HUN-2003-2-005

a) Hungary / b) Constitutional Court / c)  / d) 02-07-2003 / e) 41/2003 / f)  / g) Magyar Közlöny (Official Gazette), 2003/78 / h) .

Keywords of the Systematic Thesaurus:

03.16

General Principles - Proportionality.

03.18

General Principles - General interest.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.05.01

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

05.03.05.01.03

Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Detention pending trial.

Keywords of the alphabetical index:

Compensation, detention / Compensation, exclusion, grounds / Legal remedy, right.

Headnotes:

It cannot be considered a violation of the right to defence to exclude persons who have hidden, escaped or attempted escape from receiving compensation for preliminary detention and temporary forced medical treatment. The fulfilment of the duty of co-operation by the accused may be compelled, which is constitutionally necessary and justified from the point of view of the public interest. The right to defence is not extended to include hiding and escape.

The Code on Criminal Procedure, however, unnecessarily restricts the right to defence by not setting out an adequately differentiated regulation for excluding the payment of compensation to persons who have attempted to deceive authorities in order to delay or obstruct an effective investigation and to persons who have not appealed against the judgment of the court that first tried them.

Summary:

The petitioner challenged certain provisions of the Code of Criminal Procedure (henceforth: the Code) concerning compensation. The Code lays down the rules of compensation in cases where there are lawful enforcement actions that involve detention but do not result in charges being laid or conviction. Articles 383.3.a, 383.3.b, 384.3.a and 384.3.b provide for the exclusion of compensation in certain cases. The following persons are excluded from compensation for preliminary detention and temporary forced medication: those persons who have hidden; have escaped or attempted to escape from authorities; have tried to mislead the authorities in order to delay or obstruct an effective investigation; or have acted in such a way as to give reason for suspicion [Article 383.3.a and 383.3.b of the Code]. The following are among the reasons for which a person may be excluded from receiving compensation for detention: in cases where detention on remand or forced medication have taken place on the basis of a final judgment; in cases where in the main case the accused has held back information or evidence upon which the judgment in the new trial is based; and in cases where the accused has not filed an appeal against the judgment of the court that first tried him or her [Article 384.2.a and 384.2.b of the Code].

The Constitutional Court was of the opinion that in accordance with the guaranteed principles of criminal procedure, the accused had the right to remain silent and the right not to tell the truth. The latter right has its limits defined by the Criminal Code itself: there is a prohibition on giving false evidence, misleading the authorities, etc. Those are the external limits of the right to defence. However, within that sphere, the accused cannot be restricted in employing defence tactics to deceive authorities.

Moreover, the Constitutional Court considered that excluding persons who had acted in such a way as to give reason for suspicion violated the proportionality requirement that is inevitably related to the constitutionality of restricting the right to personal freedom. The reason for this is that in the case of individuals who have not committed any crimes, any reason for excluding them from compensation deprives compensation of all meaning, and the ground that the accused played a part in the development of a well-founded suspicion by deliberate or careless behaviour is a ground for exclusion that may be established in the case of almost all claims for compensation.

One of the necessary elements of the proportionality of detention is that where a court (authority) makes a mistake, the adequate remedy for the injury may be secured within the field of the state's responsibility for damage. For the reasons mentioned above, however, the regulation in question did not meet that requirement, as by defining the grounds for exemption too generally, albeit with the aim of preventing the accused from dishonestly taking advantage of the situation, that regulation unjustly restricted the real possibility of any remedy for a judicial mistake in the event of a well-meant but legally imperfect defence of the accused.

The Constitutional Court did not find it unconstitutional for the legislator to use an adequately differentiated regulation to exclude from compensation for preliminary detention or temporary forced medication individuals whose deliberately dishonest behaviour resulted in the court ordering or extending the forced action. It was on the basis of that consideration that the Constitutional Court did not find it unconstitutional for the Code to include a provision that excludes compensation for the accused upon being acquitted in a new trial, where the accused has held back in the first case information or evidence upon which the judgment in the new trial is based. The reason is that in such a case the statements and concealment by the accused definitely amount to deliberate, conscious behaviour, and one cannot speak of honesty.

Unlike the previous provision, the Court did not find the provision to be constitutional that provides for the accused to be excluded from compensation after acquittal in a new trial, where he or she has not appealed against the judgment of the court that first tried him. That would amount to the subsequent sanctioning of an omission to exercise the constitutional right of legal redress, which would change the exercise of that right into a duty. That, however, is contrary to Article 54.1 of the Constitution, part of which is the right to autonomy and the right of the parties to self-determination, because it belongs to the individual's sphere of autonomy to decide whether to initiate legal proceedings or not.

In its reasoning, the majority of the Constitutional Court examined the provisions in question in light of Article 57.1 of the Constitution that secures the right to defence and Article 55.1 that guarantees the right to personal freedom. In its reasoning, the majority stated that the general duty of compensation of the state under Article 55.3 of the Constitution related to provisions that concerned judicial and official measures resulting in unlawful detention and could not be used with respect to compensation that served to remedy mistakes occurring in the practice of the punitive power of the state.

Supplementary information:

In relation to the latter point, Justice Attila Harmathy wrote a concurring opinion. The essence of it was that, in his opinion, Article 55.3 of the Constitution should have been considered during the constitutional review.

Languages:

Hungarian.