Violence in criminal procedures
(The subjects of secondary victimization)
by Csaba Fenyvesi
1. The
place and role of violence in criminal procedures
In constitutional
democracies, rules set down in writing that are both accessible and applicable
to all (prosec4utional laws) are used in prosecution, the goal of which is to
ensure the lawfulness and fairness of the procedure by which crimes are brought
to light and by which the penal code is brought to bear against the
perpetrators of criminal activity. By their mere existence as directives to be
followed, prosecutional laws carry with them – or at any rate are supposed to
carry with them – a symbolic threat, not unlike that in days gone by of “the
cane on the primary school wall”[1].
In the classroom the cane occasionally had to be put to actual use, the same is
true in the practice of prosecution, to a greater extent, even. We cannot claim
that the eventual use of violence is an essential precondition of all
prosecution, but it should nevertheless loom in the background, thereby helping
to ensure the voluntary compliance and peaceful behavior of the participants
and so preventing the need to take the cane down off the wall in the first
place.
Both theoretical
and practical research have shown that those who have committed a crime –
either due to human nature or in response to their own instincts – will try to
avoid being held accountable for their actions, attempting to obstruct the
authorities in their attempts to ascertain, in turn, the facts of the case
through comprehensive investigation, the precise reconstruction of past events,
damning and aggravating evidence (or even, occasionally, exonerating or
extenuating evidence) as well as circumstances directly linked to the crime
being committed. Such behavior goes some way towards providing the authorities
with a basis for justifying the necessity of violence. It is no exaggeration to
assert that if the threat represented by violence and other uses of force were
taken away, the implementation of prosecutional laws and law enforcement would
not be effective and it would be impossible to achieve the standards demanded
by society.
The other fundamental pillar
supporting the use of violence is the existence of a high-level interest,
namely a criminal-political interest, by which all members of society demand
that successful law enforcement and the enforcement of criminal law be
categorically upheld. The force of the belief is so strong that it provides a
solid basis for the implementation of otherwise undesirable state-implemented
violence. State-implemented violence can also exist in constitutional
democracies, insofar as it is carried out in compliance with constitutional
rights and within the specified limitations.[2]
2. Differentiation
between necessary-legal and unnecessary-illegal violence
Now we come to the
differentiation between legal and illegal (lawful and unlawful or official and
forbidden) violence within criminal procedure. Legal violence is that which is
defined and permitted first and foremost by the Constitution, and secondly by
the Act of Criminal Procedure (1973/1, Hungary) and other legal regulations
connected to it (e.g. those governing the police, the border guards, the inland
revenue and customs as investigating organizations, Act of Prosecution etc). A
legal basis for violence does not in itself justify the use of violence in
every case, as it is a serious interference with human rights. Law enforcers
can resort to violence only under certain specific conditions in accordance
with strict criteria; these criteria are necessity and proportionality.[3]
Necessity stems from that which is unavoidable, otherwise unworkable or
unconditionally required, while proportionality requires that the principle
of the minimum be followed, that is to say, the mildest violence or form of
violence applicable to a situation must be applied. The violation of both these
requirements (necessity and proportionality) is a serious offence against norms
and also a breach of individual constitutional and prosecutional rights.
The
Act of Prosecution in Hungary (hereafter AP) states that “in criminal procedure
personal rights and other rights of the citizen must be respected, and those
can only be restricted in the cases and in the ways specified herein. In the
course of the process the authorities must ensure that any recount to force
does not impinge on the rights of the citizen.” (4.§
1-2)
Seen in negative terms, any
form of violent behavior not corresponding to the above requirements is
forbidden. Seen in positive terms, I consider the definition of unlawful
violence set out in 76.§ (8) of the Police and Criminal
Evidence Act (UK, 1984) as acceptable. According to this, oppression includes
torture, inhuman or degrading treatment, as well as the threat of torture or
violence falling short of torture.
3.
