a) Hungary / b) Constitutional Court / c) / d) 31-10-1990 / e) 23/1990 / f) / g) Magyar Közlöny (Official Gazette), 107/1990 / h) .
Keywords of the Systematic Thesaurus:
Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
Sources - Categories - Written rules - International instruments - International Covenant on Civil and Political Rights of 1966.
General Principles - Rule of law.
General Principles - Prohibition of arbitrariness.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to life.
Fundamental Rights - Civil and political rights - Prohibition of torture and inhuman and degrading treatment.
Keywords of the alphabetical index:
Death penalty, abolition, tendency / Death penalty, criminological and statistical finding / Basic right, essence.
Capital punishment is unconstitutional when assessed against a comparative reading of Articles 8.2 and 54.1 of the Constitution. The relevant provisions of the Criminal Code and other related legal rules which permitted capital punishment as a criminal sanction conflicted with the prohibition against any limitation on the essential content of the right to life and to human dignity. From an examination of the Constitution, human life and human dignity form an inseparable unit, having a greater value than other rights; and thus being an indivisible, absolute fundamental right limiting the punitive powers of the State. It is the inherent, inviolable and inalienable fundamental right of every person in Hungary irrespective of citizenship, which the State had a primary responsibility to respect and protect.
Article 8.2 of the Constitution does not permit any limitation upon the essential content of fundamental rights even by way of legislative enactment. Since the right to life and human dignity are itself the "essential content", the State cannot derogate from it. Consequently any deprivation of it is conceptually arbitrary. The State would come into conflict with the whole concept of fundamental constitutional rights if it were to authorise deprivation of the right by permitting and regulating capital punishment. Therefore Article 54.1 of the Constitution cannot be construed as allowing capital punishment even if imposed on the basis of legal proceedings, i.e. non-arbitrarily, since the possibility of any kind of limitation on any basis of the right to life and human dignity is theoretically excluded. Since capital punishment results not merely in a limitation upon that right but in fact the complete and irreversible elimination of life and dignity together with the guarantee thereof, all relevant provisions providing for capital punishment were therefore declared null and void.
Moreover, it follows from the fact that as the sanctions provided for in the Criminal Code constituted a coherent system, the abolition of capital punishment - which previously formed a component of that system - would necessarily result in a complete revision of the entire system. Such a revision, however, is beyond the jurisdiction of the Court.
The petitioner submitted that the above mentioned provisions were unconstitutional on the grounds, inter alia, that they violated Article 54 of the Constitution which guarantees that no-one should be arbitrarily deprived of the right to life, and that such punishment:
a. could not be justified ethically;
b. was generally incompatible with fundamental rights as specified in Article 8 of the Constitution; and
c. amounted to an irreparable and irreversible means of punishment unsuitable for preventing or deterring the commission of serious crimes.
When petitioning the Constitutional Court to establish the unconstitutionality of legal rules providing for capital punishment, the petitioner pointed out that these rules violate the provisions of Article 54 of the Constitution, according to which: "In the Republic of Hungary, every human being has the inherent right to life and to human dignity of which no one shall be arbitrarily deprived" [paragraph 1]; and "no one shall be subjected to torture, to cruel, inhuman or degrading treatment or punishment" [paragraph 2].
The Chapter on "Penalties and Measures" in Article 38.1 of the Criminal Code, mentions capital punishment as the first item on the list of primary penalties. In Article 39, the legislature stipulated the subjective criteria for the imposition of capital punishment, the applicable secondary punishments and certain legal consequences.
The Chapter on "Imposition of Punishments" in Article 84 states that "capital punishment may only be imposed in exceptional cases and - with respect to the extreme danger presented by the perpetrator and the crime as well as to the especially high degree of culpability - the protection of society can only be secured with the application of this punishment."
