HUN-1998-1-002
a) Hungary / b) Constitutional Court / c)   / d) 24-02-1998 / e) 793/B/1997 / f)   / g) Alkotmánybíróság Határozatai (Official Digest), 2/1998 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
Sources - Categories - Case-law - International case-law - European Court of Human Rights.
Sources - Techniques of review - Concept of constitutionality dependent on a specified interpretation.
General Principles - Proportionality.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Rules of evidence.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to remain silent - Right not to incriminate oneself.
 
Keywords of the alphabetical index:
 
Criminal proceedings / Testimony, pre-trial, use in trial / Testimony, refusal.
 
Headnotes:
 
To read aloud the testimony of an accused person at a court hearing despite the fact that the accused has refused to testify during the trial does not mean a disproportionate restriction of the rights of the defence if this limitation complies with the following constitutional requirements:
 
-<IN:0.25,0,-0.25>   reading aloud and using the testimony made during the investigation can be constitutional if it is done in the interest of making clear the facts of the case or in the interest of another accused or the victim;
 
-<IN:0.25,0,-0.25>   the judge should examine whether during the investigation the accused was familiarised with the possibility of refusing to testify and its consequences, and whether the testimony was given under duress;
 
-<IN:0.25,0,-0.25>   the judge should obtain evidence from other sources even if the accused made a full confession.
 
Summary:
 
Upon the petition of a judge, the Constitutional Court examined the constitutionality of Article 83 of Act I of 1973 on the Code of Criminal Procedure (hereinafter, the «Code») according to which the document containing the testimony could be used if the person who testified cannot be heard, the person refuses to testify or the document is contrary to the testimony. In the petitioner’s opinion, that part of the challenged provision under which the testimony can be used in spite of the fact that the accused person later refuses to testify violates the rights of the defence ensured by Article 57.3 of the Constitution.
 
According to Article 57.3 of the Constitution, a person charged with a criminal offence is entitled to the rights of the defence in every phase of the criminal procedure. The Constitutional Court in this decision examined whether the contested provision of the Code infringes the fundamental rights of the defence.
 
Under Article 83 of the Code, the document containing the testimony is a piece of evidence, which, as a general rule, can be used only according to the provisions of this Code as direct evidence. According to Article 83.3, however, three cases are exceptions to the above-mentioned rule, one of which is the case where the accused refuses to testify.
 
The right not to incriminate oneself emerging from the fundamental right to human dignity guaranteed by Article 54 of the Constitution ensures for the accused the right to remain silent. In order for this right to be realised, under the Code the investigator is obliged to draw the accused’s attention to the possibility of refusing to make a statement. But if the accused decides to make a statement despite the notice of the investigator, later on he/she does not have the right to decide whether this statement can be used at trial. Under the Code, however, both the defence counsel and the accused have the possibility of making a remark if the court decides on using the statement made during the investigation as evidence.
 
According to Article 50 of the Constitution, the courts punish the perpetrators of criminal offences. The restriction of the rights of the defence therefore can be justified by this obligation of the State if this restriction is necessary and proportionate to the purpose of the limitation. In answering the question whether in the instant case the restriction is necessary and proportionate, the Constitutional Court took into consideration the case-law of the European Court of Human Rights, especially the John Murray v. the United Kingdom Judgment of 8 February 1996, Reports of Judgments and Decisions 1996, p. 30, Bulletin 1996/1 [ECH-1996-1-001]. In this case the European Court of Human Rights stated that the right to remain silent is a generally recognised international standard which lies at the heart of a fair trial. However, the European Court of Human Rights also held that the right to silence is not an absolute right, but rather a safeguard which might, in certain circumstances, be removed provided other appropriate safeguards for accused persons are introduced to compensate for the potential risk of unjust convictions. The court has a discretionary power to draw inferences from the silence of an accused, but this does not, in itself, violate the right to silence. Accordingly, the Court held that there had been no violation of  Articles 6.1 and  6.2 ECHR.
 
On the basis of the aforesaid considerations, the Constitutional Court held the contested provision restricting the rights of the defence to be constitutional, since according to the reasoning of the Court, this limitation is justified by the interest of another accused or the victim and the rights of the defence can be also restricted in the interest of making clear the facts of the case.
 
Cross-references:
 
European Court of Human Rights:
 
- John Murray v. the United Kingdom, no. 18731/91, 08.02.1996, Reports of Judgments and Decisions 1996, p. 30, Bulletin 1996/1 [ECH-1996-1-001].
 
Languages:
 
Hungarian.