Alternatives to criminal sanctions for drug offenders in Hungary: A short overview

By Péter Sárosi / Drug Reporter

This brief overview of the Hungarian system of diversion from the criminal justice system (elterelés) was prepared and submitted to contribute to the assessment of the European Commission on alternatives to criminal sanctions for drug offenders in Europe (PDF).

Diversion from the criminal justice system: its creation and development

A mechanism of treatment as an alternative to criminal sanctions, or diversion of drug offenders to treatment (elterelés) was added to the Hungarian legal system in 1993 (Pelle and Dénes 2000). From the beginning, it aimed to provide an alternative to criminal sanctions for offenders who possessed small amounts of illicit substances for personal use, and who had admitted committing the offence. These offenders are offered the opportunity to participate in a 6 month treatment or prevention program as an alternative to criminalisation. The program should be completed within 9 months.

For the duration of this diversion program, the criminal procedure is suspended and if the program is completed, the criminal charges are dropped and the criminal procedure ends with no criminal record. This can be defined as a form of quasi-coerced treatment: the offender is given a choice of either taking the criminal sanction or opting for the alternative treatment.

Offenders have to undergo a preliminary status assessment before they can begin their diversion scheme. The assessment is carried out by a psychiatrist, a clinical psychologist, or a general practitioner, with the use of the Addiction Severity Index (ASI) and/or the European Adolescence Assessment Dialogue (EuroADAD), as well as a general medical check of the offenders’ health. Based on the findings of the assessment of their social and health status, offenders can be referred to one of the three types of diversion programmes described below.

1st Type: Treatment of Drug Dependence
If the offender shows symptoms of drug dependence, the person is referred to a continuous treatment program, which can be either outpatient or inpatient and can include medical and/or psychosocial treatment methods.

2nd Type: Other Type of Drug Treatment
This is for those offenders who are not drug dependent but have drug-related health and social problems, with a focus on social reintegration. This also qualifies as a treatment that can be provided by a professional health care institute.

3rd Type: Preventive-consulting
This is by far the most frequent form of diversion, designed for those who are not diagnosed with drug dependence or any major drug-related disorders. This form of diversion, by definition, is not a form of treatment but a form of indicative prevention. Therefore it is not necessarily provided by a healthcare professional. It is prevention for those who are at risk of developing drug problems. The offender can complete these alternative programs at an outpatient drug centre, or other designed service provider, with biweekly individual or group consultation sessions with a counsellor.

The legislation has been amended multiple times since 1993. When the first Orban government came to office in 1998, it restricted access to the alternatives. For four years, only those who were diagnosed with drug dependence by an expert forensic psychiatrist were offered the alternative to punishment. Other offenders were sanctioned by a criminal court. As a result, the number of people prosecuted and sentenced increased significantly, increasing the workload of prosecutors and judges (Pelle and Dénes, 2000). Assessing drug dependence showed great variance in individual drug offenders and was deemed chaotic by many professionals.

The Socialist-Liberal government coalition abolished this restriction in 2002 and provided unlimited access to alternatives to coercive sanctions for all offenders who possessed illicit drugs for personal use. What is more, it offered this option for those offenders who shared these drugs for non-commercial purposes, that is, for collective use (e.g. the typical scenario where people share a cannabis joint with each other). This amendment was deemed unconstitutional by the ruling Constitutional Court in 2004 (54/2004. (XII. 13.)), stating that there is “no right to intoxication”, and the term “collective use” violates the principle of clarity of the law.

In 2008 a joint decree of the Ministry of Health and the Ministry of Social and Labour Affairs (42/2008) created specific procedural rules for the diversion to treatment mechanism, including professional requirements for service providers and supplementary documents for administration. This decree shaped the timeframe of diversion interventions (at least two hours per two weeks for 6 months, total 24 hours).

In 2011 methodological guidelines (Dudits et al. 2011) on the preventive-consulting diversion were published for service providers, based on the findings of a literature review. It established the 5 steps of this intervention:

1) Needs assessment (with structured interview)

2) Individual intervention plan design (together with the client)

3) Individual or group counselling based on the plan (focusing on improving life skills, motivational interviews, changing negative normative beliefs etc.)

4) Monitoring and evaluation

5) Program finalisation

In 2013 the second Orban government introduced a new, more repressive Criminal Code, with several amendments to the drug related provisions, including the diversion scheme. The most important was to introduce a new limitation to the diversion: only those offenders who have not re-offended within two years can be offered the alternative to punishment. This change has mostly affected regular/dependent drug users who have to face criminal sanctions. Relapse is considered by modern addiction science a natural part of recovery. By applying coercive sanctions to punish relapse, it is treated as a failure to fulfil treatment obligations.

In 2018 the new Criminal Procedural Law came into effect, along with some other changes to the diversion scheme. According to the new law, only the prosecutor can make decisions about the suspension of the criminal procedure, and the criminal court can charge the costs of the criminal procedure (e.g. laboratory test of seized substance) to the offender. This amount can reach several hundred Euros.

Since the completely new Criminal Code and Criminal Procedural Law came into force, civil society organisations have been demanding that the government amends the 2008 ministerial decree on the diversion to treatment, adjusting the rules to the new legal environment. To date, the government has not adopted a new decree. Although the use of novel psychoactive substances has increased significantly in the past ten years, the law does not offer the users of these substances the opportunity of diversion. It only applies to substances scheduled as illegal narcotics (kábítószerek). The use and possession of novel psychoactive substances for personal use is an administrative offence.