Hungary: Domestic violence legislation, including implementation and effectiveness (2012-May 2014)

1. Domestic Violence Legislation

The Hungarian Criminal Code was amended on 3 June 2013 (US 27 Feb. 2014, 37) and came into force on 1 July 2013 (ibid.; Human Rights Watch 2013, 14). Both the US Department of State's Country Reports on Human Rights Practices for 2013 and Human Rights Watch report that a domestic violence offense [or "relationship-related violence" (HWL and NANE 3 June 2014)] was introduced in the new Criminal Code in July 2013 (US 27 Feb. 2014, 37; HWL and NANE 3 June 2014; Human Rights Watch 2013, 2). According to Human Rights Watch, domestic violence was not a "specific criminal offense" until July 2013 (ibid.).

Country Reports 2013 indicates that

[u]nder the new rules effective July 1, certain cases of physical assault, defamation, violation of personal freedom, and coercion are more severely punished if the offender and the victim live together or have lived together, or if a child has been born as a result of their relationship. The new regulations extended custodial sentences for assault and acts of grossly insulting behavior to three years. Grievous bodily harm and malicious battery, violation of personal freedom or coercion committed against those incapable of self-defense or indicating consent, or against an elderly or disabled person, may be punishable by one to five years in prison. The new category of offense relates not only to relatives and dependents, but also to former spouses, partners, those under guardianship or care, guardians, and caretakers. A necessary condition for such an offense is that the act took place during or after a period of cohabitation. The new law also penalizes humiliation, or causing severe deprivation to, or grave violation of the dignity of, a relative or a dependent, with up to two years' imprisonment. (US 27 Feb. 2014, 37)

Section 212/A on domestic violence of the new Criminal Code states that

Any person who, on a regular basis:

seriously violates human dignity or is engaged in any degrading and violent conduct,

misappropriates or conceals any assets from conjugal or common property, and thus causing serious deprivation, against the parent of his/her child, or against a family member, former spouse or domestic partner living in the same household or dwelling at the time of commission or previously, against his/her conservator, person under conservatorship, guardian or person under guardianship is guilty of a misdemeanor punishable by imprisonment not exceeding two years, insofar as the act did not result in a more serious criminal offense.

Any person who commits:

battery under Subsection (2) of Section 164 or slander under Subsection (2) of Section 227 against a person defined in Subsection (1) is guilty of a felony punishable by imprisonment not exceeding three years;

battery under Subsections (3) and (4) of Section 164, or violation of personal freedom or duress under Subsection (1) of Section 194 against a person defined in Subsection (1) is guilty of a felony punishable by imprisonment between one to five years.

Banishment may also be imposed against persons found guilty of domestic violence.

The perpetrator of the criminal offense defined in Subsection (1) shall only be prosecuted upon private motion. (Hungary 2012, Sec. 212/A)

For further information, please refer to Sections 164, 194 and 227 of the Criminal Code (ibid., Sec. 164, 194, 227). Section 222 of the Criminal Code provides information on penalties related to humiliation (ibid., Sec. 222). A copy of the Criminal Code is attached to this Response.

1.1 Spousal Rape

Country Reports 2013 states that

[r]ape, including spousal rape, is illegal.... Under the law a sexual assault is considered rape only if it involves the use of force or aggravated threats. Penalties for rape range from two to eight years in prison and can be as long as 15 years in aggravated cases. (US 27 Feb. 2014, 37)

According to Section 197 of the Criminal Code,

Sexual violence is a felony punishable by imprisonment between two to eight years if committed:

by force or threat against the life or bodily integrity of the victim;

by exploiting a person who is incapable of self-defense or unable to express his will, for the purpose of sexual acts.

Sexual violence shall also include, and the penalty shall be imprisonment between five to ten years if the perpetrator commits a sexual act upon a person under the age of twelve years, or forces such person to perform a sexual act.

The penalty shall be imprisonment between five to ten years if the criminal act described in Subsection (1) is committed:

against a person under the age of eighteen years;

by a family member or against a person who is in the care, custody or supervision of or receives medical treatment from, such family member, or if abuse is made of a recognized position of trust, authority or influence over the victim; or

by more than one person on the same occasion, in full knowledge of each other's acts.

