a) Hungary / b) Constitutional Court / c) / d) 30-03-2004 / e) 9/2004 / f) / g) Magyar Közlöny (Official Gazette), 2004/38 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to life.
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Arrest.
Keywords of the alphabetical index:
Police, firearm, use.
The right to use firearms is justified and constitutional where supported by the fact that the person to be captured has previously violated the right to life by taking the life of another person.
The provision providing for the right of a police officer to use firearms against a person whose behaviour points to a direct use of firearms or other dangerous instruments against others is unconstitutional insofar as the expression "other dangerous instruments" can be interpreted too broadly and make the use of firearms possible even in cases where it would otherwise be unnecessary. The use of firearms by the police can be constitutional only against weapons and other instruments that may lead to taking the life of another.
Several petitions have been filed with the Court concerning the Police Act of 1994.
Article 54.h of the Police Act permits the use of firearms for capturing a person who has committed a crime against humanity or the state, and preventing that person's escape. According to the Court, the constitutionality of the use of firearms was substantiated by the fact that the person involved had previously violated the right to life by taking another person's life. However, since exterminating persons did not appear in the statutory provision of a crime against the state, the Court stated that in dealing with such cases the use of firearms was not justifiable, and that the provision violated the right to life. Among crimes against humanity, some include the extermination of persons as a fact of the case. Here, Article 54.g, which concerns such cases, can be applied. Consequently, the Court found the police's use of firearms unjustifiable in cases of crimes against humanity.
Article 54.g of the Police Act permits the use of firearms against a person whose behaviour points to a direct use of firearms or other dangerous instruments against others. In the Court's view, that provision would make it possible to use firearms even if the behaviour of the person involved hinted at the direct use of an instrument in his/her possession that is incapable of causing death, but is nevertheless considered a dangerous instrument against others by the police officer concerned.
Article 54.j of the Police Act states that it is legal to use firearms to prevent the escape, the forcible rescue of a person captured, arrested or detained on the basis of a judicial decision for committing crime, with the exception of cases where the person is under-age, independent of the seriousness or nature of the crime committed by the person. This provision applies to detainees and persons who take part in the rescue. The Court held that the police had to provide for the secure custody of the detainee, so as to avoid his/her escaping. Where negligence during custody leads to the escape of a person who has not been called to legal account, the rectification of that negligence may not involve the use of any instrument (firearm) that is capable of causing death. However, the Court did not find unconstitutionality in cases of a person taking part in a forcible rescue, since such a person would necessarily participate in an offensive initiative, and during a forcible rescue, the lives or health of others would be endangered.
According to Article 54.g of the Police Act, a police officer may use firearms for the prevention of the escape of or for the capture of a person who has deliberately taken the life of another. In that respect, the Court stated that a person who had violated the right to life by taking another's life was not and could not be put outside the sphere of law, and that that person took the risk that his/her own life would be endangered by a justifiable use of firearms against him/her. The justification for using firearms does not arise from the effectiveness of law enforcement or criminal procedure, but from the requirement of the right to life: a person who has taken the life of another has to face criminal proceedings.
According to the petitioner, under Article 11.1 of the Police Act a police officer's duty to protect "public security and internal order, even by risking his/her own life" meant the complete and irrevocable denial of a police officer's right to life. The Court stated that the impugned provision used the term "risking... life" in connection with the practice of a voluntarily chosen profession. One of the requirements of that profession is that police officers must protect public security and public order, even at the risk of their own lives.
Article 17.2 of the Police Act sets out that when using coercive instruments, death and injury must be avoided, if possible. In the petitioner's opinion, that provision potentially allowed manslaughter, which violated Article 54.1 of the Constitution. According to the Court, the expression "if possible" did not amount to a prohibition. Aside from the negative content, that restraint also had some permitting content. The provision in question was a recommendation concerning the method of the dispensation of justice, a provision which at the same time had to be interpreted in association with other provisions of the Police Act relating to the proportionality of coercive actions and actions to be taken preceding the use of firearms. Focusing on the words "if possible" in that context had no constitutional relevance.
The petitioner argued that Article 19.1 of the Police Act violated Article 54.1 of the Constitution because the legal protection it granted set out that the justification of measures carried out by the police could not be questioned at the time those measures were being carried out. In the Court's view, in order for the state's public order and public security to be protected, the body guarding public order and public security had to be granted the effective means to do so. That requirement, which served public interests, justified Article 19.1 of the Police Act, which requires everyone to submit to police measures aiming at the enforcement of legal rules and to obey a police officer's orders. Assuming the legitimacy of police measures is in fact a kind of legal protection that can, however, subsequently be refuted by crosschecking; consequently, there is a legal remedy.
In the case of rules concerning the use of firearms against a person in a crowd, Article 57.2 excludes unlawfulness in a situation where the person hit has not left the spot upon receiving a police warning. Ignoring a police warning is an individual's personal choice, which results in a person's consciously taking the risk of losing his/her life, and as a result, any possible consequences must be borne by the individual.
Chief Justice Holló delivered a dissenting opinion, in which he disagreed with the majority decision rejecting the unconstitutionality of Articles 17.2 and 54.g. In his opinion, those provisions were unconstitutional. Justice Kukorelli joined the dissenting opinion.
Justice Vasadi also delivered a dissenting opinion, stating in all questions in which the Court made a declaration of unconstitutionality, the Court should have rejected the proposals. At the same time, she believed that Article 57.2 of the Police Act violated the right to life.