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RESEARCH RESULTS – 2020

(Summaries of completed research)


CONTENT

♦ Theoretical and practical questions of the statutory definition of the offence of changing the placement of a minor (Section 211 of the Criminal Code)
♦ The criminological characteristics of the criminal offence of trafficking in human beings based on the criminal cases conducted in Hungary – a secondary analysis
♦ The changing role of the victim in relation to the new legal institutions of the Criminal Procedure Act II
♦ Criminal psychology III
♦ The events leading to the international refugee crisis that started in 2015 and its peaks from a criminological perspective
♦ Latent crime
♦ Robberies from the aspects of criminal law and criminology
♦ Expert evidence in view of the application of the law (analysis of the perspectives of experts and practitioners)
♦ The theoretical and practical issues of the criminal offence of a failure to provide maintenance (Section 212 of the Criminal Code)
♦ The effects of the reform of criminal procedures on the timeliness of procedures
♦ The ‘ne bis in idem’ principle in the light of the interpretation of the law by the European Court of Justice
♦ Special treatment in the light of the EU’s victim protection efforts
♦ The examination of parole and the causes of its termination
♦  The impact of personality disorders – in particular psychopathy – on criminal liability
♦ The legal and criminological aspects of the criminal offence of harassment
♦ The involvement in crime of persons with disabilities and psychiatric patients, and the impact of this in view of the practice of establishing that certain acts were committed against persons who are unable to defend  themselves or express their will, or whose ability to avert criminal offences is limited due to their old age or disability
♦ The development of emotional dependence and its role in the commission of domestic violence
♦ The factual elements and issues of classification of trespass in practice
♦ Deviances occurring in the digital space
♦ Sentencing practice in the case of driving under the influence of alcohol committed using not a motor vehicle but a motor-driven vehicle, with particular regard to driving bans
♦ The structure and operation of criminal organisations specialising in human trafficking and the cross-border investigative activity of the JIT (Joint Investigation Team)
♦ The theoretical and practical issues of drug trafficking
♦ The causes of recidivism and the possibilities of its prevention in the case of domestic violence, in particular regarding violence against one’s partner
♦ The legal and criminological examination of hunting accidents

 


A) RESEARCH COMMISSIONED BY THE INSTITUTE

  

Ádám Mészáros – Bernadett Csapucha:

Theoretical and practical questions of the statutory definition of the offence of changing the placement of a minor (Section 211 of the Criminal Code)

The research describes the history of regulation of the criminal offence regulated in Section 211 of the Criminal Code, it analyses the wording of the law from a dogmatic perspective and presents the relevant practice.
The Criminal Code in force includes this criminal offence in a separate new chapter (Chapter XX: Criminal offences violating the interests of children and criminal offences against the family), expressing the need for an enhanced protection of families and children under criminal law. The conducts violating criminal law associated with changing the placement of a minor have been regulated within the framework of the generic term ‘criminal offences violating the interests of children’.
The nationwide analysis of case files, based on a full sample, paid special attention to the peculiarities of the sentencing practice. It could be established in connection with this that in the majority of final judgments the courts acting in the relevant cases did not consider it necessary to impose a sentence of imprisonment to be served but deemed it sufficient to use other types of punishment or statutory measures in order to achieve the purposes of sentencing. All this is a clear indication of how little danger such cases present to society. In addition to final court judgments, the study also covered decisions on the termination of procedures, which were mostly based on the decisions on the termination of investigation made by the prosecution service. In some of these cases, the prosecution service reprimanded the suspect since the degree of danger presented by the act to society was so insignificant that the application of even the most lenient penalty or another measure available under the Act was unnecessary, but the application of reprimand against them was justified. Finally, the study evaluated the comments received from the prosecution service on this subject, but this was limited due to the fact that such cases occur quite rarely. These brought to light some problems that could be worth exploring further. Such as for example the question as to who can be considered the victim of the criminal offence, i.e. the minor or the person with whom the minor was placed by an enforceable decision of an authority. Examples can be found for both approaches during the analysis of the files. The question also arises as to how long the delay should last to establish criminal liability in the case of taking back a minor child, or under what circumstances it can be rightly concluded that there is an intention to permanently change the child’s placement.


Szandra Windt:

The criminological characteristics of the criminal offence of trafficking in human beings based on the criminal cases conducted in Hungary – a secondary analysis

The research conducted in 2019 somewhat refined the picture of the phenomenon of trafficking in human beings in Hungary: neither the commission of the crime in a criminal organisation and the relevant qualification, nor international involvement was that significant. That is why we wanted to continue the research project in 2020 in order to clarify whether these claims are indeed correct, since stereotypical approaches often appear in connection with the trafficking in human beings, without any real research being conducted.
Based on the registration numbers of cases registered in 2019, we requested further documents: 10 documents were available out of the 15 we requested. Cases studied in 2019 and initiated based on Section 192 of the Criminal Code only involved exploitation for sexual purposes; no cases involving forced labour were requested this year. Of the documents reviewed this year, judgments of the first instance had already been delivered in three, while in the rest, only the bills of indictment were available. In these documents, 24 perpetrators committed the felony of trafficking in human beings against 34 female victims. (The data obtained from ENYÜBS [Unified System of Criminal Statistics of the Investigative Authorities and the Prosecution Service] are only partly similar: the statistics show 35 victims, and the number of perpetrators and their breakdown by county are significantly different.) The majority of victims are younger than 18 years of age. Cross-border factors were present in only two documents: in the one from Szabolcs county and in one of the documents from Borsod county (4 perpetrators and 16 victims). The rest of the documents contained criminal offences committed by Hungarian perpetrators against Hungarian victims in Hungary.
The processed files do not only contain male perpetrators but women also played a part in these cases: out of the 10 files, there was only one with a single male perpetrator, and the rest all included women too. In 4 files the first defendants were women, and in 5 files the second or the third defendants were women. According to the ENYÜBS, the 34 criminal offences registered in 2019 were committed by 72 perpetrators who were typically aged between 25 and 59. The proportion of women among perpetrators has been found to be significant: it was already appreciable in the 2018 data, but in 2019, as many as a third of perpetrators were women.
The ‘narrative of victim blaming by those applying the law’ regularly appears in connection with trafficking in human beings as an explanation of the small number of cases, without any research or background knowledge justifying such claims. In 2019, the Ministry of Interior organised an awareness-raising training programme with the involvement of three counties: two appointed police officers, prosecutors and courts from each of BAZ, Szabolcs-Szatmár-Bereg and Heves counties sat down together and were provided an opportunity to get to know and process cases of human trafficking and forced labour, after listening to presentations on the topic of trafficking in human beings. Thanks to the success of this training programme, the Ministry of Interior intended to hold four additional training sessions of this kind in 2020, for which the financial resources were also available based on the document entitled Government Decision 1046/2020 (II. 18.) on the national strategy on the fight against human trafficking between 2020 and 2023 and on the action plan for its enforcement, to be implemented in the period between 2020 and 2021. However, the pandemic has overwritten the plans: instead of the 4 training sessions planned for 2020, there was one training session held in person in the autumn of 2020 (on 9-10 September), and two sessions were conducted online in October and November.
The awareness-raising training sessions provided a one-off opportunity for us to get to know the attitudes of the representatives of the different professions, and to sensitise them. Therefore, with the support of the Ministry of Interior, I developed an attitude assessment questionnaire for the participants. During the attitude assessment, we measured the participants’ approach before the training (so-called input approach) and after that (so-called output approach). We also contacted again the group sensitised in 2019; although in their case we did not use any input questions, we nevertheless asked them to complete an online questionnaire (using Google forms) almost a year after the training as a means of control.
In addition to this, the Prosecutor General agreed to let us perform the same attitude assessment in respect of the participants of the internal prosecution service training sessions organised by the Department for Personnel, Training and Administration of the Office of the Prosecutor General on the topic of trafficking in human beings on 30 September and 5 October 2020. A total number of 189 prosecutors completed the online questionnaire out of the 215 prosecutors participating in the training programme. 54.5% of the 189 prosecutors who responded were women, and 45.5% were men, from all counties of the country. Despite the fact that the majority of the prosecutors participating in the internal training of the prosecution service have been in their profession for more than 10 years, only 77 persons (40.7%) have ever proceeded in cases involving human trafficking, and even fewer, only 24 persons (12.7%) in cases of forced labour.
The questionnaire was completed by the most prosecutors from BAZ county and the capital. There is an exceptionally high occurrence of the phenomenon of human trafficking in these areas.
The approach of ‘it’s not really the problem of our county’ can be seen from the answers; however, the attitude of blaming victims was not typical in the case of the respondents.
In January 2020, Gábor Somogyi, a judge, invited our researcher to participate as an external expert in the work of the jurisprudence analysis group of the Curia dealing with human trafficking. Due to the pandemic, the group could only start the performance of its tasks after a delay, and the report is expected to be finished in the first half of 2021.


Tünde A. Barabás – Anna Kiss:

The changing role of the victim in relation to the new legal institutions of the Criminal Procedure Act II

During the first year of the research project planned to last for two years, the researchers examined the situation of victims and the changes in their role from the perspectives of their own areas of expertise. Tünde A. Barabás analysed the new legal institutions from a criminological perspective, while Anna Kiss analysed them from the perspective of the law of criminal procedure. In the first year, the new legal institutions concerning victims and the relevant criminal policy background were reviewed in general, while the new regulations concerning minor victims were reviewed in detail. During the research conducted in 2020, in the part about criminal procedure, we performed a detailed analysis of all new (or amended) legal institutions of criminal procedure relating to victims.
Through comparative law, the research conducted last year found that the additional rights applicable to minor victims are not the special features of the Criminal Procedure Act in force but some of them can be traced back to the introduction of a child-friendly justice system, and some can be traced back to the EU’s victim protection directive of 2012, which had to be incorporated in the Criminal Procedure Act by 2015, thus in the old Criminal Procedure Act, i.e. Act XIX of 1998.
In this year’s research we described and analysed the above-mentioned legal institutions in detail, that is, we addressed everything related to the changes in the role of victims. Therefore, starting with the new definition of victims, we focused on all legal institutions that definitely have an effect on the altered role of victims, even though they cannot be considered completely new.
The research project discussed the criminal policy principles and legislative solutions underlying the rules in force and the amended rules effective from 1 January 2021, applicable to special treatment, mediation etc., describing and analysing them in detail. In the context of the criminological approach, the provisions of the new Criminal Procedure Act were examined from the victim’s perspective – in particular as regards the applicability of restorative means – taking into account the findings of the previous review of the Council of Europe Commission for the Evaluation of the Efficiency of Justice (CEPEJ); Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA; and Recommendation No. R (99) 19 of the Committee of Ministers of the Council of Europe concerning mediation in penal matters.
The results of the research show that the legislator essentially sought to ensure a more effective enforcement of victims’ interests, and in addition to the protection of victims (witness protection), the requirement of being considerate to these persons (special treatment) can also be found in the rules concerned, and the legislator also paid attention to the efficiency of the procedure and compromise (mediation). However, in addition to an expansion of the scope of application of this option, we can also see a certain narrowing of the same in this field, in view of the fact that in contrast with the previous rules, mediation can no longer be initiated in court.


