a) Hungary / b) Constitutional Court / c) / d) 25-06-1999 / e) 19/1999 / f) / g) Magyar Közlöny (Official Gazette), 56/1999 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Certainty of the law.
Institutions - Judicial bodies - Jurisdiction.
Institutions - Judicial bodies - Organisation - Prosecutors / State counsel - Powers.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Detention pending trial.
Fundamental Rights - Civil and political rights - Security of the person.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Keywords of the alphabetical index:
In accordance with the constitutional rights of access to court and liberty and security of the person, it is for courts to decide on continued pre-trial detention in criminal proceedings.
The petitioner requested ex post facto constitutional review of Article 223.2 of the Code of Criminal Procedure, according to which, based on the prosecutor's recommendation, the court should decide on whether a person sentenced by a court for an intentional offence to at least three year's imprisonment should be detained or continue to be detained, except when the time spent in detention on remand exceeded the term of the sentence determined by the court. In the petitioner's view, this article of the Code of Criminal Procedure limited the fundamental rights of access to court and liberty and security of the person and was disproportionate to the aim to be achieved.
Under Article 55.2 of the Constitution, anyone suspected of having committed a criminal offence and arrested shall be promptly either released or brought before a judge. The judge is required to hear the person brought before him and shall promptly decide in a written ruling with reasons whether the person should be released or charged. From this article it follows that the judge is entitled to decide whether an arrested person should be released or charged with a criminal offence. According to the challenged provision of the Code of Criminal Procedure, however, the judge's power was formal, since the judge was obliged to follow the recommendation of the prosecutor. This provision, therefore, violated the right of access to court. In addition, by failing to determine the factors on the basis of which the judge, or in practice, the prosecutor, decided on detention or continued detention, it did not comply with the requirements of the constitutional principle of legal certainty.
The Court also examined whether the disputed provision of the Code of Criminal Procedure violated the right to liberty and security of the person. Under Article 55.1 of the Constitution, everyone in the Republic of Hungary has the right to freedom and personal security; no one shall be deprived of freedom except on the grounds and in accordance with the procedure provided for by statute. According to the Constitutional Court, the disputed provision unnecessarily restricted the right to liberty and security of the person, since there was no sufficient justification for the exclusion of the judge's discretion in deciding on the detention.