Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.5. Investigation II: the examining
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9.5.2. Coercive measures restricting personal liberty subject to judicial authorisation as a characteristic of the examining

9.5.2. Coercive measures restricting personal liberty subject to judicial authorisation as a characteristic of the examining

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Restrictive measures of personal liberty subject to judicial authorisation (restraint, criminal supervision, arrest, provisional medical treatment) are usually ordered during the examining , after the suspect has been questioned. These coercive measures can only be ordered by a court for reasons of guarantee – by the investigating judge before indictment and by the trial court after indictment.

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These coercive acts involve the most serious restrictions on fundamental rights, as they typically affect the personal freedom of the person concerned on a permanent basis and for a longer period. Of course, arrest and pre-trial detention are the most serious coercive measures within this group, as they involve the complete deprivation of the personal liberty of the person concerned, and arrests must be carried out in a prison or police detention centre. In comparison, restraint and criminal supervision involve only a restriction of personal liberty, but not a total deprivation of liberty.

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  1. Hungarian judicial practice is based on the principle that the imposition of these coercive measures does not require a more in-depth examination of the factual basis of the case. With regard to arrest in particular, it can be observed – especially in the proceedings of the investigating judge – that the decisions ordering the present coercive measures are based on mere assumptions (hypotheses).1 However, there is sufficient basis for this in the current method of regulation in the CPC in force, which treats the conditions for orders in a very flexible manner.

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  • The general conditions for the imposition, prolongation or maintenance of such coercive measures are: (1) the person is suspected of having committed a criminal offence, and (2) the purpose of the coercive measure involving personal liberty is necessary to achieve the aim of the measure and cannot be achieved by other means.2
  • If these conditions are fulfilled, it is already within the discretion of the court to assess whether the coercive measure in question is necessary in order to (1) ensure the right of the accused to be present, (2) prevent the aggravation or obstruction of evidence, or (3) prevent the possibility of a repetition of the offence.
    • The right to be present may be included as a reason in the grounds for such orders if the suspect has previously escaped, attempted to escape, or has absconded from either the court, the prosecution or the investigating authority; or if there are reasonable grounds to believe that he or she would become unavailable in criminal proceedings, in particular if he or she escapes or absconds.
    • Obstruction of evidence as a ground may arise if the accused, in order to frustrate the evidence, (1) intimidated, unlawfully influenced, destroyed, falsified or concealed material evidence, electronic data or confiscated property of a participant in the criminal proceedings or of another person, or (2) there are reasonable grounds to believe that the suspect would compromise evidence, in particular by intimidating, unlawfully influencing, destroying, falsifying or concealing material evidence, electronic data or confiscated property, or any other person involved in the criminal proceedings.
    • The risk of recidivism may be based on the fact that the accused (1) continued the offence which was the subject of the proceedings after his or her interrogation as a suspect, or was interrogated as a suspect for a new intentional offence punishable by imprisonment committed after his or her interrogation as a suspect, or (2) there are reasonable grounds for believing that he or she would commit the attempted or prepared offence, would continue the offence which is the subject of the proceedings or would commit a new offence punishable by deprivation of liberty.3
  • Under Strasbourg case law, the most serious abuses occur in relation to arrest.4 Nevertheless, as regards the conditions for ordering an arrest, it should be noted that almost all European codes of criminal procedure require the existence of reasonable suspicion before an arrest or similar coercive measure can be ordered. Some examples of judicial practice:
    • In considering whether to order an arrest, it is important that the judicial officer hears the detainee and considers the grounds on which the detention is lawful,5 even though the Convention does not require information to be given on all the offences on which the detainee is suspected. 6
    • According to the Court of Justice, deprivation of liberty is lawful where the court also examines the procedural rules and the substantive reasons for the order; in such cases, the rules of guarantee applicable to the trial must also be applied, which means that the adversarial nature of the proceedings and the principle of equality of arms are fundamental requirements for the prosecution and the defence; the prosecutor and the defence must therefore be aware of the other party’s submissions, observations and evidence. 7
    • The Court found a violation of the Convention in a case in which neither the Polish applicant nor his lawyer were allowed to attend the court hearings at which the arrest was ordered or repeatedly extended, and the Polish authorities therefore failed to ensure the adversarial nature of the proceedings.8
    • It is entirely up to the defence to decide whether to reflect the prosecution’s comments at the court hearing on the arrest warrant. 9
    • When prolonging an arrest, it must be carefully examined and factually justified that the reasons justifying its imposition still exist;10 (1) to assess the risk of absconding, character, moral qualities, place of residence, source of income, occupation, family relations and attachment to the country of the person concerned must be taken into account;11 the severity of the possible penalty cannot be the sole basis;12 (2) the risk of recidivism cannot be based solely on the offender’s criminal record;13 (3) over time, courts are obliged to explain why the grounds for arrest exist. 14
    • The Court found a violation of Article 5(3) of the Convention (right to liberty and security) because the judicial review of the applicant’s detention did not include a thorough examination of the circumstances justifying or opposing his detention;15 the Court also stated that the automatic extension of detention before trial also violated this fundamental right;16 the Convention does not require publicity of the hearings.17
    • It should be noted that the Convention does not presuppose that the police must have sufficient evidence to order an arrest; the purpose of detention is precisely to facilitate the investigation by confirming or weakening the specific suspicions that led to the imposition of these coercive measures; the facts giving rise to the suspicion need not therefore be at the same level as those which justify a conviction or indictment; nevertheless, to be well founded, the suspicion must be supported by facts or other information which would convince an objective observer of the likelihood of the commission of the offence.18
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Proof of the existence of grounds for compulsory provisional treatment

