«LIFE IMPRISONMENT IN HUNGARIAN PENAL LAW LÁSZLÓ KÕHALMI assistant professor I. Regulatory antecedents The introduction of life imprisonment has ...»
Art 47/C. includes the general conditions of releasing on probation, which is equal – regarding its essence – to the rules of imprisonment for specified term. The differences – in the opinion of Ágnes Balogh – are only in that in case of life imprisonment it is the court who may decide on the earliest date of releasing on probation, while in case of imprisonment for specified term it is regulated by the law.17 The PC makes the exclusion of release on probation for the court possible. The provision on this does not give any rules on the limit of judicial consideration. This solution of real life imprisonment – in the opinion of Professor Ferenc Nagy – can be considered as disquieting and reprehensible from the view of constitution, legal comparison and imposement, but even from practical-execution. By the Art 47/A of PC it cannot be compared to more guarantial penal principles like e.g. to the principle of a nulla poena sine lege certa, or to the one on human dignity, to the prohibition of inhuman and cruel punishment, or to the thought of promoting resocialisation etc.18 The court cannot release the person convicted for life imprisonment on probation if the convicted in question was sentenced for life imprisonment again. In this case the court resolutes in a sentence about the fact that the convicted cannot be released on probation from an earlier life imprisonment.
Release on probation from life imprisonment19
1. In the sentence of the court
A) determines the possible earliest date – at least 20 years – in case of non-lapsing crimes minimum 30 years
B) excludes the possibility of release on probation
2. If the perpetrator is sentenced for imprisonment for specified term because of committing a new crime, the release on probation is formed as follows: [Art 47/B.PC]:
III. De lege ferenda The sanction of life imprisonment is generally criticized in the Hungarian special literature on law.
Before accepting the PC, Kálmán Györgyi stated that the possibility of release on probation after 20 years in prison in case of life imprisonment is too high.20 In the opinion of Zoltán Juhász in a constitutional state the state does not have unlimited penal force: the public forces can interfere in the rights and freedom of the
individuals only with the necessary authorisation and reason. The requirements – determined in Art 8 of the Hungarian Constitution – are directives on penal sanctions, such as basic rights can be limited only in accordance with the law, and in the interest of defence of an other basic or constitutional right, and only in avoidable cases, to the necessary extent and in proportional method. The legal regulation giving the possibility to impose life imprisonment seems to contradict to this.21 Ágnes Kelemen draws attention to the fact that life imprisonment is the infringement of constitutional rights, as the convicted lives in uncertainty for a long not knowing when or whether probation becomes possible. The convicted also does not know the exact consequences of his behaviour in the prison on the chances of being released on probation. That can cause further problems for the executing authorities and the officers of the prisons as well.22 According to Ferenc Nagy the real life imprisonment de lege ferenda is not an elimination of an inhuman penal sanction and constitutional conformity. In his opinion the exclusion of releasing on probation in the sentence should be eliminated. Furthermore, in accordance with the European trends the present minimum penal term to be spent actually – which is extremely high and not acceptable by the determinational requirements –, and the term of being on probation should be decreased in the future.
There is another argument for the elimination of life imprisonment: even a convicted person has to be given the hope of planning his future, returning to society.
Mihály Tóth stated that life imprisonment cannot be conformed with the whole modern legal system, and what is more, this sanction is inhuman and unjustifiable. It all shows that we are still far from the accomplishment of an effective, expedient and just penal system.23 The ongoing privatisational processes in penal execution concerning life imprisonment emerge significant questions.24 How much the human rights can be guaranteed in a privatised prison, in such a place, where the sate control can operate only to a minimal extent? How can the resocialisation and the profit maximum be brought to a common denominator? So it can be stated about the privatisational processes in penal execution that they emerge many unreplied questions.
Some opinions claim that the question here is not about privatisation but about reprivatisation.25 According to Professor György Vókó this name sounds tempting – however historically it means a certain return –, it is only the surface, because the JUHÁSZ. ZOLTÁN: Jog a reményhez. Fundamentum, 2005/2, 88.
KELEMEN ÁGNES: A halálbüntetés eltörlése és az életfogytiglani szabadságvesztés gyakorlata Angliában.
Magyar Jog, 1991/1, 48.
TÓTH i. m. 252.