The
characteristics of violence in the four main stages of the criminal procedure
(investigation, interim, hearing, penalty enforcement)
The Act of Prosecution
summarizes the task of the investigative authorities in the following way: “The
task of the investigative authorities is to conduct a fast and thorough
investigation of crimes and also to take the necessary steps to call those responsible
for committing crimes to account for their actions.” (AP 16.§ (1)). The
requirement of speed and thoroughness also appears in the sections of the laws
of criminal procedure dealing in practical terms with criminalistic
requirements (concerning the tactics of investigation). The significance of the
so-called erster Angriff “first
strike”[4]
is an extremely important factor in the success of the entire criminal
procedure. Let us consider, for example, what happens when someone is caught in
the act of committing a crime. The person in question is apprehended and
brought forth, then there is the primary collection of facts and immediate
detective activity such as search of the surroundings, house and body search,
detainment and taking into custody. Practically each phase contains within it
an abuse of human rights, and, in cases where resistance is met, violence
committed by the authorities and restriction of rights also occur. Of all the
phases mentioned above, the process of apprehension is special, in that the
public supports the right of individuals to use force in order to help them
apprehend the perpetrator of a crime. Here, too, the notions of necessity and
proportionality come into effect, the right to use violence legitimately is not
to be abused, and the authorities are to be informed immediately so that the
apprehended party may be handed over. In practice, this is the cause of numerous
conflicts. Confronted with someone who is emotionally overloaded, generally
offended and behaving threateningly towards them, their family, or other people
or assets, people very often take the law into their own hands, and act like
judge, jury and executioner, abusing the perpetrator unnecessarily and without
reason and using excessive violence.
The law enforcers have also
been known on occasion to use violence to excess themselves. Despite the two
centuries-old principle that an individual is innocent until proven guilty,
some suffer unjustified and illegitimate violence on the basis of “presumed
concealment of guilt”[5],
because of “the passion for the hunt” or even in order to create a distorted
profile of statistical success. The violence can be physical, psychological, or
a combination of the two. It can be seen in its most varied forms at the
beginning of the procedure (threatening with arrest, threats made in connection
with the children, family or workplace of the individual concerned, physical
assault and so on, to list just a few by way of example.)
Given that an investigation is
by its very nature confidential (not in the public domain), the multitudinous
restrictions on rights of protection and instruments of duress – including
conditions of containment in serious abuse of human rights[6],
custody[7],
temporary enforced rehabilitation – demonstrate the extent to which law
enforcers able and willing to abuse the law are in a position to do so. If we
look through the Hungarian files on maltreatment during official procedures, we
see that in nearly every case the maltreatment occurred either in the phase
immediately prior to the start of the criminal procedure or during the initial
investigative phase (most often police investigations). In other words the
authorities use illegitimate violence[8]
with an eye to criminalistic and prosecutional success, attempting to elicit
facts about the case at such a time when no counsel for the defence is present.
In the second phase of the
criminal procedure, or interim, when it is the public prosecutor who decides on
what direction the process will be taking, and in the preparatory phase of the
trial, during which the court examines the documents in connection to the trial
before its actual commencement, examples of unlawful violence – above and
beyond the legitimate violence of measures implemented under duress - are uncommon. In this phase acts of
investigation and contact[9]
with the participants in the trial, especially the defendant, happen only in exceptional
circumstances.
In the
third phase of the criminal procedure, the court trial phase (of the first and
second instance, and remedial phase) the court council and the principal judge
have the right to order the use of force (taking someone into custody, having
them expelled from the hearing or removed from the building, etc.) Instances of
illegitimate violence might include the judge overseeing the trial and the
witness interviews in an excessively authoritarian style reminiscent of an
interrogation. Here we might see the kind of overly coercive, excessively
contrived, we could even say violent behavior on the part of the judge who, in
a situation where the accused refuses to give evidence, begins an interrogation
about the reasons for this stance, bombarding the accused with questions
concerning the merits of the case. Defendants refusing to give evidence must
not – cannot – be asked questions, as that would be giving evidence. Any intent
on the part of the judge to do this, either in a concealed or open way,
constitutes illegitimate pressure and is a further burden on the already
“enormously disadvantaged defendant.”[10]
The
fourth phase of the independently regulated criminal procedure is that of
sentencing. The defendant now has the legal status of convict, and as such is
even more unprotected and exposed. In the confined and strictly ordered prison
environment, the convict can only maintain sporadic contact with a lawyer –
assuming that he/she has one – and the assumption of innocence until proven
guilty is no longer valid, since a verdict has been brought with the full force
of law. The opportunities for appeal are slim, and in front of the sentencing
judge the principle of contradictories is not complied with fully. The
“defender” of the rights of the convict is the same public prosecutor who has
often affected the status of the convict by seeking a negative verdict, but who
can now act in the role of warden of justice. In an institution in which
external regulation hardly ever occurs in practice, there are countless ways in
which the defendant can suffer from legitimate and illegitimate violence.[11]
4.