György Virág:

Criminal psychology III

This study, which is planned to last several years, aims to provide comprehensive information on the explanations and interpretations of the social phenomenon of crime from a psychological perspective, and it attempts to provide an in-depth review of criminal psychology as a kind of applied psychology ‘specialised in crime’.
Committing crime is a human behaviour, and all human conducts necessarily have an internal and mental (and biological) basis, and all conducts are inevitably affected by psychological (and biological) factors. It is therefore clear that psychology can also have a place in understanding crime, or in other words, that criminal behaviour is also determined by psychology. Of course, the real question is whether psychology can help and if so, in what way, to understand criminal behaviour.
When examining criminal behaviour, psychological theories direct their attention to the role of internal individual factors. In the system of multifactorial determination, they examine the characteristics and role of mental/psychological factors among the multifactorial determinants of crime, they analyse the intentions, motivation, way of thinking and behaviour of the perpetrator, and focus on these factors when trying to find an explanation for crime.
As a continuation and closing of the research in progress, the theories relating to criminal personality, the relationship between mental disorders and crime, psychopathy and pedophilia were reviewed during the reporting year. The preparation of a systematic summary of the results of the research spanning several years is in progress.


Szilveszter Póczik:

The events leading to the international refugee crisis that started in 2015 and its peaks from a criminological perspective

In part, the study describes the economic and political processes underlying the large-scale emigration of the population of the Middle East, and after that it mentions the relevant climatic, geographical, political and social causes, it discusses the connection between demographic processes and migration in detail, and it determines war as the ultima ratio in making the decision to migrate. The economic development of these countries has weakened the stability of the Middle East and contributed to the emergence of a migration pressure on Europe. Since the end of the seventies, the countries of the region slowly had to face the limits of their competitiveness. Several countries failed to return to a consistent growth path despite the – sometimes one-sided – reforms of the 2000s. The events of the ‘Arab spring’ also illustrated this failure very well. This failure had an effect on the political legitimacy of the ruling regimes, and after overthrowing the previous political regime, new political forces came to power in several countries. The economic and political upheaval in the region resulted in the increase of migratory pressure. The Arab world is not only fragmented internally but it also consists of an almost impenetrable set of conflicts, and exists in the field of operation of external powers. North Africa and the Middle East struggles with water shortage and the desertification of its arable lands, which will become worse in the next decades, as the population continues to grow rapidly. It is indisputable that military conflicts are powerful forces that can lead to population movements. Military developments improved the operational capacities of the armies, but they diverted a significant amount of resources away from economic development and social policy. Previously, the workers in the Muslim region migrated towards the rich oil producing Arab countries, but the Syrian war led to a breakthrough in migration where four million refugees left the country. This started a global migration wave. Migrants come to Europe from various countries of origin, and their ethnic, religious and social diversity present extraordinary challenges in the receiving countries.


József Kó:

Latent crime

The extent and structure of crime can only be explored by processing and interpreting several data sources at the same time. The possible data sources are the following: criminal statistics, victimology surveys conducted among the population, impact assessments conducted among legal entities, surveys based on self-reporting, data collection performed by government and private organisations and empirical studies performed by professionals from other disciplines (sociology, psychology, economics, medicine etc.).
The data collected from different sources do not question the credibility of the individual data sources or the criminal statistics. Criminal statistics provide information only about a part of crime. Taking into account its special characteristics, criminal statistics can be used for preparing analyses, but it is not an accurate expression of crime as a whole. Latency occurs to different extents in the case of different types of crime. If we collect information based only on criminal statistics, criminal offences with lower latency will be more prominent, whereas those with higher latency may seem to be less important than their actual frequency or gravity. In order to detect the latent portions of the different groups of crimes, we must use an appropriate data source. Not all methods are suitable for examining all criminal offences. Victimological examinations also have their limits and peculiarities, and any information collected from them can only be used with those limits in mind.
If we only take into account registered crimes, we do not respond to real events but assign the resources to a different situation. If we learned the actual distribution and frequency of criminal offences, we could make the work of law enforcement agencies much more effective. Surveys and data collection on latent crime would also provide the police leadership with information that cannot be obtained otherwise. Getting to know latent crime cannot be regarded as a purely academic objective, as it could provide concrete data to the entire justice system.


László Tibor Nagy:

Robberies from the aspects of criminal law and criminology

The study is part of OKRI’s research on violent crimes against property, in the context of which self-administered justice and plundering have already been analysed during the past few years. The number of registered robberies significantly decreased in recent years: while in 2000 it was 3436, only 637 criminal offences were detected in 2019. Nevertheless, robbery is the most serious violent crime against property, and its gravity and the danger it poses to society are outstanding.
The research project involved the collection and analysis of criminal statistical data, the examination of the regulatory environment and the literature and the detailed analysis of 60 offences.
During the classification of criminal offences, the establishment of a qualified threat to life or physical integrity and, as a result, the differentiation from extortion were the primary issues that emerged. It reflects a unique contradiction that although the number of robberies has drastically decreased in recent years, quite a few court judgments treat the proliferation of these criminal offences as an aggravating circumstance.
59% of robberies were committed in public spaces, and 63% were committed using violence. Three quarters of the offences are committed without using any equipment and only resorting to physical force or threat, and where any instruments were used, in most cases it was a knife. The object of the crime was typically cash or a mobile phone, with a value below fifty thousand forints in the majority of the cases. 88% of perpetrators and 66% of victims were men. The most common method of committing the crime turned out to be acts like mugging and violent acts of asking for money committed by young people against their peers, and the most common forms of violence were pushing, punching or slapping the victims in the face. A quarter of the perpetrators committed the act in a group; the majority of them did not have a permanent job, any qualification or a regular income. 75% of victims had not known the perpetrator before. Most of them were living alone, or they were alone in their home or in a public space, and they were typically children or young people of a weaker physique than the perpetrator.
In 2021, we intend to perform the empirical analysis of 200 criminal offences, which will be detailed also from the aspect of criminology.

 

B) RESEARCH COMMISSIONED BY THE PROSECUTOR’S OFFICES

 

Gabriella Kármán:

Expert evidence in view of the application of the law
(analysis of the perspectives of experts and practitioners)

In 2016, the Parliament adopted a new Act on forensic experts, the purpose of which was to provide an up-to-date framework in line with the increased importance of expert evidence – mainly arising as a result of scientific and technical progress – and with new challenges. The new Criminal Procedure Act that entered into force on 1 July 2018 also introduced some changes in the regulation of expert evidence.
The aim of the research launched in 2019 was to study the role of expert opinions in the process of taking evidence, as well as the possibilities, factors and realisation of its credibility in the light of the new laws. The theoretical summary contains the detailed description of the guarantees of the credibility of expert evidence, as this is the concept that most comprehensively covers all those conditions that are indispensable to the lawful and effective taking of evidence and the establishment of the facts that correspond to reality.
The empirical research was aimed at exploring the factors of and the lessons learned from using experts and from the evaluation of expert opinions, and the most suitable method for this turned out to be the analysis of the statistical data collected and recorded by the authorities acting in the relevant cases and questionnaire-based research conducted with the participation of the employees of such authorities. The empirical research planned for 2020 provided an opportunity for studying the practical experience of the prosecution service and the courts relating to expert evidence and for the evaluation of the results.
As a result of the supportive attitude of the participating organisations (the Office of the Prosecutor General, the chief prosecution offices of the counties and the Hungarian Academy of Justice), at least one questionnaire was completed from every district and county organisational unit, as planned; this participation rate suggests that the results will be representative.
Based on the answers of prosecutors and judges, the prior assumption was confirmed that in most cases, experts were not appointed by the prosecution service or the court but by the investigating authority. In the overwhelming majority of cases, experts are appointed ex officio; private experts participate only in an insignificant number of cases. Experts are selected mainly on the basis of the register of forensic experts; in addition to this, previous working relationships with the experts, as well as the recommendations of colleagues also help the authorities appointing experts. Finding a competent expert is not a problem in most cases. In general, prosecutors and judges reported positive experiences as regards the experts’ adherence to deadlines. Expert opinions contain the required content elements.
According to the responses, the evaluation of expert opinions could be greatly supported by methodology letters, and besides that, the specialist literature, training programmes and information requested from experts are all useful sources. Unfortunately, methodology letters are not yet available in all areas of expertise. There were many opinions according to which a more in-depth knowledge of the validity and reliability of experts’ methods would be necessary.
The more differentiated analysis of the data requires further examinations and if possible, the system of criteria should be further expanded to include the practice of appointment followed by the investigating authority as well as the description of the perspective of experts. Therefore, it is justified to continue the research according to new criteria.


Renáta Garai – Bernadett Csapucha:

The theoretical and practical issues of the criminal offence of a failure to provide maintenance (Section 212 of the Criminal Code)

According to the national statistical data, the number of registered cases of the criminal offence of a failure to provide maintenance has been more than a thousand for years; before, it had been closer to two thousand or even exceeded it. It is also known that the material facts of these cases are identical or very similar, and therefore, during our study, we did not focus on the examination of documents but rather explored the theoretical and current practical issues mentioned in the title, involving all prosecution services of Hungary. The new Criminal Code broke with the regulatory structure of the 1978 Criminal Code, and deals with the criminal offences violating the interests of children and the criminal offences against family in a separate chapter. Subsection (1) of Section 212 of the Criminal Code provides for child maintenance, while subsection (2) provides for ‘other’ maintenance obligations, and in the latter case, causing serious deprivation to the person entitled to maintenance is also a factual element. Subsection (3) sets forth a very important criterion in declaring that the perpetrator shall not be liable to punishment in the case of child maintenance, or in the case of other maintenance his punishment can be reduced without limitation, if he performs his obligation before the judgment of the first instance is passed. It is a cardinal point of the current regulatory environment that it provides some kind of sense of security for a parent and his or her child (children) and for other persons entitled to maintenance only if they have an enforceable decision issued by authority; those who have no such decisions may not request any financial support (on this legal ground) in the absence of voluntary performance. In a period of the rearrangement of family relationships that might be called historic, the reassuring legal settlement of child maintenance is necessary as soon as possible after the termination of the conjugal community since this is the only way to ensure a long-term solution – as well as enforceability and the possibility of applying sanctions – in the interest of the child.
The great variety and the lengthiness of the comments we received from the prosecution service show very well the importance of our research to legal practitioners. The core problems raised include the content of the testimonies of defendants, suspects in absentia, proving fault, determining the period regarding which criminal liability can be established, determining the amount of the unpaid maintenance and questions of limitation; in the court stage, the possibilities of extending the charges, conditional suspension by a prosecutor, lengthy procedures and the effects of the legal consequences are what cause dilemmas. On the whole, legal practitioners are interested in the complex problems arising from the dynamic nature of the criminal offence and in the possibility of decriminalising this act, since the protected legal interest of the criminal offence is the maintenance obligation, i.e. the beneficiary’s right to maintenance, which is essentially aimed at the enforcement of a special civil law obligation, namely the enforceable decision of an authority.


