On November 12, the Central Investigative Prosecutor’s Office launched an investigation for mistreatment in an official proceeding against four prison officers in connection with the death of a 44-year-old prisoner on the same day in the Budapest High and Medium Security Prison. On November 17, the prison commander suspended the four prison wardens and one other staff member at the medical unit for two months and launched disciplinary procedures against them (see also section 1.c., Prison and Detention Center Conditions).

On March 31, Bela Biszku, who had been under prosecution since 2013 for acting as an accomplice to war crimes and multiple murders committed by the government during the communist era, died at the age of 94, which terminated the pending court case.

There were no reports of politically motivated disappearances.

The constitution and law prohibit such practices, but there were reports that authorities did not always observe these prohibitions.

As of September, the commissioner for fundamental rights (ombudsman) issued seven reports within the framework of the national preventive mechanism of the Optional Protocol to the UN Convention against Torture (OPCAT) on unannounced site inspections in detention facilities. The inspected institutions included penitentiaries, police holding facilities, homes for the elderly, and centers for children with disabilities or special needs. All these reports established cases of cruel, inhuman, or degrading treatment or punishment.

Since June the Office of the UN High Commissioner for Refugees (UNHCR), the Hungarian Helsinki Committee (HHC), Human Rights Watch (HRW), and Amnesty International released reports on allegations of abuse and violence by law enforcement officials against migrants and asylum seekers who entered the country irregularly from Serbia. The reports included allegations of systemic violence, including bites by unleashed dogs, the use of pepper spray, beatings with truncheons, and other mistreatment. On July 15, UNHCR called on the government to investigate reports of abuses. As of November, there was no official information on any internal investigations having been opened based on the abuse allegations.

On June 4, UNHCR reported the case of a 22-year-old Syrian man who drowned in the Tisza River on June 1 after uniformed personnel allegedly pushed him back to prevent his crossing the border illegally from Serbia. The HHC reported that police opened a public administration proceeding on the basis of unnatural death and, separately, the Szeged Investigative Prosecutor’s Office began a criminal investigation against unknown perpetrators for mistreatment during official proceedings. Police terminated the public administration proceeding on September 26. On October 25, the prosecutor’s office terminated the investigation based on lack of evidence that a crime had been committed. On December 21, the HHC filed a complaint against the prosecutorial decision to terminate the investigation, which remained pending at the Office of the Prosecutor General.

Prison and Detention Center Conditions

Overcrowding and poor physical conditions remained problematic in the prison system, potentially subjecting inmates to inhuman and degrading treatment. There were occasional reports of physical violence by prison guards; prisoner-on-prisoner violence; and instances of authorities holding pretrial detainees and convicted prisoners together, as well as juveniles with adults.

Physical Conditions: The HHC reported that the high level of overcrowding in penitentiaries continued to constitute a serious human rights problem.

As of November 8, there were 18,146 inmates in prisons and detention centers, including 1,333 women and 299 juveniles; the official capacity of these facilities was 13,771. The prison population increased to 132 percent of capacity, compared with 127 percent at the end of 2015. On March 7, the Council of Europe released its annual penal statistics report, which stated that the country’s prisons were severely overcrowded, with an occupancy rate of 142 percent in 2014.

On January 7, the European Court of Human Rights (ECHR) ruled in five cases of 49 prisoners, ordering the government to pay 692,000 euros ($761,000) in compensation for degrading treatment due to overcrowding and unsanitary conditions. In March 2015 the ECHR issued a pilot judgment in a similar case of six prisoners and concluded that the overcrowding of penitentiaries was a structural problem in the country. The ECHR consequently called on the government to produce a timeframe for introducing preventive and compensatory remedies that would provide effective redress for human rights violations stemming from prison overcrowding. On October 25, parliament amended the law, effective January 2017, to introduce state compensation of 1,200 to 1,600 forints ($4.30-5.70) per day to prisoners for degrading treatment due to overcrowding and unsanitary conditions. Detainees must request such compensation at the prison of their detention within six months of the termination of the holding conditions that violated fundamental rights, and a judge specializing in detention decides the claim. In response to the newly introduced domestic remedies, on November 8, the ECHR decided to suspend until August 2017 the pending applications brought before the court, numbering approximately 6,800, concerning conditions of detention.

On May 23, the ombudsman released an OPCAT report on the Somogy County Prison in Kaposvar that strongly criticized the practice of ordering prisoners in groups to undress in the prison’s chapel for full body searches. The report also noted poor physical and hygienic conditions; prisoner-on-prisoner violence; verbal and physical violence against inmates by one prison warden; racism and sexism by several prison wardens; and the failure to separate minor and adult inmates.

A 2010 order of the national police chief requires law enforcement personnel to be present when medical staff examine detainees, making exceptions only when the inmate or doctor so requests and if permitted by the senior guard supervisor. The HHC continued to object that detainees who alleged physical mistreatment usually were examined only by internal medical staff. According to the HHC, security personnel were present less frequently during medical examinations in penitentiary institutions.

As of November 25, 53 deaths took place in prisons and six in pretrial detention. Of the 59 deaths, 51 were natural deaths and seven were suicides. In each case, internal investigations followed the incident but, as of November 28, no staff member of the penitentiary has been found responsible.

On November 12, the Central Investigative Prosecutor’s Office launched an investigation for mistreatment in an official proceeding against four prison officers in connection with the death of a 44-year-old prisoner on November 12 in the Budapest High and Medium Security Prison. On November 17, the prison commander suspended the four prison wardens and one other staff member at the medical unit for two months and launched disciplinary procedures against them (see also section 1.a.).

