Prosecutors’ duties and responsibilities outside the criminal law field

1. Prosecutors’ duties and responsibilities outside the criminal law field

Pursuant to Article 29 (2) of the Fundamental Law of Hungary the Prosecutor General and the Prosecution Service shall, as a guardian of public interest, exercise further functions and powers laid down in the Fundamental Law or in an Act.
In compliance with Section 26 (1) of the Act on the Prosecution Service of Hungary (hereinafter: Prosecution Service Act) the duties and powers of the Prosecution Service performed as a contributor to the administration of justice outside the scope of criminal law shall be subject to the Prosecution Service Act and to separate statutes. Prosecutors shall exercise these powers in an attempt to eliminate non-compliance primarily by instituting judicial and extrajudicial proceedings at court (right to file lawsuits), by launching administrative authorities’ proceedings and pursuing legal remedy (hereinafter collectively: action).

Evaluating petitions for prosecutorial measures

Prosecutors shall evaluate petitions against official decisions, measures and omissions in violation of the law, whistleblowing reports and indications of non-compliance (hereinafter collectively: petition). If prosecutors have no competence to investigate a petition addressed to them, they shall ensure its transfer to a competent organ.
If a prosecutor finds a petition to be unfounded, he/she shall reject it by giving a reasoned opinion. A petitioner may appeal once against a rejection to the superior prosecution office to have the reasoned opinion reviewed.

Prosecutorial review

Unless otherwise provided for by law, prosecutors shall conduct a review ex officio to underpin prosecutorial measures if based on data or other circumstances revealed to the prosecutor it is reasonable to assume that serious legal violations, omissions have occurred or non-compliant conditions exist.

Prosecutors’ action and other prosecutorial measures

For the protection of the public interest and in order to restore legality prosecutors shall take actions in event of serious violations of law.

Available tools for prosecutors defined by law include the following:
instituting judicial proceedings, launching administrative authorities’ proceedings and pursuing legal remedy.

In cases where requirements of prosecutors’ action are met, but the adversary itself has the capacity to remedy the circumstance that requires action, the prosecutor prior to taking action may serve a reminder seeking voluntary redress. If the party addressed in the reminder fails to abide by the requirements made therein within the deadline set by the prosecutor or fails to respond or disagrees with the stipulations of the reminder, the prosecutor shall decide within 30 days whether to bring action or notify the addressee of the termination of the proceedings.

Upon becoming aware of non-compliance or omissions in violation of the law – provided statutory conditions exist – prosecutors shall also initiate criminal, disciplinary, contravention or other administrative authorities’ proceedings. The addressee of such initiatives shall immediately return to the prosecutor a copy of its decision on the merit of the case.

Prosecutors shall have the right to seek redress against decisions delivered in judicial and extrajudicial proceedings which are to be communicated by law to the prosecutor in any way. In cases defined by law prosecutors shall have the right to seek redress even if they were not party to the proceedings or in cases where the decision was not required to be communicated to the prosecutor.

In addition to the prosecutorial tool called ‘action’ prosecutors may use the following tools for purposes of ensuring legality:

In cases defined by law prosecutors shall decide about the coercive measures ordered in certain contravention or administrative authorities’ proceedings (e.g. forced appearance by police, on-site inspection carried out by an administrative authority opening a locked area).

Integrity testing may only be conducted upon prosecutorial approval by a specific body whose responsibility includes internal crime prevention and crime detection tasks under the Police Act.

The Prosecutor General may initiate proceedings before the Constitutional Court and uniformity decision proceedings before the Curia; he may express an opinion on draft legislation, except for drafts of decrees by local governments and shall express an opinion on draft legislation affecting the legal status and duties of the Prosecution Service.

The Prosecutor General may express his professional opinion about legal matters in lawsuits between other parties in the Curia for purposes of ensuring the uniformity of judicial practice either upon his own initiative or if requested by any of the parties in order to represent the public interest (amicus curiae).

