18 October 2019
Hungarian absurdity: Homeless people in handcuffs vs. human rights
In Hungary, the practices established by the Police and the courts against homeless people seem to be humiliating and strongly discriminative. Since the criminalization of homelessness, which is and of itself is cruel, an affront to human dignity and seriously violating international human rights standards, procedural issues have been emerged. Fair trial guarantees, such as the right to be heard in person and the presumption of innocence are not respected during the proceedings. The Hungarian state fails to ensure their equality before law.
It has been a year since the introduction of the Seventh Amendment to the Fundamental Law and the amendment to Act II of 2012 on minor offences, offence procedures and the registration system of offences which banned homelessness by generally prohibiting ‘habitual residence’ in public spaces.
The amendments faced strong opposition with lawyers, psychologists, artists, and social workers starting petitions and several civil society organisations, including the Hungarian Helsinki Committee, were united in their efforts to protect the rights of homeless people in the face of the amendments. The first prosecutions against homeless people took place very soon after the introduction of the amendments. Judges adjudicating over these cases turned to the Constitutional Court for advice regarding the changes to the law. NGOs, former Constitutional Court (CC) justices, and the UN Special Rapporteur on housing also submitted an amicus brief. Despite the arguments put forward, the CC, with a majority of 9 to 5 justices, found that the prohibition was not unconstitutional in June 2019. The UN Special Rapporteur on housing established in 2018 that “Hungary’s move to make homelessness a crime is cruel and incompatible with international human rights law”. They added that “it is absolutely unacceptable that the Government would fail to discharge its duty under international human rights law to address and prevent homelessness and then have the audacity to treat the homeless population in the harshest of ways through fines they obviously cannot pay and the threat of imprisonment.”
Whilst the provisions themselves are deeply problematic, the manner in which the procedures are carried out also raises concerns. Experience to date shows that fair trial guarantees, such as the right to a lawyer, the right to be heard in person, the presumption of innocence, and the right to human dignity are often seriously violated during proceedings taken against homeless people. There has also been consistent unlawful use of handcuffs which further violates the right to a fair trial.
The use of handcuffs is lawful when there is a risk of attack or self-harm, when the suspect tries to escape, or where there is the need to break the concerned person’s resistance. Decisions on the use of handcuffs must be based on a case-by-case assessment of the situation and be proportionate to the objective pursued. Legislators are fully aware of the irreversibly damaging impacts unlawful use of restraining measures can have on a person’s life. . Despite this the legal requirements for use of handcuffs are often not respected. This is particularly incomprehensible in the case of homeless people – a highly vulnerable group.
A particularly absurd case example is a case defended by the Street Lawyer Association where a homeless person was taken away in chains. The police had ordered the person concerned to leave the public area immediately but when they complied with this order the police considered this to be ‘risk of absconding’. This was used to justify the restraining measure employed by the police. It is of note that the Kúria (the Hungarian Supreme Court) had already underlined in its judgement of 2017 that the use of handcuffs is unlawful in situations where the person concerned is cooperative and does not show any indication of wanting to resist or abscond.
Whilst the incident outlined above was an isolated incident (the Hungarian Helsinki Committee is not aware of any similar incidents to date) the violation of fair trial guarantees continues. In particular the principle of presumption of innocence is regularly disregarded during the hearings of minor offence procedures against homeless people.
In most cases, homeless people are not allowed to attend their hearings in person. In several cases the court heard the homeless “perpetrators” via a video connection, despite defence requests for their client to attend in person. The court usually allows the defence attorney to leave the courtroom and join their client for their video testimony but this still undermines the defendants’ right to be heard in person. In one case, a court argued that the reason for the remote video hearing was that they wanted to protect the dignity of the accused persons, since their dignity would have been violated if they would have been escorted to the court from the police interrogation room in handcuffs and on a leading strap. This judicial reasoning is deeply flawed and simply serves to shed light on issues within the Hungarian judicial system. Why is the use of handcuffs and leading strap necessary when the defendant is fully cooperative and does not pose a danger to society?
It follows from case-law, as well as from relevant legal provisions, that if the precise conditions set out in law are not met, the use of restraining measures are unlawful. However, due to the (wrongly) established practice followed for decades, handcuffing is effectively automatic while escorting defendants to court.
Using handcuffs without any discretion can be an affront to human dignity and justifying keeping the accused in a separate room, away from their attorneys in order to protect this very right is obviously hypocritical. The relevant provisions indeed allow for remote hearings, i.e. a hearing via a telecommunication device, in case of offences of residing on public premises habitually, but it is not compulsory. Therefore there would be nothing to prevent the court from hearing the accused in the courtroom. Moreover, remote hearings serve different purposes. It may have special significance in the case of detainees posing a high security risk, since a remote hearing means that the risk that comes with them being transported is evaded. Furthermore, remote hearings allow for hearings across borders, or for protected persons or victims requiring special treatment, such as juveniles, to testify without being disturbed, far away from the accused person, in a separate room. These provisions were not put in place to deprive members of seriously vulnerable groups of the right to be heard in person at their own trial – a basic fair trial guarantee. Personal connection is necessary to develop a clear understanding of a case, therefore it is reasonable to expect the court to face the person subject to the procedure and learn about their circumstances in their physical reality.
In a case in July 2019, the defendant was not only kept in a separate room during the hearing, but was also forced to wear handcuffs the whole time. The combination of handcuffs and isolation was absurd as the defendant posed no threat to society but was more importantly a violation of the presumption of innocence and of the right to human dignity.
It is unacceptable that the Hungarian government uses criminal law to address a challenging and nuanced social issue and that while doing so, disregards the fundamental rights and guarantees of a vulnerable, minority group who deserve support and empathy, not handcuffs and trials.