The recipients
of secondary victimization in the criminal procedure
In the
four distinct phases of the criminal procedure, the defendant is not the only
one who can suffer legal and illegal violence. As their names suggest, both the
victim of the crime and the witness to the crime can end up on the receiving
end of violence within an investigation. Special consideration needs to be
given to the plight of the victim, who has to undergo voluntarily the
tribulations of the whole procedure in addition to having suffered unlawful
violent attacks against his or her person, rights or property. The violence in
question can wound in many ways and cause different types of damage, be it
emotional, physical, financial, temporal and so on. These different kinds of
violence can happen at the same time with overwhelming effect. When this is
combined with incompetent and rough police officers (or other authorities) who
are often biased and prone to treat victims and witnesses as if they were
themselves under suspicion, and with the indiscrete, insensitive and
humiliating nature of the – sometimes multiple – interviews, it all serves to
increase the boorishness of the entire situation.[12]
Then there is the severity of the occasional medical examinations, the tension
caused by the ever-present procedural bureaucracy and the depressing impact of
force. Young people and children need to be given special consideration, as
those with vulnerable or damaged emotional development are particularly at risk
of victimization at the hands of the grown-up authority’s seeming omnipotence.
In such cases, because of the age of those concerned, the authorities are
required to make provisions to ensure that the standard interview procedure
cannot be applied.[13]
There
are usually between five and seven witnesses called during the course of a
trial, and they, too, can become victims of both kind of violence. They can be
forced to attend, be subject to various investigations and be made to remain in
a particular place, etc.[14]
At the same time, it is possible that they could become the victims of
illegitimate threats and violent actions, seeing as current legislation does
not even allow them to have a lawyer.[15]
Others
who might suffer forced measures include victims of confiscation, who
themselves are neither defendants nor witnesses to a crime. Think here of the
shocked owner of a second-hand car who discovers that it is being forcibly
confiscated by the authorities due to its involvement in an earlier crime
(theft, smuggling, etc.)
5.
Victimization
catalysts and their functions
The
harmful effects of violence (be it legitimate or illegitimate) carried out by
the authorities can be reduced by organizations within the institution of
Hungarian criminal procedure and also by outside individuals and organizations.
These are, in my opinion, the agents of authority (the head of the
investigation, the prosecuting lawyer, the judge), the defense counsel, and
also external individuals and organizations such as the Constitutional Court,
ombudsman, and various organizations for the protection of the legal rights of
individuals, such as the Helsinki Convention. All these parties - especially
the prosecuting lawyer, who has special status – have a fundamental obligation
to guard against violence by the authorities and secondary victimization. They
have the chance to make an impact in the first case, however in the latter case
they cannot help much, since violent acts usually happen close to the committed
crime in terms of place and time, meaning that they can very rarely be present.
Since the participation of the defense counsel in the investigation is
restricted, his or her role is even smaller. Moreover, empirical studies dating
back several decades have shown that barely a third of defendants receive the
formal protection of a lawyer, and that two-thirds of those lawyers are
publicly appointed. Thus, only ten per cent of all defendants receive the kind
of “effective” defense stipulated by the European Convention and Court of Human
Rights.[16]
The
struggle of outside organizations against the use of such violence can take
effect only after the event, and only reaches the victims and perpetrators
after a series of phases, so is less effective than the implementation of
internal “catalysts” during the investigation itself.
6. Potential ways to
reduce violence in criminal procedures and secondary victimization
I believe that because both
the distortion of permitted violence and unlawful violence have the same source
and share the same diseased roots, that they can be cured in the same way, by
improving the selection not only of those who apply violence, in particular
detectives and initial investigators, but also of those employed in the field
of penalty enforcement; improvements also need to be made to increase their
preparedness and to improve their knowledge, experience and self-confidence.
