HUN-2004-2-006

a) Hungary / b) Constitutional Court / c)  / d) 19-06-2004 / e) 22/2004 / f)  / g) Magyar Közlöny (Official Gazette), 2004/79 / h) .

Keywords of the Systematic Thesaurus:

03.12

General Principles - Clarity and precision of legal provisions.

03.16

General Principles - Proportionality.

03.18

General Principles - General interest.

04.05.02.04

Institutions - Legislative bodies - Powers - Negative incompetence.

05.03.01

Fundamental Rights - Civil and political rights - Right to dignity.

05.03.05

Fundamental Rights - Civil and political rights - Individual liberty.

05.03.32.01

Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.

05.03.39

Fundamental Rights - Civil and political rights - Right to property.

Keywords of the alphabetical index:

Search, personal baggage, vehicle / Security guard, private, powers.

Headnotes:

Checking baggage is exclusively aimed at preventing persons from taking into an area or onto premises any object that is capable of causing injury or panic in a crowd. The state has an objective and specific duty to protect other fundamental rights - in this case, the right to privacy - against any person violating those rights. According to this requirement, a security guard acting in the name of a person entitled to the right of protection of property must conduct property checks of persons entering the area or premises in such a way that the security guard does not have access to the private and confidential information or personal data of the persons being checked.

By laying down an authorisation with no precise rules to ensure the proportionality of the limitation of the right to privacy, the impugned provision violated Article 59.1 of the Constitution guaranteeing the protection of privacy and secrecy in private affairs and personal data.

Summary:

The petitioners challenged some provisions of Act IV of 1998 on the Professional Chamber of Property and Security Guards and Private Investigation (henceforth: the Act).

For the purpose of securing an area in or premises on which a programme is being held, Article 14.3.b of the Act entitles security guards to check the property of persons entering the area or premises. The purpose of checking baggage is to prevent persons from taking into the area or onto the premises any object capable of causing injury or panic in a crowd. Article 14.1.b of the Act also makes it possible for security guards to check the baggage of persons present or leaving the above-mentioned area or premises.

According to the petitioners, the checking of baggage and vehicles by security guards was equal to the checking of private property. It amounted to the inspection of the private sphere, and even though security guards were not official persons (e.g. police officers), they could, under the impugned provisions, still conduct checks that exceeded those that the police were authorised to do. That being so, the impugned provisions violated the constitutional right to human dignity set out in Article 54.1 of the Constitution, the presumption of innocence set out in Article 57.2 of the Constitution and the right to privacy set out in Article 59.1 of the Constitution.

The Constitutional Court stated that in the legal provisions under examination, the constitutional basis of the authorisation granted to security guards that affects the private sphere, that is to say, the necessity of restricting fundamental rights, is created by the protection of other constitutional rights relating to the protection of property.

The regulation set out in Article 14.3.b of the Act only entitles security guards for the purpose of securing an area in or premises on which a programme is being held to check the baggage of persons entering that area or those premises. This regulation does not contain provisions relating to the checking of the property of persons already in the area or on those premises, and of persons leaving the area or premises. This manner of securing the protection of the right to privacy is weighed against the public interest of creating and maintaining public safety and the exercise of the right to life and personal security. In this regulation, the restriction of fundamental rights meets the requirement that it can only take place if the protection or exercise of another constitutional right cannot be secured otherwise. Checking property is of general validity, but at the same time any person affected may refuse to be checked on the basis of his or her own reflection and decision. In light of this, the restriction is proportionate. Consequently, the Constitutional Court rejected the petition to strike down the provision.

As opposed to this, Article 14.1.b makes it also possible to check the baggage of persons already present in the above-mentioned area or on the premises, and the persons leaving the area or premises.

In cases of persons entering an area or premises, certain circumstances may arise which force the persons to submit to a check, for example, for the purpose of managing their affairs they must enter a given area or premises, or they are forced to do so by the prospect of a legal disadvantage (e.g. the duty to appear upon being summoned). At the same time, the regulation does not contain provisions for the conditions (and thus the checking of property) not to be self-serving or abusive. Moreover, the regulation cannot aim at preventing justified entry. The regulation fails to indicate what kind of objects may be justifiably prevented from being brought into the area or onto the premises, and how the persons concerned are to be informed of this. As a result, the person whose baggage is being checked cannot know what objects may be taken away from him or her, and whether those objects are being safely kept.

In cases where the baggage is checked of a person who is already present in the area or on the premises, the person concerned cannot possibly refuse - on the basis of his or her own reflection and decision. A person leaving the area or premises amounts to no danger, and in such cases, the authorisation to check that person's property may only be based on the protection of property. An undifferentiated regulation of the matter results in the possibility of ordering property checks in any case, even where unnecessary. The Constitutional Court distinctly examined the extent and nature of the legislature's responsibility of protecting the private sphere in cases where property checks are justified exclusively by the protection of property. The Court considered that legislature's undifferentiated regulation granted an excessively broad authorisation to limit the right to privacy in a similar way in different cases, and moreover, the authorisation did not even meet the requirement of employing minimal means. For that reason, the Constitutional Court held that Article 14.1.b of the Act violated Article 59.1 of the Constitution.

The Constitutional Court also emphasised that it did not declare the checking of property itself unconstitutional, but it did say that the legislature did not adequately regulate the authorisation granted to property and security guards.

The Court also held that the impugned provisions were unconstitutional insofar as they did not contain a regulation relating to the duty of secrecy and the handling of personal data.

While checking property, a security guard may gain access to private and confidential information or personal data. According to the Act on Data Protection, personal data may only be handled with a definite purpose. The Constitutional Court held that that requirement was not met by the Act. The legislature's failure to introduce a regulation relating to the duty of secrecy and the handling of personal data by personal and security guards, with special emphasis on property and identity checks, rendered the Act unconstitutional.

Languages:

Hungarian.