Volume 8 Numbers 1-2

Winter/ Spring 1999

Feature

The Procuracy and its Problems
     Hungary
     Istvan Szikinger

One of Lenin's most successful inventions was the socialist procuracy. It still exists in many postcommunist states, including Hungary, where it continues to function along the organizational and operational socialist lines inherited from the old regime. While it is sometimes difficult to compare socialist state bodies with their counterparts in developed democracies without considering the political context, it can be done. But the socialist procuracy has, in fact, no counterpart at all in the governing institutions of the West.

To understand the unique features of the procuracy, a brief review of the specific circumstances of its creation will be helpful. Following the 1917 revolution and in the midst of civil war, the soviets (informal strike committees of workers and soldiers) seized the reins of local executive power and made an effort to preserve the tradition of decentralized self-government. But this strategy quickly put them on a collision course with the Bolshevik high command. To justify the Bolshevik assertion of central control, Lenin penned his tract "On Dual Subordination and Legality" (1922), which was to lay down an unquestioned policy course leading to the establishment of the socialist procuracy. Lenin had argued that a new organization was essential to ensure the uniform implementation of the law while still not encroaching on the need of local governments for flexibility and discretion in running socialist economies. At the time, his idea seemed to the Bolsheviks both logical and persuasive. But the procuracy, as it developed, was to depart significantly from Lenin's original model.

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Article 51
1. The General Prosecutor and the Office of the Public Prosecutor of the Republic of Hungary ensure the protection of the rights of the sitizens, maintain constitutional order and shall prosecute to the full extent of the law any act which violates or endangers the security and indenpendance of the country.
2. The Office of the Public Procurator shell exercise rights specified by law in connection with investigation, shall represent the prosecution in court proceedings, and shall be responsible for the supervision of the legality of penal measures.
3. The Office of The Public Prosecutor shall help to ensure that all social organizations, government bodies and citizens comply with the law. When the law is violated, the Office of the Public Prosecutor shall act to uphold the law in the cases and manner specified by law.

Article 52
1. The Parliament shall elect a candidate for General Prosecutor upon the recommendation made by the President of the Republic; the President of the Republic shall appoint the Deputies to the General Prosecutor on the basis of the recommendation made by the General prosecutor.
2. The General Prosecutor shall answer to the Parliament and shall provide a report in his activities.

Article 53
1. Public Prosecutor are appointed by the General Prosecutor of the Republic of Hungary.
2. Public Prosecutors may not be the members of political parties and may not engage in political activities.
3. The Office of Public Prosecutor is directed by the General Prosecutor.
4. The regulation pertaining to the Office of the Public Prosecutor shall be determined by law.

The Constitution of the Republic of Hungary (1949 [amended 1989])

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First, the strictly centralized procuracy, strongly dependent on the party, gained increasing power in areas such as legislation and its implementation, which is not what Lenin intended. At the same time, the role of the judiciary—in the legal supervision of administrative acts—was radically weakened. In addition, even the domains of public power and the nationalized economy, which Lenin had regarded as "exempt" from procuratorial intervention, were (particularly with the rise of Stalin) stripped of their residual autonomy.

Two attributes of the socialist procuracy set it apart from roughly similar institutions in developed democracies. The first was organizational. According to Lenin's blueprint, the procuracy was independent from all other agencies of public power but was accountable to the highest "representative" body (parliament). In order to achieve uniformity in the implementation and administration of law, its structure was rigidly centralized. The orders of a ranking procurator were binding on all his subordinates. At the top of the hierarchy was the national procurator general, "elected" by parliament and responsible for maintaining socialist legality within the state. As a consequence—and this is the second general attribute—the procuracy had an all-embracing reach in enforcing the instructions and orders of
the highest state and party organs. Its powers ran the gamut from monitoring the lawmaking process to participating in civil disputes. In practice, the prosecution of crimes was its foremost function, while
its oversight activities were focused primarily on the
workings of the state administration.

