a) Hungary / b) Constitutional Court / c) / d) 18-12-2003 / e) 65/2003 / f) / g) 2003/148 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Proportionality.
General Principles - Weighing of interests.
General Principles - General interest.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Security of the person.
Keywords of the alphabetical index:
Police, custody, maximum period / Drunkenness, police custody / Identity, check, police custody.
No other fundamental rights exist that could be secured by the detention, i. e. restricting the freedom (under Article 33.2.g of the Police Act), of a person reported missing.
Moreover, the provision of the Police Act authorising the police to take a person into custody for reasons of public security for 24 hours where the interest of the person (being in a condition where that person presents a risk of danger to himself/herself or others due to drunkenness or other reasons) requires such custody is unconstitutional in so far as drunkenness, as a situation where a person presents a risk of danger to himself/herself or others, cannot be considered grounds for detention.
Under Article 33.2.a, b, c, g of the Act XXXIV of 1994 on the Police (Police Act), in the interest of public security the police may bring before the competent authority any person who is unable to prove his or her identity; who may be suspected of a criminal offence; from whom a blood or urine test is required as evidence of a crime; and a person who is reported as missing. The Police may restrict personal freedom by bringing a person before the competent authority only for the necessary period of time not exceeding 8 hours, which may be prolonged once by 4 hours.
The Hungarian Civil Liberties Union, inter alia, filed a complaint with the Constitutional Court, alleging that the above-mentioned provisions of the Police Act were unconstitutional for the reasons that those provisions did not require a well-founded suspicion for limiting a person's personal freedom and that short-term arrest was absolutely unnecessary in the case of a person reported as missing. Once the person was found, there was no reason to keep that person in detention.
According to the Constitutional Court, no other fundamental rights exist that could be secured by the detention, i. e. restricting the freedom (under Article 33.2.g of the Police Act), of a person reported missing. Although some missing persons may pose a risk to public security, this is not necessarily true of all missing persons. Consequently, the attainment of the above-mentioned constitutional aim cannot always be used a reason for restricting personal freedom. The Constitutional Court also found it important whether a missing person who is held as such engages or has engaged in any behaviour violating the law, because disappearing is not in itself against the law. For that reason, the Constitutional Court was of the opinion that the impugned provision of the Police Act amounted to an unnecessary and disproportionate restriction of personal freedom, and was therefore unconstitutional.
In addition, the Court found unconstitutional the provision of the Police Act permitting the police to take a person brought before the competent authority into custody for reasons of public security for 24 hours where the interest of the person (being in such a condition as to present a risk of danger to himself/herself and others due to drunkenness or other reasons) requires such custody. Both the Police Act and Health Act require that an injured, sick person or a person requiring urgent treatment in custody be given medical treatment. On that basis, the police can meet the general obligation to protect life, thereby making custody for public-security reasons in such cases unnecessary. For those reasons, the Constitutional Court declared the provision regulating the temporary restriction of personal freedom unnecessary, and stated that it violated Articles 8.2 and 55.1 of the Constitution.
According to the second sentence of Article 19.1 of the Police Act, the lawfulness of police measures cannot be questioned during the actions themselves. In the petitioner's opinion, that provision also ran contrary to Article 55.1 of the Constitution.
However, in the Court's opinion, the effectiveness of police measures could not depend on the understanding of the person affected by the measures, and thus the measures in question could be effected by force if necessary. The person affected by the measures could challenge the lawfulness of police actions at the time they were taking place only exceptionally. Presuming the lawfulness of police actions is a kind of legal protection. Their lawfulness may be challenged by subsequent review; a legal remedy may be sought against those actions; and there is also a possibility of a final judicial review of the injurious police measures. For those reasons, the Constitutional Court stated that that provision did not violate the constitutional provisions concerning freedom and personal security.
As to Article 33.2 of the Police Act authorising the police to bring before the competent authority any person suspected of a criminal offence, the petitioner submitted that unlike a substantiated suspicion, a simple suspicion could lead to an unjustified limitation of freedom. The Constitutional Court found that during the time of custody, the authority had opportunity to state the existence of a substantiated suspicion. Therein lies the constitutionally relevant distinction, which makes any argument demanding substantiated suspicion untenable. According to the Police Act, however, such detention may only occur for the sake of public safety.
Concerning the provision of the Police Act that gives the police the right to bring before the competent authority a person unable to prove his identity, the Constitutional Court was of the opinion that where an order for custody on the grounds of public safety is being considered, the will of the person involved plays an important role, and that person may be exempted from detention where he/she co-operates with the authority. In cases of lack of co-operation, the limitation is justified as long as the constitutionally-acceptable aim, that is to say, an identity check, is in progress. Moreover, there is a possibility of seeking a legal remedy against and final judicial review of police actions.
According to Article 38.2 of the Police Act, the personal freedom of a person in custody may be limited for a period of time not exceeding 72 hours, where that person has hidden from the authorities or is strongly suspected of doing so. The petitioners sought a declaration of unconstitutionality of that term, arguing that it was unnecessary; violated Article 55.1 of the Constitution; and opened up the possibility of the authority's use of unnecessary force. The Constitutional Court considered that the person affected fell under a situation governed by criminal procedure, which did not involve a deprivation of personal freedom, but resulted in a restriction of fundamental rights. The provision in question of the Police Act and the police actions taking place under it make it possible to order law enforcement by force and the implementation of such law enforcement. The manifestation of the state's objective to fight crime involves ensuring law enforcement; one of the means to do so is by taking enforcement actions. The limitation of personal freedom takes place in pursuit of this constitutional aim. Moreover, the Police Act provides for a legal remedy and judicial review as well. For those reasons, the Constitutional Court rejected the petition.
Regarding that decision, Ottó Czúcz delivered a dissenting opinion. In his opinion, Article 38.1 of the Police Act was not unconstitutional for making custody for reasons of public security possible where the interest of the person, being in such a condition as to present a risk of danger to himself/herself or others due to drunkenness or other reasons, required such custody. According to the dissenting opinion, it derived from the right to life (Article 54.1 of the Constitution), specifically the objective side of that fundamental right, that the temporary and considered limitation of fundamental personal freedom could not always be viewed as unnecessary and disproportionate. Ottó Czúcz was joined in his dissenting opinion by Constitutional Judges Mihály Bihari, Attila Harmathy and Éva Vasadi.
István Kukorelli also delivered a dissenting opinion, in which he stated that he was also of the opinion that detention for an identity check could be necessary to promote effective police action. In his opinion, however, Article 38.1 of the Police Act provides for 24 hours for an identity check, a period of time that was disproportionately long for the aim to be attained. That was a disproportionately and unjustifiably long period of time and, therefore, unconstitutional.