Krisztina Farkas:

The effects of the reform of criminal procedures on the timeliness of procedures

The purpose of the study started at the initiative of the Office of the Prosecutor General was to explore how well the innovations of Act XC of 2017 on Criminal Procedure work in practice, and how much they have influenced the timeliness of procedures.
One of the main drivers of the Criminal Procedure Act in force is the timely conducting of procedures. To this end, several amendments and innovations were introduced during its codification. The study consisted of their analysis and systematic summary, and the examination of the practical application of the most important innovative changes.
The research project was based on four pillars. The theoretical bases were defined by reviewing the statutory background and the authoritative Hungarian literature. This involved the in-depth study of the guidelines issued by the Office of the Prosecutor General. The examination of the legal institutions aimed at ensuring the timeliness of procedures could be performed – as a second level – by analysing statistical data. The exploration of practical experiences – as a third step – was carried out by studying the examinations conducted by the Office of the Prosecutor General and by interviewing prosecutors. The fourth pillar consisted of the review of case files.
The subject-matter of the study consisted of the legal institutions aimed at ensuring the timeliness of procedures that can be considered the innovations of criminal procedures. These legal institutions include the prospect of a measure or decision taken by a prosecutor; plea agreements entered into during the investigation and the court procedures following such plea agreements; and the preparatory meeting.
The empirical research concerned the cases in which the above legal institutions were applied after 1 July 2018 and which were closed by a final and binding decision until 31 December 2019.
The interviews conducted with prosecutors and the chief prosecution offices of the counties provided extremely useful information on their practical experience, and in general, they were positive about the innovations; overall, the relevant legal institutions resulted in the effective and quick conclusion of the cases. The prosecutors described the possibilities inherent in the special features of the different procedures and in their application, and they also pointed out the relevant problems.
As a result of the research, it can be established that initial experiences are favourable. The prospect of a measure or decision taken by a prosecutor is an excellent means that some counties use very well in the case of minor offences; the practical development of plea agreements is still in progress. The preparatory meeting and the acceptance of the defendant’s confession during the preparatory meeting seems to be the most effective and successful legal institution.


Krisztina Farkas:

The ‘ne bis in idem’ principle in the light of the interpretation of the law by the European Court of Justice

The purpose of the study was to analyse and evaluate the case law of the Court of Justice of the European Union. The starting points were the general description of the ne bis in idem principle and the bases of its Hungarian regulation, followed by the description and analysis of the various international instruments. In line with its purpose, the research focused on the case law of the Court of Justice of the European Union and the review and analysis of the principles laid down in it.
The ne bis in idem principle has been recognised by the Member States for a long time; nevertheless, judicial authorities find it hard to apply it in practice, as issues of interpretation and practical problems tend to arise during criminal procedures concerning several Member States.
The ne bis in idem principle is declared in several international instruments. In recent decades, the emphasis shifted towards the transnational interpretation of the principle. It is a fundamental principle of law, which is shaped and filled with content by the case law of the Court of Justice of the European Union. Its enforcement is ensured by two documents: Articles 54-58 of the Convention implementing the Schengen Agreement and Article 50 of the Charter of Fundamental Rights of the European Union.
The Court of Justice of the European Union has an extensive case-law, and the Court has developed a meaning for the principle that is independent of Member States. The interpretation mainly applies to the following areas: 1) within the material scope of the application of the principle, the assessment of the ‘punitive’ nature, the establishment of the ‘sameness of the perpetrator’ and the conditions of ‘idem’ (the same act) and ‘bis’ (final decision); 2) among the limitations of the principle, the interpretation of the ‘enforcement condition’ and finally, the issue of the duplication of administrative procedures and criminal procedures and of penalties.
It has been concluded based on the research that the case law of the Court is constantly evolving, and that an increasingly extensive interpretation can be observed on the basis of the basic assessment criteria established by the Court, which also means that interpretation is becoming more complicated. The questions answered still do not provide an interpretation without gaps, as new questions keep arising in individual cases.


Tünde A. Barabás – Anna Kiss:

Special treatment in the light of the EU’s victim protection efforts

Beyond the task presented in section 5 of the Report (The changing role of the victim in relation to the new legal institutions of the Criminal Procedure Act), the study examined the criminal procedure regulations of special treatment in the light of the EU’s victim protection efforts, using the methods of comparative law, regarding the following laws.
Relevant international instruments:
– the victim protection directive;
– the Convention on the Rights of the Child;
– ECHR;
– the children directive;
– Directive 2012/13/EU of 22 May 2012 of the European Parliament and of the Council on the right to information in criminal proceedings.
Relevant Hungarian laws:
– the Fundamental Law;
– Act XC of 2017 (Criminal Procedure Act);
– Act XXVI of 1998 on the rights of persons with disabilities and on providing them with equal opportunities;
– the Police Act;
– Decree 12/2018 (VI. 12.) IM of the Minister of Justice on the rules applicable to certain acts in criminal procedures and to persons participating in criminal procedures;
– Government Decree 140/2000 (VIII. 9.) on the rules of the establishment and review of severe disability and of the payment of disability benefits;
– Government Decree 41/2018 (III. 13.) on the persons entitled to personal protection in connection with criminal procedures and on the rules of providing personal protection.
The research concluded that in accordance with the EU’s victim protection efforts, Act XC of 2017 (the Criminal Procedure Act) pays special attention to individualisation, and it meets the international requirements at the level of Acts. The legislator wanted to achieve the actual implementation of individualisation in order to ensure the considerate treatment of those in need – also with a view to promoting the most satisfactory application of the law – by placing the rules of special treatment in the same chapter within the Criminal Procedure Act. The Criminal Procedure Act surpassed the requirements of the victim protection directive. The reason for this is that Act XC of 2017 did not focus only on victims but also paid attention to witnesses and other persons in the criminal procedure when it established the rules of special treatment.


György Vókó – Orsolya Bolyky – Eszter Sárik – Ágnes Solt:

The examination of parole and the causes of its termination

The study involved the obtaining and analysis of statistical data relating to release on parole. We contacted all organisations concerned in order to obtain the relevant statistical data, including the Office of the Prosecutor General, the Hungarian Prison Service Headquarters and the National Office for the Judiciary. During our research, we have found that the application of release on parole by practitioners has become more restricted in the past five years. On the one hand, we concluded this from the decrease in the number of prosecutors’ motions for release on parole, the increase in the number of prosecutors’ motions for the non-application of parole and a reduction in the authorisations of submissions made by penal institutions.
On the other hand, it was clear from the interviews conducted with reintegration officers and the probationary supervisors of penal institutions that while previously release on parole had been ordered in the overwhelming majority of cases in the practice of penitentiary judges, this has changed by now: compared to the previous practice, the penitentiary judge now considers additional criteria in connection with the release when deliberating on the case, and release on parole is authorised in much fewer cases. Furthermore, penitentiary prosecutors make greater use of the opportunity to appeal against the reliefs awarded by penitentiary judges in the first instance.


Judit Szabó:

The impact of personality disorders – in particular psychopathy – on criminal liability

The issue of evaluating personality disorders as circumstances that affect criminal liability or that can be taken into account during sentencing regularly arises in both Hungarian and international professional discourses, although it is not of central importance. Questions also arise in respect of the problem under discussion when we examine the practice of applying the law.
In the light of all this, the purpose of the research started in 2019 at the initiative of the Hajdú-Bihar County Chief Prosecution Office was to examine the role of personality disorders – in particular psychopathy – in the establishment of criminal liability and in sentencing. The question arose whether a personality disorder can at all be considered a mental disorder affecting criminal capacity. We also explored whether personality disorders that do not affect criminal capacity – in particular antisocial personality disorder and psychopathy – are taken into account by the courts among the factors influencing sentencing.
In addition to the description of the statutory background, the in-depth study of the Hungarian and international literature on the symptomatology of personality disorders (first of all of psychopathy), on their relationship with the commission of crime and on the connection between personality disorders and criminal liability, as well as the analysis of the Hungarian practice of applying the law, the research is also based on the results of the survey conducted among prosecutors and judges by means of questionnaires. During the first year of the research project, we reviewed the Hungarian and international literature as well as the legislative background, and based on this we developed a system of criteria for empirical data collection.
The empirical research was conducted this year. Due to the pandemic situation that arose after the start of the research project, the exploration of the characteristics and difficulties of the practice of applying the law and of the experiences and opinions of legal practitioners was performed by means of questionnaires among judges and prosecutors, during which we strived to ensure the widest possible range of samples. On the one hand, the questionnaire contained questions on the experiences of legal practitioners relating to the expert opinions of forensic psychiatrists and psychologists, and on the other hand it contained questions on the relevance of personality disorders – in particular psychopathy – to criminal liability and sentencing.
The study conducted by means of questionnaires revealed some issues in connection with the expert opinions of forensic psychiatrists and psychologists, but based on the overall assessment of the results, it seems that the legal practitioners interviewed are mostly satisfied with the activity of experts. However, their answers and comments to the questions concerning the relationship of personality disorders with criminal liability and sentencing somewhat reflect the divide that is also characteristic of the international literature and which is also present in the Hungarian case law.


Eszter Sárik – Orsolya Bolyky:

The legal and criminological aspects of the criminal offence of harassment

In addition to analysing the Hungarian situation, the research project exploring the problems of harassment from personal motives also analysed the international literature available on this subject. It was clear from the results that harassment could not be considered a homogeneous phenomenon either from a legal or a criminological perspective: the criminal conducts of the crime are highly varied, and it is virtually impossible to enumerate all types of conducts due to the high degree of (destructive) creativity of perpetrators. Despite the heterogeneity of the relevant conducts, the American, British and Israeli studies tried to create some kind of register to facilitate legal regulation. During the study, we also explored the process in which harassment, which was (initially) a sociological/psychological phenomenon, became criminalised. The most effective way to do this was by monitoring the highly publicised American cases relating to this field, in view of the fact that it took several fatal events for the phenomenon to leave the exclusive realm of psychology/psychiatry and for the relevant conduct to become punishable.
However, the difficulties of the criminal offence of harassment and of finding effective penalties for it lie precisely in the psychological aspect of the act, since the defendants committing the criminal offence of harassment cannot be considered typical criminals. Although harassment can occur in almost any kind of personal relationship, the most frequent scenario is that an obsessive affection arising from the breakdown of a romantic relationship is behind the cases of harassment from personal motives; therefore, the person who commits this criminal offence is typically someone who is unable to come to terms with the termination of the relationship. Finding the adequate penalty is therefore difficult for several reasons: on the one hand because the reason behind the defendant’s act is usually not an intention to harm or causing damage to the victim, and on the other hand because the victim’s intention is also not aimed at punishing the defendant but at the cessation of the harassing conduct. However, the – mental and physical – harm suffered as a result of harassment make it essential to regulate the act in criminal law; yet this criminal offence is ‘trying to find its place’ in the system of criminal law or the punishment or criminal measure that effectively reflects the weight and nature of this act.