The penalty shall be imprisonment between five to fifteen years if:

the criminal offense defined in Paragraph a) of Subsection (1) and in Paragraph b) or c) of Subsection (3) is committed against a person under the age of twelve years; or

the provisions of Paragraph b) or c) of Subsection (3) also apply to the criminal offense defined in Paragraph a) of Subsection (3).

Any person who provides the means necessary for or facilitating the commission of sexual violence is guilty of a felony punishable by imprisonment not exceeding three years. (Hungary 2012, Sec. 197)

However, according to Human Rights Watch,

[s]exual violence is not included as a category classified as domestic violence. The justification is that the separate provision on sexual violence and rape in the criminal code carry a higher sentence than the domestic violence provision [Section 197 of the criminal code]. However, under Hungarian law, rape and sexual violence are not subject to public prosecution, except in cases where the violence accompanying them amounts to serious bodily harm or in cases where they are accompanied by another offense subject to public prosecution [Section 207 of the criminal code]. This gap in the law is also a failure of the Hungarian legal system to provide effective protection for women against sexual violence. If a woman is raped by her partner, it is not deemed to be domestic violence under the law. (Human Rights Watch 2013, 15)

1.2 Statistics

Country Reports 2013 indicates that there were 119 cases of rape and 3,570 cases of domestic violence recorded by the Hungarian National Police Headquarters between January and June 2013 (US 27 Feb. 2014, 38). According to Country Reports 2013, human rights organizations noted that cases of spousal rape are "generally" underreported (ibid., 37). In its report published in March 2013, the UN Committee on the Elimination of Discrimination against Women (CEDAW) similarly states that rape cases were "underreported due to inadequate health care providers support to women victims of rape and provision of medical and forensic examination" (UN 1 Mar. 2013, para. 20). Human Rights Watch notes that "lack of confidence in the police also impedes reporting" (Human Rights Watch 2013, 3).

In correspondence with the Research Directorate, a legal expert with the NANE Women's Rights Association, a Budapest-based NGO, which aims to end human rights violations and violence against women through advocacy, personal support and public education (NANE n.d.), in collaboration with a legal expert of the Hungarian Women's Lobby (HWL), a Budapest-based NGO, which serves as a Hungarian national coordinator organization of the European Women's Lobby, stated that there were four cases of domestic violence initiated in the first six months since the new Criminal Code came into force in July 2013 (HWL and NANE 3 June 2014). Information on the results of these investigations could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to Country Reports 2013, statistics on the number of prosecuted cases in 2013 were not available (US 27 Feb. 2014, 38). In its report, CEDAW expressed concern about the "lack of information on the number of investigations, prosecutions and convictions in cases of violence against women" (UN 1 Mar. 2013, para. 20). According to the HWL and NANE legal experts, the Unified Criminal Statistics of the Investigation Authorities and the Public Prosecution contains all registered criminal offenses and the authorities provide statistical information on request, however "this data is not routinely made public" (HWL and NANE 3 June 2014).

2. Implementation and Effectiveness of the Legislation

The Canadian Press reports that, according to a human rights group, although there were some recent changes to legislation, "domestic violence victims are still at risk in Hungary because of legal loopholes, ineffective police responses and cultural stereotypes" (6 Nov. 2013). Country Reports 2013 states that women's rights NGOs "continued to criticize the law for failing to provide appropriate protection for victims and for not placing sufficient emphasis on the accountability of perpetrators" (US 27 Feb. 2014, 38). Although, in its March 2013 report, CEDAW welcomed the Hungarian government's announcement of the criminalization of domestic violence in the criminal code, the "Committee remain[ed] concerned about the lack of specific provisions related to other forms of violence such as economic and psychological violence and stalking" (UN 1 Mar. 2013,para. 20).

