is not paid, the Courts of Appeal issues a notification to the court of first instance, upon which commutation to imprisonment takes place. Juvenile cases are treated in another way, since first a recovery procedure must be conducted by the bailiff, and commutation may happen only after the failure of recovery. Previously, the prosecutor inspected the documents relating to the implementation of fines at the court and in the bailiff’s office, but judges felt that it might peril their independence, hence the present practise is to ask for information from the president of court.
The prosecutor supervises, at least every three years, the implementation of the supplementary punishments (such as prohibition from public affairs, from certain professions, from driving vehicles, local banishment, and expulsion), the execution of measures (e.g. probation, forced medical treatment of insane persons, forced cure for alcoholics and confiscation) in the police stations, at the regional immigration authority, in the central psychiatric institute for offenders and at the administrative offices of the municipality.
The organisation of the probation service was split until recently. The supervision of juveniles was conducted by staff of the office of guardianship, while adult offenders were supervised by probation officers working within the frame of the appellate courts. By amendments introduced by Act XIV of 2003, the two distinct organisations have been integrated into one comprehensive body, the probation service, under the direction and supervision of the Minister of Justice.
The probation officers pursue a wide range of activities. They implement community service and supervise convicted persons placed under supervision; upon the request of the court or the prosecutor they present social inquiry reports on the personal circumstances and social surroundings of the person concerned and they have important tasks in aftercare as well.
Supervision by the probation officer, as mentioned above, may be imposed as an additional measure to suspended imprisonment, probation and release on parole. It comprises the control of observance with the behavioural rules, requesting regular reports from the supervised person and rendering assistance in order to avoid recidivism.
When supervising the implementation of this measure the prosecutor inspects the documents, hears the supervised person, his relatives, fellow-workers, and superiors, and if breach of law is detected, he takes the necessary steps to restore legality.
Legal supervision over implementation of coercive measures restraining personal freedom
According to Sect. 4 of Order No. 1/1990 of the Prosecutor General, the prosecutor shall examine the legality of the execution of pre-trial detention (the first 72 hours of which are called arrest and may be effected without a decision from a judge), detention ordered in immigration-related proceedings, and the compulsory confinement in community hostels of the Office of Immigration and Naturalisation at least twice a month.
Inspections take place in prisons, police holding cells, reformatory institutions for juvenile offenders, buildings of the border guard and community hostels. The prosecutor examines all documents underlying the detention, monitors compliance with the legal rules and measures written in the documents, and checks whether deadlines have been adhered to. Special attention is paid to the treatment of detainees, the circumstances of detention, and the use of force against detainees.
Supervision over the legality of criminal records and aftercare
Supervision of criminal records is assigned to the prosecutor by law. This function is performed by designated prosecutors of the office of the Prosecutor General, as records are kept centrally in the Ministry of Interior. In the course of their inspections these prosecutors examine the observance of the rules, and that the exemption from disadvantages attached to previous convictions is carried out according to legal provisions.
The purpose of aftercare is to facilitate the social rehabilitation of the convict after having served his term and the effective prevention from committing crimes in the future. The released person may apply for assistance in settlement, accommodation, finding a job, medical treatment and further training. Aftercare is performed by the probation officer with the help of municipalities, employers and charitable bodies.
The prosecutor may examine the legality of preparations for release from penitentiary institutions, inspect the activities of the organisations performing the aftercare, request the appropriate body to hold inspections of the operation of the assisting organisations, and hear the released person in the course of supervision.
Pardon
In Hungary, the prosecution service plays no part in the procedure relating to pardons.
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Legal supervision of the execution of punishments as a task for the prosecution service is provided in the Constitution (Sect. 51 subs. 3) and detailed rules are set in the Act on the prosecution service, Law Decree No. 11/1979 on the Execution of Punishments, and Order No. 1/1990 of the Prosecutor General.
Supervision of legality covers not only implementation of the final judgments of criminal courts and the execution of coercive measures restricting liberty, but also detention ordered in immigration-related proceedings, compulsory confinement in community hostels of the Office of Immigration and Naturalisation, aftercare, the criminal record and confinement due to non-payment in the procedure related to administrative offences.