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  • the existence of the grounds for insanity must be consistently established, except in cases of extreme urgency; an objective medical report must demonstrate to the competent national authority the existence of a genuine mental disorder of such a nature or degree as to justify deprivation of liberty;19
  • the Convention is violated if it is not preceded by a medical examination; in the absence of the accused, the doctor must declare, at least on the basis of the available documents, that the person concerned is mentally ill or disabled; the assessment in such cases must relate to the current state of affairs, but an old medical opinion is not sufficient evidence in such cases;20
  • the prolongation of this coercive measure cannot be based on an expert opinion that does not reflect the offender’s current state of mind.21
1 The case is illustrated when Ferenc Burka Sr. and Ferenc Burka Jr., father and son, were accused of killing a man in March 1999 in Újszentmargita. They were accused of following the victim to his home and then killing him in his home for profit. As the two accused left the catering establishment a few minutes after the victim, rumours spread quickly in the village that they were the culprits. In ordering the arrest, the court ignored the fact that red hairs were found between the victim’s fingers, which could be the result of a struggle, despite the fact that the two accused had black hair. In Hack (2011) ibid. 36.
2 § 276 (1) para.
3 § 276 (2) para.
4 The Court of Justice attaches so much importance to the guarantee aspects of these procedural acts that it even excludes the possibility of a tactical bluff in their implementation: accordingly, the authority cannot knowingly mislead, by using an official document, the offenders whom it wishes to deprive of their personal liberty.“Conka v. Belgium, 5 February 2002. In Czine–Szabó–Villányi–Baka (2008) ibid. 247.
5 BH 2000/3. 235. In: Czine–Szabó–Villányi–Baka (2008) ibid. 257.
6 BH 2000/8. 638. In: Czine–Szabó–Villányi–Baka (2008) ibid. 258.
7 BH 2002/11. 872. In: Czine–Szabó–Villányi–Baka (2008) ibid. 262.
8 “Wedler v. Poland” case, 16 January 2007. In Czine–Szabó–Villányi–Baka (2008) ibid. 295.
9 BH 2002/11. 872. In: Czine–Szabó–Villányi–Baka (2008 ibid. 262.
10 BH 2001/9. 715. In: Czine–Szabó–Villányi–Baka (2008) ibid. 258.
11 EJF 1997/2. 39. In Czine–Szabó–Villányi–Baka (2008) ibid. 259.
12 EJF 1997/2. 44. In Czine–Szabó–Villányi–Baka (2008) ibid. 260.
13 EJF 1998/3. 20. In: Czine–Szabó–Villányi–Baka (2008) ibid. 261.
14 EJF 1999/2. 66. In: Czine–Szabó–Villányi–Baka (2008) ibid. 262.
15 “Sabeur Ben Ali vs. Malta” case, 29 June 2000. In Czine–Szabó–Villányi–Baka (2008) ibid. 264.
16 “Svipsta vs. Lithuania” case In: Czine–Szabó–Villányi–Baka (2008) ibid. 265.
17 “Reinprecht v. Austria” case, 15 November 2005. In Czine–Szabó–Villányi–Baka (2008) ibid. 295.
18 EJF 1998/4. 30. In: Czine–Szabó–Villányi–Baka (2008) ibid. 254.
19 BH 1993/2. 148. In: Czine–Szabó–Villányi–Baka (2008) ibid. 280.
20 BH 2001/12. 959. In: Czine–Szabó–Villányi–Baka (2008) ibid. 281.
21 BH 2002/8. 636. In: Czine–Szabó–Villányi–Baka (2008) ibid. 281.
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