|Institutions||New Forms of Trafficking||Community Based Assistance|
1. The Fundamental Law of Hungary of 25 April 2012, in effect since 1st January 2012
The Fundamental Act of Hungary replaced by the old Constitutional Act, by 1st of January 2012.
In its Chapter on Freedom and Responsibility, Article III (1) orders that nobody can be subject of torture, inhuman or degrading treatment or punishment or held in slavery. Trafficking in human beings is prohibited. (3) It declares that it is forbidden to use the human body or its organs for gaining a profit.
Article XIV. (1) declares that a foreigner, staying in Hungary can be expelled only based on a lawful decree. It is forbidden to expel groups of people. (2) Nobody could be expelled or extradited to such a state, where he/she maybe threatened by death penaly, torture or other inhuman treatment or punishment. (3) Hungary ensures an asylum for those foreign persons, who are harrassed or persecuted by their country of origin or by their usual place of living because of their ethnic origin or nationality, of their religious or political convictions. (5) Hungary protects the children, women and elderly and disabled with special measures.
Article XVI. (1) It prescribes that each child has a right to the necessary protection and care for its appropriate physical, mental and ethical development. (2) It prescribes that the parents are obliged to take care of their under age children. This obligation includes the education of their children.
Article XVIII. (1) It declares that employment of children is forbidden, except the cases defined by a law, not endangering their physical, mental and ethical development.
Article XXIII. (3) It declares that each adult person who is recognised in Hungary as a refugee, immigrant or settled down foreign person has a right to be elected at the elections of local government representatives or mayors.
There were amendments regarding trafficking in human beings, including children, and the related crimes in the Criminal Code, entered into force in April 2012
Trafficking in Human Beings related crimes and penal sanctions are dealt with in three Chapters of Act IV of 1978 on the Criminal Code. Here we summarize them briefly. (See the detailed analysis in WS-1 Country Report and in WS-1 Comparative Report on the Policy, Institutional and Legal Analysis.)
Chapter XII deals with the Offences Against the Person. Its Title II deals with the offences against the health interventions, the research order of the medical sciences and the right for health autonomy including the prohibition of the transplantation of body tissues or organs without the informed consent of the subject (relevant paragraphs: 173/H, 173/I). Title III deals with the offences against the freedom and human dignity (relevant paragraphs: §.175, §.175/B).
§.175/B (1) on the Trafficking of Human Beings makes trafficking in human beings a criminal offence: “Any person who sells, purchases, conveys or receives another person or exchanges a person for another person, also the person who recruits, transports, houses, hides or appropriates people for such purposes for another party, is guilty of a felony punishable by imprisonment for up to three years.
§.175/B (2) „any person who acquires another person through trafficking in human beings and maintains the status of deprival of the victim’s personal freedom, and forces such victim into forced labor, is guilty of a felony”. The penal sanction is very strict if this offence was committed against a child. If the person, subject of trafficking is under the age of 18 years, the penal sanction is between 1-5 years of imprisonment, if the person is under the age of 12 years, which means that the child is incapable of self-defense, the penal sanction is 15-20 years long or a life-long imprisonment.
Chapter XIV Title I. deals with the Offences Against the Marriage, the Family and the Youth, Title II. Deals with the sexual moral. (The relevant paragraphs are, resp.: §.193, §.194, §.195 and §.197, §.201, §.202, §.204, §.205, §.207, §.209, §.210, §.210/A). The latter paragraphs include regarding offences against children: the sexual abuse of children, perversion, pedophilia, abusing children for pornography and prostitution, promoting prostitution, procuring a child.
Chapter XV in Title II on Policing Offences deals with `Breaching the regulation on the prohibition of entry and illegal residence in Hungary` (relevant paragraphs: §.214, §.214/A) and the `Illegal employment of third country citizens in Hungary` (relevant paragraph: §.214/B) and with the `Smuggling of human beings` (relevant paragraph: §.218).
4. Act XXXI of 1997 on the Protection of Children and Guardianship Administration has been in harmony with the Right of the Child Convention at the time of its approval, as it is certified by the 4/1997 Decision of the Constitutional Court of Hungary
Significant changes are now occurring in the Hungarian child protection policy, especially regarding the better bringing up and care of little children, who are below 12 years of age, who will be placed to foster families instead of institutionalisation.