The HHC continued to report unsatisfactory physical conditions in certain penitentiaries, including the presence of bedbugs and other insects. Sanitation and toilet facilities were also poor and insufficient in number in some cases. In some prisons, toilets were not separated from living spaces. The HHC also noted frequent shortages in natural light and artificial lighting in cells and a lack of adequate heating. There continued to be a shortage of psychological care.

Administration: NGOs reported that authorities occasionally failed to investigate fully credible allegations of mistreatment. There was no separate ombudsperson for prisons, but detainees could submit complaints to the commissioner for fundamental rights (ombudsman) or to the prosecutor’s office responsible for supervising the lawfulness of detention. The ombudsman handled prison complaints and conducted ex officio inquiries but had no authority to act on behalf of prisoners.

Independent Monitoring: The National Police Headquarters (ORFK) permitted independent monitoring of detention conditions by the HHC and international human rights groups. The HHC carried out regular monitoring visits to penal institutions based on a cooperation agreement concluded with the National Penitentiary Headquarters. The HHC reported that it conducted four visits to prisons through the end of October.

Improvements: During the year prison capacity increased by 146 inmate spaces, reducing overcrowding.

The constitution and law prohibit arbitrary arrest and detention. There were reports authorities did not always observe these prohibitions.

ROLE OF THE POLICE AND SECURITY APPARATUS

The ORFK, under the direction of the minister of interior, is responsible for maintaining order nationwide. The country’s 19 county police departments and the Budapest police headquarters are directly subordinate to the ORFK. City police have local jurisdiction but are subordinate to the county police. Two other units are directly subordinate to the minister of interior: the Counterterrorism Center (commonly known by its Hungarian acronym “TEK”) and the National Protective Service (NPS). The TEK is responsible for protecting the prime minister and the president and for preventing, uncovering, and detecting terrorist acts, including kidnappings, hijackings, and other offenses related to such acts, and arresting the perpetrators. The NPS is responsible for preventing and detecting internal corruption in law enforcement agencies, government administrative agencies, and civilian secret services. Both the TEK and the NPS are empowered to gather intelligence and conduct undercover policing, in certain cases without prior judicial authorization.

Concerning the national intelligence services, the Constitution Protection Office and the Special Service for National Security are under the supervision of the minister of interior and responsible for domestic intelligence.

On June 7, parliament adopted a law creating a new national security service entity, the Counterterrorism Information and Crime Analysis Center (TIBEK), under the direct supervision of the minister of interior. TIBEK can establish unlimited connections between its data management system and that of the other intelligence agencies. TIBEK has no authority to conduct secret information gathering activities and has no access to information collected by the NPS on police officers. TIBEK started operation on July 7.

The Hungarian Defense Force is subordinate to the Ministry of Defense and is responsible for external security as well as aspects of domestic security and disaster response. Since September 2015, under a declared state of emergency prompted by mass migration, defense forces may assist law enforcement forces in border protection and handling mass migration (see also section 2.d., Access to Asylum).

On June 7, parliament amended the constitution to create a new “threat of terror” state of emergency. Under the provision, in the event of an act of terror or its considerable and immediate danger, parliament, at the initiative of the cabinet, can declare a state of emergency due to a threat of terror with the support of two-thirds of members of parliament present. After the cabinet initiates the announcement of the special legal order at parliament, the cabinet can issue decrees to suspend the application of or to derogate from certain laws, or take other extraordinary measures for up to 15 days before the special legal order must be confirmed by a two-thirds parliamentary vote. Such measures may include tightening border controls, transferring air traffic control to the military, deploying armed forces and law enforcement forces to protect critical infrastructure, and taking special counterterrorism measures. The amendment specifies that the cabinet can deploy armed forces domestically only if the use of law enforcement and national intelligence agencies are insufficient under the threat of terror.

Organized citizen groups, such as neighborhood and town watches, played a significant role in helping police prevent crime and maintain public security. The law requires neighborhood watch groups to complete a formal cooperation agreement with relevant police departments and imposes fines for any failure of cooperation. The prosecutor’s office maintained legal control over the operation of the neighborhood watch groups and could initiate legal proceedings in court if a group lacked a formal cooperation agreement with police.

Civilian authorities generally maintained effective control over law enforcement and the armed forces, and the government had effective mechanisms to investigate and punish abuse and corruption. Military prosecutors are responsible for investigating abuses by military, police, penitentiary staff, parliamentary guards, clandestine services, and disaster units.

There were reports of impunity involving security forces during the year, concerning allegations of abuse and violence by law enforcement officials against migrants and asylum seekers entering the country irregularly from Serbia (see section 1.c.). The HHC also noted a large disparity between the number of indictments of official persons (such as police officers and penitentiary staff) alleged to have committed abuses and the indictment of persons alleged to have committed violent acts against officials. Through the end of October, approximately 4.8 percent of complaints of mistreatment in official proceedings by members of the security forces resulted in indictments, while 69 percent of alleged acts of violence against official persons resulted in indictments.

