Resisting Punitiveness in Europe? by Sonja Snacken Els Dumortier

Author:Sonja Snacken, Els Dumortier [Sonja Snacken, Els Dumortier]
Language: eng
Format: epub
ISBN: 9780415678933
Barnesnoble:
Publisher: Taylor & Francis
Published: 2011-09-07T00:00:00+00:00

The democratization of the country, the modification of the Constitution, the establishment and operation of the Constitutional Court and the intention to join the Council of Europe and the European Union had an impact on the development of criminal law and penal policy (Snacken 2006: 148). The determining element of development was the emphasis it placed on the constitutional limitations of human rights and criminal law. It was acknowledged that, in a state governed by the rule of law, the state cannot be allowed unlimited power of punishment, as the authority of the state is itself limited (Szabó 2000: 8). This was expressed by the following provision, which became part of the Constitution in 1990: ‘In the Republic of Hungary, the rules respecting fundamental rights and obligations shall be determined by Laws which, however, shall not limit the substantial contents of any fundamental right’ (Article 8.2).

As a result of criminal legislation guided by human rights and respecting constitutional limits, the criminal law and especially the criminal procedure of the former regime, which was formed primarily upon social interest and the general defensive function of the state, changed significantly (Kulcsár 1989: 941–2).

Among the factors resulting in changes, joining the Council of Europe and, in its framework, the European Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth referred to as ECHR) must be highlighted. Hungary signed the ECHR on 6 November 1990, which was, together with its eight Protocols, ratified by the Hungarian Parliament and entered into force in Hungary on 15 April 1993 as Act XXXI of 1993.

The ratification of the ECHR had an extremely significant impact on the development of the Hungarian legal system. The intent to conform to the Convention contributed towards transforming our socialist type of legal system into a western one in the areas of legislation, legal practice, law enforcement and legal culture. The most important achievements in the field of criminal justice are to be detected in the widening of the rights of the defendant, securing the guarantees of a fair trial, granting rights to inmates and humanizing prison conditions. Furthermore, imprisonment can only be a judicial decision, and should another authority be entitled on the grounds of special conditions (e.g. military service), the right to a court appeal must be ensured (Bán 1999; Bán and Bárd 1992).

The Hungarian Constitutional Court has also played and continues to play a significant part in the development of criminal justice and penal policy suitable to the requirements of the constitutional state. This will be examined in detail later in this paper.

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