Dilemmas of legal practice concerning the delinquency of child endangerment¹

¹

Introduction

My essay deals with the crime of child endangerment as a delinquency violating the interests of children.

I had the opportunity to analyse some case-files, i.e. the entire set of decisions concluding the legally binding procedures of 2019 in the jurisdiction of the Chief Prosecution Office of the Capital.

In the year under review, as many as 108 binding decisions were adopted, of which the acting courts found the accused persons guilty for having demonstrated a behaviour running counter to the provisions set out in Section 208 (1) of the Criminal Code of Hungary (hereinafter referred to as: “Btk”) in 87 cases, while to Section 208 (2) of the Btk in 21 cases. It is obvious from this figure that it is the turn of phrase in Paragraph (1) that is relevant for legal practice, thus I have only discussed this category of crime in my paper.

Without going into lengthy dogmatic analyses, I have explored the key theoretical aspects of child endangerment as specified in Section 208 (1) of the Btk, then I have described the evolution of the individual criminal sanctions in the cases that I reviewed.

The core of my essay is the exploration of the criminal substantive law and procedural law dilemmas concerning the crime, based on the conclusions drawn from the research project, as well as the comments received from the individual chief prosecution offices from all over the country.

My main goal is to provide a comprehensive view of the difficulties of legal practice regarding the crime of child endangerment as set out in Section 208 (1) of the Btk.

A few points on the theoretical aspect

The protected legal object of Section 208 (1) of the Btk is to be found in the provisions of the Fundamental Law of Hungary, more precisely, in Article XVI thereof. Pursuant to this, “every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development. Parents shall have the right to choose the upbringing to be given to their children. Parents shall be obliged to take care of their minor children. This obligation shall include the provision of schooling for their children.”²

The passive subject of the crime specified in Paragraph (1) is the child (as a main rule, 0–18 year-old person).³

The criminal conduct in this delinquency is a grave violation of obligations, which is related to the upbringing, supervision or care provided to the minor and which can be realised by both action and negligence. This crime is typically committed for a longer time. The violations of the obligations should be grave, i.e. such that do not even meet the minimum requirements and expectations of general social opinion. Minor parenting mistakes do not count towards these, however, they may add up and thus, they can be qualified as grave violations of obligations. In general, it can be stated that the contents of the individual obligations are specified by the moral norms and social habits.⁴

The crime specified in Paragraph (1) is a materially endangering delinquency, the result of which is jeopardising the physical, mental, emotional or moral development of the minor.⁵

Pursuant to Section 208 (1) of the Btk, the subject of a delinquency can only be a person with such special qualification, i.e. a person obliged to raise, supervise or care for a minor.⁶

The delinquency assumes an intentional form of fulfilment, both direct and incidental intentions are possible.⁷

Evolution of the criminal sanctions in the cases under review

In the 87 binding decisions that established culpability, the criminal liability of as many as 95 accused persons was established.

Frequency of the occurrence of the individual sentences [Section 208 (1) of the Btk]:

• executable detention, with disqualification from public affairs: 11 persons (12%)
• suspended sentence: 67 persons (70%)
• incarceration: 1 person (1%)
• fine: 9 persons (9%)
• community service: 7 persons (7%)
• prohibition on exercising profession: 1 person (1%) – with the sentence of deprivation of liberty

It was established that sentences had been imposed on all accused persons, no criminal measures had been applied by the courts. However, it can be concluded that the overwhelming majority of cases was concluded by a sentence suspended for a term.

Criminal substantive law and procedural law dilemmas

concerning the crime specified in Section 208 (1) of the Btk

In the following part of my paper, by arranging the individual groups of problems in a system, I will discuss the key difficulties of the legal practice related to the crime in question. This section of my dissertation relies on the findings of my case-file analysis, on the one hand, and on the comments from the prosecution offices gathered on a national level, on the other hand.

Assessment of the content of the grave violation of obligations

As regards the grave violation of obligations, it can be stated that it is rather difficult to define its content. The legal practice is not uniform in deciding whether the person who is obliged to raise, supervise or care for a minor who commits a crime in the minor’s presence, in a way that is also perceivable to the child but without involving the child, fulfils the criteria of a criminal conduct as defined by the law. Some prosecution offices and courts already deem such cases as the endangerment of moral development, while in other cases, one can only speak of the fulfilment of criminal conduct if the adult perpetrator, either as the person who commits the crime, or as one who is an accomplice, involves the child in committing the crime in some way. Furthermore, in the opinion of the individual prosecution offices, legal practice cannot be regarded as uniform even when a situation arises whereby the parent (typically the child’s father) demonstrably abuses the other parent (typically the mother) in front of the minor, at least on one occasion but on this occasion, in a process that consists of several elements and/or one that involves a grave consequence. In such cases, the question becomes whether or not such person demonstrates a behaviour that fulfils the criteria of the crime, i.e. from which point it already qualifies as a grave violation of obligations, furthermore, whether a single instance of abuse is sufficient for drawing this conclusion.

