6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life-threatening situations.)
Hungarian law does not regulate battered woman syndrome or other domestic abuse specifically as an affirmative defense, but self-defense (justifiable defense) and insanity (state of impairment of the mind) can be relied on as a defense. Please see our answers under Section 5.3.
It is also worth mentioning that certain circumstances may serve as a basis for the establishment of voluntary manslaughter as the privileged case of homicide: "any person who commits homicide with provocation or in the heat of passion is guilty of a felony punishable by imprisonment from two to eight years."[65]
Voluntary manslaughter can only be established in cases where the perpetrator acts under the influence of an intense passion originating from a sound mind for a justifiable reason, and where the reason triggering passion arises from an external cause.[66]
The conduct of the victim causing outrage, anger or fear in the perpetrator, under certain circumstances, may be regarded as such external cause, provided that the degree of the passion is high enough to disrupt the perpetrator's internal balance, to obscure his/her consciousness, hence maintaining the usual degree of consideration becomes impossible.[67] The uniformity decision considers that voluntary manslaughter can be established when passion erupts from a relatively minor injury resulting from prolonged, continuous torment or humiliation.
6.2.1 Can courts issue orders to protect employees suffering from domestic violence?
Pursuant to the Civil Protection Act, the location concerned with the civil protection order in principle includes any spaces, e.g., workplaces.[68]
If the civil protection order is issued in criminal proceedings, the court may prescribe certain rules of conduct to be complied with in order to prevent the abuser from contacting certain persons (usually the victim) and to stay away from him or her. In this respect, pursuant to the Criminal Procedural Code, the abuser is obliged, among other things, to stay away from the workplace of the person concerned with the civil protection order.[69]6.2.2 Can departure be deemed "for good cause" if related to domestic violence?
Under Hungarian law, absence due to domestic violence may be justified on different grounds in line with the applicable law:
- Employees are exempt from work when called upon by a court or when participating in proceedings in person.[70]
- Absence for any duration due to personal or family reasons deserving special consideration is recognized as a reason for exemption from work duty. Regarding the meaning of "personal or family reasons," the Commentary of the Labor Code provides that such reasons can include unforeseeable events (for example, an accident of a relative or an unexpected illness) that require the personal presence and action of the employee. The Commentary emphasizes the highly subjective nature of these reasons; therefore, their application may require special consideration.[71]
- Employees may also be exempted from work for any duration specified by employment regulations, e.g., a collective agreement.[72]
- In addition, employees may also be exempted from work duty based on permission from the employer.[73] The Labor Code refers to this option as an exemption based on the employer's consent, but it is actually based on an agreement, the mutual consent of the parties.[74]
6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?
Yes, the absence of family members of domestic violence victims can be justified on different grounds in line with the applicable law; furthermore, the family member's employer may also grant permission for leave. Please see our answers above.
6.3.1 Does the law include provisions that are intended to prevent abusers who are citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?
In order to reduce victims' financial dependency on their abusers, Hungarian law provides support as follows:
- Under Act CXXXV of 2005 on Crime Victim Support and State Compensation ("Victim Support Act"), victims of crimes committed in the territory of Hungary and any natural persons who have suffered injuries as a direct consequence of criminal acts, in particular bodily or emotional harm, mental shock or economic loss may, under certain conditions, be entitled to victim support service and state compensation.[75]
- Citizens of any member state of the EU habitually living in Hungary or Hungarian citizens habitually living in Hungary who have become a victim of a crime during their lawful stay abroad are entitled to apply for victim support services. Therefore, persons subject to immigration laws are excluded from the use of such services, e.g., instant financial aid, witness care or sheltered accommodation.[76]
- Citizens of any non-EU country lawfully residing in the EU are entitled to state compensation, if their residence or habitual and lawful residence is in any of the EU member states. They may also be granted compensation if they hold a residence or immigration permit in Hungary. State compensation is available in the form of a lump-sum cash payment or in regular monthly installments.[77]
- If the marriage of a third-country national spouse has been dissolved or invalidated, he/she retains his/her right of residence if his/her EEA national spouse has committed an intentional crime against him/her during the marriage, provided that he/she:
- is engaged in gainful employment
- has sufficient resources for himself/herself and his/her family members so that their residence does not constitute an unjustified burden on the Hungarian social welfare system and is entitled to use health insurance services within an insurance legal relationship or by ensuring the coverage thereof
- continues to exercise his/her right of residence as a family member of a person who satisfies at least one of the above requirements[78]
6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?