A rule of general application in the Act on the prosecution service makes it the task of the prosecutor to release any detainee having been kept confined without lawful decision or for a time longer than that provided in the decision. Another provision aimed at ensuring smooth operation of supervision place the heads of the penitentiary institutions under the duty to comply with the instructions given by the prosecutor in respect of observing the law and the conditions of custody. They have, however, the right to file, through their superiors, an objection to the superior prosecution office, but this complaint shall have no delaying force.
Methods of supervision
In order to ensure the legality of the execution of punishments, the prosecutor:
- shall hear the detainees upon request, examine their complaints and should suspicion of an infraction of the law arise, he shall initiate the appropriate proceedings;
- shall hold regular inspections of the detention facilities, conduct official inquires regarding extraordinary events such as accidents, death of a detainee, or use of firearms against a prisoner;
- shall participate in court proceedings relating to the execution of punishments (e.g. revoking of parole), in the course of which he exercises the general rights of the prosecutor, i.e. he may peruse the documents, submit motions and appeal against decisions.
Supervision of the implementation of imprisonment
The execution of imprisonment is effected by the prison service under the direction of the Minister of Justice. In addition to the internal control of the prison service, the prosecutor supervises the legality of execution. The main concerns of supervision are the legality of the reception, detention and release, compliance with the rules relating to the regime of the institution, the rights and duties of prisoners, material circumstances of detention, health care, rewards and disciplinary measures, and fulfilment of labour regulations.
Release on parole, suspended imprisonment and probation
Under the Hungarian system the earliest time for release on parole varies from two-thirds to four-fifths of the sentence according to the regime of the execution which has to be determined by the court in the judgement. Under extraordinary circumstances the judge may permit parole after the prisoner has served half of the sentence, provided the whole sentence does not exceed three years. Clearly, parole is only an option, even if the minimum period has been passed. The decisive point is whether the aims of the punishment can be achieved without further detention, taking into account the prisoner’s former behaviour and internal disposition for smooth adaptation to society.
Upon the expiration of the statutory minimum, the head of the prison shall make a recommendation to the court on the question of parole. The court shall send the file to the prosecutor, who, after the perusal of the documents, shall make a motion on parole to the court and usually participates in the court hearing.
When granting parole, the court may place the prisoner under the supervision of a probation officer which entails the obligation of observing certain general rules of conduct prescribed by law e.g. he is obliged to appear before the probation officer and the police regularly, he has to report if he intends to change his dwelling place or place of work etc. In addition the court may impose further behavioural rules such as prohibition from consumption of alcohol in public places, or visiting certain specified places, or the obligation of pursuing certain studies etc. If the court orders parole without the supervision of a probation officer, the prisoner has only the obligation not to commit another crime.
The prosecutor has more extensive powers in relation to revocation of parole. According to the Criminal Code, parole has to be revoked if the person on parole has been sentenced to imprisonment for an offence that was committed while on parole. When other punishment has been imposed or in the case of serious breach of the rules of conduct, revocation is at the judge’s discretion.
Compliance with prescribed rules is controlled by the probation officer and the police; should an infringement come to their notice, they shall initiate the revocation procedure with the competent prosecutor who shall examine whether the breaking of rules has been proven or not. Provided the evidence is sufficient, the prosecutor has several options. If the nature and gravity of the infringement necessitates revocation, he shall make a motion to the court, otherwise he may caution the person concerned or initiate the modification of the behavioural rules at the court.
The judge shall decide on revocation of parole or modification of the rules of conduct at a hearing, and the prosecutor may appeal against the decision. If the revocation is justified by the commission of a further offence while on parole, the court competent in the new case shall decide on the revocation.
Similar provisions apply to suspended imprisonment and probation. In both cases the basic requirement is merely to desist from the commission of offences, but, in addition, the court may place the defendant under the supervision of a probation officer and behavioural rules may be set at the discretion of the judge. Serious violation of the rules may warrant the execution of suspended punishment, or passing on sentence instead of probation.