Priority areas of prosecutors’ activities in the field outside the criminal law include:
– prosecutorial duties relating to certain administrative authorities’ procedures and measures,
– environmental protection,
– consumer protection,
– contravention cases,
– prosecutorial duties relating to certain legal entities and organizations without legal
personality,
– prosecutors’ duties in civil courts,
– prosecutors’ tasks relating to the protection of children and juveniles.

Prosecutorial duties relating to certain administrative authority procedures and measures

Prosecutors shall review the legality of individual decisions made and administrative measures taken by administrative authorities or other bodies applying the law other than courts, whether binding or final, provided the courts have not overridden such decisions.

Unless otherwise provided for by law, for purposes of terminating violations of law prosecutors may issue reminders to eliminate non-compliance in respect of (i) non-compliance affecting the merit of a decision issued by any administrative authority within no more than a year after the effective date of the decision or after execution of the decision is ordered, (ii) a decision establishing an obligation, depriving or limiting a right before the prescription period terminates.

If a prosecutor initiates in the reminder to have the enforcement of the non-compliant decision suspended, the addressee of the reminder shall immediately terminate enforcement until the case is decided.

If the reminder concerning the administrative authority’s decision has failed to achieve the desired effect, the prosecutor shall file a lawsuit in court against the final decision made in the main (original) case.

If the administrative authority has failed to fulfil its obligation, the prosecutor may bring the case to court and may request the court to order the given authority to conduct a proceeding provided the deadline set in the reminder has expired without the aimed results.

Environmental protection

Prosecutors’ right to file lawsuits regarding the protection of nature, environment and arable land is designated as priority tasks under the Prosecution Service Act.

The Prosecution Service shall contribute to securing the legality of the proceedings and decisions of administrative authorities responsible for the protection of the environment and nature conservation. Act LIII of 1995 on the General Rules of the Environmental Protection and Act LIII of 1996 on Nature Conservation give further powers for prosecutors; prosecutors shall act in accordance with provisions of Act XIX of 1998 on Criminal Proceedings in cases that involve damages caused to the elements of environment, nature conservation areas and values (especially to naturally protected areas and values) in a way specified by Act C of 2012 on the Criminal Code.

If the environment, nature conservation values or areas are endangered or get damaged, prosecutors may also file lawsuits seeking a ban on the action or compensation for damages caused by the action.

Act XXVIII of 1998 on the Protection and Humane Treatment of Animals guarantees similar rights for prosecutors to file lawsuits if rules aimed at protecting animal species and providing humane treatment for animals are violated.

Consumer protection

Prosecutors are entitled to file lawsuits if businesses’ unlawful activities affect a wide range of consumers whose identities are unknown but definite and identifiable according to the circumstances of the violations of law or if the unlawful activities cause considerable amount of damages and the proceedings fall into the court’s jurisdiction.
Prosecutors may file lawsuits to demand:
– the court to order the business entity to satisfy the claims if the legal ground of the claim, the amount of the damages can be clearly determined;
– the court to establish the fact of the violation with a legal effect incorporating all the consumers concerned;
– the court to order the business entity to satisfy specific claims in addition to establishing the violation of law;
– the court to order the business entity to stop the violations of law and to ban them from previous violations of law;
– the court to order the business entity to put an end to the injurious situation and to order restoration to the original condition which existed prior to the injurious situation;
– the court to order the business entity to publish a statement at its own costs.

Contravention cases

In contravention cases prosecutors’ powers are set forth by the Prosecution Service Act and by Act II of 2012 on Contraventions.
Accordingly, prosecutors are entitled to exercise the following duties:
– they shall examine ex officio the lawfulness of decisions issued to dismiss contravention proceedings, and if the decision is unlawful, the prosecutor may submit measures to the contravention authority to eliminate the unlawfulness;
– shall evaluate complaints lodged against measures taken and decisions issued by contravention authorities according to the rules set by law; shall set aside the unlawful decision, shall reject the unfounded or out-of-time complaint;
– shall initiate re-trial of the case if the court has sanctioned a crime during a contravention proceeding as if it were a contravention or the court has unlawfully changed the unpaid fine, on-the-spot fine or unperformed community service work into custodial arrest;
– shall examine the decision ordering police accompanying together with the entire case file of the contravention proceeding, as the police accompanying may be carried out only if the prosecutor does not set aside the decision.