No, Hungarian immigration rules do not apply to such instances.
6.3.3 Does domestic violence law discuss asylum accessibility?
No, asylum accessibility is regulated under immigration law in Hungary.
6.4.1 Can a victim seek a military protective order if the abuser is in active military?
No, there are no special rules relative to protective orders against abusers who are in active military.
6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?
There are no special rules to determine custody or visitation rights tailored to domestic violence cases. The notion of domestic violence is covered by more general concepts, as follows.
Regarding parental custody rights:
- Courts or other authorities may restrict or withdraw custody, including visitation rights, (i) in exceptionally justified cases (ii) prescribed by law and (iii) to the extent necessary for ensuring the best interests of the child. Courts evaluate how the physical, mental and moral development of the child can best be ensured.[79]
- In the best interests of the child, the court can also restrict or withdraw the custody rights of the parent who lives in a separate household.[80]
- If the circumstances determining the custody arrangement significantly change, the court can change the custody arrangement if it is in the best interests of the child. The court must hear both parents. In justified cases or at the child's request, the court must also hear the child. If the child is already 14 years old, the child's consent is needed unless the child's choice jeopardizes their development.[81]
- If the parent has committed an unlawful act against a child or a relative living in the same household and, therefore, is placed under a civil protection order, the parent's custody rights are suspended.[82]
- If the parent lives in a separate household and parental custody ceases, the visitation rights remain save when the parent is placed under a civil protection order for committing an act against the child or a relative living in the same household.[83]
- Courts must terminate custody if the parent's unlawful act seriously infringes or jeopardizes the well-being of the child. Courts are allowed but not obliged to terminate the custody rights with respect to any child (including those born later) if the parent has been sentenced to imprisonment due to an intentional crime committed against one of the children. Unless a court or guardianship authority provides otherwise, such parents have no visitation rights either.[84]
- The court can also terminate custody rights by means of an injunction, especially if the child is exposed to serious endangerment.[85]
- If the parent who had sole custody dies, the surviving parent is automatically granted custody unless (i) their custody has been terminated or, among others, (ii) such an arrangement is manifestly contrary to the best interests of the child.[86]
- Unless the parents agree, the court or guardianship authority determines visitation rights after hearing the interested parties and the child, based on the child's age, health status, life circumstances, the parents' personal circumstances and the child's opinion.[87]
- In addition, the court or guardianship authority may restrict or withdraw such rights in other proceedings if (i) the parent engages in wrongful conduct and (ii) such a measure is in the best interests of the child.[88]
6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?
Yes, the judge can consider the testimonies of the other spouse and the children. Please note that other than the compulsory cases mentioned above, the judge decides whether to hear and consider a testimony.
6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?
There are no such preventive measures in Hungarian law, though no one can be forced to move out without good cause. If the victim's lease agreement was lawfully terminated, eviction may be carried out in the course of judicial enforcement on the basis of the judicial enforcement of, among others, a court decision for vacating a residential suite.[89]
6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?
Such specific cause for the termination of a lease agreement is not regulated in Hungarian law. However, parties may address certain issues regarding termination in their lease agreement. In the absence of a specific clause covering situations related to domestic violence, parties may decide on the early termination of the lease agreement by mutual agreement.
6.6.3 Can an order exclude the abuser from the residence?
Yes. Please see our answers above relative to civil protection orders.
6.6.4 Can abusers be forbidden by court orders to alienate or mortgage the property in his/her name if it is the family domicile?
In general, there are no special rules restricting the alienation or encumbrance of one's own property in Hungary.
However, if the property constitutes conjugal property, during the marriage and also after the termination thereof, until the right of tenancy is settled, a spouse is not allowed to make any decision concerning the home used under his/her exclusive legal title (e.g., if the common home is owned exclusively by him/her) without the consent of the other spouse if such a decision would put the other spouse or the child living in the home at a disadvantage.[90]