The HWL and NANE legal experts indicated that the domestic violence offense (Article 212/A of the Criminal Code)

does not cover certain typical behaviours and relationships, and requires in some cases a private motion (a statement of the victim that s/he requests the punishment of the perpetrator) as a prerequisite for the criminal procedure. Some other criminal offenses frequently committed in the context of domestic violence also require a private motion, which in the practice prevent women from seeking justice. (3 June 2014)

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.1 Police and Judiciary

Human Rights Watch states that the "police response to domestic violence was inadequate, negligent, or downright hostile" (Human Rights Watch 2013, 3). According to women interviewed by Human Rights Watch, "the standard police response is that they cannot or will not intervene 'unless blood flows'" (ibid.). The HWL and NANE legal representatives also note that in most cases related to domestic violence, "[a]ccording to regular police practice, assault and battery do not qualify as grievous bodily harm if no bones have been broken" (HWL and NANE 3 June 2014). The same sources say that the "prosecution of domestic violence cases is rare" (ibid.). Moreover,

[t]he national police itself has stated that there is no need to initiate criminal proceedings in a "significant" amount of reported cases because "by the time the police arrive to the spot, the parties seemingly arrange their conflict," or "the offended party does not wish to submit a private motion." (ibid.)

The HWL and NANE legal experts further stated that, in practice, domestic violence complaints are not taken by the police (ibid.). In some cases, "women think [that] they filed a report because they called the police to the premises and told the officers that they want to start the case, and then it turns out that the police arbitrarily did not consider that to be an official report" (ibid.).

Human Rights Watch similarly points out that there are "shortcomings" in the prosecution of domestic violence cases due to the "negligent and dismissive police responses to reports of domestic violence" (Human Rights Watch 2013, 4).

The HWL and NANE legal experts noted that "due to the strong victim-blaming attitude of the Hungarian jurisprudence, it is a common pattern for courts to carry on criminal procedures against abused women for false accusation, slander or endangering a minor" (3 June 2013). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Human Rights Watch reports that women were also reluctant to report violence because they were afraid to lose custody of their children (Human Rights Watch 2013, 3). Human Rights Watch documented several cases when women victims of domestic violence were threatened by police officers and child welfare services with "loss of custody on grounds of 'child endangerment'" (ibid). For instance, a woman interviewed by Human Rights Watch stated that she was told by child welfare to "'solve' her domestic abuse situation or else face her children being taken away" (ibid.).

2.1.1 Police Training

In correspondence with the Research Directorate, a representative of the Hungarian National Police stated that domestic violence is part of the curricula in police schools (Hungary 2 June 2014). The representative added that training on domestic violence is held every year in Budapest and 19 other counties (ibid.). However, Human Rights Watch states that, although there are police guidelines on how to respond to domestic violence cases, police officers are "poorly trained" (Human Rights Watch 2013, 4). The HWL and NANE legal experts also state that

there are no systematic and obligatory training programs for the justice and law enforcement personnel for the effective implementation of the law as well as regarding the phenomenon of domestic violence. Related protocols for justice and law enforcement personnel on handling domestic violence cases - with the exception of the police - are also lacking. [...] Mediation is still applicable in criminal procedure and in other sectors/fields in cases of domestic violence. (HWL and NANE 3 June 2014)

2.1.2 Restraining Orders

According to Country Reports 2013, "police and courts could impose restraining orders" in domestic violence cases (US 27 Feb. 2014, 38). Without providing details, the Canadian Press notes that restraining orders "often take too long to issue" (The Canadian Press 6 Nov. 2013). Human Rights Watch states that police also fail to "make proper use of civil restraining orders" (Human Rights Watch 2013, 4). The HWL and NANE legal experts explain that a civil restraining order was introduced in 2009 which authorizes the police to issue

a "temporary preventive restraining order" against the batterer for 72 hours, requiring that the order be reviewed by a court within those three days. The court may overturn it, in which case the restrained person can return home, or may uphold it, by issuing the "preventive restraining order." That restraining order is effective for only an extremely limited period of time: from ten days to a maximum of sixty days (the sixty days limit has currently been introduced, before that restraining could only be applied for a maximum of thirty days). There is no legal possibility for the prolongation of the order; although the victim may request another one if violence occurs again. Even if any criminal procedure is initiated against the perpetrator (which is rare), criminal cases in Hungary do not come to an end in sixty days, so it is likely that the perpetrator will continue or escalate the violent behavior after the order lapses so that the victim ceases to cooperate in the investigation. (HWL and NANE 3 June 2014)

According to Human Rights Watch,

[p]olice have the power to impose a restraining order for 72 hours for preventive purposes without violence having taken place and without the victim needing to request it. However, ... police generally require the victim to make a formal complaint before they are willing to issue a restraining order unless the injuries are very serious. (Human Rights Watch 2013, 4)

Moreover,

[w]omen seeking protection from violence also face hurdles in the justice system. Some courts only grant restraining orders in cases of serious injury, in cases in which the victim can produce the kind of evidence needed for a criminal case (unnecessary for civil restraining orders), or only for a short period of time. In some cases, courts decline to issue orders in the absence of the accused. (ibid.)