Orsolya Bolyky:

The involvement in crime of persons with disabilities and psychiatric patients, and the impact of this in view of the practice of establishing that certain acts were committed against persons who are unable to defend themselves or express their will, or whose ability to avert criminal offences is limited due to their old age or disability

In this study, we explored the involvement in crime of the elderly and of people with disabilities, and within that, we focused on the circumstances of their victimisation. Although initially the research was aimed at exploring both the perpetrators’ and the victims’ sides in respect of people with disabilities, the method of the analysis of case files enabled the examination of the causes and background of their victimisation.
In 2019, we completed the collection and in-depth study of the literature related to the subject. On the one hand, the Hungarian studies and the reports of the ombudsman call attention to the assaults and abuses committed in overcrowded residential institutions, and on the other hand, the international literature demonstrates by research data and statistics that people with disabilities are twice as likely to become victims of violent crime than those without disabilities. This has been established in the case of people with disabilities who live with their families, and based on this it is supposed that those living in residential institutions suffer abuse reaching the level of criminal offences even more frequently.
The Hungarian Criminal Code describes the group of people who are vulnerable due to health or mental health causes as persons with a limited ability to avert criminal offences due to their old age or disability, which is treated as an aggravating circumstance in the case of certain criminal offences. We conducted a survey by means of questionnaires concerning the files of criminal cases closed in 2020 in which this aggravating circumstance was established. The main findings of this are discussed below.
The significant majority of these criminal cases concerned criminal offences committed against the elderly, and those committed against people with disabilities occurred only rarely. Based on the literature, the reason behind this can be the high degree of latency. The most common criminal offence in the reviewed sample was fraud, which the perpetrators generally committed in an organised manner, using elaborate methods and over a relatively long period. In the case of these victims, violent crimes against persons were usually committed within the family, against elderly parents in poor health, which was preceded by a prolonged conflict-laden relationship. The perpetrators were usually of a low social status, who were living off their elderly parents because of financial and relationship problems. Among violent crimes against property, the felony of robbery was the most common, which mostly consisted of attacks causing no or only minor injuries. The cases that are classified as robbery of a vulnerable person under criminal law were in fact thefts committed by using tricks, whereby the perpetrators also exploited the victims’ absent-mindedness, slower thinking and understanding or their slower movement caused by musculoskeletal problems. In the reviewed sample, sexual abuse was committed mostly within the family against a disabled biological or foster child, and therefore the aggravating circumstance of the commission of the crime against a disabled person has been incorporated into the phrase of commission against a victim younger than 12 years of age or a person raised by or under the supervision or care of the perpetrator. Based on the results, it was suggested as a de lege ferenda proposal that the limited ability to defend oneself due to old age should be removed since in these cases it is not old age that makes the victim more vulnerable but the mental and physical state arising from it. In theory, the court must examine this limitation even if the victim of the crime is an elderly person; however, the case law is not entirely uniform in this respect: those older than 65 are classified into the vulnerable category, regardless of their physical and mental state, while in the case of those between 60 and 65, the court tends to examine their actual condition. By removing the ‘old age’ phrase, this kind of automatism and the uncertainties of determining old age would also be removed, and legal practitioners could not dispense with the thorough examination of the actual circumstances in the concrete cases.


György Virág – Judit Szabó:

The development of emotional dependence and its role in the commission of domestic violence

Domestic violence is a serious social problem that affects not only the criminal justice system but poses challenges also to the health and social care system and the child protection system, among other things. One such problem is the phenomenon – which is often difficult for outsiders to understand – that the abused often do not break up but stay with their abusive partner despite the repeated instances of abuse. One of the aims of the research project is to identify the reasons behind this phenomenon and to perform their systematic review in order to better understand the problem and to explore more effective options of handling it.
Due to the pandemic situation that arose after the start of the research project, we found it justified to extend the focus of the study to the effects on domestic violence of the changes in living conditions arising as a result of COVID-19. In this respect, the purpose of our research is, on the one hand, to explore the situation in Hungary using credible statistical data from several sources, and on the other hand to evaluate and interpret the detected changes.
According to the original plans, the study would have been based on qualitative empirical data collection methods – interviews and focus groups – but due to the changed circumstances arising from the pandemic situation, it mainly consisted of a systematic literature review and the analysis of the statistical data obtained from various sources, which was supplemented by the description of the statutory background. During the research we briefly summarised the statutory and statistical background and collected the Hungarian and international literature relevant to our subject-matter, and we performed a systematic review of the psychological factors related to domestic violence and those that play a role in its development and continuation. We also summarised the international observations relating to the effects of the COVID-19 pandemic situation on domestic violence, and we analysed the data obtained from the National Police Headquarters, the National Crisis Management and Information Telephone Service and Hintalovon Foundation.
One of the questions of our study was aimed at finding out why victims tended to remain in an abusive relationship. The psychological mechanisms behind this phenomenon – explored in the literature and systematically reviewed by us – date back a long time in the individual’s life history, and they go far beyond the scope of criminology and in particular, of criminal law in this respect (too). Furthermore, although emotional dependence seems to be a significant factor in respect of domestic violence, it is far from being the only psychological factor and especially from being the only factor of explaining it. As it is highlighted by the worrying tendencies relating to domestic violence during the pandemic situation caused by COVID-19, the development of this phenomenon also greatly depends on the different social and environmental factors. It is undeniable that the knowledge and recognition of the intrapsychic mechanisms that keep the victim a prisoner in their relationship are important to understanding the victim’s behaviour. However, it is obvious that other external factors, which in theory can be influenced more easily, can also have a significant role in this. Nevertheless, in terms of both secondary and tertiary prevention, in our opinion it is more important to ask what could make it easier for victims to leave an abusive relationship. How can they be assisted and supported in making this difficult decision – which, in fact, is not a simple decision but much rather a decision made at the end of a lengthy process – and after that?


Ádám Mészáros – Katalin Tilki:

The factual elements and issues of classification of trespass in practice

The research project was initiated by the Zala County Chief Prosecution Office, based on a specific case that ended in acquittal. In this case, the court established all the facts included in the judgment by judicial discretion, and it reached its position to acquit the defendant – in the absence of a criminal offence – by weighing the evidence after that.
The prosecutor acknowledged the judgment. According to the prosecutor presenting the case, the reason for the acquittal was that the victim – also due to his unstable mental state – made a statement at the trial that was in part contradictory to his witness statement made during the investigation, and the statements the victim made at the trial refuted his own previous claim – which seemed categorical and consistent – that he had not moved out from the house permanently; the fact of the permanent move was also confirmed by his son, who was questioned as a new witness.
The research report could not undertake to solve a specific criminal case or to comment on the weighing of evidence by the court or the victim’s statements. Its aim was to review the history of regulation of trespass and of its factual elements, the exploration and collection of experiences gained from the application of the law and the presentation of Hungarian case law based on the examination of criminal case files, thereby supporting the application of the law by prosecutors.
Based on all this, the research methods were on the one hand theoretical, and on the other hand they were empirical. The first group contains the identification and examination of the rules of constitutional law, administrative law and criminal law serving as a basis for the protection of the right to the undisturbed use of one’s home, the description of the stages of the criminal regulation of trespass and the analysis of the text of the laws in force. The empirical methods were limited to the examination of criminal case files and the collection of prosecutors’ experiences in the application of the law.
The results of the empirical research largely confirmed the relatively stable judicial practice; however, the legal practitioners mentioned some aspects – for example the interpretation of the commission of the crime at night – which in some cases may also give food for though in respect of other criminal offences.


Petronella Deres:

Deviances occurring in the digital space

As a result of the interconnection of devices and the new perspectives of information processing and data transmission, the ensuring of the secure operation of systems poses an increasing challenge, and these phenomena also raise questions of regulation and legal interpretation in respect of criminal offences and during the administration of justice. Crime ‘supported’ by technology is continuously evolving, both as a result of technological changes and in respect of the social interaction with new technologies.
One of the methods of studying the issues of crime and the administration of justice in relation to technology is to try and develop a framework focusing on the most fundamental issues, i.e. what technology does and how it works, especially in the field of crime and during the administration of justice. The types and patterns of cybercrime have been reviewed in Hungarian and international studies, all of which highlight the global nature of cybercrime.
After reviewing the international instruments, the first part of the research gives a picture of the possibilities of classifying the criminal offences that can be considered cybercrimes, and it also outlines the characteristics of internationally known (criminal) offences that are often committed in the virtual space/by means of a computer.
The second part of the research assesses the international and European developments of this phenomenon: among other things, it discusses among the newest developments what was said at the extraordinary meeting of the European Council in October 2020 regarding the issue of digital transformation; the EU policies that contribute to digital transformation; the so-called Cybersecurity Act adopted as a regulation in 2019; the reports of IOCTA and the latest document published by the EU Agency for Cybersecurity in April 2020.
There is a separate chapter describing the effects of the COVID-19 pandemic on cybercrime and the current provisions of the draft additional protocol to the Budapest Convention.
The final conclusion of the research corresponds to the opinion of Barna Miskolczi and Zoltán Szathmáry, the experts working on this topic: to be able to plan the tasks to be performed by the legislative body and by legal practitioners, it is essential to understand the medium to be regulated, and the development of the legal institutions that ensure the flexibility of criminal law is inevitable in a dynamic technological and social environment.


Katalin Tilki:

Sentencing practice in the case of driving under the influence of alcohol committed using not a motor vehicle but a motor-driven vehicle, with particular regard to driving bans

The purpose of the project initiated by the Pest County Chief Prosecution Office is to review acts committed by riding an electric bicycle under the influence of alcohol, as well as of the penalties imposed. The basis of the study consisted in the criminal cases made available by the chief prosecution offices of the counties; altogether we reviewed 578 cases during the project.
The study provides an analysis of the statutory definition of the offence of driving under the influence of alcohol, the effective criminal provisions on the disqualification from driving a vehicle and the results of the empirical research conducted in 2020.
It can be establish based on the study that riding electric bicycles under the influence of alcohol typically occurred in Csongrád-Csanád, Hajdú-Bihar and Békés counties. These acts were mainly committed in May and September, in the afternoon and evening, in inhabited areas.
The defendants were subjected to traffic control, as a result of which it turned out that they had consumed alcohol. There were also cases of the defendant falling over with his vehicle, the electric bicycle colliding with a car or a pedestrian and the perpetrator losing control of the vehicle, and in some cases it was a failure to give way that led to an accident.
In their final judgments, the courts usually sentenced the perpetrators to a financial penalty along with disqualification from driving a vehicle, to a financial penalty alone, to community service along with disqualification from driving a vehicle or to disqualification from driving a vehicle alone. The most commonly applied criminal measure was release on probation.
The duration of disqualification from driving a vehicle was usually 1 year, 6 months or 3 months. The courts imposed permanent disqualifications on only 4 defendants.
As regards sentencing, it can be established from the breakdown by county that in Csongrád-Csanád county, the courts acting in these cases mainly apply release on probation in the case of perpetrators with no criminal record, and that disqualification from driving a vehicle is applied in the highest number as a principal penalty in Hajdú-Bihar county, but the courts operating in these counties also imposed community service in several cases. The courts of Békés county mostly sentenced the defendants to financial penalties.
In the vast majority of the cases these acts were committed by men between 41 and 60 years of age who typically had vocational school or primary school qualifications, who lived in a city, who were drunk only slightly or very slightly and who, in many cases, did not even have a driving licence.


