Financing of mandatory criminal defence in Hungary

András Szecskay
Szecskay Attorneys at Law, Budapest
andras.szecskay@szecskay.com

Although I have been exclusively dealing with business law for decades, this time, as the Vice President of the Hungarian Bar Association, I am reporting on a legislative problem – affecting the practice of criminal law – which has provoked a very significant and unanimous protest from the entire legal profession.

In a democratic state governed by the rule of law, it is a fundamental expectation that in criminal proceedings, the state should provide a defence attorney for a defendant who cannot afford one, thereby assuming the financial burden in advance. The right to defence encompasses the procedural rights of the defence attorney and the obligations of the authorities that, in a substantive sense, enable the provision of defence.

The appointment of a defence attorney alone does not guarantee the effectiveness of the legal assistance provided to the defendant and, in the absence of the latter, by European legal practices, the liability of the state can be established.

Only some lawyers practice criminal law (around 40 per cent), while others, despite their education, are not well versed in criminal law and would not be able to provide effective assistance in criminal cases (around 60 per cent).

Criminal defence on secondment – at the investigative, prosecutorial and judicial stages – has been smoothly handled by criminal lawyers. Lawyers were selected from a list of those who have volunteered to take on secondment duties (comprising about 20 per cent of the total number of lawyers).

The problem was not the number of lawyers undertaking public defence work, but the huge, often year-long delays in the payment of public defenders’ fees, which were already unjustly low. The Bar Association has been advocating for a reasonable increase in these fees and their timely payment for years but without success. For many years, there have been no complaints from the authorities and courts in criminal matters about the number of lawyers available for secondment, their availability or the quality of their work.

The Ministry of Justice, in response to the above issue, without prior impact assessment and consultation of the legal profession, submitted a draft law to parliament proposing to solve the problem by requiring lawyers who do not undertake criminal secondment (about 80 per cent of lawyers) to contribute HUF 8,000 (about €20 – the minimum wage in Hungary in 2024 is less than €500 net per month) per month, which can be collected through taxes. The bill is part of a so-called ‘salad law’. In Hungarian parlance, a ‘salad law’ refers to a law that combines amendments to several existing laws in one single package, usually with a title that does not reveal which part of the legislation is affected by it. The consequence is that those who follow the legislation superficially, by the title of the draft legislation, do not immediately notice the proposed amendment until months later when it has already been approved.

By financing the secondment, the state merely advances the fees, since at the end of the proceedings, the court will order the defendant to pay the legal fees once convicted. However, the lawyers’ proposed contribution is non-reimbursable, which is unprecedented, as the state would unjustly benefit from the fees recovered from the defendants without legal grounds.

The proposal also included the risk that, in order to avoid the ‘criminal tax’, a large number of lawyers without sufficient criminal law experience would sign up for the secondment list. The consequence of this is ineffective defence, the repercussions of which are borne by the defendant, for whom the state has the duty to provide an adequately appointed defence attorney.

The proposal has provoked clear and unanimous opposition and protests from the Hungarian legal profession.

A survey conducted by the leadership of the Hungarian Bar Association revealed that the legal profession supports the current system and finds it unrealistic to expect lawyers lacking the necessary training and experience, who would not in good conscience take on criminal defence assignments, to bear the financial burden. The original problem – low fees and late payment – remains, but a solution to this must be found within the state budget.

The proposal also raised other issues concerning the independence and self-regulation of bar associations, which could be subject to undesirable state control.

The day before this article was written, the Ministry of Justice withdrew their proposal following the unanimous protest of the legal profession and the detailed submission of the Hungarian Bar Association, which pointed out rule of law issues in connection with the proposal. The new idea is to introduce, in consultation with the representatives of the legal profession, a system where the fees of the defence attorneys would be borne by the state, with an increased amount of the current budget, and with the Hungarian Bar Association being responsible for effecting payments.

Although the proposal is attractive and significantly better than the previous one, it raises other concerns, such as the possibility of state oversight of the Bar Association, which would be entrusted with managing public funds.

The problem has not yet been resolved, but we hope that a coordinated and acceptable solution will be found in collaboration with the leadership of the legal profession, which I will report on in due course.