The procuracy in Hungary

Before the communist takeover, Hungary's prosecutorial system resembled the traditional West European model. Subordinated to the Ministry of Justice, according to the Act on Royal Prosecution (Act No. XXXIII/1871), the crown prosecutor had a certain if limited degree of independence. The situation changed radically with the founding of the People's Republic of Hungary and the adoption of the first communist Constitution of 1949. All powers to supervise legality were vested in the chief prosecutor, who was to be "elected" by parliament for a six-year term. More-detailed regulations regarding the organization and activities of the pruracy were not enacted until 1953, when the first chief prosecutor (Kalman Czako) was elected. Thus, during the period of he gravest systemic violations of basic rights perpetrated by the Stalinist state-security apparatus, there was no institution charged with upholding even minimal guarantees against the regime's illegal acts. In 1953, the organizational framework and activities of a Leninist-type procuracy were announced with the Decree on the Procuracy (Decree No. 13). The language of the decree followed closely the Soviet law on the procuracy. The powers of the procuracy covered four broadly defined domains, and its prerogatives, in each, were different. These areas were, and are: criminal investigations, supervision of prisons, the specifically prosecutorial function in trials, and, finally, the general supervision of legality. Despite subsequent modifications, the procuracy's jurisdiction, in all four areas, has been preserved up through 1999.

Criminal prosecution had been the procuracy's most important function during the socialist era. Investigative work was carried out predominantly by the police, but prosecutors were authorized to exercise comprehensive oversight of all investigative agencies. They even possessed the authority to overrule the orders of higher-ranking police officers who interfered with the investigative activities of their subordinates. The instructions of prosecutors were binding.

But let us look at these four broad procuratorial domains as they are, and as they are evolving, in the postsocialist era.

The postcommunist procuracy

As in the past, so now, the first and most obvious power of the procuracy is investigative. With the 1989 adoption of the Law on Amending the Constitution (No. XXXI/1989), the kinds (and number) of cases that the procuracy was authorized to investigate were substantially expanded, and special units were established accordingly. For instance, the procuracy is now charged with investigating offenses committed by, or against, persons holding important positions, such as members of parliament and members of the judicial branch, as well as conducting criminal investigations of police officers. Special civilian investigative units of the procuracy exist to deal with minor criminal offenses committed by the professional law-enforcement personnel. Minor military offenses (such as disobedience) are investigated by the police, while military felonies (like mutiny) are handled by military prosecutors. Hungary has no separate system of military courts; special panels within the ordinary county-court system preside over cases involving military personnel, including the police. Accordingly, specialized units within the integrated procuracy structure deal with military offenses. Although members of these units are military and national-security officers, they perform their investigative and legal oversight responsibilities in compliance with the laws governing the procuracy.

Undoubtedly, the strong powers of prosecutors in the area of criminal investigation have ensured a certain level of law enforcement in the country. But a serious problem remains to be solved, namely, the use of clandestine investigative techniques by the police or the intelligence services, which remain outside the scope of procuratorial oversight. The reason for this exemption is quite simple: such secret methods have not been regarded as a matter regulated by law. Therefore, roughly speaking, no challenges to their legality can be raised. This arrangement has undermined the effectiveness of the—quite modest—monitoring mechanisms established by socialist legislators in the past. The recent adoption of several laws has changed the situation slightly. But no genuinely significant changes, in this regard, have been introduced during Hungary's transition. The Law on the Provisional Rules for Appealing the Means of Special Intelligence (No. X/1990), along with several other pieces of legislation, created an incipient legal basis for procuratorial monitoring of the police and the national-security intelligence services. Yet none of these laws regulated the use of clandestine methods of criminal investigations. This means that the procuracy has only "general oversight" powers, without the authority to instruct or to interfere significantly with investigative activities. In practice, prosecutors remain reluctant to do much in this delicate area.