Legal supervision of other punishments and measures
The implementation of community service is controlled by the probation officer. If he detects that the convicted person does not fulfil his obligations at his workplace, he must submit a report to the court, which will be forwarded to the prosecution office. The prosecutor shall decide whether to bring the case to court with a proposal of replacement of community service with imprisonment or designation of another place of service.
The whole execution process is supervised by the prosecutor who may examine the documents relating to the execution, hear the convicted person, his fellow-workers, and his superiors and who, if a violation of legal rules is established, shall initiate the appropriate proceedings.
A fine is to be implemented by the Courts of Appeal by sending a call for payment to the convicted person. If the fine is not paid, the Courts of Appeal issues a notification to the court of first instance, upon which commutation to imprisonment takes place. Juvenile cases are treated in another way, since first a recovery procedure must be conducted by the bailiff, and commutation may happen only after the failure of recovery. Previously, the prosecutor inspected the documents relating to the implementation of fines at the court and in the bailiff’s office, but judges felt that it might peril their independence, hence the present practise is to ask for information from the president of court.
The prosecutor supervises, at least every three years, the implementation of the supplementary punishments (such as prohibition from public affairs, from certain professions, from driving vehicles, local banishment, and expulsion), the execution of measures (e.g. probation, forced medical treatment of insane persons, forced cure for alcoholics and confiscation) in the police stations, at the regional immigration authority, in the central psychiatric institute for offenders and at the administrative offices of the municipality.
The organisation of the probation service was split until recently. The supervision of juveniles was conducted by staff of the office of guardianship, while adult offenders were supervised by probation officers working within the frame of the appellate courts. By amendments introduced by Act XIV of 2003, the two distinct organisations have been integrated into one comprehensive body, the probation service, under the direction and supervision of the Minister of Justice.
The probation officers pursue a wide range of activities. They implement community service and supervise convicted persons placed under supervision; upon the request of the court or the prosecutor they present social inquiry reports on the personal circumstances and social surroundings of the person concerned and they have important tasks in aftercare as well.
Supervision by the probation officer, as mentioned above, may be imposed as an additional measure to suspended imprisonment, probation and release on parole. It comprises the control of observance with the behavioural rules, requesting regular reports from the supervised person and rendering assistance in order to avoid recidivism.
When supervising the implementation of this measure the prosecutor inspects the documents, hears the supervised person, his relatives, fellow-workers, and superiors, and if breach of law is detected, he takes the necessary steps to restore legality.
Legal supervision over implementation of coercive measures restraining personal freedom
According to Sect. 4 of Order No. 1/1990 of the Prosecutor General, the prosecutor shall examine the legality of the execution of pre-trial detention (the first 72 hours of which are called arrest and may be effected without a decision from a judge), detention ordered in immigration-related proceedings, and the compulsory confinement in community hostels of the Office of Immigration and Naturalisation at least twice a month.
Inspections take place in prisons, police holding cells, reformatory institutions for juvenile offenders, buildings of the border guard and community hostels. The prosecutor examines all documents underlying the detention, monitors compliance with the legal rules and measures written in the documents, and checks whether deadlines have been adhered to. Special attention is paid to the treatment of detainees, the circumstances of detention, and the use of force against detainees.
Supervision over the legality of criminal records and aftercare
Supervision of criminal records is assigned to the prosecutor by law. This function is performed by designated prosecutors of the office of the Prosecutor General, as records are kept centrally in the Ministry of Interior. In the course of their inspections these prosecutors examine the observance of the rules, and that the exemption from disadvantages attached to previous convictions is carried out according to legal provisions.
The purpose of aftercare is to facilitate the social rehabilitation of the convict after having served his term and the effective prevention from committing crimes in the future. The released person may apply for assistance in settlement, accommodation, finding a job, medical treatment and further training. Aftercare is performed by the probation officer with the help of municipalities, employers and charitable bodies.
The prosecutor may examine the legality of preparations for release from penitentiary institutions, inspect the activities of the organisations performing the aftercare, request the appropriate body to hold inspections of the operation of the assisting organisations, and hear the released person in the course of supervision.
Pardon
In Hungary, the prosecution service plays no part in the procedure relating to pardons.