Prosecutors’ tasks before the civil court

Prosecutors’ role in lawsuits is set forth in detail by uniformity decision No. 2/2012. KMPJE (a uniformity decision relating to administrative, labour and civil law cases) rendered by the Curia. In the uniformity decision proceeding initiated by the Prosecutor General the Curia ruled that the prosecutor is an abstract legal entity governed by public law which is authorized to exercise the rights of a party. In litigious or non-litigious civil proceedings that are initiated by him or against him according to a separate law he takes part in each stage of the proceeding as a plaintiff or a defendant. As an abstract legal entity governed by public law the prosecutor is represented by the competent prosecution organ, which may change in the various stages of the proceeding.

In civil proceedings where the claim follows from a contract made, from damages caused out of contract or from non-pecuniary damages caused by the Prosecution Service, the Office of the Prosecutor General shall act as party to the case.

Section 27 of the Act on the Prosecution Service contains a non-exhaustive list for the powers of filing lawsuits. These may relate to the disposition over national assets, misappropriation of public funds, terminating grievances of public interest caused by void contracts, data entered into public registers, the protection of the environment, nature and arable land, contesting consumer agreements (general terms of agreement) of private individuals or the modification of family status. The wording of the Prosecution Service Act uses the term “particularly”, which also implies that the list is not exhaustive.

The procedure codes and sectoral laws provide more detailed rules for the system.

All the powers of the Prosecution Service serve the protection of the public interest. In this context, the prosecutorial activities in the field outside the criminal law, including prosecutors’ duties in the civil courts are rather multifold, where provisions of the Fundamental Law and other laws, the enforcement of the public interest including the protection of rights and the maintenance of legality shall prevail.

In this regard, prosecutors’ private law lawsuits may be divided into two categories:
– lawsuits and actions filed on the basis of the general right to file lawsuits,
– the right to file lawsuits on the basis of provisions of separate laws.

The constitutional constraints to the general right to file lawsuits and take actions were laid down by the Constitutional Court. The right to file lawsuits (and take actions) is guaranteed for prosecutors by law if the person concerned is not able to protect his rights for any reason, but the prosecutor may not file a lawsuit to assert such a right that can only be enforced by a person or entity defined by law. If a prosecutor initiates a proceeding or takes an action to protect another person’s right, he may only exercise his procedural rights by respecting the privacy and right of disposition of the party concerned; he may not enter into any agreements, may not waive or acknowledge any rights. Prosecutors’ actions are obligatory in certain lawsuits set forth by law. This provision intends to protect victims of fraud, extortion and usury crimes when ownership claims to a litigated real property, claims to usage or to temporary/ interim measures are filed.

The constitutional basis for the right to file lawsuit guaranteed for prosecutors by separate law is the public interest or the fact that in these lawsuits prosecutors enforce private interests which are generally not protected by another body or person or whose protection cannot be initiated by anyone else. The enforcement of such claims serves the public interest through the lacking or impeded exercise of the protection of those interests by others. The latter lawsuits mostly relate to family law – see, for example, the action for the annulment of marriage, the action to terminate or restore parental custody –, or actions connected to placement under and termination of guardianship. In exceptional cases these separate laws also allow for lawsuits to be filed against prosecutors (prosecutor in defendant position).

Prosecutors may also file lawsuits to eliminate harm caused to the public interest by null and void contracts. Moreover, in case of usurious contracts prosecutors can also file lawsuits requesting that the legal consequences of nullity be established or the legal consequences of invalidity be applied. Prosecutors may also request the court to establish the invalidity of the contract or certain provisions of the contract (partial invalidity) without requesting the application of the legal consequences of invalidity at the same time. The law may also authorize prosecutors to file lawsuits in relation to the protection of arable land.

