«LIFE IMPRISONMENT IN HUNGARIAN PENAL LAW LÁSZLÓ KÕHALMI assistant professor I. Regulatory antecedents The introduction of life imprisonment has ...»
Iustum Aequum Salutare
II. 2006/3–4. · 117–125.
LIFE IMPRISONMENT IN HUNGARIAN PENAL LAW
I. Regulatory antecedents
The introduction of life imprisonment has already been appealed in the proposal of
1843.1 Two forms of imprisonment were distincted: imprisonment for life (until
death) or for a specified term, and detention. The Act V, 1878 – under the well known professional name as Csemegi Code2 – was the first codified penal code regulating life imprisonment. The legislators introduced this sanction, because life imprisonment is the only penalty which can be applied – by keeping up a slight graduality – instead of capital punishment – as Professor Ferenc Nagy stated, referring to the arguments of Csemegi Code.3 In the centre of its penalty system the sanction of imprisonment4 can be found, controlling five types: penitentiary detention,5 the minimum security state prison, prison, correctional institute and in case of misdemeanour – the custody.
The Act II, 1950 was special in a way as contained only general part regulations, and maintained the form of lifelong imprisonment (besides capital punishment).6 FAYER LÁSZLÓ (szerk.): Az 1843-iki Büntetõjogi Javaslatok Anyaggyûjteménye. I. Magyar Tudományos Akadémia: Budapest, 1896. 35.
The proposition of Penal Code was proposed and codificated by Károly Csemegi Minister of Justice, the name originates from this time.
NAGY FERENC: Az életfogytig tartó szabadságvesztés-büntetésrõl. (Európai kitekintés alapján.) In Emlékkönyv Cséka Ervin egyetemi tanár születésének és oktatói munkásságának 25. évfordulójára. Szeged, 1992. 377.
NAGY FERENC: A magyar büntetõjog általános része. (átdolgozott, bõvített kiadás) Budapest: Korona Kiadó, 2004. 367.
Corpus Juris Hungarici (DVD), Csemegi Code 22. § „Penitentiary detention lasts for life or it has a specified term. The longest term of penitentiary detention with specified term is 15 years, and the shortest one is two years.” Sec (1) 32. § Act II 1950. „The prison lasts for life or for a specified term. A börtön életfogytig vagy határozott ideig tart. (2) The longest term of penitentiary detention with specified term is 15 years, and the shortest is 30 days.” 118 LÁSZLÓ KÕHALMI The Penal Code, 1961 originally disregarded the sanction of life imprisonment7 but the Law Decree 28, 1971 on the Modification of Penal Code reintroduced8 life imprisonment in the Hungarian Penal Law.9 According to Professor József Földvári legislators intended to surmount the distance between capital punishment and the longest period of imprisonment for specified term.10 The Decision of Constitutional Court 23/1990 stated non-compliance with constitution in case of this sanction. As Professor András Szabó stated in his parallel arguments, the grounds of capital punishment within the system of penal law could be found in the sanctioning aims and the expediency of sanctions, so they must be considered as non-compliant with the Constitution as well. The penal force of a state has no right to take away someone’s life. A Constitutional State must not have anybody hung on! However it has the right to employ a punishment within legal completeness and to apply repressive and proportional sanctions. However, proportional sanction can be imposed without employing capital punishment. As mankind has already refused penalty by maiming human bodies, capital punishment should also be given up. The principle of proportional punishment would not suffer a slur on its reputation if you place the gallows and the guillotine next to the whipping bench in the criminal museums.11 The modification of Penal Code, 1993 had a significant element – namely that it precluded the release on probation of a person sentenced to imprisonment, though only in one case. The effect of life imprisonment to be able to replace capital punishment was then fed by one condition to some extent. In spite of the unchanging number of more grievous manslaughter cases, the courts have approached to the highest limit of excluding the release on probation in almost at the same proportion, as it was earlier concerning capital punishment.