For the above requirements
to be implemented, a particularly competitive system of admissions would also
be needed, in which candidates and employees of a violent disposition as
revealed through personality traits or lack of self-control would be rejected
or dismissed. Successful candidates would also need to demonstrate a high-level
awareness of – and ability to implement – the following: theoretical law (the
management of police materials and procedures), criminalistics (the tactics and
techniques of criminal methodology), psychology (the psychology of criminal
imprisonment) and conflict resolution.
Within the penal procedural
system, it is imperative that the role, presence and significance of the “catalysts” (especially the authority
in charge, defense attorney and lawyer of prosecution) be increased, both from
a theoretical and an operational standpoint.
Summary
A few closing thoughts and
conclusions:
The practice of criminal
procedure shows that the legislative threat (“cane on the wall”) is in itself
ineffective for fulfilling desired law enforcement and crime prevention
objectives. The use of legitimate violence and measures of force (the use of
the cane) is therefore required. The criminal procedure itself is a repository
of force, pressure and obligation; we cannot speak of a “velvety” prosecution,
but, at best, of a considerate one. The truth of this statement is most readily
seen in the case of those involved in organized crime – they are not known for
being overly scrupulous in their choice of methods and instruments, and yet
even so the constitutional and legal limits must not be overstepped. The use of
violence cannot be high-handed, autocratic, excessive or disproportionate –
neither in degree nor in time; legislators and the agents of law enforcement
must maintain a delicate balance between the permitted use of violence and the
human rights of the defendant (and other participants).
In the course of the
criminal procedure it is not only the defendant who, as “main character”, is
forced to suffer and bear legitimate violence; other participants also undergo
the same treatment whilst also, unfortunately, falling prey to the scourge of
illegitimate violence. The overall impact of such treatment can be at times so
great that it goes far beyond the disadvantages and offences actually caused by
the crime itself. This is highly damaging, both to the individual concerned and
to the chances of successful subsequent prosecution. Secondary victimization is
a real phenomenon in Hungarian practice, and its prevention should be both a
priority and a responsibility for all legislators and law enforcement agents,
as well as for those official and unofficial “victimization catalysts.”
[1] The expression can be found
in Ákos Farkas: “A falra helyezett nádpálca ”. Osiris, Budapest, 2002., p. 91
[2] As Ákos Farkas clearly
states, “a successful justice system must have effective instruments for making
criminal investigation and punishment possible, for providing help in
overcoming obstacles that appear in its path – even without the involvement of
the defendant – in order to implement the penalties required by the state. The
authorities involved in the above system are each led by a different objective,
however:
-
for the police, it is to improve crime-fighting statistics,
-
for the prosecution, it is to win as many cases as
possible,
-
for the courts, it is to conclude as many cases as
possible with a minimum of successful appeals,
-
for the prison system, it is for the time of the
sentence to be served with as few problems as possible.
These objectives often clash not only with one another
but also with legal objectives. In the interests of achieving their own
objectives, the authorities attempt to find more and more ways of interfering
with the rights of the individual.
On the other hand there is the defendant, who demands
a fair trial, the observation of prosecutional rules, the protection of his
rights and a constitutional investigation. Finding the right balance is a
extremely difficult, a challenge in itself for a court of constitution.” Ákos Farkas, ” Alkotmányosság
és büntetőeljárás” in Kriminológiai
és kriminalisztikai tanulmányok. Vol. 30, 1993., p. 45.
[3] The criteria – given that
violence features in them both – share similarities with the requirements of
the enforcement of justified defence, where both the theoretical literature and
law enforcement require necessity, proportionality, directness (direct
attacking) and unavoidability.
[4] Flórián Tremmel, Csaba
Fenyvesi Kriminalisztika tankönyv és
atlasz. Dialóg-Campus, Budapest-Pécs, 1998. p. 242
[5] See Ákos Farkas, Pap Gábor: “ Alkotmányosság és
büntetőeljárás” in Kriminológiai és
kriminalisztikai Évkönyv,, Budapest , 1993, p. 45. ; Jerome Skolnick: Justice
Without Trial. New York, 1994. p. 112.; István Szikinger: Az ártatlanság
vélelme - alkotmányos alapelv” in Belügyi Szemle, 1989/3. p. 8.
