a) Hungary / b) Constitutional Court / c) / d) 11-03-1998 / e) 6/1998 / f) / g) Magyar Közlöny (Official Gazette), 18/1998 / h) .
Keywords of the Systematic Thesaurus:
Sources - Categories - Written rules - International instruments - International Covenant on Civil and Political Rights of 1966.
General Principles - Proportionality.
General Principles - Weighing of interests.
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 - Right of access to the file.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to have adequate time and facilities for the preparation of the case.
Keywords of the alphabetical index:
State secret / Criminal procedure / National security / Defence, restriction / Guarantee, absolute character.
The challenged provisions of the Code of Criminal Procedure and the Ministerial Decree on obtaining copies of criminal case files which preclude defence counsel and the accused from obtaining access to the case-file if it contains State or official secrets violate the rights of the defence and the right of an accused person to a fair trial.
A judge initiated the procedure of the Constitutional Court, since in the course of a pending case in which the prosecutor accused some contributors to the State security service of disclosing a State secret, the judge considered unconstitutional one of the provisions of the Code of Criminal Procedure and a provision of the Ministerial Decree on obtaining copies of criminal case files which the accused needed.
Under Article 114.4 of the Act on the Code of Criminal Procedure (hereinafter: the Code), defence counsel or the accused cannot have access to those files which contain State or official secrets.
According to Articles 4.a and 4.c of the Joint Decree no. 4/1991 (III. 14.) of the Minister of Justice and the Minister of Internal Affairs on obtaining copies of criminal case files, the accused and his/her counsel cannot even obtain copies of case-files which contain State or official secrets or copies of the record prepared during a closed trial in the criminal procedure.
The rights of the defence ensured by Article 57.3 of the Constitution require the effective realisation of the defence and this means that the accused and counsel should have the possibility of preparing for the trial. In its previous decision, the Constitutional Court already emphasised the importance of the rights of the defence, but it mentioned that protecting State and official secrets during criminal proceedings may also be needed. This statement of the Court is in harmony with Article 14.3.b of the International Covenant on Civil and Political Rights and Article 6.3.c ECHR under which everyone charged with a criminal offence has the minimum right to have adequate time and facilities for the preparation of his defence. These possibilities include the right of access to the case-file, and also the right to possess the case-file. Therefore it is required that the person charged with a criminal offence and his/her counsel be able to obtain the documentation prior to the trial, and they should have access to copies thereof.
The question of whether there has been a fair trial as guaranteed by Article 57.1 of the Constitution can be judged only by taking into consideration the circumstances of the trial as a whole. Despite the lack of an important element, the procedure as a whole can be fair. But the contrary can be also true: the trial can be unfair even if the judge observes all the procedural safeguards. One of the most important parts of a fair trial is to ensure equal opportunities for both the prosecutor and the defence counsel to form an opinion on questions of facts and rights. The other requirement is that the accused and counsel should have the same access to the relevant information of the case as the prosecutor. Restricting this right of the defence is unconstitutional if the prosecutor may have access to the same documents without any limitation.
The constitutional limits of restricting fundamental rights were established by Article 8.2 of the Constitution and the jurisprudence of the Constitutional Court. Article 8.2 of the Constitution, however, provides only an abstract general rule; the way in which each fundamental right is applied may change case by case. Based upon these, the Constitutional Court in its current decision ruled as follows: The rights of the defence are not absolute; however, it is not easy to preserve the constitutional balance between these rights and the requirement of protecting State secrets. The legislator with the challenged regulations intended to act in the interest of national security, i.e. the aim of the legislator was to prevent State or official secrets coming to the knowledge or into the possession of an inappropriate person. The provisions under review, however, restricted the rights of the defence in an unnecessary and disproportionate way. Therefore, these provisions are unconstitutional. The legislator is entitled to introduce measures for safeguarding State secrets during criminal proceedings, but the legislator should define these measures in a way that will not infringe upon the rights of the defence in an unconstitutional manner.
The Constitutional Court has already dealt with the absolute ban on restricting the criminal law guarantees, such as the presumption of innocence and the nullum crimen sine lege principle. Concerning the guarantees of a fair trial ensured by Article 57.1 of the Constitution, the Court stated that these conditions are not absolute, unlike the presumption of innocence, but the weighing of interests in accordance with Article 8.2 has absolute limits. There is not any kind of need in the interest of which the fairness of the trial can be restricted even in a proportionate way. Rather, the question whether the restrictions were necessary and proportionate to their purpose shall be examined solely within the notion of a fair trial.