Anita Nagy: Development directions of hungarian and european reintegration surveillance (IJ, 2020/2. (75.), 29-32. o.)

Introduction

The electronic tracking system was born in the mid-1960s, from the idea of Robin Schwitzgebel, psychologist at Harvard University, who thought that his solution could be humane and cost-effective alternative to the institution of imprisonment.

The "Dr. Schwitzgebel Machine" - as the device was called - was patented in 1969, although its practical application began in the United States in the early 1980s. The system was based on the principle that that criminals who met certain conditions and agreed to wear a device 24 hours a day (commonly known as "tag", "bracelet", "wristlet", "anklet") in order to complete thair sentence at home. Moreover, they also had to give their consent to install a Home Monitoring Device in their appartment. The HMD originally was used to be connected to the landline telephone and the local energy supply system.

18 November 2014, the Parliament adopted the act 2013:CCXL on the enforcement of sentences, actions, certain coercive measures, misdemeanour seclusion and imprisonment, as well as act 2014:LXXII on the modification of other acts, which regulated the reintegration surveillance from 1 April, 2015.

The essence of the surveillance can be summarized as that the time when convicts are in reintegration surveillance is counted in the custodial sentence and, if limited, the prisoners regain their freedom, since the restriction of the actual freedom of movement and freedom of choice of commorancy lasts during the whole surveillance.

The notion of electronic remote monitoring device - that is used to enforce the reintegration surveillance - is defined in the Code 2013:CCXL as follows: "technical device used for following the movement of the sentenced or otherwise detained person". Thus, reintegartion surveillance is carried out with a device that continously ensures that - if the detained person leaves the designated location of commorancy or movement area - it alerts the authorities immediately. According to Art. 187/A. (3) of the above mentioned Code: Reintegration surveillance shall cease the total deprivation of liberty of the sentenced, but shall restrict his freedom of movement and freedom of choice of commorancy.

1. Delimitaton of house arrest and reintegration surveillance

In fact, electronic surveillance has been available in Hungary since 2003 for classical house arrest, which aims to simplify the control of enforcement of "house arrest" which may be impposed instead of pre-trial arrest. However, unitil 2013 neither the financial nor the technical conditions were satisfactory. In terms of terminology and purpose, house arrest should be a completely different institution than reintegration surveillance, a common element in them is that both of them contributes to the reduction of prison population.

Regarding its purpose, the main objective of reintegration surveillance is that the sentenced should be reintegrated into the society as early as possible. However, house arrest aims to replace pre-trial detention (described in Art.129 of the Code), provided that the aims of pre-trial detention can be guaranteed regarding the nature of the crime, the duration of the criminal proceeding or the behaviour of the accused.

There are two models for the application of Electronic Monitoring - as it is called in Europe: the so-called frontdoor and backdoor model. The essential difference between them is that the frontdoor model does not get to correctional institution, while in the blackdoor model the sentenced is released from the correctional institution with a shackle on his legs.

According to Klára Kerezsi, electronic surveillance is an alternative sanction to deprivation of liberty, but it cannot be considered as a community sanction due to the lack of the active connection with any participant of the criminal jurisdiction and with the community.[1]

Róbert Bogotyán emphasizes that reintegration surveillance is an alternative form of penitentiary, which does not aim specific and general preventive goals related to punishment, but rather the successful social reintegration of the convicted person, thereby decreasing the relapse rate; thus it aims to achieve the purpose of the enforcement of the criminal proceeding.[2] János Schmehl emphasizes that social reintegration here is a gradual process, a phase - which is controlled by state organs - enters between the deprivation of liberty and a responsible, independent life. During this period, the sentenced should secure his independent living, can seek and take employment, rebuild and strengthen his family and social relationships. His activities are followed by electronical remote monitoring devices.[3]

2. Outlook to the European system

Recommendation Rec (2014) Nr. 4. of the Committee of Ministers of the Council of Europe set out in detail the purpose of electronic monitoring[4] and, in order to support the broad application of this alternative sanction, and the application as an ultima ratio in the criminal proceeding. Therefore:

• during the pre-trial phase of criminal proceedings;

• as a condition of suspension or execution of the prison sentence;

• as an independent way of monitoring the enforcement of the sentence or measure imposed;

• together with other probationary interventions;

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• before release of prisoners in prison;

• conditional release;

• intensive management and supervision of certain types of offenders after their release from prison;

• controlling internal movement of offenders within or outside prisons;

• in order to protect the victims of specific crimes against certain suspects or offenders.

The Recommendation emphasizes that electronic surveillance technology can only be used in a well-regulated and proportionate manner and that, to this end, regulatory constraints and ethical and professional rules need to be formulated in the participating Member States. The Recommendation declares the concept of electronic monitoring as: "Electronic surveillance" is a general term referring to the monitoring of the position, movement and particular behavior of persons involved in criminal proceedings. Current forms of electronic surveillance are based on radio wave, biometric or satellite tracking technology. These are usually a personalized device that is monitored remotely.