[6] The European Community’s
Committee on the Prevention of Torture and Inhuman or Degrading Treatment
carried out inspections in Hungary in 1992 and 1994. The report of November
1994 states that “The danger of abuse while in custody is reduced if provision
is made for those taken into custody to notify relatives and request a doctor
or lawyer immediately after being taken into custody… The Committee stressed
that individuals are entitled to the above rights from the moment that they are
forced to remain at a police station, and that in any case where restriction of
these rights occurs, the authorities must justify the necessity of the
restriction in writing. It was also deemed necessary that any such
implementation also be authorised by a lawyer or judge, who would also be
responsible for setting the precise duration of the restriction.” For further
details, see the report Összefoglaló
tájékoztatás az Európa Tanács Kínzás Ellenes Bizottsága (CPT) in Kriminológiai Közlemények 1996/53 p.
50.
[7] Further details of its
anomalies can be found in Csongor Herke’s monograph : “A
letartóztatás” Dialog-Campus,
Budapest-Pécs, 2002. pp.1-366. and in Erika Róth ”Emberi
Jogok kontra fogvatartás a büntető eljárásban” in Acta Humana - Emberi jogi
közlemények 1995/20 pp. 3-87.
[8] On the subject of the duress
of custody in the investigative phase, it is worth noting that in the United
States “the Miranda verdict established a practically unshakeable presumption,
when it deemed interrogation while in custody to be ab ovo duress, against
which the defendant is legally entitled to protection.” J.D. Grano: “Miranda's Constitutional Difficulties: A Reply to
Professor Schulhofe” The University of Law Review 1988/Jan pp. 174-178,
quoted in István Szikinger “Miranda-ügy”
Belügyi Szemle, 1990/3., pp. 111-119.
[9] During the interim phase, it
is the duty of the public prosecutor to interrogate the accused held in custody,
and contact can therefore occur at this time, but I have never come across
illegitimate violence in such situations, neither in legal literature, nor in
my personal practice.
[10] Flórián Tremmel Magyar büntetőeljárás, Dialóg-Campus Budapest-Pécs, 2001 p. 95.
[11] Indications of human rights
violations in the sentencing phase of the process are evident in the fact that
“the European Court of Human Rights received the most complaints (40%) from
those held in custody.” György Vókó “Az
elítéltek jogi helyzetéről, mint reszocializálásuk kiinduló pontjáról” in Jogtudományi
Közlöny, 1989/12 p. 626.
[12] To illustrate this
observation, consider the fact that some police interview rooms are plastered
with photographs of naked women – often pictured in bizarre poses or with men –
and imagine such a room being used to interview the female victim of sexual
assault.
[13] One such case that is both
distressing and, from a criminal-tactical view, abhorrent, is that of a child
or juvenile forced to give evidence as a witness against a close relation, for
example, father, who has committed sexual abuse against them but is denying it.
[14] According to the Act of
Criminal Procedure “the authorities are required to inform the participants of
the procedure of their rights and remind them of their responsibilities.” (4.§ par. 3) Witnesses often feel that the latter
is taken to extremes.
[15] This is due to change as of
July 1 2003, when the new Act of Criminal Procedure will rightly give the
witness the right to a lawyer.
[16] For further details, see
Teréz Nagy Szaboné: “A vétségi nyomozás a
gyakorlatban” Belügyi Szemle,
1983/10. p.28; Mihály Tóth: “Nyomozás és védelem” Magyar Jog,
1989/4. p. 350; Anna Kiss: “A védő
szerepe a büntetőeljárásban” Kriminológiai és Kriminalisztikai tanulmányok
XXVIII. Budapest, 1991. p.177; Csaba Fenyvesi: “A védői jogállás empírikus
vizsgálat tükrében” Belügyi Szemle, 2001/2. p. 37 and, by the same
author: “A kirendelt védői intézmény problematikája” Jogelméleti Szemle,
2001/4.