a) Hungary / b) Constitutional Court / c) / d) 05-11-1997 / e) 58/1997 / f) / g) Magyar Közlöny (Official Gazette), 95/1997 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Certainty of the law.
General Principles - Proportionality.
General Principles - Prohibition of arbitrariness.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Freedom of association. (Freedom of association, abuse )
Keywords of the alphabetical index:
Criminal act, definition / Association with criminal aims, prohibition.
A substantive requirement emerging from constitutional criminal law is that the legislature may not act arbitrarily when defining the scope of behaviour subject to punishment by law. The necessity of making any behaviour an offence punishable by law must be scrutinised strictly. To protect certain relationships, legal and moral norms, the legal instruments of the criminal law, which inevitably restrict human rights and freedoms, may only be applied when absolutely necessary and only as justified by proportionality, and if the constitutional state, social or economic values may not be protected through any other means.
The petitioners requested constitutional review of Article 212 of Law IV of 1978 on the Criminal Code according to which a person who participates in the management of a social organisation which aims to commit a crime, or which commits a crime, shall be punishable with imprisonment of up to five years. The Article also contains regulations concerning a person who encourages a social organisation to commit a crime by providing it with financial assistance. Under Article 212/A of the Criminal Code, a person who participates in the management of a social organisation dissolved by the court commits a misdemeanour if the person does not commit a more serious crime. In the petitioners' view, the above-mentioned part of the Criminal Code infringes the freedom of association declared by Article 63.1 of the Constitution, and also the right to establish or join organisations with the objective of protecting one's economic or social interests ensured by Article 70/C.1 of the Constitution. The petitioners contended that these provisions were also contrary to the principles of legal certainty and the presumption of innocence. One of the petitioners considered that in this case the legislator established arbitrarily the factors that constitute the crime of abusing the freedom of association.
According to the reasoning of the Court, the fundamental right to associate is not an absolute right. As a special limitation, Article 2.3 of the Constitution prohibits every organisation of society from taking over and exercising power by force, or from carrying out activities in order to gain total control of power. The provision of Article 63.1 of the Constitution, which prohibits the establishment of organisations whose goals are prohibited by law and joining such organisations, also restricts the freedom of association. According to Article 2.2 of Law II of 1989 on the freedom of association, the exercise of the freedom of association may not infringe Article 2.3 of the Constitution, may not be aimed at committing crimes or subordinated to the commission of crimes, and may not damage others personal rights. Hence, the freedom of association and the right to establish or join organisations with the objective of protecting one's economic or social interests do not ensure a constitutionally protected right to establish an organisation which aims at committing crimes, or whose members commit crimes. As a result of the above-mentioned, the provision which prohibits the establishing and financing of organisations whose goals and activity are prohibited by law does not violate the freedom of association as a basic human right declared by the Constitution.
The Constitutional Court examined in its decision whether the provision challenged by the petitioners was in accordance with the requirements of the constitutional criminal law. In Decision no. 30 of 1992 (V. 26) the Court declared that criminal law is the ultima ratio in the system of legal responsibility. Its social function is to serve as the extreme legal sanction of the overall legal system. The penal sanction, the role and function of punishment is the preservation of legal and moral norms when no other legal sanction can be of help. Based upon this, the Court examined in this case whether Article 212 of the Criminal Code establishing the crime of abusing the freedom of association was restrained and provided an appropriate response to the phenomenon deemed undesirable and dangerous and whether in accordance with the requirement imposed in restricting a constitutional fundamental right, this article applied the least drastic means to achieve its objective.
According to the Constitutional Court, the legislator has the right to decide that there is a need to sanction abuse of the freedom of association by the criminal law, but the legislator should take into consideration the requirements of the constitutional criminal law. In its present decision, the Court stated that the legislator when establishing the crime of abusing the freedom of association defined the scope of behaviours subject to criminal sanctions too broadly, and therefore violated the requirements of the constitutional criminal law determined by Decision no. 30 of 1992 (V. 26). Article 212 of the Criminal Code infringes the principle of legal certainty since it makes it possible to restrict freedom of association arbitrarily.
In his concurring opinion which was concurred in by two judges, one of the judges of the Constitutional Court stated that Article 212 of the Criminal Code is contrary not only to the principle of legal certainty, but also to the fundamental right to free association declared by Article 63.1 of the Constitution, since the challenged provision restricts unnecessarily and disproportionately the freedom of association.