Szilveszter Póczik:

The structure and operation of criminal organisations specialising in human trafficking and the cross-border investigative activity of the JIT (Joint Investigation Team)

The previous organisations of human traffickers have significantly changed by now as a result of their adaptation to the changes of the economic, political and legal environment. For example, in Hungary, the groups of human traffickers which at the time of the democratic transformation were loosely organised, were active only occasionally and had a small number of members of diverse backgrounds, have by now become professional organisations and became integrated into the system of relations of international networks. The recruiters and organisers working in the countries of origin constitute the roots of the network on the international level. On the intermediate level, there are several tasks requiring special local knowledge and expertise that need to be organised and performed, and whose implementation must also be supervised. As we get closer to the country of destination, local reconnaissance and the performance of the last intermediate border crossings and finally of entry into the country of destination are the responsibilities of the local organisation, which is already inevitably highly conspiratorial and is divided into functionally separate subunits and specialists with their own subtasks. Human trafficking is financed by means of complex illegal financial operations, in which cryptocurrencies also play a role. During their international collaboration, the law enforcement bodies face several procedural and evidentiary problems, as well as difficulties concerning the lawful obtainment and the admissibility of evidence. The detection of criminal networks operating in international organisations requires an international criminal cooperation. One of the forms of international criminal cooperation is the organisation of JITs within the EU, which carry out cross-border investigations. It is an innovative solution that the members of the authorities of another Member State may participate in the procedural acts of a given Member State as part of the investigative team, and the seconded member may request the competent authority of his own Member State to carry out an investigative act. The evidence gathered by the investigative team can be used in criminal procedures conducted in or relating to any of the Member States concerned, provided that the information obtained can be used as evidence according to the law of the Member State in which the investigative team operates.



Ildikó Ritter:

The theoretical and practical issues of drug trafficking

In 2019, we performed a study entitled ‘The application of increasingly strict punishments in the case of drug trafficking’, the purpose of which was to explore the changes of the practice of sentencing the perpetrators of drug-related criminal offences on the supply side in the past three years. With the help of the database prepared on the basis of the 1077 case files processed for the performance of the study and by using the research results of the previous years, it became possible to create the model of the operation of Hungary’s drug market. In accordance with the purpose of this research project, we created a model of the current structure of Hungary’s drug trafficking and the operation of the drug market based on the available data that required no special analysis and on other social statistical data, taking into account regional characteristics.
What really works effectively in the shadow economy are the market structures, marketing, role models and distribution patterns that are very similar to those of the lawful economy. The more serious groups active in the drug market ‘copy’ or adapt the economic models available in the lawful market. In order for the businesses of the drug economy to prosper and operate safely, they must adapt, both functionally and structurally, to the formal and informal economic and social environment in which they intend to operate successfully. However, just like in the case of the formal economy, the market roles in a segmented market can differ by level or even by transaction. We can distinguish separate and complex role structures, and many types of role constellations are possible also geographically or depending on the hierarchy of the market, even within the same economic and social environment.
The Hungarian drug market is a segmented but layered illegal market, the layering of which is shaped by special socio-economic features, similarly to the lawful market. The flexible role structures and the diffusion of roles on the supply side operate in Hungary a rather peculiar market that has several participants and monopolistic features but is basically competitive and fragmented. A market that shows the signs of market organisation and behaviour that are characteristic of lawful Hungarian small businesses. It is a special Hungarian phenomenon that – similarly to the lawful Hungarian micro businesses – the majority of the drug entrepreneurs of the different layers have multiple complex roles on the drug market. They are present on the illegal drug market not only in several roles of the supply side but also as consumers.
The results of the study have confirmed that in terms of organisational sociology, there are no distinguishable roles and activities in this organisational structure, in contrast with cartels or traditional organised crime groups. There are flexible role structures that may quickly change depending on the actual situation, within the limits presented by the layers. The operation of the group is based on these role structures.
The structure of these flexible complex roles can differ by layer and region, which means that the structure of the Hungarian drug market is also not uniform, and its operation does not follow any model. Nevertheless, it is possible to observe some geographical and/or socio-economic regional special features, organisations and operating modes. Based on the layers of Hungary’s municipalities structured on the basis of the relevant level of incomes, different drug markets, drug market roles and drug trafficking strategies and marketing can be detected in the different parts of the country.
These suggest that similarly to their prevention, the detection and handling of drug problems can only be done effectively at a regional level. The reason for this is that these require focusing on different areas, and the layering and the layer-specific characteristics of perpetrators can be different; therefore, different tools may be required for dealing with the relevant problems.


Renáta Garai:

The causes of recidivism and the possibilities of its prevention in the case of domestic violence, in particular regarding violence against one’s partner

In the past few years, the questions of differentiation, classification and concurrence relating to domestic violence and other criminal offences committed against relatives became the focus of the cases closed by final court rulings, and we also examined the cases that ended with the rejection of the crime report, the termination of the investigation or diversion (which is currently called conditional suspension by a prosecutor); we did not use sampling but considered the entire population of the country in both cases. This research required the exploration of the causes of recidivism and the possibilities of its prevention, through the involvement of the bodies and authorities applying the law, in particular the actors of the justice system.
It can be established that:
– the number of registered criminal offences continued to remain below 400 in recent years (2014-2019), and one of the reasons for this is that the investigative authorities do not pay sufficient attention to the correct classification, and therefore the investigations are ordered regarding the underlying criminal offences (typically bodily harm, harassment, etc.), even if the victim reports to have been abused many times for a long period;
– the police treats the entire criminal offence as a subsidiary offence to be prosecuted upon private motion, despite the fact that this is only true of the cases mentioned in subsection (1), i.e. those without any physical abuse; as a result, the information they provide to they victims is contrary to the law.
During the research, we consulted the representatives of our partner organisations, the temporary shelters for families, the child welfare services, the guardianship authorities and several institutions, and last but not least, many victims, in person. Because of the measures taken in 2020 due to COVID-19, the professional consultations got stuck at a point, but it can be concluded that the prosecution service must pay special attention to the work of the police even within the legal framework provided by the new Criminal Procedure Act, and it must detect and report the violations of law, since the investigative authorities still need help and support in this field in many respects. The causes of recidivism show a close correlation also with the activities of the judiciary, and the concrete, obvious possibilities of crime prevention greatly complicate the situation due to the operational problems of the signalling system. The appropriate application of the instruction of the National Police Headquarters may result in progress; restraining orders can mean a temporary solution, but the sentencing practice must be adapted to the personality of the perpetrator, also considering that in the case of domestic violence, the criminal offence is committed continuously, yet this cannot be taken into account because of the ne bis in idem principle (regularity as a factual element). In view of the great importance of domestic violence, the recent changes in legislation, the new guidelines, the fact that training programmes and continued professional development programmes must be held, as well as the processes interrupted because of the pandemic situation, this research project should be continued next year.

 

C) TASK COMPLETED WITHIN THE FRAMEWORK OF COOPERATION

Research projects initiated by the Ministry of Agriculture

 

Orsolya Bolyky – Eszter Sárik:

The legal and criminological examination of hunting accidents

In our research, we performed an in-depth study of the Hungarian and international literature on hunting accidents, we conducted a nationwide survey by means of questionnaires which was aimed at exploring the latency and the causes of hunting accidents, we evaluated the results of this survey, and we also obtained and analysed the data of European countries concerning hunting and hunting accidents. In addition to these, we also performed a qualitative study of the files of criminal cases involving hunting accidents. 
The questionnaire was completed by 758 – professional and sports – hunters. Based on this, we established that despite the technological progress of the past 30 years, the most common reasons behind the accidents were still inattentiveness, haste and greed. The majority of fatal injuries were caused by the incorrect identification of targets (inattentiveness and haste). The second most common reason for injuries is haste and impatience, which is typical of hunters who are in a state of hunting fever. The fact that the risk factors that can be considered ‘traditional’ are still at the top of the list of the causes of hunting accidents suggests that although technological progress is advancing at a breakneck pace, human nature has not changed, and hunters make the same mistakes as in the old days. In view of this, the majority of the proposals relating to the prevention of hunting accidents are also about the regulation of human nature and the strengthening of self-control, and thus the more extensive teaching of ethical rules, the regulation of beginner hunters’ gaining experience and the provision of stricter rules for that are at the top of the proposals.
The international practice is diverse; the rules on obtaining a hunting permit are in certain respects more lenient in many countries than in Hungary; however, the annual shooting practice and arms handling examination makes it possible to regularly check the physical and mental condition of hunters. The reasons behind hunting accidents in other countries are similar to those in Hungary (impatience, haste and inexperience). The countries contacted were unable to provide data on the number of hunting accidents, with the exception of the number of fatal accidents, of which most countries keep records. The proportion of fatal hunting accidents is similar to the Hungarian data.
Péter Wallendums, the prominent expert on the subject and the editor-in-chief of Vadászlap (Hunters’ Magazine) agreed to write the section on the relationship between the technological development and the occurrence of hunting accidents, but this chapter has not been finished yet; hopefully, it will be included in the publication to be prepared for the Hunting World Fair.
During the analysis of case files, we reviewed the files of 16 closed criminal procedures that involved hunting accidents. In the course of this we found that the facts established during the criminal procedures fit in with what can be read in the literature and with the results obtained from the survey conducted by questionnaires. The most common injuries included in the files were those caused with hunting shotguns. Accidents caused with hunting rifles were less common, but these were fatal in every case. The cases of shooting at an incorrectly identified target and cases of the accidental firing of firearms transported/handled in a way that is not in compliance with the rules can also be included here. The majority of the cases in the files involved the more severe form of negligence, namely gross negligence (luxuria).
Overall, it can be said that through our study conducted using complex research methods, we were able to identify the main causes of hunting accidents; however, this in fact cannot be considered to be novel information: despite or parallel to technological innovations, human nature has not changed. The prevention of hunting accidents can be achieved by strengthening hunting discipline, by eliminating inattention, haste and impatience as effectively as possible and by emphasising the importance of paying attention to each other, primarily during group hunting events.