The HHC also criticized the right of the minister of interior to determine the eligibility of police officers and penitentiary staff members to continue service in their full capacities after being convicted of crimes, including mistreatment of defendants during official proceedings or forced interrogation. In 2015 the minister permitted four police officers convicted for mistreatment in official proceedings and two officers convicted for forced interrogation to continue in service.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

Police are obligated to take into “short-term arrest” individuals who are apprehended committing a crime or are subject to an arrest warrant. Police may take into short-term arrest individuals who are suspected of having committed a crime or a petty offense or are unable or unwilling to identify themselves. Police may also take into short-term arrest unaccompanied minors who are suspected of having run away from parental authority or guardianship. Short-term arrests generally last up to eight hours but may last up to 12 hours in exceptional cases. Police may hold persons under “detention for the purposes of public safety” for 24 hours if the identification of the person concerned so requires. Detention of conditionally released persons who abscond from probation, or may reasonably be expected to do so, may last up to 72 hours. Police, a prosecutor, or a judge may order detention of suspects for 72 hours if there is a well-founded suspicion of an offense that is punishable by imprisonment and the subsequent pretrial detention of the defendant appears likely. A prosecutor must file a motion with an investigatory judge requesting pretrial detention prior to the lapse of the 72-hour detention or release the detainee. A defendant may appeal a pretrial detention order.

Police must inform suspects of the charges against them at the beginning of their first interrogation, which must be within 24 hours of detention. Authorities generally respected this right.

There is a functioning bail system. According to the HHC, bail and other alternatives to pretrial detention were underused.

By law, police must inform suspects of their right to counsel before questioning them. Representation by defense counsel is mandatory in the investigative phase if suspects face a charge punishable by more than five years’ imprisonment; are already incarcerated; are deaf, blind, unable to speak, or have a mental disability; are unfamiliar with the Hungarian language or the language of the procedure; are unable to defend themselves in person for any reason; are juveniles; or are indigent and request the appointment of a defense counsel. When defense counsel is required, suspects have three days to hire an attorney, otherwise police or the prosecutor appoint one. If suspects make clear their unwillingness to retain counsel, police or the prosecutor are required to appoint counsel (ex officio) immediately by choosing a lawyer from a list kept by a competent bar association. The HHC continued to criticize the system of ex officio legal representation on the basis that the quality of “in-house” ex officio defense counsels appointed by authorities was generally substandard.

By law, neither police nor the prosecutor are obligated to wait for counsel to arrive before interrogating a suspect. In 2013 the Constitutional Court noted that the absence of mandatory defense counsel at the first interrogation of a criminal suspect due to police failure to provide timely notification of the date and place of the session violated the constitutional right to defense counsel. The court ruled that any statement made by a suspect in the absence of legal counsel may not be considered as evidence during the criminal proceeding. Human rights NGOs continued to report, however, that police routinely proceeded with interrogation in the absence of defense counsel immediately after notifying suspects of their right to counsel.

The law permits short-term detainees to notify relatives or others of their detention within eight hours unless the notification would jeopardize the investigation. Investigative authorities must notify relatives of a person under “72-hour detention” of the detention and the detainee’s location within 24 hours. A 2014 report by the Council of Europe’s Committee for the Prevention of Torture (CPT) noted a lack of immediate notification of relatives of those in 72-hour detention and criticized the 24-hour deadline as excessively long.

Arbitrary Arrest: There were reports of arbitrary arrests. During the first eight months of the year, the Office of the Prosecutor General initiated indictment in one case of alleged arbitrary arrest, rejected official complaints of arbitrary detention in 30 cases, and closed the investigations without filing charges in 15 cases.

Pretrial Detention: Under certain conditions (involving a risk of a detainee escaping, committing a new offense, reoffending, hindering an investigation, or colluding with co-perpetrators), a prosecutor may file a motion with an investigatory judge to order pretrial detention. Criminal proceedings for cases where the accused is in pretrial detention take priority over other types of expedited hearings. A detainee may appeal pretrial detention.

The HHC reported that authorities generally failed to conduct procedures in a timely manner and with due diligence for defendants in pretrial detention. The law, in certain cases, does not limit the duration of pretrial detention, including when the criminal offense is punishable by more than 15 years’ imprisonment, pending a trial court judgment. In March 2015 the ombudsman initiated a case at the Constitutional Court that would restore the general four-year limit on pretrial detention that was in effect prior to 2013 for persons accused of crimes punishable by imprisonment for more than 15 years. The Constitutional Court’s response remained pending at the end of November.

The HHC reported there was a 24 percent decrease in prosecutorial motions seeking a court order of pretrial detention from 2013 to 2015. The number of pretrial detainees was 21 percent lower at the end of 2015 compared to the end of 2013. According to the HHC, prosecutorial motions to order pretrial detention during the investigative phase of the proceeding had a success rate greater than 90 percent in many counties, with a national success rate of 87.7 percent in 2015. According to the National Penitentiary Headquarters, as of November 8, authorities held 3,228 persons in pretrial detention, which was 17.7 percent of the overall number of people in detention. Of these, 704 had been incarcerated for six months to a year and 603 had been held for more than a year.

Detainee’s Ability to Challenge Lawfulness of Detention before a Court: The defendant, defense council, or prosecution in a judicial proceeding may at any point move to have the defendant released from pretrial detention. The court must examine the motion on its merits and make a reasoned decision. The defendant may submit a complaint to police or the prosecution against the decision when placed in 72-hour detention. Submitting such a complaint does not suspend detention. Any person who believes that short-term arrest by police violates his or her fundamental rights may file a complaint with the police unit responsible or with the independent police complaints board.

The law provides that persons held in pretrial detention or under house arrest and later acquitted may receive monetary compensation.