The XXXI Act of 1997 was amended on 8 December 2012 for this purpose, bringing basic changes in the child protection system of Hungary. The changes include the reconstruction of the secondary and specialized institutional system of child protection and placing the children of 0-12 years (with a few exceptions) to educational or foster parents, instead of children protection homes. The elder children and the special cases (as of the disabled, mentally ill and difficult behavioural cases) remain in the special institutions. This way it became also possible to place the foreign children – of course, among well-circumscribed legal conditions – to educational parents in Hungary.
Vast majority of the child protection homes had been in the property of local governments or county-governments, most of them were nationalised by 1st of January 2013, the relevant administrative process is taking place up to the end of 2013.
Act XXXI of 1997 regulates the protection of the rights of the children. There are some modifications regarding the tasks of offices of the Guardianship Administration on the various levels.
The deputy of the Ombudsman of Fundamental Rights is the highest guard of the rights of the child. The Ombudsman helps in protecting the constitutional rights of the child, examines the abuse of these rights, and initiates general or individual measures for improvement. The Ombudsman informs the Parliament about his actions each year.
The Act regulates the protection of foreign children, entering and staying in Hungary, as the Unaccompanied Minors, including Child Victims of Trafficking and Refugee Children. It regulates at the same time the interim placement and the residential placement, care, education and reintegration of those foreign minors who apply for asylum in Hungary.
5. Act CXCII of 2012 on the Nationalisation of Certain Specialized Social and Child Protection Institutions and on the Amendments of Certain Acts (approved on 26 November 2012 by the Parliament)
6. 316/2012 (XI.13.) Govt. Decree on the Social and Child Protection General Directorate
A new central office was established: General Directorate of Social Affairs and Child Protection by 1st of January 2013. Its main responsibility is to ensure a family home based care (instead of the care in child protection homes) for the children, who are taken care by the state child protection system and are between 0-12 years until January 2014. The other main responsibility is the implementation of the nationalisation of the secondary level, specialized child protection institutions in 2013, managing all administrative, property and financial affairs.
7. 349/2012 (XII.12.) Govt. Decree on the Detailed Regulation of the Nationalisation of Certain Specialized Social and Special Child protection Institutions and on the Amendments of Certain Governmental Decrees
8. 354/2012 (XII.13.) Govt. Decree on the Identification Order of the Victims of Human Trafficking
13. 114/2007. (V.24.) Govt. Decree on the Implementation of Act II of 2007 on the Immigration and Residence of Citizens from a Third Country in Hungary
14. Act LXXX of 2007 on the Asylum Right
15. 301/2007 (XI.9.) Govt. Decree on the Implementation of Act LXXX of 2007 on the Asylum Right
It includes several provisions related to standing of the child in the criminal proceedings, such as appointing a legal guardian to a child, or interviewing, questioning of the child, giving evidence in court, use of audio-visual means, etc.
In our opinion the Hungarian substantive and procedural criminal law is in line with the relevant international conventions, especially with the UN Convention of 2002 Against Trans-national Organized Crime, with its Palermo Protocol and with the relevant regulations and guidelines of the European Union in the field of Trafficking of Human Beings.
However, amendments to relevant legislation should be considered, first of all in the fields of:
- Identification of the Victims of Child Trafficking
- The requirement for the management of their needs – especially:
- The careful diagnosis and treatment of their infectious diseases
- The psychosocial rehabilitation of their mental problems, caused by victimization and by the trauma survived on the trafficking route
- The requirements for their integration / re-integration, including also an obligation and conditions to participate in regular school education during their stay in Hungary at the level of their actual knowledge
- EU Directive 36 of 5 April 2011 of the European Parliament and the Council on the Prevention of and Fight against Trafficking of Human Beings and the Protection of Victims.
- Decision of the Committee of 10 August 2011 on Setting up an Expert Group of Human Trafficking.
- The Right of the Child UN Convention (1989) – signed in 1989 and ratified in 1991
- European Convention on Human Rights and Fundamental freedoms (1950) – signed in 1990 and ratified in 1992
- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment – signed and ratified in 1993
- Protocol 12 to the European Convention on Human Rights and Fundamental Freedoms – signed in 2000 and ratified in 2005
- Facultative Protocol of the Rights of the Child UN Convention against the child trafficking, child prostitution and child pornography – signed in 2002
- The UN Convention of International Organized Crime (Palermo, 2000) – signed and ratified in 2006
- Council of Europe Convention on Action against Trafficking in Human Beings (2005) – signed in 2007 and ratified in 2008
- Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse – signed in 2010
- European Convention on the Compensation of Victims of Violent Crimes – signed in 2010
- Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [OPCAT] – ratified in 2011