According to Professor Mihály Tóth this belief gradually weakened as grievance and structure of crimes changed and the demand to extend the application of lifelong imprisonment emerged.
Since the middle of 1990’s different legislatory opinions concerning sanctions against organised crime have forecasted the possibility of stricter penal sanctions in case of crimes with extreme objective real grievance.
Since 1999 the circle of crimes connected to organised crime have increased, at the most grievous cases of which life imprisonment can also be imposed.12 Act IV 35. § 1961. Imprisonment is to be imposed for a specified term. The longest term of it is 15 years, in case of culmulated or concurrent penalty 20 years.
HOFFER FERENC: Nagy ügy – kis (?) csapdával. Ügyészek Lapja, 1997/5, 59.
Act 28. 1971. Order with Act Force on the modification and amendment of Penal Code 37. § „Imprisonment lasts for life or for a specified term. The shortest term of imprisonment with specified term is 30 days, the longest is 15 years, in case of culmulated or concurrent penalty 20 years.” FÖLDVÁRI JÓZSEF: Magyar büntetõjog – Általános rész. (7., átdolgozott kiadás, Budapest: Osiris Kiadó, 2003. 256.
Parallel opinion of Professor András Szabó Constitutional Judge TÓTH MIHÁLY: A büntetõjogi jogkövetkezmények tana. In BÉKÉS IMRE (szerk.): Büntetõjog. Általános rész. Budapest: HVG-ORAC Lap- és Könyvkiadó Kft., 2002. 250–251.
Life Imprisonment in Hungarian Penal Law 119
II. Life imprisonment de lege lata
By the Argumentation of 1978 on the effective Hungarian Penal Code life imprisonment has undetermined term, but several authors represent different opinions. The life imprisonment includes a sense of undefiniteness – as the sanction lasts until the death of the convicted, the turn of which is indefinite – still it cannot be considered as undefinite sanction in the letter by letter comprehension of the word. In this last case – as Ágnes Balogh stated – the release depends on the executing organs. When the term established in the act has exceeded, the convicted on life imprisonment can be released on probation if the court had not excluded the possibility of release on probation earlier. In terms of this, life imprisonment is definite in the sense that it states the term during which the convicted can not be released.13 The imprisonment for unspecified term means that the court in its sentence does not establish clear imprisonment, but it will depend on further decisions brought by executing the final term of the sanction, depending on it successfulness.
Distincting the life imprisonment from the imprisonment on specified term is also significant from the point of view of that some regulations of the act concern only sentencing on definite term, so they cannot be applied for the life imprisonment as being an imprisonment for not specified term.
Such measures are as follows:
– separate regulations are applied to release on probation – no fine may be imposed besides life imprisonment – sentence on life imprisonment cannot be included in concurrent sentence – the convicted may not enjoy judicial dispensation, he can only be given release from the aggravating legal consequences upon prior conviction through gaining clemency.
According to current law lifelong imprisonment can be the sanction of different crimes, but always as an alternative sanction besides imprisonment from 10 to 15, from 5 to 15 years. After banning capital punishment [23/1990 (X. 31.) Decision of CC] lifelong imprisonment is the strictest punishment in our sanctioning system. By prevailing view lifelong imprisonment did not become an exceptional penalty, this concept referred only to capital punishment. Different opinions can also be found. As Professor Imre A. Wiener and Katalin Ligeti stated, life imprisonment is an alternative sanction, and as such it is exceptional. Its exceptional nature is strengthened by the fact that it can be imposed only for anybody over 20.14 Life imprisonment, as threat of grievest sanction can be imposed in case of 30
crimes (against state: 4, against peace: 2, belligerent: 5, common criminal: 9, military:
10) as established in PC, but agreeing with Professor Ferenc Nagy, only one of these BALOGH ÁGNES – KÕHALMI LÁSZLÓ: Büntetõjog I. – Általános rész. Budapest–Pécs: Dialóg Campus Kiadó, 2003. 156.