Protracted Detention of Rejected Asylum Seekers or Stateless Persons: The law permits the detention of rejected asylum seekers who were in detention during their asylum procedure and whose deportation was pending or who declined to leave the country voluntarily within a prescribed period. Authorities may also order the detention of rejected asylum seekers whom authorities suspect are at risk of fleeing following the rejection of their asylum application. Authorities may place rejected asylum seekers in “immigration detention” for a maximum of 12 months (30 days in cases of families with children).

The HHC reported that immigration detention generally took place in immigration detention centers. The HHC continued to criticize the general practice of placing handcuffs and leashes on immigrant detainees when they leave detention center premises under police escort or with armed security guards without any individualized assessment of the risk posed by the individual.

e. Denial of Fair Public Trial

The constitution and law provide for an independent judiciary. Courts often functioned independently, but attempts to exert political influence over the judiciary occurred. NGOs and international organizations continued to assert that laws on the judicial system adopted in 2011-13 contributed to weakened checks and balances by restricting the competence of the Constitutional Court, altering rules for electing Constitutional Court justices, and vesting the president of the National Office for the Judiciary (NOJ) with significant decision-making power. Government officials occasionally publicly criticized nonfinal court rulings.

By law, the Constitutional Court does not have competence to review potentially unconstitutional legislation with budgetary impact if the legislation is adopted when the state debt exceeds 50 percent of GDP. This limitation remains in effect for previously adopted laws, even if the state debt were to fall below 50 percent. The law provides that a committee consisting of members of party factions proportionate to their representation in parliament has the right to nominate, with a two-thirds majority, a Constitutional Court justice. A two-thirds majority in parliament must endorse a nominee in order to be elected as a Constitutional Court justice, whose term is 12 years. Prior to the governing coalition’s loss of its two-thirds majority in parliament in March 2015, the law allowed the governing parties the necessary two-thirds majority in both the nominating committee and the assembly. During this period, the Fidesz-KDNP majority elected 12 Constitutional Court justices. As of April 21, four of the 15 seats were vacant (including that of the court president) following the end of the terms of sitting justices. On November 22, parliament elected four new justices and a new court president to the Constitutional Court upon the joint nomination of the governing parties and the opposition Politics Can Be Different party.

On June 23, the ECHR confirmed in a final ruling that the dismissal of Andras Baka in 2011 from the posts of president of the former Supreme Court and president of the National Council of Justice violated his rights of access to a court and freedom of expression. The ECHR stated that the premature termination of the applicant’s mandate as president of the Supreme Court was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers. According to the ECHR, this lack of judicial review was the result of legislation whose compatibility with the requirements of the rule of law was doubtful. The ECHR also concluded that the premature termination of his mandate was prompted by views and criticisms that he had publicly expressed in his professional capacity concerning the acts passed after 2010 that affected the judicial system. The ECHR noted that it was not only his right but also his duty as president of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary.

In December 2015 the International Bar Association’s Human Rights Institute (IBAHRI) released a report that concluded the independence of the judiciary and the rule of law were under threat. The IBAHRI report sharply criticized the nomination procedure for Constitutional Court justices and the reduced authority of the Constitutional Court. IBAHRI also concluded that the functions of the National Judicial Council were insufficient to oversee the activities of the president of the NOJ. IBAHRI expressed concern that the council was too weak to function as an independent body for judicial self-regulation as intended and that the Constitutional Court’s ability to protect the rights guaranteed by the constitution was restricted. IBAHRI also found the ombudsman interpreted the office’s mandate too narrowly when seeking to bring cases before the Constitutional Court. The Ministry of Justice rejected IBAHRI’s criticisms and asserted that the legal framework provided sufficient protections against potential direct or indirect governmental interference in the operation of the judiciary. On October 5, the Human Rights Council of the United Nations General Assembly formally adopted the Universal Periodic Review of Hungary, which included a recommendation that the government should implement reforms on judicial independence and rule of law recommended by the IBAHRI in 2015.

Government officials at times gave statements in their official capacities that were widely seen as attempts to influence judicial decisions and challenge the concept of judicial independence. In one example, on January 28, Bence Tuzson, state secretary for government communication of the prime minister’s cabinet office, publicly criticized a ruling of the Veszprem Tribunal, stating “the cabinet finds it outrageous that no one is held responsible for a case of such weight as the toxic sludge disaster, which claimed 10 human lives” in 2010. Tuzson stated that the cabinet “strongly urges” authorities to appeal the verdict because “the truth shall be revealed.” On January 31, vice president and deputy faction leader of Fidesz, Szilard Nemeth, announced that Fidesz was initiating a debate in the Justice Committee of parliament in connection with the toxic red sludge case and a high-profile misappropriation case involving the former Socialist deputy mayor of Budapest. Nemeth asserted that ordinary people were “justifiably outraged” by both verdicts and called the independence of judges a “liberal requirement.” No such meeting had taken place at the Judiciary Committee as of the end of November. On February 1, Peter Darak, president of the Curia, stated that “judicial judgement free from all external influence is under absolute constitutional protection, therefore statements suggesting contrary expectations undermine the foundation of a state governed by the rule of law.” He added that it was particularly important that the other branches of government refrain from such statements. On February 2, Tunde Hando, president of NOJ, also urged representatives of the other branches of power to respect the independence of judges.