Another important field where prosecutors are actively involved in litigious and non-litigious proceedings is certain proceedings falling into the courts’ competence. The Prosecution Service is the only external body that may play a vital role in preventing and eliminating violations of law, may initiate court proceedings and may seek legal remedies in a part of those proceedings (e.g. action for dissolution of associations, action lodged against entities subject to legality review exercised by prosecutors, action for the termination of public benefit status. Subject to relevant conditions of law, prosecutors – in addition to others – are entitled to lodge an action against rulings regarding the registration of business entities and civil societies as well as against rulings on the registration of modifications of registered details. Moreover, prosecutors also have the right to initiate legality reviews, and with respect to civil societies they are also entitled to initiate proceedings aimed at establishing the termination of civil societies without legal successors.

Special tasks of prosecutors relating to the protection of children and juveniles

Prosecutors’ tasks relating to the protection of children and juveniles include the legality review of the operation of institutions providing child protection and child welfare services.

Prosecutors constantly review whether decisions passed by the custody and guardianship authorities with respect to the state’s advance payment of child support comply with law, and they carry out inspections to find out if any suspicion of crime arises. In children’s and juveniles’ contravention cases prosecutors examine with particular care if special rules are complied with and whether the competent contravention authority has initiated the protection of the offender, if appropriate.

Prosecutors shall cooperate with bodies and institutions responsible for family, child and youth protection. With their special prosecutorial tools and conclusions drawn during the examinations they facilitate the prevention of minors’ vulnerability and the assertion of minors’ rights. Based on a separate law prosecutors shall issue reminders to the child welfare service if any risks or threats to children are suspected.

2. Prosecutors’ activity aimed at supervising the legality of the enforcement of punishments and the protection of human rights

Prosecutors’ activity aimed at supervising the legality of the enforcement of punishments and the protection of human rights are provided for by the Fundamental Law of Hungary [Article 29 (2) c)], while competences and responsibilities relating to this field are detailed by Sections 22-24 of Act CLXIII of 2011 on the Prosecution Service as well as by Order No. 20/2014. (XII. 23) issued by the Prosecutor General on prosecutors’ activity aimed at supervising the legality of the enforcement of punishments and the protection of human rights. The importance and necessity of these activities are given emphasis by various international instruments including specific recommendations, resolutions and other documents of the United Nations or the Council of Europe.

With its special tools and methods prosecutors’ activity aimed at supervising the legality of the enforcement of punishments facilitates that punishments, penal measures, coercive measures used in criminal proceedings, reintegrating measures, additional tasks and duties relating to the former (e.g. management of criminal records), and legal restrictions not relating to criminal convictions and carried out by bodies responsible for the enforcement of punishments and penal measures are carried out in compliance with law.

Prosecutors supervising the legality of the enforcement of punishments and responsible for the protection of human rights facilitate the protection of detainees’ legal status and the enforcement of their rights by their inspections carried in prisons and penitentiary institutions. This prosecutorial activity means, on the one hand, the protection of convicts’ and other detainees’ rights, but it also provides a tool for the state to exercise its punitive power. Such prosecutorial duties presuppose regular, but also urgent and, if necessary, immediate inspections, and – where appropriate – the power to take actions without undue delay; furthermore, they presuppose the prosecutorial power to initiate that law enforcement, judicial, executive and judicial administration authorities take actions.

Prosecutors working in this field have the power to address a reminder to the head of the competent body in order to have non-compliant practices or legal violation by omissions ceased, they may also issue orders if other violations of law occur, and if needed, they may initiate disciplinary, contravention, criminal proceedings or lawsuits to claim damages, whereas they may also participate in the proceedings of penitentiary judges or appeal proceedings relating thereto.

With its decision No 71/2003 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) gave a positive evaluation about the activity of the Prosecution Service of Hungary and it commended the thorough approach taken by the Hungarian authorities in this area. It found that the prosecutorial supervision of places of detention in Hungary clearly has the potential of making an important contribution towards the prevention of ill-treatment and, more generally, of ensuring satisfactory conditions of detention.