 

 

 

Gabriella Kármán:   Expert evidence in view of the application of the law  (analysis of the perspectives of experts and practitioners)   In 2016, the Parliament adopted a new Act on forensic experts, the purpose of which was to provide an up-to-date framework in line with the increased importance of expert evidence – mainly arising as a result of scientific and technical progress – and with new challenges. The new Criminal Procedure Act that entered into force on 1 July 2018 also introduced some changes in the regulation of expert evidence. The aim of the research launched in 2019 was to study the role of expert opinions in the process of taking evidence, as well as the possibilities, factors and realisation of its credibility in the light of the new laws. The theoretical summary contains the detailed description of the guarantees of the credibility of expert evidence, as this is the concept that most comprehensively covers all those conditions that are indispensable to the lawful and effective taking of evidence and the establishment of the facts that correspond to reality.   The empirical research was aimed at exploring the factors of and the lessons learned from using experts and from the evaluation of expert opinions, and the most suitable method for this turned out to be the analysis of the statistical data collected and recorded by the authorities acting in the relevant cases and questionnaire-based research conducted with the participation of the employees of such authorities. The empirical research planned for 2020 provided an opportunity for studying the practical experience of the prosecution service and the courts relating to expert evidence and for the evaluation of the results. As a result of the supportive attitude of the participating organisations (the Office of the Prosecutor General, the chief prosecution offices of the counties and the Hungarian Academy of Justice), at least one questionnaire was completed from every district and county organisational unit, as planned; this participation rate suggests that the results will be representative. Based on the answers of prosecutors and judges, the prior assumption was confirmed that in most cases, experts were not appointed by the prosecution service or the court but by the investigating authority. In the overwhelming majority of cases, experts are appointed ex officio; private experts participate only in an insignificant number of cases. Experts are selected mainly on the basis of the register of forensic experts; in addition to this, previous working relationships with the experts, as well as the recommendations of colleagues also help the authorities appointing experts. Finding a competent expert is not a problem in most cases. In general, prosecutors and judges reported positive experiences as regards the experts’ adherence to deadlines. Expert opinions contain the required content elements. According to the responses, the evaluation of expert opinions could be greatly supported by methodology letters, and besides that, the specialist literature, training programmes and information requested from experts are all useful sources. Unfortunately, methodology letters are not yet available in all areas of expertise. There were many opinions according to which a more in-depth knowledge of the validity and reliability of experts’ methods would be necessary. The more differentiated analysis of the data requires further examinations and if possible, the system of criteria should be further expanded to include the practice of appointment followed by the investigating authority as well as the description of the perspective of experts. Therefore, it is justified to continue the research according to new criteria.     Renáta Garai – Bernadett Csapucha:   The theoretical and practical issues of the criminal offence of a failure to provide maintenance (Section 212 of the Criminal Code)   According to the national statistical data, the number of registered cases of the criminal offence of a failure to provide maintenance has been more than a thousand for years; before, it had been closer to two thousand or even exceeded it. It is also known that the material facts of these cases are identical or very similar, and therefore, during our study, we did not focus on the examination of documents but rather explored the theoretical and current practical issues mentioned in the title, involving all prosecution services of Hungary. The new Criminal Code broke with the regulatory structure of the 1978 Criminal Code, and deals with the criminal offences violating the interests of children and the criminal offences against family in a separate chapter. Subsection (1) of Section 212 of the Criminal Code provides for child maintenance, while subsection (2) provides for ‘other’ maintenance obligations, and in the latter case, causing serious deprivation to the person entitled to maintenance is also a factual element. Subsection (3) sets forth a very important criterion in declaring that the perpetrator shall not be liable to punishment in the case of child maintenance, or in the case of other maintenance his punishment can be reduced without limitation, if he performs his obligation before the judgment of the first instance is passed. It is a cardinal point of the current regulatory environment that it provides some kind of sense of security for a parent and his or her child (children) and for other persons entitled to maintenance only if they have an enforceable decision issued by authority; those who have no such decisions may not request any financial support (on this legal ground) in the absence of voluntary performance. In a period of the rearrangement of family relationships that might be called historic, the reassuring legal settlement of child maintenance is necessary as soon as possible after the termination of the conjugal community since this is the only way to ensure a long-term solution – as well as enforceability and the possibility of applying sanctions – in the interest of the child. The great variety and the lengthiness of the comments we received from the prosecution service show very well the importance of our research to legal practitioners. The core problems raised include the content of the testimonies of defendants, suspects in absentia, proving fault, determining the period regarding which criminal liability can be established, determining the amount of the unpaid maintenance and questions of limitation; in the court stage, the possibilities of extending the charges, conditional suspension by a prosecutor, lengthy procedures and the effects of the legal consequences are what cause dilemmas. On the whole, legal practitioners are interested in the complex problems arising from the dynamic nature of the criminal offence and in the possibility of decriminalising this act, since the protected legal interest of the criminal offence is the maintenance obligation, i.e. the beneficiary’s right to maintenance, which is essentially aimed at the enforcement of a special civil law obligation, namely the enforceable decision of an authority.     Krisztina Farkas:   The effects of the reform of criminal procedures on the timeliness of procedures   The purpose of the study started at the initiative of the Office of the Prosecutor General was to explore how well the innovations of Act XC of 2017 on Criminal Procedure work in practice, and how much they have influenced the timeliness of procedures. One of the main drivers of the Criminal Procedure Act in force is the timely conducting of procedures. To this end, several amendments and innovations were introduced during its codification. The study consisted of their analysis and systematic summary, and the examination of the practical application of the most important innovative changes.  The research project was based on four pillars. The theoretical bases were defined by reviewing the statutory background and the authoritative Hungarian literature. This involved the in-depth study of the guidelines issued by the Office of the Prosecutor General. The examination of the legal institutions aimed at ensuring the timeliness of procedures could be performed – as a second level – by analysing statistical data. The exploration of practical experiences – as a third step – was carried out by studying the examinations conducted by the Office of the Prosecutor General and by interviewing prosecutors. The fourth pillar consisted of the review of case files. The subject-matter of the study consisted of the legal institutions aimed at ensuring the timeliness of procedures that can be considered the innovations of criminal procedures. These legal institutions include the prospect of a measure or decision taken by a prosecutor; plea agreements entered into during the investigation and the court procedures following such plea agreements; and the preparatory meeting. The empirical research concerned the cases in which the above legal institutions were applied after 1 July 2018 and which were closed by a final and binding decision until 31 December 2019. The interviews conducted with prosecutors and the chief prosecution offices of the counties provided extremely useful information on their practical experience, and in general, they were positive about the innovations; overall, the relevant legal institutions resulted in the effective and quick conclusion of the cases. The prosecutors described the possibilities inherent in the special features of the different procedures and in their application, and they also pointed out the relevant problems. As a result of the research, it can be established that initial experiences are favourable. The prospect of a measure or decision taken by a prosecutor is an excellent means that some counties use very well in the case of minor offences; the practical development of plea agreements is still in progress. The preparatory meeting and the acceptance of the defendant’s confession during the preparatory meeting seems to be the most effective and successful legal institution.     Krisztina Farkas:   The ‘ne bis in idem’ principle in the light of the interpretation of the law by the European Court of Justice   The purpose of the study was to analyse and evaluate the case law of the Court of Justice of the European Union. The starting points were the general description of the ne bis in idem principle and the bases of its Hungarian regulation, followed by the description and analysis of the various international instruments. In line with its purpose, the research focused on the case law of the Court of Justice of the European Union and the review and analysis of the principles laid down in it. The ne bis in idem principle has been recognised by the Member States for a long time; nevertheless, judicial authorities find it hard to apply it in practice, as issues of interpretation and practical problems tend to arise during criminal procedures concerning several Member States. The ne bis in idem principle is declared in several international instruments. In recent decades, the emphasis shifted towards the transnational interpretation of the principle. It is a fundamental principle of law, which is shaped and filled with content by the case law of the Court of Justice of the European Union. Its enforcement is ensured by two documents: Articles 54-58 of the Convention implementing the Schengen Agreement and Article 50 of the Charter of Fundamental Rights of the European Union. The Court of Justice of the European Union has an extensive case-law, and the Court has developed a meaning for the principle that is independent of Member States. The interpretation mainly applies to the following areas: 1) within the material scope of the application of the principle, the assessment of the ‘punitive’ nature, the establishment of the ‘sameness of the perpetrator’ and the conditions of ‘idem’ (the same act) and ‘bis’ (final decision); 2) among the limitations of the principle, the interpretation of the ‘enforcement condition’ and finally, the issue of the duplication of administrative procedures and criminal procedures and of penalties. It has been concluded based on the research that the case law of the Court is constantly evolving, and that an increasingly extensive interpretation can be observed on the basis of the basic assessment criteria established by the Court, which also means that interpretation is becoming more complicated. The questions answered still do not provide an interpretation without gaps, as new questions keep arising in individual cases.     Tünde A. Barabás – Anna Kiss:   Special treatment in the light of the EU’s victim protection efforts   Beyond the task presented in section 5 of the Report (The changing role of the victim in relation to the new legal institutions of the Criminal Procedure Act), the study examined the criminal procedure regulations of special treatment in the light of the EU’s victim protection efforts, using the methods of comparative law, regarding the following laws. Relevant international instruments: – the victim protection directive; – the Convention on the Rights of the Child; – ECHR; – the children directive; – Directive 2012/13/EU of 22 May 2012 of the European Parliament and of the Council on the right to information in criminal proceedings. Relevant Hungarian laws: – the Fundamental Law; – Act XC of 2017 (Criminal Procedure Act); – Act XXVI of 1998 on the rights of persons with disabilities and on providing them with equal opportunities; – the Police Act; – Decree 12/2018 (VI. 12.) IM of the Minister of Justice on the rules applicable to certain acts in criminal procedures and to persons participating in criminal procedures; – Government Decree 140/2000 (VIII. 9.) on the rules of the establishment and review of severe disability and of the payment of disability benefits;    – Government Decree 41/2018 (III. 13.) on the persons entitled to personal protection in connection with criminal procedures and on the rules of providing personal protection.  The research concluded that in accordance with the EU’s victim protection efforts, Act XC of 2017 (the Criminal Procedure Act) pays special attention to individualisation, and it meets the international requirements at the level of Acts. The legislator wanted to achieve the actual implementation of individualisation in order to ensure the considerate treatment of those in need – also with a view to promoting the most satisfactory application of the law – by placing the rules of special treatment in the same chapter within the Criminal Procedure Act. The Criminal Procedure Act surpassed the requirements of the victim protection directive. The reason for this is that Act XC of 2017 did not focus only on victims but also paid attention to witnesses and other persons in the criminal procedure when it established the rules of special treatment.     György Vókó – Orsolya Bolyky – Eszter Sárik – Ágnes Solt:   The examination of parole and the causes of its termination   The study involved the obtaining and analysis of statistical data relating to release on parole. We contacted all organisations concerned in order to obtain the relevant statistical data, including the Office of the Prosecutor General, the Hungarian Prison Service Headquarters and the National Office for the Judiciary. During our research, we have found that the application of release on parole by practitioners has become more restricted in the past five years. On the one hand, we concluded this from the decrease in the number of prosecutors’ motions for release on parole, the increase in the number of prosecutors’ motions for the non-application of parole and a reduction in the authorisations of submissions made by penal institutions.  On the other hand, it was clear from the interviews conducted with reintegration officers and the probationary supervisors of penal institutions that while previously release on parole had been ordered in the overwhelming majority of cases in the practice of penitentiary judges, this has changed by now: compared to the previous practice, the penitentiary judge now considers additional criteria in connection with the release when deliberating on the case, and release on parole is authorised in much fewer cases. Furthermore, penitentiary prosecutors make greater use of the opportunity to appeal against the reliefs awarded by penitentiary judges in the first instance.     