During the year Transparency International Hungary (TI-H) repeated concerns expressed by the European Commission for Democracy through Law (Venice Commission) in 2012 in connection with “the high level of independence of the prosecutor general, which is reinforced by his or her strong hierarchical control over all other prosecutors.” TI-H criticized the right of the prosecutor general to give instructions to subordinate prosecutors in individual cases, to take over any case from any prosecutor, and to reassign cases to different prosecutors at any stage of the procedure without providing any reasoning. In addition, TI-H criticized the lack of an independent forum where decisions by prosecutors not to bring cases to court may be challenged. In July 2015 the Group of States against Corruption (GRECO) of the Council of Europe released a report expressing concern that the prosecutor general may remain in office indefinitely after the expiration of his or her nine-year term until parliament elects a successor by a two-thirds majority vote. According to GRECO, this procedure considerably increased the influence of politics in the selection of a prosecutor general (see section 4).

TRIAL PROCEDURES

The constitution and law provide for the right to a fair public trial, and an independent judiciary generally enforced this right.

Defendants are presumed innocent until proven guilty. Suspects have the right to be informed promptly of the nature of charges against them and of the applicable legal regulations, with free interpretation as necessary. Trial proceedings are public, although a judge may minimize public attendance and may order closed hearings under certain conditions. Trials generally occurred without undue delay. Defendants have the right to be present at their trial. Immediately after defendants are informed of the charges against them, they must be advised of their right to choose a defense counsel or to request the appointment of one. If the participation of the defense counsel is mandatory in the procedure, defendants must be informed that, unless they retain defense counsel within 72 hours, the prosecutor or the investigating authority will appoint counsel for them at public expense. If a defendant declares that he or she does not wish to retain counsel, the prosecutor or the investigating authority appoints counsel immediately.

The law stipulates that the investigating authority shall schedule the time of the interrogation in a way that enables defendants to exercise their right to a defense. In the trial phase, a summons for the court hearing must be delivered at least five days prior to the hearing. Defendants have the right to free interpretation as necessary from the moment charged through all appeals. During trial, defendants and their legal counsel have complete access to evidence held by the prosecution that is relevant to their cases. Defendants may challenge or question witnesses and present witnesses and evidence on their own behalf. The law states that no one may be compelled to provide self-incriminating testimony or produce self-incriminating evidence. Defendants have the right of appeal. These rights were extended to all citizens.

Human rights NGOs continued to criticize the legal measures available to authorities to prosecute and incarcerate juveniles under certain circumstances. The criminal code sets 12 as the minimum age at which authorities may prosecute juveniles for homicide, voluntary manslaughter, grievous assault, robbery, or plundering, but only if at the time of committing the criminal offense they had the capacity to understand its consequences. Under the rules, courts may not impose prison sentences on juveniles that were between the ages of 12 and 14 when allegedly committing the criminal offense, but they may order special measures, such as placement in a juvenile correctional institute. Pretrial detention for juveniles between the ages of 12 and 14 may not last more than one year and it is to take place in a juvenile correctional institute. For juveniles over the age of 14, the maximum length of detention is two years, and they may be placed in a juvenile correctional institute or penitentiary upon court decision. The law on petty offenses permits courts to incarcerate juveniles for up to 45 days; unpaid fines may also result in confinement. Rules on community service apply only to juveniles over the age of 16.

POLITICAL PRISONERS AND DETAINEES

There were no reports of political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

By law, individuals or organizations may seek civil remedies for human rights violations through domestic courts. Individuals or organizations who have exhausted domestic legal remedies regarding violations of the European Convention on Human Rights allegedly committed by the state may appeal to the ECHR for redress.

The constitution and law prohibit such actions, and there were no reports the government failed to respect these prohibitions.

There is no requirement for prior judicial authorization of surveillance by TEK and sometimes by the national intelligence services in cases related to national security that involve prevention of terrorism or are related to rescuing citizens captured abroad in conflict zones or by terrorist groups. In such cases, the minister of justice (instead of a judge) issues a permit for the covert intelligence action for 90 days, with a possibility of extension. Such intelligence collection may involve secret house searches, surveillance with recording devices, opening of letters and parcels, and checking and recording electronic or computerized communications without the consent of the persons under investigation. This decision is not subject to appeal.

On January 12, the ECHR ruled (effective as of June 6) that the law authorizing the surveillance of citizens by law enforcement bodies without court approval constitutes a violation of the right to privacy. The ECHR found that the scope of the measures could allow them to be applied to virtually anyone; that the authorization of surveillance takes place entirely within the executive and without an assessment of strict necessity; that new technologies enable the government to intercept masses of data concerning persons outside the original range of operation; and that effective remedial measures are absent. Prior to the ECHR verdict, a 2013 ruling of the Constitutional Court established that external control over any surveillance authorized by the minister was effectively exercised by parliament’s National Security Committee and the ombudsman. Parliament did not amend the law to introduce general mandatory judiciary approval to authorize secret surveillance during the year. On June 7, parliament amended the law to include digital communication service providers among the companies obligated to store and turn over metadata and communication content, except end-to-end encryption, to police, the TEK, intelligence services, and criminal investigators of the tax authority.

