The Ombudsman on the right to defence of persons in pre-trial detention

Press release:

The Ombudsman on the right to defence of persons in pre-trial detention

The practice of the penal authorities enabling them to listen in, for control purposes, into the phone conversations of detainees and their lawyers, directly endangered the right to defence of persons in pre-trial detention – the Ombudsman found in his report of last year. Following several exchanges of letters, the national commander of the penal authorities accepted the recommendation of the Commissioner and instructed his subordinates to terminate such controls.

The given measure of the national commander of the penal authorities was not in compliance with the decree of the Ministry of Justice. The decree of the Ministry stipulates that persons in pre-trial detention may have uncontrolled contact in writing and on the phone with their lawyers. Such phone calls may only be made through the phone system of the institution and they may not be controlled; the institution, however, may call back the lawyer in order to make sure the call is legitimate. 

Contrary to this, the national commander of the penal authorities ordered that one should either check the authenticity of the phone number and the identity of the person to be called before the call is put through or one has to make sure of the identity of the person called at the beginning of the conversation. Thus, although phone calls to lawyers belong in principle to that category which may not be controlled, in practice, however, there was a possibility for the staff of the penal institutions to listen in shortly, in general for a period of 10 to 30 seconds, into the phone conversations.

In his 2011 inquiry the Ombudsman checked the relevant instructions and established that the measure of the national commander of the penal authorities was contrary to the applicable rule of law. The registration of phone numbers is done by the staff; therefore, it is the responsibility of the staff that only checked defence lawyers' phone numbers are registered in the system.

In the end the national commander ordered that in accordance with the Ombudsman's recommendation the contested passage of the measure be set aside and in his circular instructed the commanders of the penal institutions to have the necessary changes made in the phone system in order to ensure that phone conversations may not be controlled. 

In 2012, the Commissioner for Fundamental Rights is going to examine the role of defence counsels, and lawyers in general, in criminal proceedings. Dr. János Bánáti, the President of the Hungarian Bar Association, has also welcomed the starting of this project.