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The HWL and NANE legal experts indicated that, according to the Crime Prevention and Victims Protection Unit of the National Police Headquarters, there were 1,463 temporary preventive restraining orders issued by the police in 2011 and 1,423 restraining orders in 2012 (HWL and NANE 3 June 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

CEDAW's report indicates that, according to the Act LXXII of 2009 on restraining orders related to violence among relatives, "such orders are not provided on a long term basis and do not cover relationships between unmarried partners" (UN 1 Mar. 2013, para. 20). For further information on restraining orders, please refer to Response to Information Request HUN103823.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

The Canadian Press. 6 November 2013. "Rights Group Says Hungary Needs Better System to Protect Women from Domestic Violence." (Factiva)

Human Rights Watch. 2013. "Unless Blood Flows: Lack of Protection from Domestic Violence in Hungary." [Accessed 15 May 2014]

Hungary. 2 June 2014. Hungarian National Police, Budapest. Correspondence sent from a representative to the Research Directorate.

_____. 2012. Act C of 2012 on the Criminal Code. Document sent to the Research Directorate by a representative of the Office of the Commissioner for Fundamental Rights of Hungary.

Hungarian Women's Lobby (HWL) and NANE Women's Rights Association, Hungary. 3 June 2014. Correspondence from legal experts to the Research Directorate.

NANE Women's Rights Association. N.d. "Mission and Goals of NANE Women's Rights Association." [Accessed 5 June 2014]

United Nations (UN). 1 March 2013. Committee on the Elimination of Discrimination against Women (CEDAW). Concluding Observations on the Combined Seventh and Eighth Reports of Hungary Adopted by the Committee at its Fifty Fourth Session (11 February - 1 March 2013). (CEDAW/C/HUN/CO/7-8) [Accessed 3 June 2014]

United States (US) 27 February 2014. Department of State. "Hungary." Country Reports on Human Rights Practices for 2013. [Accessed 15 May 2014]

Additional Sources Consulted

Oral sources: Attempts to contact the following organizations were unsuccessful within the time constraints of this Response: Hungary - Embassy of Hungary in Ottawa, Equal Treatment Authority, Head of Crime Prevention Department of the Hungarian National Police, Canadian Desk at the Ministry of Foreign Affairs, and Office of the Commissioner for Fundamental Rights; KERET Coalition in Budapest; MONA - Foundation for the Women of Hungary; Network Women's Program/Opens Society Institute; PATENT Association; Rehabilitation for Victims of Sexual Violence - Eszter.

Internet sites, including: Amnesty International; Autonómia Foundation in Budapest; British Broadcasting Corporation; The Budapest Sun; The Budapest Times; Council of Europe; The Daily; ecoi.net; European Commission; European Institute for Gender Equality; European Network of Equality Bodies; European Roma Rights Centre; European Women's Lobby; EUobserver.com; EUR-lex; Euronews.com; Freedom House; Hungary - Constitutional Court of Hungary, Hungarian Official Journal, website of the Hungarian government, Ministry of Interior, National Police, Office of the Commissioner for Fundamental Rights; Hungarian Civil Liberties Union; Hungarian Helsinki Committee; Hungarian Women's Association; Legislationline; MONA - Foundation for the Women of Hungary; NANE Women's Rights Association; Open Society Foundation Women's Rights Program; quing.eu; United Nations - Refworld, Office of the UN High Commissioner for Human Rights, UN Women; Women Against Violence Europe.

Attachment

Hungary. 2012. Act C of 2012 on the Criminal Code. Document sent to the Research Directorate by a representative of the Office of the Commissioner for Fundamental Rights of Hungary.