One specific provision of the Law on the Police (No. XXXIV/1994) provides prosecutors with opportunities that were hitherto closed to them. Art. 67.1 reads as follows: "With the approval of the prosecutor, and with a view to obtaining information, the police may promise not to investigate a particular crime or terminate an investigation that is already underway, and enter into an agreement with the perpetrator of a criminal offense, if the interest of law enforcement will be better served by the agreement and the interest involved is higher than the interest attached to the criminal prosecution of the particular case." Of course, identifying possible perpetrators of criminal offenses prior to opening an investigation is presumably somewhat difficult, but additional problems emerge for the prosecutor who must evaluate quickly a complex situation without enough knowledge. His function, in practice, may amount simply to authorizing bargains that turn criminals into police informants.

The 1998 Code of Criminal Procedure seeks to address this problem and defines some methods of investigation (for example, the interception of communications) as falling within the scope of procuratorial monitoring. At the same time, the police are still allowed to employ these methods without officially opening an investigation and also for the purpose of "crime prevention." In such cases, prosecutors cannot use the powers vested in them by the new code.

Supervision of the penitentiary system is the second, traditional function of the procuracy. In this area, prosecutors wield considerable powers, including the right to order prison officers to release detainees in cases where their liberties have been unduly violated. Procuratorial oversight does not cover extralegal issues, such as the living conditions and the educational services of the national prison system.

Filing charges on behalf of the state in criminal cases, the third broad area of responsibility, also belongs to the procuracy and is intimately linked to its overall task of ensuring legality. Here, we are discussing those functions most clearly associated in the West with a prosecutor's office. Indeed, it is the union of these domains—especially the first and third, the investigative and the prosecutorial—in a single institution that most clearly sets the procuracy apart from any comparable government body in the western democracies. The uniqueness of the procuracy was even clearer, until recently, for not only was the prosecutor obliged to file criminal charges, as the representative of the state, but he had similar powers in civil proceedings. In 1994, however, the Hungarian Constitutional Court ruled that such an arrangement was incompatible with the constitutional principle that private citizens had the right to decide how to exercise their civil rights. Therefore, the Court struck down certain sections of the Law on the Code of Civil Procedure (No. III/1952) as unconstitutional. After this ruling, prosecutors can initiate civil proceedings only if the person concerned is incapable of acting in his or her own interests.

The procuracy's functions, here, have a direct bearing on another basic constitutional right: the right of access to court. In some cases, a decision by the procuracy not to file criminal charges has prevented victims of crimes, in effect, from seeking redress through civil litigation. In the absence of a criminal conviction, civil litigation has little hope of success. The new Code of Criminal Procedure offers a solution by introducing the possibility of filing "substitute private charges." This arrangement is designed to allow citizens who have been victims of crimes to press their cases and to take over the prosecutor's functions if he decides to drop the action.

The fourth and, to be sure, most problematic area of the procuracy's functions concerns its so-called general supervision of legality, covering all legal activities of the state and of local governments not related to the other domains within its purview—criminal investigations, the penitentiary system, or court trials. During the communist era, the chief prosecutor ranked equally with the government in the state hierarchy. In the absence of other guarantees (division of powers, a Constitutional Court, and the like), the powers of the procuracy even provided some measure of legal professionalism within the organization of the state, as well as safeguards against blatantly arbitrary acts. But with the transition and the resulting changes in the political and constitutional systems, the authority of the procuracy has been challenged. On the one hand, its powers have been broadly defined: it may address any legal problem encountered in the course of carrying out its supervisory function. On the other hand, it has proved to be rather weak, and its broad, on-paper powers of oversight have been ineffective in solving the problems they were designed to remedy. The fundamental reason for this unfortunate state of affairs is the narrowly defined scope of administrative judicial review.

Originally, the courts were supposed to play an important role, within the institutional system, for exercising oversight of administrative acts. But the functioning of the courts, in this respect, has been limited. The procuracy may file protests (ovas) against written acts of administrative organs it believes violate the law, but these protests must be submitted either to the organ that issued the act or to a superior administrative body. The decision of the higher administrative authority is final and can be challenged before a court only in exceptional cases. Legal norms, on the other hand, can be repealed only by the Constitutional Court (although the procuracy may file petitions). The most a prosecutor's protest can hope to accomplish, in such cases, is to suspend the implementation of the contested norm while the case is pending before the Court.

