Dear all, Today's DigiRights Newsletter comes to you courtesy of our team from the Hungarian Helsinki Committee. Before I turn over to Lili and Andras, however, please allow me to take this opportunity to remind you of the upcoming DigiRights Conference, which is taking place 30–31 January 2025 in Leuven (and online). Please register here to join us! More information about the Conference can be found on the website here. With that, I wish you all well for the year ahead,
Ashlee __________________________________________
Report from Hungary
Hungary’s digitalisation process in criminal procedures has accelerated significantly in recent years. Following legislative changes as early as 2018 and during the COVID-19 pandemic, remote hearings have become the primary way of securing the presence of detained defendants; authorities and the defendant’s lawyer are obliged to communicate electronically, replacing the paper-based manner. The Hungarian Helsinki Committee conducted the DigiRights project research in Hungary. In this newsletter, they report on their most interesting findings.
Strong administrative push for remote hearings due to cost-efficiency considerations
The shift from physical to remote hearings has shown that the system can adapt quickly. Still, it has also raised questions about maintaining essential elements of fair trial rights, such as the principle of immediacy. Even after the pandemic, with some exceptions, the main rule is that detained defendants should participate in the proceedings through remote hearings. The research conducted by the Hungarian Helsinki Committee within the framework of the DigiRights project indicates a strong push for remote hearings due to cost-efficiency considerations – mainly by the penitentiary administration of Hungary. However, the research uncovered a lack of systemic considerations regarding how to strike a fair balance between judicial efficiency and practical benefits on the one hand and fair trial standards on the other, amid technological advancements.
First, initial resistance, then acceptance by stakeholders
The qualitative research (semi-structured in-depth interviews) in Hungary found evidence that the shift towards remote hearings initially met with resistance among stakeholders, has gained acceptance due to technological advancements and practical benefits. The COVID-19 pandemic accelerated this digitalisation process, improving infrastructure and reducing the scope of technical problems. However, challenges such as the stakeholders’ often inadequate digital competence and the potential degradation of certain fair trial rights persist. To address these challenges, ongoing improvements and a balanced approach are crucial. Professional standards and stakeholder training are needed to ensure that technological and pragmatic benefits do not overshadow procedural guarantees, with ongoing improvements essential for addressing practical and ethical dimensions.
Practical solutions individually and persisting systemic challenges
Although lawyers have devised individual practical solutions to navigate the challenges of remote hearings, our research shows that notable limitations persist. The inability to build trust in remote consultations, constraints on confidential client-attorney communication, and technical shortcomings during hearings hinder defence effectiveness. Both lawyers and judges have expressed concerns about the confidentiality and reliability of communication systems, particularly within penitentiaries. Improved technical solutions are necessary to ensure secure and uninterrupted client-lawyer interactions during remote hearings.
Significant concerns remain regarding the right to a fair trial
In criminal proceedings, telecommunications devices offer practical (such as logistical) benefits but raise significant concerns regarding the right to a fair trial. While procedural flexibility has improved, concerns about the erosion of defendants’ rights, particularly their presence and ability to engage in effective defence during trials, persist. In some instances, safeguards for vulnerable individuals and legal remedies remain insufficient. The remote nature of hearings may impair direct evidence perception (e.g. due to the participants’ inability to observe body language or the difficulties of organising meaningful confrontations between participants with contradicting testimonies). The remoteness of procedural acts can also severely affect the ability of vulnerable individuals, such as those with disabilities (especially mental or sensory impairments) or older people, to participate in the proceeding effectively. The digital vulnerability of individuals with limited technological skills or special needs also needs addressing, emphasising the need for a nuanced approach to ensure fair treatment. All research participants agreed that remote hearings negatively impact courtroom immediacy, although there were differing views on the extent of this impact and the possibilities for offsetting it. Research participants also voiced doubts about how the confidentiality of client-attorney communications can be maintained when the detained defendant and the defence counsel are not in the same place during the hearing.
Furthermore, remote hearings present challenges to the quality of the interaction between different procedural actors. Judge and lawyer research participants have mixed views; some consider remote hearings a viable alternative to in-person hearings for logistical reasons, while others worry about the impact of remote hearings on communication and evidence presentation. The principle of immediacy, central to fair trial standards, is perceived as compromised by all research participants, potentially affecting the depth of the judicial assessment of evidence during the trial.
Although safeguards like appeal rights and requests for physical presence exist, the discretionary power of authorities and the main rule of connecting detained defendants through telecommunication devices in the proceedings could potentially limit defendants’ rights. Further refinement of regulations may be required to ensure fairness. Our research findings show that addressing these gaps and improving telecommunication systems’ technical aspects seem crucial for maintaining fair trial rights. Balancing efficiency with trial integrity will be essential as the judicial system continues to adapt to the digitalisation of criminal proceedings.
Remote interpretation: challenges
Significant challenges and considerations are associated with remote interpretation in criminal proceedings in Hungary. While Hungarian law permits remote hearings with interpreters via telecommunication, regulations on AI-assisted document translation are not in place. Interviews revealed mixed views on remote interpretation’s effectiveness and fairness, highlighting concerns about technical limitations, the confidentiality of interpreted client-attorney consultations when the defendant, the lawyer and the interpreter are not in the same place, and the quality of interpretation. Professionals generally favour a face-to-face setting with the defendant during interpretation, citing issues with the remote hearing software not being capable of handling simultaneous interpretation, poor sound quality, added difficulty to perform the interpretation without being able to perceive the defendant’s body language, and the need for a unique personal relationship, trust between the interpreter and the defendant. Addressing these challenges through enhanced technological solutions and inter-agency training could improve the fairness and effectiveness of remote hearings, especially interpretation in criminal proceedings.
Electronic case file management: noted improvements, general openness of stakeholders, need for further development
The Hungarian criminal proceedings system has a detailed legal framework for procedural documents and electronic case file management. After hearing the suspect, the case files are made available to the defence upon request, with access often provided electronically if technical conditions allow. Individuals can examine or download the files electronically after identification; access is available at official premises or detention facilities. The authorities and the defendant’s lawyer are obliged to communicate electronically, while the defendant can choose to do so.
Despite the potential improvements in efficiency and accessibility introduced by the transition to electronic case file management in Hungary, significant challenges persist. Interviewees from the judiciary, defence counsels, and the defendant identified technical and practical obstacles, such as inadequate infrastructure, compatibility issues between paper and digital files, and unreliable access for detained individuals. These issues undermine the effectiveness of digital systems, leading to a preference for paper-based processes. However, our research has uncovered a general openness to the future of electronic communication, with some noted improvements since its initial implementation. Developing a more reliable and user-friendly digital document management system, possibly integrating both paper and electronic documents, will be crucial for enhancing the system’s functionality and the defence’s access to ensure fairness.
Conclusion
In conclusion, legislative changes, including expanded remote hearing provisions, aim to enhance procedural flexibility and accessibility of the criminal procedure in Hungary. Yet, challenges persist related to remote hearings, such as the confidentiality of the lawyer-client communication and digital case file access and usability. Judges and prosecutors are adapting to these changes. Still, they are often alone when dealing with related issues, only able to lean on their experiences without receiving effective training and professional guidelines that could systematically ensure the fairness of the procedure. Enhancing digital infrastructure and practices is necessary to fully realise the benefits of technology while safeguarding defendants’ rights.
Lili Krámer and András Kádár
Hungarian Helsinki Committee, Budapest
January 2025
Comentarios