The City Is for All (AVM), a grassroots organization advocating for the rights of homeless persons, continued to report that police engaged in wide-ranging discrimination against the approximately 30,000 homeless persons in the country, one-third of whom lived in the capital. In March 2015 the AVM and the HHC jointly filed a case with the Equal Treatment Authority (ETA) alleging that police conducted excessive identification checks on homeless persons during a year-long participatory action research project by the AVM in 2014. On January 15, ETA concluded a formal agreement between the HHC and the Budapest Police Headquarters (BRFK). Based on this agreement, the BRFK issued a circular note on May 10 instructing Budapest police that identification checks are to be strictly purpose-limited proceedings prompted by specific circumstances and not subject persons to identity checks merely on the basis of the physical appearance of homelessness. Police also introduced the circular note in the training curricula of the most affected police officers. According to the AVM, the police circular note failed to reduce discriminatory police actions against homeless people effectively.

There were no reports that the government or its agents committed arbitrary or unlawful killings.

There were no reports of politically motivated disappearances.

The constitution and law prohibit such practices. There were problems, however, with police misconduct and corrections officers’ abuse of prisoners. The law lacks a clear legal definition of torture, which authorities did not report as a separate crime, but all actions that could be considered “torture” are prohibited and penalized under other provisions of the law. The law outlines disciplinary actions for police, including reprimand, demotion in rank, and dismissal. Civil society groups noted cases of police misconduct against persons in custody.

Investigation into abuse of power by 10 police officers in Olsztyn continued at year’s end. In April 2015 prosecutors charged the officers with the use of violence and threats to extract testimonies from detainees. Through the end of September, prosecutors identified 30 victims of the crime.

The law gives judges the option of ordering compulsory hormone therapy for a person convicted of either rape or incest when the victim is younger than age 15. Judges may order the procedure for convicted pedophiles at any time up to six months before their expected release. According to justice ministry statistics, the courts ordered the procedure for 18 pedophiles in 2015 compared with 20 in 2014.

Prison and Detention Center Conditions

Prison and detention center conditions were adequate. Vacancies in the prison medical staff and limited prisoner access to specialized medical treatment continued to be problems.

Physical Conditions: While authorities generally separated juveniles from adults, the law allows shared housing in prisons and detention centers in exceptional cases. Juveniles were at times held together with adult prisoners. Authorities usually sent juveniles between ages 17 and 21 accused of serious crimes to pretrial detention.

Authorities often held pretrial detainees in prisons pending trial, but in areas separate from convicts. Conditions for pretrial detainees were generally similar to those for prisoners, but on occasion they were worse due to overcrowding and poorer facilities resulting from court-mandated restrictions on where a prisoner should be located while awaiting trial. A report by the Council of Europe’s Committee for Prevention of Torture (CPT) pointed out in 2013 that an almost total lack of activities for pretrial detainees made their situation considerably worse than that of convicts. There was no indication the government addressed this problem.

The law sets the minimum cell size at 32 square feet per person, but prisoners may occupy smaller cells for a limited time. Both local NGOs and international organizations, including the UN Committee Against Torture and CPT, expressed concern that the 32-square-feet standard was not compatible with the European standard of at least 43 square feet per person in multiprisoner cells and 65 square feet in single-prisoner cells. As of the end of September, no detainees were in cells smaller than the legal minimum of 32 square feet, according to government statistics.

The Legal Intervention Center, a Warsaw-based NGO, reported that many prison buildings dated to the 19th century and were in need of substantial renovation. On October 28, the prison authorities opened a new prison unit in the town of Ciagowice, which can hold up to 275 persons. In November 2015 authorities closed a 170-year-old prison facility in the city of Kalisz. In 2013 the CPT found that authorities at the Municipal Police Department in Lublin, the Metropolitan Police Department in Warsaw, and the Warsaw-Bialoleka Police Department did not respect the privacy of communal toilets and showers. At the Bydgoszcz Municipal Police Department, the closed-circuit television coverage included the in-cell toilets. These problems persisted.

During the first nine months of the year, 65 prisoners died in prison, including 15 reported suicides. The Helsinki Human Rights Foundation described systemic problems with medical care in prisons. These included inadequate medical staffing, such as a lack of specialized medical care, too few doctors to handle the workload, and poor medical infrastructure.

According to the human rights defender’s report in July, most prisons and detention facilities did not meet the needs of persons with disabilities. Although prisoners with disabilities may be placed in cells modified for their disability, prisoners with disabilities had limited access to shower rooms, community rooms, and walking areas. According to the Helsinki Human Rights Foundation, prisoners with disabilities often complained about problems with moving around facilities, inappropriate equipment in the cells, and the need to ask cellmates for assistance with moving around.

The law permits authorities to commit prisoners to the National Center for the Prevention of Dissocial Behaviors who have served their prison sentences and undergone a custodial therapy program, but who have mental disabilities of a nature that a high probability exists they would commit another serious crime against a person. The Helsinki Foundation for Human Rights pointed out that mandatory detention after completion of sentence may violate the person’s freedom and be retroactive. On November 23, the Constitutional Court ruled the law constitutional.

Administration: Authorities investigated credible allegations of inhuman conditions and documented their findings in a publicly accessible manner. The human rights defender may join proceedings in civil and administrative courts on behalf of prisoners and detainees, either when these file a complaint or when information otherwise leads to an allegation of inhuman conditions. At the request of the Ministry of Justice, the human rights defender administers the national preventive mechanism to investigate and monitor prison and detention center conditions. During the first nine months of the year, the ombudsman visited 12 prison and detention facilities, including pretrial detention centers and prison facilities. The Office of the Ombudsman publishes its findings and a summary of its recommendations to relevant authorities in an annual report.