Intervention and warning are the other chief tools prosecutors can employ in exercising general legal supervision. Interventions are used when violations of the legal order stem not from a concrete administrative act but from unlawful practices or an administrative failure to undertake a certain action. Warnings are issued when a prosecutor is bent on conveying his determination to prevent what he believes will be the unlawful effects of administrative acts not yet in effect.

Supervision of the constitutionality of legislation also falls within procuratorial competence. But this adds nothing essential to the existing system of oversight. Prosecutors cannot repeal or modify legal rules, needless to say. The most important tool at their disposal is, therefore, the power to refer cases to the Constitutional Court. But their authority in this respect is no different from that of ordinary citizens, who also have standing. According to one interpretation, the expression "supervision of legality"—the formula describing the task of the procuracy—was intended to cover a broader area. In other words, the procuracy is not restricted to oversight only of the most egregious violations of constitutional principles. In practice, however, the Constitutional Court does not restrict judicial review to cases where laws directly collide with the norms of the Constitution. All substantial infringements upon values and norms of the legal system are considered by the Court as justification for striking down legislation.

Finally, the procuracy has the power to protest individual administrative decisions as well as administrative acts implementing laws. The state bureaucracy issues the overwhelming majority of the acts and decisions that trigger procuratorial protest. In addition, the procuracy exercises oversight of extrajudicial bodies adjudicating certain types of legal disputes and of agencies resolving conflicts about the rights and duties of employees or members of cooperatives. The normative acts issued by these agencies are also subject to procuratorial supervision.

In this area, significant changes were introduced with the establishment of the institution of parliamentary commissioners, or ombudsmen. The office was created early in the transition, but, because of considerable resistance from different interest groups, the enactment of the requisite legal norms was delayed, and the first ombudsmen were elected only in 1995. According to Art. 32.b.1 of the Hungarian Consti- tution, "The parliamentary ombudsman for civil rights is responsible for investigating or initiating the investigation of cases involving the infringement of constitutional rights that come to his attention and initiating general or specific measures for their remedy." Paragraph 4 of the same article authorizes parliament to elect special ombudsmen, along with the general ombudsman. The Constitution also mandates the appointment of a minorities ombudsman authorized to protect the rights of ethnic groups. The commissioners may not issue binding instructions but only public opinions and recommendations. The ombudsman and procuracy have, in part, overlapping roles and powers, especially with regard to supervising the decisions of administrative authorities.

Reform initiatives

As part of the Roundtable Talks of 1989, the Ministry of Justice published a report on possible and recommended options for a new constitution. Following debates on the draft, a modified version was published to serve as a basis for future legislation. In this last major attempt to preserve socialist values and the existing political regime while introducing a new "model," the reform-minded communists outlined three possible versions on the procuracy's legal status. The first sought to maintain continuity, in other words, to modify the existing provisions of the basic law only in order to make its provisions more precise. The second proposed changing the procuracy's functions by eliminating its prerogative of general supervision in civil cases. The third version proposed subordinating the procuracy to the Ministry of Justice.

The government formed after the free elections of 1990 put the radical reorganization of the procuracy on the legislative agenda. The third reform proposal was debated, but it failed to muster the necessary two-thirds support in parliament.

Following the 1994 elections, the Ministry of Justice produced another report, outlining several alternatives for restructuring the procuracy. The guidelines approved by parliament, however, effectively excluded any major reform (Resolution of Parliament on the Guidelines for Provisions of the Constitution of Hungary, No. 119/1996. [XII. 21.] OGY hat.). After the elections of May 1998, the present government also proposed an alteration to the constitutional position of the procuracy—by subordinating it to the Ministry of Justice while preserving its institutional independence. But again, the government-sponsored constitutional amendment failed to gain the required two-thirds support in parliament.

And so, for all the change, and effort of achieving further change, the basic structure of the procuracy remains as it was in the past, before 1989. In large measure, the past is still with us.

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Istvan Szikinger is a staff attorney at the Constitutional and Legal Policy Institute and a lecturer in constitutional law at ELTE University and the Hungarian Police College, all in Budapest.

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