a) Hungary / b) Constitutional Court / c) / d) 07-10-2002 / e) 569/B/1999 / f) / g) Alkotmánybíróság Határozatai (Official Digest), 2002/10 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Proportionality.
General Principles - Weighing of interests.
General Principles - General interest.
Fundamental Rights - General questions - Entitlement to rights - Natural persons - Detainees.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty.
Fundamental Rights - Civil and political rights - Freedom of association.
Fundamental Rights - Civil and political rights - Freedom of assembly.
Fundamental Rights - Economic, social and cultural rights - Freedom of trade unions.
Keywords of the alphabetical index:
Prisoner, right of association / Detention, fundamental rights, limited action.
As a result of striking a balance between the state's duty to punish the perpetrators of crimes and the freedom of association, the Court stated that according to the Constitution, detained persons may exercise their right to freedom of association as long as this does not upset or directly endanger the purpose of the execution of penalties. When making that decision, the legislature has to consider the purpose of the conviction, and by what degrees the convict's sentence is to be served, and also, whether or not within that degree the convicts' exercise of the freedom of association endangers the order of the penal institution. The legislature did not exclude the possibility of forming associations in general (not even within a penal institution), and as a result whether or not restriction of the freedom of association is necessary and proportionate in any particular case can only be decided with knowledge of all circumstances.
In a petition presented to the Constitutional Court, the petitioner sought a declaration of unconstitutionality regarding Article 36.5.f of the Legislative decree on the enforcement/execution of penalties (Legislative decree), stating that that provision - read in conjunction with Article 36.6.b of the Legislative decree - makes it impossible for persons detained in any penal institution to enjoy their right to freedom of association as set out in Article 63 of the Constitution, as well as their right to form or join organisations (trade unions) in order to protect their economic or social interests as set out in Article 70/C of the Constitution.
According to Article 36.5.f of the Legislative decree, the rights of convicted citizens (prisoners) are amended as follows: their freedom of association, right to education, and the duty of national defence are restricted as a result of detention.
On the basis of Article 36.6 of the Legislative decree, during the time of detention the prisoner's freedom of assembly is suspended.
The Constitutional Court has placed freedom of association among the rights of expression. Freedom of association means that everyone has the right to found an association with a cultural, corporate, political or any other purpose, or to take part in the activity of any such group of persons. This freedom also includes the right to found associations, the right to join them and also not to join them. Freedom of association is a basic right, which, like any other basic right, is not unlimited.
Persons detained in a penal institution are in a special situation. They are also entitled to basic rights; however, because of the detention and its legal purpose, legal provisions limit the convicts' right to enjoy their basic rights. In Decision no. 13/2001 (Bulletin 2001/2) the Constitutional Court has dealt with the limitation on the exercise of certain basic rights resulting from detention in a penal institution. According to this decision there are certain constitutional basic rights that cannot be affected by the detention of convicts, such as, for example, the right to life and human dignity. As a result of the nature of detention, the full assertion of the right to personal freedom, free movement and free choice of residence are excluded. Liberty of opinion is, however, listed among basic rights that still exist during detention, but its exercise and manifestation is defined by the fact of execution of the penalty and its circumstances.
The constitutionality of limiting the exercise of basic rights has been considered by the Constitutional Court on the basis of the so-called necessity test. In the present case the Constitutional Court had to strike a balance between the state's power to deal successfully with criminal matters and the freedom of association of prisoners. Concerning the fundamental rights of prisoners, the Constitutional Court finds that it is important that detention may be used to justify only that restriction on the exercise of basic rights having an interest closely related to the execution of the penalty itself. A legal provision relating to constitutional rights of convicts that hinders a convict in his or her exercise of any basic right as a result of detention can only be considered to be constitutional if it serves legitimate penal purposes. In the instant case, the Constitutional Court stated that for the sake of the effective enforcement of the state's criminal laws and for the maintenance of order in the execution of penalties, the restriction of the exercise of freedom of association may be necessary in certain cases.
It is the state's constitutional duty to call the perpetrators of crimes to account. Part of this duty is to enforce penalties in the case of persons sentenced by the court to be held in detention. In executing a penalty the state can only restrict the exercise of the freedom of association to the extent that it is done for the sake of serving the legal purpose of the penalty. The purpose of detention is to promote the resocialisation of the convict by enforcing a legal sanction, and to help a convict avoid committing another crime in the future. Belonging to an association can play an important role in the convicts' keeping in contact with the outside world; after their detention it can help them to reintegrate into society; and, belonging to a smaller community can also promote the preservation of personality and self-esteem.
According to Article 36.5.f of the Legislative decree, freedom of association is limited. This legal norm provides that the proportionality of a legal restriction is not subject to review because the issue of whether the restriction of a convict's freedom of association is proportionate to the aim pursued in a particular case is decided by legal practice. The Legislative decree does not deal with the extent to which the convicts' freedom of association is restricted, which associations may still be formed and which associations prisoners may join.
In general, it can be stated that a restriction of the right of association is not a proportionate one where the convicts are forbidden to form associations that are reconcilable with the purpose of the penalty and do not endanger order and security. It is especially important in a case where the convicts wish to form a corporate association for the protection of their interests as safeguarded by the Legislative decree.
The convicts' exercise of freedom of association is, of course, restricted in the sense that they cannot take part in the everyday life of associations outside the penal institution. This restriction arises from the fact that during the time of detention the convicts' right to free movement and the free choice of residence is "suspended". As a result of the purpose served by the execution of the penalty, the detained person may not leave the penal institution at any time. However, this restriction does not mean that the convicts cannot be members of an association outside the penal institution, or cannot take part in the association's activity at all. The convicts may keep their membership of an association obtained before the time of detention, or may become members of a new association where this is reconcilable with the execution of penalties. The convicts' membership with an association outside the penal institution is restricted only to the extent that they cannot take part in the association's activity in person, or they may do so only when they may leave the penal institution according to the general rules of the execution of penalties. During that leave the convicts may even form an association, as in this case when their participation in a meeting founding an association did not meet with any difficulty.
The exercise of the freedom of association is possible not only in the case of associations outside the penal institution, but also inside the penal institution where the convicts wish to form associations, for example corporate associations. Article 70/C.1 of the Constitution provides for a special type of freedom of association, that is, associations for the safeguarding of social and economic interests and the right to form and join them. Since the basic right guaranteed by Article 70/C of the Constitution is the expression of the general freedom of association in relation to associations safeguarding interests (trade unions), in the interpretation of that constitutional provision, statements concerning the essence of the freedom of association are normative: the right to form corporate associations, that is, the exercise of this right - together with the freedom of association - is restricted by the fact that a convict is held in detention. In reference to this right it may therefore be said that the convicts' exercise of the right to form associations is restricted only to the extent that is justified by the purpose of the execution of the penalty; and that this right may be restricted only to the extent that is necessary and unavoidable for the maintenance of the order in the penal institution.
- Decision no. 13/2001 of 14.05.2001, Bulletin 2001/2 [HUN-2001-2-005].