Independent Monitoring: The government allowed independent monitoring of prison conditions and detention centers on a regular basis by local human rights groups as well as by the CPT. The Helsinki Human Rights Foundation and other local NGOs made occasional visits to prisons.

The constitution and the law prohibit arbitrary arrest and detention, and the government generally observed these prohibitions.

ROLE OF THE POLICE AND SECURITY APPARATUS

The police force is a national law enforcement body with regional and municipal units overseen by the Ministry of the Interior and Administration. The border guard is responsible for border security and combating irregular migration, and it reports to the Ministry of the Interior and Administration. The Internal Security Agency (ABW) has responsibility for investigating and combating organized crime, terrorist threats, and proliferation of weapons of mass destruction. The Central Anticorruption Bureau (CBA) is responsible for combating government, business, and financial corruption. The prime minister appoints the head and deputy heads of the CBA and supervises the bureau, which may investigate any matter involving public funds. The prime minister supervises the heads of both ABW and CBA, which also report to parliament.

On July 2, a new counterterrorism law designated the ABW as the primary authority for combatting terrorism and increased its law-enforcement powers. On July 11, the human rights defender referred the law to the Constitutional Court, arguing it violates the right to privacy and freedom of communication, and is unclear on grounds for accumulating data on individuals, arresting civilians, banning demonstrations, disconnecting citizens from the internet, and for surveillance on non-Polish nationals without a court order. The case remained pending before the Constitutional Court at year’s end.

Civilian authorities maintained effective control over the police force, the border guard, the ABW, and the CBA, and the government has effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

The constitution and the law require authorities to obtain a court warrant based on evidence to make an arrest, and authorities generally complied with the law. The constitution and the law allow detention of a person for 48 hours before authorities must file charges and an additional 24 hours for the court to decide whether to order pretrial detention. The new counterterrorism law allows authorities to hold terrorism suspect without charges for up to 14 days. The law sets a five-day limit for holding a juvenile in a police establishment for children if the juvenile escaped from a shelter or an educational or correctional facility. It allows police to hold for up to 24 hours in a police establishment for children a juvenile who is being transferred to a shelter or an educational or correctional facility, in case of a “justified interruption of convoy.” The law provides that police should immediately notify a detained person of the reasons for his detention and of his rights. Usually this information is initially delivered orally; later, at the police station, the detainee signs a statement that he has been advised of his rights and duties. Police give the detained person a copy of the report on his detention. Authorities generally respected these rights. Only a court may order pretrial detention. There was a functioning bail system, and authorities released most detainees on bail. Defendants and detainees have the right to consult an attorney at any time. The government provided free counsel to indigent defendants. On January 1, a new law providing free legal counsel, including at the pretrial stage, to poor, young, and senior citizens, veterans, members of multichild families, and victims of natural disasters entered into force. Authorities did not hold suspects incommunicado or under house arrest.

Pretrial Detention: The law permits authorities to detain persons charged with a crime for up to three months. A court may extend pretrial detention every six to 12 months, but the law specifies that the total time in detention may not exceed two years, except in certain complex cases, when the court may petition an appellate court for an extension beyond two years. On January 8, the human rights defender referred to the Constitutional Court several provisions of the code of criminal proceedings that provide for the possibility of extending pretrial detention without specifying the maximum length of detention and without providing specific justification. The case remained pending at year’s end. According to the Ministry of Justice, extension beyond two years may occur if criminal proceedings are suspended, there is a need to identify or confirm the identity of the detainee, a very complicated investigation must be performed outside the country, or the detainee purposefully prolongs the proceedings. As of June 30, authorities held five persons for longer than two years in pretrial detention.

Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Arrested persons are entitled to challenge before a court the legal basis or arbitrary nature of their detention within seven days of the court’s decision.

Protracted Detention of Rejected Asylum Seekers or Stateless Persons: Authorities placed some asylum seekers in guarded centers for foreigners while they awaited deportation or decisions on their asylum applications. Border guards may place an individual in a guarded center only by court order. The law prohibits the placement of unaccompanied minors under age 15 in guarded centers. Border guards typically sought in this way to confine foreigners who attempted to cross the border illegally, lacked identity documents, or committed a crime during their stay in the country. According to the Helsinki Human Rights Foundation, border guards placed families with children into guarded centers.

e. Denial of Fair Public Trial

While the constitution provides for an independent judiciary and the government generally respected judicial independence, an increasing backlog of cases made the judiciary less efficient.

The court system remained cumbersome, poorly administered, and inadequately staffed. The consensus among local human rights NGOs was that the judicial system was improperly structured and inefficient, with a poor division of labor among different courts. Difficult hiring procedures created many vacancies among judges and support staff, and slowed the justice system. Judges were forced to do administrative work that staff would normally perform. Judges reported receiving an increasing number of cases, while the number of judges remained the same. A continuing backlog of cases and the high cost of legal action deterred many citizens from using the justice system.

On June 15, Nils Muiznieks, the Council of Europe’s commissioner for human rights, in a report of his visit to the country from February 9 to 12, expressed concern that a new law granting extensive powers to the minister of justice without the establishment of corresponding sufficient safeguards to avoid abuse of powers, poses “a considerable threat to human rights in the context of criminal law procedures, including the right to a fair trial, the presumption of innocence and the right to defense.” Another matter of concern to Muiznieks was the creation of a new department within the Prosecution Office responsible for prosecuting the most serious crimes committed by judges and prosecutors. He feared this reform’s “potential chilling effect of this on judges and prosecutors and the ensuing negative repercussions on the independence of the justice system.”

