A személyi szabadság átmeneti elvonása: az őrizetbe vétel szabályai a magyar, a német és az osztrák jog tükrében

Abstract

The study conducts a comparative analysis of a form of temporary deprivation of personal liberty, namely custody, in Hungarian, German, and Austrian criminal procedure law. The author, Nóra Kupecki, examines the conditions for ordering the measure, the circle of those authorized to order it, the forms of ordering, the reasons for and duration of custody, and the rights of the person in custody in the light of the three legal systems. She finds that in all three countries, custody is a preventive coercive measure preceding pre-trial detention, which must be subject to strict conditions. Among the conditions, she highlights the different levels of suspicion required: while in Hungary and Germany a higher degree of well-founded or direct suspicion of the commission of a crime is necessary, in Austria a lower level of well-founded suspicion is sufficient. Examining the application of the principle of proportionality, the author praises the Austrian regulation, where this principle appears expressis verbis among the conditions for ordering. Regarding those authorized to order it, she points out that while in Hungarian and German law the police and the prosecution can act without a judicial warrant, in Austria, as a general rule, prior judicial approval is required, which provides a stronger guarantee. The duration of custody is the shortest in German law, while the Austrian maximum of 96 hours also complies with the practice of the Strasbourg court. The study also specifically addresses a previous amendment to the Hungarian regulation (120-hour custody in priority cases and restriction of contact with a defense lawyer), which was declared unconstitutional, and also analyzes the institution of trial custody. In conclusion, the author states that although all three legal systems protect personal liberty, the German and especially the Austrian regulations contain more guarantees that could be considered for Hungarian legislation.