HUN-2001-2-005

a) Hungary / b) Constitutional Court / c)  / d) 14-05-2001 / e) 13/2001 / f)  / g) Magyar Közlöny (Official Gazette), 2001/55 / h) .

Keywords of the Systematic Thesaurus:

01.03.02.01

Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.

03.10

General Principles - Certainty of the law.

03.16

General Principles - Proportionality.

05.01.01.04.03

Fundamental Rights - General questions - Entitlement to rights - Natural persons - Detainees.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

05.03.23

Fundamental Rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.

Keywords of the alphabetical index:

Prisoner, media, communication / Prison, official, control / Censorship.

Headnotes:

Regulations enacted by parliament which authorised censorship of prisoners' communications with the media were unnecessarily broad, since the regulations were not limited to cases when national security, state secrets or the security and order of prisons were in danger.

Summary:

The President of the Republic refused to sign an amendment to the Legislative Decree on Executing Punishments and other Punitive Sanctions. The proposed amendment required the permission of the prison official before publishing or broadcasting an interview, a talk or simply a statement of a prisoner. The prison official can refuse to give this permission, if it is necessary in the interests of national security, public safety, for the protection of the reputation and personal rights of others, or for the prevention of crime or preventing the disclosure of state secrets, official secrets or other information received in confidence as well as for maintaining security and order in the prison.

Before promulgating the amendment, the President requested the Constitutional Court, to review the constitutionality of the regulations restricting communications between prisoners and the media. According to the President, the prison regulation at issue restricts the prisoners' freedom of speech in a disproportionate way. The only constitutionally legitimate reason for such censorship could be the interest of maintaining the safety and order of penal facilities.

In itself it is not unconstitutional that the communication between prisoners and the media is subject to controls. The incarceration, however, must not be the sole reason and ground for restricting free speech. Upon incarceration, a prison inmate loses only those free speech rights which are inconsistent with the legitimate penal objectives of the prison system. This should be taken into account when asking the question of the extent to which those incarcerated may have access to the media.

The Constitutional Court, when analysing the regulation, examined each of the reasons for the restriction individually. As a consequence, the Court found unconstitutional that part of the challenged provision which allowed the prison official to refuse permission if he or she thought that the statement of the prisoner might risk public safety, violate the reputations or personal rights of others, or if he or she thought it necessary to prevent crime of the disclosure of official secrets. The proposed amendment restricted prisoners' freedom of expression in an unnecessarily broad way, even when there was no legitimate penal justification for refusing permission to communicate with the media. As a result, the Constitutional Court declared unconstitutional the regulation permitting broad censorship of communication between prisoners and the press.

The Court held the proposed amendment was unconstitutional for other reasons as well. The regulation contains unclear notions, such as the definition of the press or of other information received in confidence, which do not have a special meaning in the Hungarian legal system. As the Constitutional Court declared in its Decision no. 11/1992, legal certainty is infringed if the wording of a law is not sufficiently clear and unambiguous.

According to the Court, it was acceptable to control the communication of prisoners with the media in the interests of national security or if it is needed to prevent disclosure of state secrets, or to protect the security and order of penal facilities.

Supplementary information:

One of the Justices attached a concurring opinion to the judgment. According to Justice Kukorelli, before discussing other issues, the Court should have examined whether the authorised censorship of the communication between prisoners and the media is in accord with the Constitution and the Constitutional Court's jurisprudence. Since censorship is the most restrictive method of limiting the fundamental right to freedom of expression, prior restraint can only be justified in very special and limited cases, and if it is clearly defined. Under the proposed rule challenged by the President, prison officials had an almost absolute authority to censor prisoners' communications. Therefore, the regulation restricted the freedom of expression in a disproportionate, and consequently unconstitutional, way.

Languages:

Hungarian.