The country employs an “e-court” to adjudicate simple cases, which typically involve unpaid utility bills. A party may file a civil claim for monetary damages on the e‑court’s website, and a judge may issue a writ of payment based on the electronic submission. Defendants who dispute the judgment have recourse to a regular court for trial.

TRIAL PROCEDURES

The constitution provides for the right to a fair public trial, and an independent judiciary generally enforced this right. Defendants enjoy a presumption of innocence and the right to prompt and detailed notification of the charges against them, with free interpretation for defendants who do not speak Polish from the moment charged through all appeals. They have the right to a fair and public trial without undue delay and the right to be present at their trial. Trials are usually public, although the courts reserve the right to close a trial in some circumstances, including divorce proceedings, cases involving state secrets, and cases whose content may offend public morality. Defendants have the right to legal representation, and indigent defendants may consult an attorney provided without cost. The government must provide defendants and their attorneys adequate time and facilities to prepare a defense. They may have access to government-held evidence, confront and question witnesses, and present witnesses and evidence on their own behalf. Prosecutors may grant witnesses anonymity if they express fear of retribution from defendants. The prosecutor general may release to the media information concerning any investigation, except if such information is classified, with due consideration to important public interests. Defendants may not be compelled to testify or confess guilt.

After a court issues a verdict, a defendant has seven days to request a written statement of the judgment; courts must provide a response within 14 days. A defendant has the right to appeal a verdict within 14 days of the response. A two-level appeal process is available in most civil and criminal matters.

The law extends the above rights to all defendants.

POLITICAL PRISONERS AND DETAINEES

There were no reports of political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

Individuals or organizations may seek civil remedies for human rights violations. The government’s implementation of court orders, particularly for payment of damages, remained slow, cumbersome, and ineffective.

After they exhaust remedies available in the domestic courts, persons have the right to appeal court decisions involving alleged government violations of the European Convention on Human Rights to the European Court for Human Rights.

The dispute regarding judicial appointments to the Constitutional Court continued throughout the year. In March the court struck down in its entirety the December 2015 law regulating its operations. The government boycotted the court’s proceedings and refused to publish the ruling as required by the constitution. The European Commission and the Council of Europe separately criticized the government’s actions. The Council of Europe’s European Commission for Democracy through Law (the Venice Commission) criticized the government’s refusal to publish the court’s ruling.

In July the government passed legislation regulating the court’s operations that addressed some of the Venice Commission’s concerns. In August the court struck down some provisions of the legislation in a ruling the government again refused to publish. In October parliament introduced additional legislation regulating the conduct, immunities, and discipline of court judges. Opposition parties, academic and legal experts, the Helsinki Human Rights Foundation, and other NGOs stated aspects of the legislation of December 2015 and July 2016 impeded the court’s operations and violated the constitutional principles of judicial independence, separation of powers, and checks and balances among the branches of government. The government argued it was working to resolve the situation and published all court rulings issued during the year up to July 20, except for the March ruling on the court legislation. In July the European Commission issued a rule of law recommendation for Poland criticizing certain aspects of the government’s July legislation, and the Venice Commission issued a new opinion in October along similar lines. On November 7, the Constitutional Court ruled constitutional the article from the July legislation altering the selection process of the chief justice. Three judges refused to participate in the hearing, and the ruling was issued by a five-judge panel despite the July legislation requirement of a full court panel hear all cases governing the operation of the court. The government had not published the ruling by year’s end. On December 19, the president signed a new law regulating the conduct, immunities, and discipline of court judges, and establishing new procedures for court leadership. On December 21, he swore in a new chief judge selected under the law’s new procedures. Also on December 21, the European Commission issued a complementary rule of law recommendation stating the new law addressed some issues raised in the July recommendation but that some rule of law concerns remained, and that the new law also raised new rule-of-law concerns regarding the effective functioning of the Constitutional Court and constitutional review of legislative acts.

PROPERTY RESTITUTION

The law provides for restitution of communal property seized during the Communist and Nazi eras, but the process proceeded very slowly during the year. By the end of September, the property commissions resolved 6,854 of slightly more than 10,500 communal property claims.

No comprehensive law addresses the return of or compensation for private property, but individuals may seek the return of confiscated private property through administrative proceedings and the courts. On August 17, the president signed into law legislation protecting Warsaw public properties from being returned to their precommunist era owners and extinguishing long-dormant claims after a six-month notice period if no claimant steps forward to pursue a restitution case. The legislation was intended to end abusive practices in the trading of former property owners’ claims but raised serious concerns that it fell short of providing just compensation for former owners who lost property as a result of nationalization of properties by the communist-era government. The Constitutional Court upheld the legislation, and the law entered into force on September 17.

The law prohibits such actions but allows electronic surveillance with judicial review for crime prevention and investigation

On February 3, the president signed a new law regulating police and security services surveillance in response to a 2014 Constitutional Court ruling that held as unconstitutional several provisions of the laws giving law-enforcement agencies and special services broad access to telephone records. On February 18, the human rights defender referred the law to the Constitutional Court arguing it infringes privacy rights and EU data privacy norms and does not provide sufficient protections for privileged communications (e.g., attorney-client, priest-penitent). At year’s end, the case was pending before the Constitutional Court. An opinion by the Venice Commission issued June 13 commended the government for improving existing surveillance law and practices but criticized some aspects of the new law.