HUN-2003-2-001

a) Hungary / b) Constitutional Court / c)  / d) 09-04-2003 / e) 13/2003 / f)  / g) Magyar Közlöny (Official Gazette), 2003/35 / h) .

Keywords of the Systematic Thesaurus:

03.16

General Principles - Proportionality.

03.17

General Principles - Weighing of interests.

04.08.06.02

Institutions - Federalism, regionalism and local self-government - Institutional aspects - Executive.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.05.01.02

Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Non-penal measures.

05.03.06

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

05.03.12

Fundamental Rights - Civil and political rights - Security of the person.

Keywords of the alphabetical index:

Supervisor, public place, power / Freedom and personal security, limitation, duration.

Headnotes:

In conformity with the Act on the Supervision of Public Lands and Places, a supervisor of public lands and places may justifiably ask anyone for information who may be able to provide essential information for the conduct of proceedings. A lack of co-operation or a refusal to answer may involve a limitation of the right to freedom and personal security for an indefinite duration. Such a degree of restriction is not proportionate with the constitutional aim of ensuring the exercise of the official duty.

Summary:

The petitioners challenged certain provisions of the Act on the Supervision of Public Lands and Places (henceforth: the Act). They argued that the provision of the Act permitting the supervisors of public lands and places (henceforth: the supervisors) to detain persons for the purpose of questioning for the duration of such questioning (§ 14) and persons for the purpose of ascertaining their identity for a report (§ 15) violated the right to freedom and personal security as well as the right to move freely, secured in the Constitution.

The Constitutional Court found that although the provision in question touched on the right to move freely, the issue to be examined in the case was whether the restriction on the right to freedom and personal security met the constitutional requirements concerning the limitation of fundamental rights.

As regards the legal status of the supervisors, the Constitutional Court found that as part of the local government, they did, in fact, exercise public power; however, they were a local policing body, especially not the police of the local government.

The supervisor may justifiably ask anyone for information who may be able to provide essential information for the conduct of proceedings. The limitation on the right to freedom and personal security essential for the asking and answering of questions is in such a case not disproportionate.

However, the impugned provision, without directly setting out that the answering of questions is compulsory, makes it so in practice, since it sets out that the personal freedom may be limited of persons who are not under suspicion or have committed a misdemeanour, and that their personal freedom may be limited indefinitely. The Constitutional Court held that the provision in question was unconstitutional and struck it down.

However, the legal right granted to supervisors to detain persons whose identity had to be ascertained for the purposes of reports or legal proceedings was not found to be unconstitutional. Firstly, in such cases the limitation of personal freedom had a fixed duration: it could only last until the identity was ascertained. Secondly, the Act adequately regulated any potential cases of illegality.

Supplementary information:

In a concurring opinion, Chief Justice János Németh argued that the unconstitutional provision of the Act not only violated the right to freedom and personal security, but also ran contrary to the provision of the Constitution securing the right to free movement.

Languages:

Hungarian.