KÕHALMI LÁSZLÓ: Jogállam és büntetõeljárás – avagy kételyeim az ezredforduló krimináljoga felõl. In KARSAI KRISZTINA (szerk.): Keresztmetszet-tanulmányok fiatal büntetõjogászok tollából. (Pólay Elemér Alapítvány Könyvtára 7.) Szegedi Tudományegyetem Állam-és Jogtudományi Kar Büntetõjogi és Büntetõ Eljárásjogi tanszéke, Szeged: Pólay Elemér Alapítvány, 2005. 136.
See ALBIN ESER: Funktionswandel strafrechtlicher Prozessmaximem: Auf dem Weg zur „Reprivatisierung” des Strafverfahrens? Zeitschrfit für die gesamte Strafrechtswiaawnschaft 104/2. (1992), 376–381. Eser is warning on the dangers of a hasty privatisation 124 LÁSZLÓ KÕHALMI reason of past actions is never the same as of those happening at present, and the words for them also rarely mean the same.26 Even if we do not share Nils Christie’ opinion – who says that in western type democracies a ‘penal industry’ has been formed bearing the classical features of industry and these prisons work like western type gulags –,27 we still have to admit that penal jurisdiction is in a special state as it is not threatened by lack of sources since the supply seems to be inexhaustible. It is a branch of industry which can be compared to the Australian rabbits or the wild martens in Norway, almost not having natural enemies.28 Nowadays, when the criminal political model of ‘law and order’ and its different mutants, announcing the slogans like more effective attempts against terrorism and organised crime, have accepted irrational criminal solutions and thrown away classical, guarantial criminal principles, and when postmodern gladiator training institutions29 (boot camps) are mushrooming we have to stop for a minute and consider whether this legislating direction is right. Can life imprisonment be collated with the idea of state of law?
Professor András Szabó claimed that in a constitutional state the state cannot have unlimited penal power, as the public power itself is limited. In a state of rule of law penal law is not only a sanctioning tool, but it has legal-moral values itself, as a result of the developing penal culture and the guarantial, constitutional rules, and as such it is value-preserver also. Penal law is the legal basis of practising penal power and at the same time a discharging resolution for the defence of human rights.30 Although András Szabó established his thoughts concerning the elimination of capital punishment in Hungary, theses ideas should be considered in connection with imprisonment as well.
Those arguing for the actual life imprisonment often say that this sanction is necessary in case of terrorists.31 Professor László Korinek draws the attention to the fact that the so called second line of antiterrorist acts offers a way-out, a return for the terrorists who have changed their mind and show repentance, if their ideology has also been changed. In this case they may count on a much commutated penalty when being sentenced.32 VÓKÓ GYÖRGY: Elmélkedés a büntetõ felelõsségre vonás privatizációjáról Nyugat-Európában. Jogtudományi Közlöny, 2004/12, 418–419.
NILS CHRISTIE: Büntetésipar. Budapest: Osiris Kiadó, 2004. 15.
LÕRINCZ, JÓZSEF: Büntetõpolitika és a büntetés-végrehajtás konzekvenciái az ezredfordulóm [Sanctioning Policy and the Consequences of Penal Execution at the turn of the Millennium], In: Györgyi Kálmán ünnepi kötet, ELTE ÁJK Libri Amicorum 11., Budapest: KJK-Kerszöv Jogi és Üzleti Kiadó Kft., 2004. 394.
SZABÓ ANDRÁS: Jogállami forradalom és a büntetõjog alkotmányos legitimitása. Belügyi Szemle, 1999/10, 8.
SZÉKELY JÁNOS: Szabadságvesztés-büntetés és jogpolitika. Magyar Jog, 1974/ 9, 513. In the opinion of János Székely considering the latest developments of terrorism a state would disarm itself by renouncing of capital punishment, as the only effective criminal sanction against its enemies.
KORINEK LÁSZLÓ: Az antiterrorista harc eszközei, különös tekintettel a büntetõjogra. In GÁL ISTVÁN LÁSZLÓ – KÕHALMI LÁSZLÓ (szerk.): Emlékkönyv Losonczy István professzor halálának 25. évfordulójára. (Studia Iuridica Auctoritate Universitatis Pécs Publicata 138.) Pécs: Pécsi Tudományegyetem Állam- és Jogtudományi Kar, 2005. 196.
Life Imprisonment in Hungarian Penal Law 125 Summing up our ideas we can draw the conclusion that the regulating system of actual life imprisonment is to be reconsidered by the Hungarian legislators and they have to make efforts to create legal regulation in compliance with the requirements of a constitutional state of law.