The Constitutional Court based its decision to declare the rules on capital punishment unconstitutional and therefore null and void on the following considerations:
Chapter I of the Constitution, entitled "General Provisions", states that "The Republic of Hungary recognises inviolable and inalienable fundamental human rights. Ensuring the respect and protection of these shall be a primary obligation of the State" [Article 8.1]. The Constitution states in the first place in Chapter XII, "Fundamental Rights and Duties", that "In the Republic of Hungary, every human being has the inherent right to life and to human dignity, of which no one shall be arbitrarily deprived" [Article 54.1]. According to Article 8.4 of the Constitution, the right to life and human dignity are considered fundamental rights, whose exercise may not be suspended or limited even in a state of emergency, exigency or peril.
It can be concluded from the comparison of the quoted provisions of the Constitution that, irrespective of citizenship, the right to life and human dignity is an inherent, inviolable and inalienable fundamental right of every human being in Hungary. It is a primary responsibility of the Hungarian State to respect and protect these rights. Article 54.1 of the Constitution stipulates that "no one shall be arbitrarily deprived of" life and human dignity. The wording of this prohibition, however, does not exclude the possibility that someone shall be deprived of life and human dignity in a non-arbitrary way.
Nevertheless, when judging the constitutionality of the legal permissibility of capital punishment, the relevant provision is Article 8.2 of the Constitution under which in the Republic of Hungary, rules pertaining to fundamental rights and obligations shall be determined by law which, however, shall not impose any limitations on the essential content of fundamental rights.
The Constitutional Court found that the provisions in the Criminal Code and the quoted related regulations concerning capital punishment breached the prohibition against the limitation of the essential content of the right to life and human dignity. The provisions relating to the deprivation of life and human dignity by capital punishment not only impose a limitation upon the essential content of the fundamental right to life and human dignity, but also allow for the entire and irreparable elimination of life and human dignity or of the right ensuring these. Therefore, the Constitutional Court established the unconstitutionality of these provisions and declared them null and void.
After the reasons for the Constitutional Court's decision to declare the quoted provisions of the Criminal Code and other regulations unconstitutional and therefore null and void, the Constitutional Court considered it necessary to refer to the following:
1. Article 8.2 of the Constitution conflicts with the text of Article 54.1 of the Constitution. It is the responsibility of Parliament to harmonise the two.
2. Human life and human dignity form an inseparable unity and have a greater value than anything else. Accordingly the rights to human life and human dignity form an indivisible and unrestrainable fundamental right which is the source of and the precondition for several other fundamental rights. A state under the rule of law shall regulate fundamental rights stemming from the unity of human life and dignity with respect to the relevant international treaties and fundamental legal principles, and in the service of public and private interests defined by the Constitution. The right to human life and dignity as an absolute value leads to a limitation upon the power of the State in the criminal field.
3. The Constitutional Court found that consideration should be given to criminological and statistical findings, based on the experience of several countries: the application or abolition of capital punishment has not been confirmed to influence either the total number of crimes or the incidence of the commission of crimes that were formerly penalised by capital punishment.
4. Article 6.1 of the International Covenant on Civil and Political Rights - which was signed by Hungary and promulgated by Law Decree 8/1976 - declares that "every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his/her life." Paragraph 6 of the same article states that "[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant."
The Covenant, therefore, recognises a development towards the abolition of capital punishment. While Article 2.1 ECHR, signed in Rome on 4 November 1950, recognised the legitimacy of capital punishment, Article 1 Protocol 6 ECHR adopted on 28 April 1983 provides that "[t]he death penalty shall be abolished. No one shall be condemned to such penalty or executed." Also, Article 22 of the Declaration "On Fundamental Rights and Fundamental Freedoms", adopted by the European Parliament on 12 April 1989, declares the abolition of capital punishment. Hungarian constitutional development moves in the same direction since, after the formulation of Article 54.1 of the Constitution which did not clearly exclude capital punishment, a subsequent modification of Article 8.2 of the Constitution proscribed limitations by law upon the essential content of fundamental rights.
5. Since the punishments included in the Criminal Code form a coherent system, the abolition of capital punishment which is a part of this system requires the revision of the entire penal system; this does not, however, fall within the competence of the Constitutional Court.