WIENER A. IMRE – LIGETI KATALIN: Büntetéstan. In WIENER A. IMRE (szerk.): Büntetõjog – Általános rész. Budapest: KJK-Kerszöv Jogi és Üzleti Kiadó Kft., 2002. 165.
120 LÁSZLÓ KÕHALMI has practical significance – qualified cases of wilful homicide –, because lifelong imprisonment is imposed in the Hungarian courts only in these cases.15 Imprisonment is usually imposed with a definite term by the court. Sec (2) Art 40 PC states the general minimum and maximum of this sanction, such as the extent lower or higher of which cannot be included in the provisions of Special Part, and which cannot be exceeded by the courts when applying Special Part. The act establishes two months as the shortest term of imprisonment, the longest period as 15 years, or 20 years in case of accumulated and concurrent sentence, or when committing crime in organised form.
Imprisonment is a unified form of penalty, but it can differ not only in its term but in the degree of execution also, serving its individualisation. By the Sec (1) Art 41, PC the imprisonment is to be executed in a penal institution, such as penitentiary institution, prison or minimum security prison.
In accordance with Sec (1) Art 47/A the court can decide on the release of the convicted either by establishing the earliest date of release, or by excluding the possibility of it.
If probation is not excluded, than the minimal term without release must be determined. By the provisions of the act it can be 20 years, in case of not lapsing crimes it can happen after 30 years imprisonment. Since the court applies life imprisonment only in case of the grievest crimes against life, as a main rule the release on probation is possible after 30 years. The latest date of release on probation is not established in the act, it should be decided by the court. This way more than 30 years can also be determined. If the established term – in proportion with the age of the convicted – is equal to the average human life span, – it results in the exclusion from release on probation, states Ágnes Balogh.16 The court may decide to exclude the convicted from the possibility of being released on probation. In this case the convicted can only be released from the life imprisonment through executional clemency.
Art 47./B includes the rules for a case when life imprisonment and imprisonment for specified term coincide. Its based on the provision of Art 69, PC, in accordance with which imprisonment for a specified term cannot be imposed in case of life imprisonment.
The cases regulated in Art 47/B are differentiated according to when the crime the crime was committed – whether the crime because of which convicted is sentenced on imprisonment for specified term had been committed before the sentence of life imprisonment came into force, or in which section of spending life imprisonment had committed it.
Sections (1)–(2) of Article 47/B regulate those cases when the convicted is sentenced for imprisonment for specified term for a crime before the lifelong imprisonment came to force. In these cases the convicted has to fulfil the final decision on the punishment of imprisonment.
NAGY (2004) i. m. 370.
BALOGH – KÕHALMI i. m. 168.
Life Imprisonment in Hungarian Penal Law 121 Conviction can be accomplished at two times: during the actual execution of life imprisonment, or during the probational time.
The court proceeding in these cases has no possibility to decide: its duty is restricted to calculate the new possible and earliest date of release. Neither the possibility of probational release from the imprisonment for a specified term nor the time spent in preliminary arrest can be taken into account.
The regulations stated in the Sections (3)-(4), Art 47/B concern the cases when the convicted is sentenced on imprisonment in a final decision because of committing a crime during the execution of life imprisonment. Sentencing can happen at the two times mentioned above. In these cases then the court decides on the possible earliest time of release. During this – within certain limits – the court can consider the new possible earliest time for which the release can be delayed. The delay has to be at least 5 years even if the term of sentence was shorter than that. The court, when deciding on the term of delay (between 5 and 20 years), considers not only the term of imprisonment for specified term, but the category of the crime under sentencing in the new case, the motivations of committing it, the further circumstances and the behaviour of the convicted during executing the imprisonment.
Sec (5) Art 47/B refers to the cases when the convicted person sentenced on life imprisonment is sentenced on imprisonment for a specified term, because of committing a crime during being released on probation. In this case it does not matter whether the sentencing takes place during being on probation or after its exceeding.
The release on probation is dismissed in both cases, and the earlier date of it is delayed for the term of imprisonment on specified term, but for minimum 5 and maximum 20 years.