However, in this respect, attention should be called to uniformity decision No. 16/2017 of the Curia, which has already taken a stand on partner abuse. It is doubtless that in the specific case, regular abuse took place but after having examined the superior court decision, from its context, in my view, it can clearly be concluded that even a single instance of abuse in the presence of a minor fulfils the criteria of the crime of child endangerment, thus the occurrence of a one-time direct physical, emotional, mental or moral endangerment is sufficient for this.⁸

Interpretation of the outcome of endangerment

It should be pointed out, in relation to the outcome of endangerment, that its assessment is always the task of the acting court, since it qualifies as a legal issue rather than a factual issue, so no experts may express their opinions here. Unfortunately, the latter circumstance is often disregarded, which means that on many occasions, unlawful expert opinions are expressed as a result, which cannot be reckoned as means of proof. It was concluded from the cases under review that it is simpler to assess the endangerment of physical development, as the positions taken on emotional, mental or moral development typically rely on the contents of the forensic expert opinions.

The question of cumulative offence

In examining the delinquencies forming a part of cumulative offences specified in Section 208(1) of the Btk, I concluded that the delinquency in question and the crime/misdemeanour of bodily injury were incorrectly defined cumulatively in many cases. As long as the accused person commits bodily injury as specified in Sections 164 (2)-(4) of the Btk against a child on several occasions, then the crime of child endangerment should be established cumulatively with domestic violence, i.e. the cumulative offence should not be established based on one of the turns of phrase of bodily injury indicated above. Those cases should be counted as especially grave mistakes when in the case of committing bodily injury against a minor, the parent’s responsibility is only established as the crime of the endangerment of the child, simply disregarding the fact of abuse. I would like to emphasise that the statutory provision of domestic violence and the crime of the endangerment of minors cannot only constitute cumulative offences if all the disposition-like behaviours are demonstrated against the same injured party, i.e. the same child  but when there are different victims, i.e. e.g. that group of cases when the perpetrator batters the mother of his child under legal age in the presence of the child, at least twice, at short intervals, thus causing bodily injury that fits the operative part of the law on domestic violence.

The cumulative offence of the endangerment of minors and domestic violence were dealt with e.g. in decision No. Bfv. I. 737/2020 of the Curia, as well as circular letter No. Fk.Nf.3543/2020/1.I. of the Independent Unit of Juvenile Crime of the Office of the Prosecutor General dated on 20 October 2020, suggesting the complexity of the issue and the difficulties of its practical treatment.

Termination of the right to parental supervision

In general, it may be pointed out that in relation to the crime of the endangerment of minors, in almost all the cases, it would also be justified to terminate the right to parental supervision by the criminal court, as has also been highlighted in the prosecutors’ comments. However, experience shows that this usually does not happen and even if such a legal sanction is imposed, the child protection authorities usually do not become aware of this fact, so what it boils down to is that those rights that the parents are otherwise not entitled to will continue to be exercised. What frequently happens is that the court forwards the motion filed by the prosecutor on the subject of parental supervision to another legal route, in spite of which the related civil law cases are usually not filed.

Disqualification on exercising profession as a penalty

The rule set out in the Btk pursuant to which the obligatory sanction of prohibition on exercising profession should be mandatorily imposed against the person who commits the crime of child endangerment causes problems/uncertainties in sentencing practices.⁹

In order to settle this question, the Office of the Prosecutor General issued a policy statement under number BF.124/2019/12, then it issued national guidelines under serial number 28 in August 2020, the point of which is that the provisions set out in Section 52 (4) of the Btk should be treated independently from the group of cases regulated by Paragraph (1).

Furthermore, the Second-Instance Investigation Supervision Unit of the District Prosecution Offices of the Chief Prosecution Office of the Capital also examined the motion practices of the district prosecution offices, in relation to which the Deputy Prosecutor General of the Capital issued guidelines¹⁰  on 10 November 2021, which, in sync with the findings of the case- file analysis that I conducted, point out that legal practitioners quite often disregard the application of this criminal sanction.