Judit Szabó:   The impact of personality disorders – in particular psychopathy – on criminal liability   The issue of evaluating personality disorders as circumstances that affect criminal liability or that can be taken into account during sentencing regularly arises in both Hungarian and international professional discourses, although it is not of central importance. Questions also arise in respect of the problem under discussion when we examine the practice of applying the law. In the light of all this, the purpose of the research started in 2019 at the initiative of the Hajdú-Bihar County Chief Prosecution Office was to examine the role of personality disorders – in particular psychopathy – in the establishment of criminal liability and in sentencing. The question arose whether a personality disorder can at all be considered a mental disorder affecting criminal capacity. We also explored whether personality disorders that do not affect criminal capacity – in particular antisocial personality disorder and psychopathy – are taken into account by the courts among the factors influencing sentencing.  In addition to the description of the statutory background, the in-depth study of the Hungarian and international literature on the symptomatology of personality disorders (first of all of psychopathy), on their relationship with the commission of crime and on the connection between personality disorders and criminal liability, as well as the analysis of the Hungarian practice of applying the law, the research is also based on the results of the survey conducted among prosecutors and judges by means of questionnaires. During the first year of the research project, we reviewed the Hungarian and international literature as well as the legislative background, and based on this we developed a system of criteria for empirical data collection. The empirical research was conducted this year. Due to the pandemic situation that arose after the start of the research project, the exploration of the characteristics and difficulties of the practice of applying the law and of the experiences and opinions of legal practitioners was performed by means of questionnaires among judges and prosecutors, during which we strived to ensure the widest possible range of samples. On the one hand, the questionnaire contained questions on the experiences of legal practitioners relating to the expert opinions of forensic psychiatrists and psychologists, and on the other hand it contained questions on the relevance of personality disorders – in particular psychopathy – to criminal liability and sentencing. The study conducted by means of questionnaires revealed some issues in connection with the expert opinions of forensic psychiatrists and psychologists, but based on the overall assessment of the results, it seems that the legal practitioners interviewed are mostly satisfied with the activity of experts. However, their answers and comments to the questions concerning the relationship of personality disorders with criminal liability and sentencing somewhat reflect the divide that is also characteristic of the international literature and which is also present in the Hungarian case law.     Eszter Sárik – Orsolya Bolyky:   The legal and criminological aspects of the criminal offence of harassment   In addition to analysing the Hungarian situation, the research project exploring the problems of harassment from personal motives also analysed the international literature available on this subject. It was clear from the results that harassment could not be considered a homogeneous phenomenon either from a legal or a criminological perspective: the criminal conducts of the crime are highly varied, and it is virtually impossible to enumerate all types of conducts due to the high degree of (destructive) creativity of perpetrators. Despite the heterogeneity of the relevant conducts, the American, British and Israeli studies tried to create some kind of register to facilitate legal regulation. During the study, we also explored the process in which harassment, which was (initially) a sociological/psychological phenomenon, became criminalised. The most effective way to do this was by monitoring the highly publicised American cases relating to this field, in view of the fact that it took several fatal events for the phenomenon to leave the exclusive realm of psychology/psychiatry and for the relevant conduct to become punishable.  However, the difficulties of the criminal offence of harassment and of finding effective penalties for it lie precisely in the psychological aspect of the act, since the defendants committing the criminal offence of harassment cannot be considered typical criminals. Although harassment can occur in almost any kind of personal relationship, the most frequent scenario is that an obsessive affection arising from the breakdown of a romantic relationship is behind the cases of harassment from personal motives; therefore, the person who commits this criminal offence is typically someone who is unable to come to terms with the termination of the relationship. Finding the adequate penalty is therefore difficult for several reasons: on the one hand because the reason behind the defendant’s act is usually not an intention to harm or causing damage to the victim, and on the other hand because the victim’s intention is also not aimed at punishing the defendant but at the cessation of the harassing conduct. However, the – mental and physical – harm suffered as a result of harassment make it essential to regulate the act in criminal law; yet this criminal offence is ‘trying to find its place’ in the system of criminal law or the punishment or criminal measure that effectively reflects the weight and nature of this act.     Orsolya Bolyky:   The involvement in crime of persons with disabilities and psychiatric patients, and the impact of this in view of the practice of establishing that certain acts were committed against persons who are unable to defend themselves or express their will, or whose ability to avert criminal offences is limited due to their old age or disability   In this study, we explored the involvement in crime of the elderly and of people with disabilities, and within that, we focused on the circumstances of their victimisation. Although initially the research was aimed at exploring both the perpetrators’ and the victims’ sides in respect of people with disabilities, the method of the analysis of case files enabled the examination of the causes and background of their victimisation. In 2019, we completed the collection and in-depth study of the literature related to the subject. On the one hand, the Hungarian studies and the reports of the ombudsman call attention to the assaults and abuses committed in overcrowded residential institutions, and on the other hand, the international literature demonstrates by research data and statistics that people with disabilities are twice as likely to become victims of violent crime than those without disabilities. This has been established in the case of people with disabilities who live with their families, and based on this it is supposed that those living in residential institutions suffer abuse reaching the level of criminal offences even more frequently.  The Hungarian Criminal Code describes the group of people who are vulnerable due to health or mental health causes as persons with a limited ability to avert criminal offences due to their old age or disability, which is treated as an aggravating circumstance in the case of certain criminal offences. We conducted a survey by means of questionnaires concerning the files of criminal cases closed in 2020 in which this aggravating circumstance was established. The main findings of this are discussed below. The significant majority of these criminal cases concerned criminal offences committed against the elderly, and those committed against people with disabilities occurred only rarely. Based on the literature, the reason behind this can be the high degree of latency. The most common criminal offence in the reviewed sample was fraud, which the perpetrators generally committed in an organised manner, using elaborate methods and over a relatively long period. In the case of these victims, violent crimes against persons were usually committed within the family, against elderly parents in poor health, which was preceded by a prolonged conflict-laden relationship. The perpetrators were usually of a low social status, who were living off their elderly parents because of financial and relationship problems. Among violent crimes against property, the felony of robbery was the most common, which mostly consisted of attacks causing no or only minor injuries. The cases that are classified as robbery of a vulnerable person under criminal law were in fact thefts committed by using tricks, whereby the perpetrators also exploited the victims’ absent-mindedness, slower thinking and understanding or their slower movement caused by musculoskeletal problems. In the reviewed sample, sexual abuse was committed mostly within the family against a disabled biological or foster child, and therefore the aggravating circumstance of the commission of the crime against a disabled person has been incorporated into the phrase of commission against a victim younger than 12 years of age or a person raised by or under the supervision or care of the perpetrator. Based on the results, it was suggested as a de lege ferenda proposal that the limited ability to defend oneself due to old age should be removed since in these cases it is not old age that makes the victim more vulnerable but the mental and physical state arising from it. In theory, the court must examine this limitation even if the victim of the crime is an elderly person; however, the case law is not entirely uniform in this respect: those older than 65 are classified into the vulnerable category, regardless of their physical and mental state, while in the case of those between 60 and 65, the court tends to examine their actual condition. By removing the ‘old age’ phrase, this kind of automatism and the uncertainties of determining old age would also be removed, and legal practitioners could not dispense with the thorough examination of the actual circumstances in the concrete cases.     György Virág – Judit Szabó:   The development of emotional dependence and its role in the commission of domestic violence   Domestic violence is a serious social problem that affects not only the criminal justice system but poses challenges also to the health and social care system and the child protection system, among other things. One such problem is the phenomenon – which is often difficult for outsiders to understand – that the abused often do not break up but stay with their abusive partner despite the repeated instances of abuse. One of the aims of the research project is to identify the reasons behind this phenomenon and to perform their systematic review in order to better understand the problem and to explore more effective options of handling it. Due to the pandemic situation that arose after the start of the research project, we found it justified to extend the focus of the study to the effects on domestic violence of the changes in living conditions arising as a result of COVID-19. In this respect, the purpose of our research is, on the one hand, to explore the situation in Hungary using credible statistical data from several sources, and on the other hand to evaluate and interpret the detected changes. According to the original plans, the study would have been based on qualitative empirical data collection methods – interviews and focus groups – but due to the changed circumstances arising from the pandemic situation, it mainly consisted of a systematic literature review and the analysis of the statistical data obtained from various sources, which was supplemented by the description of the statutory background. During the research we briefly summarised the statutory and statistical background and collected the Hungarian and international literature relevant to our subject-matter, and we performed a systematic review of the psychological factors related to domestic violence and those that play a role in its development and continuation. We also summarised the international observations relating to the effects of the COVID-19 pandemic situation on domestic violence, and we analysed the data obtained from the National Police Headquarters, the National Crisis Management and Information Telephone Service and Hintalovon Foundation. One of the questions of our study was aimed at finding out why victims tended to remain in an abusive relationship. The psychological mechanisms behind this phenomenon – explored in the literature and systematically reviewed by us – date back a long time in the individual’s life history, and they go far beyond the scope of criminology and in particular, of criminal law in this respect (too). Furthermore, although emotional dependence seems to be a significant factor in respect of domestic violence, it is far from being the only psychological factor and especially from being the only factor of explaining it. As it is highlighted by the worrying tendencies relating to domestic violence during the pandemic situation caused by COVID-19, the development of this phenomenon also greatly depends on the different social and environmental factors. It is undeniable that the knowledge and recognition of the intrapsychic mechanisms that keep the victim a prisoner in their relationship are important to understanding the victim’s behaviour. However, it is obvious that other external factors, which in theory can be influenced more easily, can also have a significant role in this. Nevertheless, in terms of both secondary and tertiary prevention, in our opinion it is more important to ask what could make it easier for victims to leave an abusive relationship. How can they be assisted and supported in making this difficult decision – which, in fact, is not a simple decision but much rather a decision made at the end of a lengthy process – and after that?     Ádám Mészáros – Katalin Tilki:   The factual elements and issues of classification of trespass  in practice   The research project was initiated by the Zala County Chief Prosecution Office, based on a specific case that ended in acquittal. In this case, the court established all the facts included in the judgment by judicial discretion, and it reached its position to acquit the defendant – in the absence of a criminal offence – by weighing the evidence after that. The prosecutor acknowledged the judgment. According to the prosecutor presenting the case, the reason for the acquittal was that the victim – also due to his unstable mental state – made a statement at the trial that was in part contradictory to his witness statement made during the investigation, and the statements the victim made at the trial refuted his own previous claim – which seemed categorical and consistent – that he had not moved out from the house permanently; the fact of the permanent move was also confirmed by his son, who was questioned as a new witness. The research report could not undertake to solve a specific criminal case or to comment on the weighing of evidence by the court or the victim’s statements. Its aim was to review the history of regulation of trespass and of its factual elements, the exploration and collection of experiences gained from the application of the law and the presentation of Hungarian case law based on the examination of criminal case files, thereby supporting the application of the law by prosecutors. Based on all this, the research methods were on the one hand theoretical, and on the other hand they were empirical. The first group contains the identification and examination of the rules of constitutional law, administrative law and criminal law serving as a basis for the protection of the right to the undisturbed use of one’s home, the description of the stages of the criminal regulation of trespass and the analysis of the text of the laws in force. The empirical methods were limited to the examination of criminal case files and the collection of prosecutors’ experiences in the application of the law.  