According to the report, in the majority of cases, the district prosecution offices did not propose the application of the above-mentioned legal sanction because they established a circumstance that substantiates special consideration. Although the concept of a case requiring special consideration is not strictly defined by criminal law, in practice these can best be substantiated by extraordinarily mitigating circumstances, which can be assessed by the type, method, and circumstances of committing the crime, as well as the identity of the defendant. As a general rule, the joint assessment of the subjective and objective factors may lead to the establishment of a case requiring special consideration.¹¹

Basically, at the time of demonstrating certain behaviours of perpetration, the legal sanction mentioned above can only be disregarded in a very narrow circle. This has governing effect, for instance, when the object of the procedure is one of the following:

• abuse of a victim under legal age, including abuse by one parent of the other in the presence of the child;
• negligent treatment of a minor victim;
• not providing for the fundamental needs;
• long-term, continuous failure to supervise a minor.¹²

Furthermore, the Chief Prosecution Office of the Capital emphasised that in those cases that were launched because of the endangerment of a minor, in which the prosecution office did not propose a prohibition on exercising profession, this was usually not applied by the court either.¹³

Refusal to testify with reference to being a relative

In such types of cases, it causes difficulties in the evidentiary process that the witnesses who are related to the parties refuse to give testimonies, so in lack of an objective, impartial witness, the procedure will be terminated. Furthermore, even if such persons do give testimonies, special care should be applied, as such testimony may not be free of manipulation, or there may be some other interests in the background.

I would like to draw attention to the content of the effective Act on Criminal Procedures here, which, breaking with the earlier practice, allows the use of witness testimonies as means of proof even if the witness subsequently uses his or her right to immunity and refuses to give testimony.¹⁴

Criminal liability of the co-habiting partner

In such types of cases, the individual prosecution offices regard it as a problem to evaluate the behaviour of the person (which is usually demonstrated in negligence) who is the married or co-habiting partner, typically a woman, of the parent or foster parent demonstrating an unjustified aggressive behaviour towards the minors, who is typically a man. The co-habitation of a family is a highly complicated and complex web of emotions and power, whose mutual relations and correlations with the behaviours under review should be explored as accurately as possible, in order to be able to assess the items of personal evidence appropriately, as well as to define whether the behaviour fulfils the criteria of the crime specified in the law, and to be able to understand the consciousness of the parties. In general, it can be stated that as long as the mother clearly confronts any behaviour against her child that is against the provisions set out in the Criminal Code, e.g. the suspicion of a sexual act, she can be rightfully expected to launch an official measure to be taken against her partner.

Problems of hearing victims under legal age, related observations

It should be stressed that the injured party of this kind of crime is a person who requires special treatment, one of the most important consequences of which is that such a person cannot be heard as a witness at a hearing unless they have already turned fourteen.

In relation to this, the individual prosecution offices drew attention to that the new Criminal Procedures Act had broken with the earlier regulatory scheme according to which it was the investigative judge who conducted the hearing of a person who has not yet turned fourteen. In the later phase of the procedure, no concerns were raised with regard to the credibility or truthfulness of such testimonies, the rules of procedural law were not violated.

In spite of this, the effective procedural law provides that a victim under legal age shall be heard by a member of the investigative authority, video and audio recordings of a general nature are made of the hearing of the witness under legal age, simultaneously to which minutes are taken, which will be made part of the litigation documents by the court in every case. In relation to this, problems have recently arisen in several criminal cases launched for the crime of the endangerment of minors, with regard to the contents and formalities of the police records of witness testimonies given by children, so the courts in their capacity as “appointed judges”, ex officio or at a motion, were compelled to hear the injured parties who have not yet turned fourteen again, since the evidence gained from these testimonies cannot be otherwise obtained.

According to the positions taken by the prosecutors, the key issue in this respect is that the members of the investigative authority obviously have not got sufficient experience and knowledge in the hearing of such persons. The police case officers strictly meet their obligation to give the statutory warnings, however, they clearly cannot translate these into the children’s language.

Summary

On the basis of the case-files that I have analysed, I concluded that the overwhelming majority of this type of criminal cases was concluded by a sentence suspended for a term. Notwithstanding, in all the binding decisions, sentences were imposed, there was not a single case concluded with a measure.

As it has been emphasised, there is a high number of problems of legal practice that can be identified in relation to the crime in question, the most relevant ones of which I have organised in a system in my paper.

Finally, I think that it became obvious from my essay that in the course of such types of criminal procedures, special care should be applied by the legal practitioners when assessing both the criminal substantive law and criminal procedural law aspects, by taking into account that it is a minor that is in the centre of this delinquency, who is a vulnerable person requiring special treatment, as stipulated in the Criminal Procedures Act.

Bernadett Csapucha, PhD student, Pázmány Péter Catholic University, Faculty of Law and Politi-cal Sciences, Doctoral School of Law and Political Sciences; Appointed Assistant Research Fellow, Chief Prosecution Office of the Capital, Unit of Criminal Cases