The results of the empirical research largely confirmed the relatively stable judicial practice; however, the legal practitioners mentioned some aspects – for example the interpretation of the commission of the crime at night – which in some cases may also give food for though in respect of other criminal offences.     Petronella Deres:   Deviances occurring in the digital space   As a result of the interconnection of devices and the new perspectives of information processing and data transmission, the ensuring of the secure operation of systems poses an increasing challenge, and these phenomena also raise questions of regulation and legal interpretation in respect of criminal offences and during the administration of justice. Crime ‘supported’ by technology is continuously evolving, both as a result of technological changes and in respect of the social interaction with new technologies.   One of the methods of studying the issues of crime and the administration of justice in relation to technology is to try and develop a framework focusing on the most fundamental issues, i.e. what technology does and how it works, especially in the field of crime and during the administration of justice. The types and patterns of cybercrime have been reviewed in Hungarian and international studies, all of which highlight the global nature of cybercrime. After reviewing the international instruments, the first part of the research gives a picture of the possibilities of classifying the criminal offences that can be considered cybercrimes, and it also outlines the characteristics of internationally known (criminal) offences that are often committed in the virtual space/by means of a computer. The second part of the research assesses the international and European developments of this phenomenon: among other things, it discusses among the newest developments what was said at the extraordinary meeting of the European Council in October 2020 regarding the issue of digital transformation; the EU policies that contribute to digital transformation; the so-called Cybersecurity Act adopted as a regulation in 2019; the reports of IOCTA and the latest document published by the EU Agency for Cybersecurity in April 2020.  There is a separate chapter describing the effects of the COVID-19 pandemic on cybercrime and the current provisions of the draft additional protocol to the Budapest Convention. The final conclusion of the research corresponds to the opinion of Barna Miskolczi and Zoltán Szathmáry, the experts working on this topic: to be able to plan the tasks to be performed by the legislative body and by legal practitioners, it is essential to understand the medium to be regulated, and the development of the legal institutions that ensure the flexibility of criminal law is inevitable in a dynamic technological and social environment.     Katalin Tilki:   Sentencing practice in the case of driving under the influence of alcohol committed using not a motor vehicle but a motor-driven vehicle, with particular regard to driving bans   The purpose of the project initiated by the Pest County Chief Prosecution Office is to review acts committed by riding an electric bicycle under the influence of alcohol, as well as of the penalties imposed. The basis of the study consisted in the criminal cases made available by the chief prosecution offices of the counties; altogether we reviewed 578 cases during the project.  The study provides an analysis of the statutory definition of the offence of driving under the influence of alcohol, the effective criminal provisions on the disqualification from driving a vehicle and the results of the empirical research conducted in 2020. It can be establish based on the study that riding electric bicycles under the influence of alcohol typically occurred in Csongrád-Csanád, Hajdú-Bihar and Békés counties. These acts were mainly committed in May and September, in the afternoon and evening, in inhabited areas. The defendants were subjected to traffic control, as a result of which it turned out that they had consumed alcohol. There were also cases of the defendant falling over with his vehicle, the electric bicycle colliding with a car or a pedestrian and the perpetrator losing control of the vehicle, and in some cases it was a failure to give way that led to an accident. In their final judgments, the courts usually sentenced the perpetrators to a financial penalty along with disqualification from driving a vehicle, to a financial penalty alone, to community service along with disqualification from driving a vehicle or to disqualification from driving a vehicle alone. The most commonly applied criminal measure was release on probation. The duration of disqualification from driving a vehicle was usually 1 year, 6 months or 3 months. The courts imposed permanent disqualifications on only 4 defendants. As regards sentencing, it can be established from the breakdown by county that in Csongrád-Csanád county, the courts acting in these cases mainly apply release on probation in the case of perpetrators with no criminal record, and that disqualification from driving a vehicle is applied in the highest number as a principal penalty in Hajdú-Bihar county, but the courts operating in these counties also imposed community service in several cases. The courts of Békés county mostly sentenced the defendants to financial penalties. In the vast majority of the cases these acts were committed by men between 41 and 60 years of age who typically had vocational school or primary school qualifications, who lived in a city, who were drunk only slightly or very slightly and who, in many cases, did not even have a driving licence.     Szilveszter Póczik:   The structure and operation of criminal organisations specialising in human trafficking and the cross-border investigative activity of the JIT (Joint Investigation Team)   The previous organisations of human traffickers have significantly changed by now as a result of their adaptation to the changes of the economic, political and legal environment. For example, in Hungary, the groups of human traffickers which at the time of the democratic transformation were loosely organised, were active only occasionally and had a small number of members of diverse backgrounds, have by now become professional organisations and became integrated into the system of relations of international networks. The recruiters and organisers working in the countries of origin constitute the roots of the network on the international level. On the intermediate level, there are several tasks requiring special local knowledge and expertise that need to be organised and performed, and whose implementation must also be supervised. As we get closer to the country of destination, local reconnaissance and the performance of the last intermediate border crossings and finally of entry into the country of destination are the responsibilities of the local organisation, which is already inevitably highly conspiratorial and is divided into functionally separate subunits and specialists with their own subtasks. Human trafficking is financed by means of complex illegal financial operations, in which cryptocurrencies also play a role. During their international collaboration, the law enforcement bodies face several procedural and evidentiary problems, as well as difficulties concerning the lawful obtainment and the admissibility of evidence. The detection of criminal networks operating in international organisations requires an international criminal cooperation. One of the forms of international criminal cooperation is the organisation of JITs within the EU, which carry out cross-border investigations. It is an innovative solution that the members of the authorities of another Member State may participate in the procedural acts of a given Member State as part of the investigative team, and the seconded member may request the competent authority of his own Member State to carry out an investigative act. The evidence gathered by the investigative team can be used in criminal procedures conducted in or relating to any of the Member States concerned, provided that the information obtained can be used as evidence according to the law of the Member State in which the investigative team operates.       Ildikó Ritter:   The theoretical and practical issues of drug trafficking   In 2019, we performed a study entitled ‘The application of increasingly strict punishments in the case of drug trafficking’, the purpose of which was to explore the changes of the practice of sentencing the perpetrators of drug-related criminal offences on the supply side in the past three years. With the help of the database prepared on the basis of the 1077 case files processed for the performance of the study and by using the research results of the previous years, it became possible to create the model of the operation of Hungary’s drug market. In accordance with the purpose of this research project, we created a model of the current structure of Hungary’s drug trafficking and the operation of the drug market based on the available data that required no special analysis and on other social statistical data, taking into account regional characteristics. What really works effectively in the shadow economy are the market structures, marketing, role models and distribution patterns that are very similar to those of the lawful economy. The more serious groups active in the drug market ‘copy’ or adapt the economic models available in the lawful market. In order for the businesses of the drug economy to prosper and operate safely, they must adapt, both functionally and structurally, to the formal and informal economic and social environment in which they intend to operate successfully. However, just like in the case of the formal economy, the market roles in a segmented market can differ by level or even by transaction. We can distinguish separate and complex role structures, and many types of role constellations are possible also geographically or depending on the hierarchy of the market, even within the same economic and social environment.  The Hungarian drug market is a segmented but layered illegal market, the layering of which is shaped by special socio-economic features, similarly to the lawful market. The flexible role structures and the diffusion of roles on the supply side operate in Hungary a rather peculiar market that has several participants and monopolistic features but is basically competitive and fragmented. A market that shows the signs of market organisation and behaviour that are characteristic of lawful Hungarian small businesses. It is a special Hungarian phenomenon that – similarly to the lawful Hungarian micro businesses – the majority of the drug entrepreneurs of the different layers have multiple complex roles on the drug market. They are present on the illegal drug market not only in several roles of the supply side but also as consumers.  The results of the study have confirmed that in terms of organisational sociology, there are no distinguishable roles and activities in this organisational structure, in contrast with cartels or traditional organised crime groups. There are flexible role structures that may quickly change depending on the actual situation, within the limits presented by the layers. The operation of the group is based on these role structures.  The structure of these flexible complex roles can differ by layer and region, which means that the structure of the Hungarian drug market is also not uniform, and its operation does not follow any model. Nevertheless, it is possible to observe some geographical and/or socio-economic regional special features, organisations and operating modes. Based on the layers of Hungary’s municipalities structured on the basis of the relevant level of incomes, different drug markets, drug market roles and drug trafficking strategies and marketing can be detected in the different parts of the country.  These suggest that similarly to their prevention, the detection and handling of drug problems can only be done effectively at a regional level. The reason for this is that these require focusing on different areas, and the layering and the layer-specific characteristics of perpetrators can be different; therefore, different tools may be required for dealing with the relevant problems.     Renáta Garai:   The causes of recidivism and the possibilities of its prevention in the case of domestic violence, in particular regarding violence against one’s partner   In the past few years, the questions of differentiation, classification and concurrence relating to domestic violence and other criminal offences committed against relatives became the focus of the cases closed by final court rulings, and we also examined the cases that ended with the rejection of the crime report, the termination of the investigation or diversion (which is currently called conditional suspension by a prosecutor); we did not use sampling but considered the entire population of the country in both cases. This research required the exploration of the causes of recidivism and the possibilities of its prevention, through the involvement of the bodies and authorities applying the law, in particular the actors of the justice system.  It can be established that:  the number of registered criminal offences continued to remain below 400 in recent years (2014-2019), and one of the reasons for this is that the investigative authorities do not pay sufficient attention to the correct classification, and therefore the investigations are ordered regarding the underlying criminal offences (typically bodily harm, harassment, etc.), even if the victim reports to have been abused many times for a long period;  the police treats the entire criminal offence as a subsidiary offence to be prosecuted upon private motion, despite the fact that this is only true of the cases mentioned in subsection (1), i.e. those without any physical abuse; as a result, the information they provide to they victims is contrary to the law. During the research, we consulted the representatives of our partner organisations, the temporary shelters for families, the child welfare services, the guardianship authorities and several institutions, and last but not least, many victims, in person. Because of the measures taken in 2020 due to COVID-19, the professional consultations got stuck at a point, but it can be concluded that the prosecution service must pay special attention to the work of the police even within the legal framework provided by the new Criminal Procedure Act, and it must detect and report the violations of law, since the investigative authorities still need help and support in this field in many respects. The causes of recidivism show a close correlation also with the activities of the judiciary, and the concrete, obvious possibilities of crime prevention greatly complicate the situation due to the operational problems of the signalling system. The appropriate application of the instruction of the National Police Headquarters may result in progress; restraining orders can mean a temporary solution, but the sentencing practice must be adapted to the personality of the perpetrator, also considering that in the case of domestic violence, the criminal offence is committed continuously, yet this cannot be taken into account because of the ne bis in idem principle (regularity as a factual element). In view of the great importance of domestic violence, the recent changes in legislation, the new guidelines, the fact that training programmes and continued professional development programmes must be held, as well as the processes interrupted because of the pandemic situation, this research project should be continued next year.

 
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2021

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Distinguishing criteria between petty and high-ranking corruption: Preliminary results

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