HUN-2004-3-008
a) Hungary / b) Constitutional Court / c)   / d) 23-11-2004 / e) 44/2004 / f)   / g) Magyar Közlöny (Official Gazette), 2004/176 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
General Principles - Certainty of the law.
General Principles - Clarity and precision of legal provisions.
General Principles - General interest.
Institutions - Armed forces, police forces and secret services - Police forces.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.
 
Keywords of the alphabetical index:
 
Crime, perpetrator, information, divulgation / Criminal prosecution, data, use by the police / Search, police.
 
Headnotes:
 
Public order and public safety do not require that a suspect's data be made widely public, even when giving information on crimes against public order or other serious crimes, and even more so, during police investigation.
 
Summary:
 
In the past decade several petitions have reached the Constitutional Court in relation to Act XXXIV of 1994 on the Police ("the Police Act"). The petitions were grouped together, then separated according to subject and judged in several steps. Decision 47/2003 (Bulletin 2003/3 [HUN-2003-3-006]) of the Constitutional Court dealt with control connected with crime prevention, Decision 65/2003 (Bulletin 2003/3 [HUN-2003-3-008]) of the Constitutional Court was concerned with questions related to the right to liberty and security, while Decision 9/2004 (Bulletin 2004/1 [HUN-2004-1-002]) of the Constitutional Court judged petitions concerning the use of fire-arms by police officers. In the present case the Constitutional Court judged petitions that had not been judged before.
 
1. The petitioners objected to the fact that under Article 36.4 of the Police Act the police can make public the data stated in Article 79.1 of the Police Act regarding a person who has committed a crime when they give information on crimes violating public order or other serious crimes. According to Article 79.1 such data is personal data and includes in the case of a foreign citizen their citizenship, the address and the criminal data relating to the crime committed by the person. The Police Act does not determine the range of personal data when applying the Act. In this respect the definition of Act LXVI of 1992 concerning the personal data and address of citizens also has to be taken into consideration, which lists a relatively wide range of data. According to the Constitutional Court, however, public order and public safety do not require that a suspect's data be made widely public, even in cases of crimes violating public order or other serious crimes, especially not during police investigation. For this reason the Constitutional Court held that the contested provision constituted an unnecessary and disproportionate limitation of a fundamental right with respect to the constitutional goal to be achieved and was thus unconstitutional.
 
2. According to the petitioners the part "police, or else" of Article 77.1 of the Police Act violated Article 59.1 of the Constitution guaranteeing the right to the protection of personal data. The contested phrase meant that the personal data collected and kept for purposes of criminal prosecution could be used for police purposes as well, except for cases where the Police Act disposed differently. According to the Constitutional Court the use of personal data collected and stored for purposes of criminal prosecution was unambiguous, accurately defined and well-circumscribed, and constituted a constitutional goal which could restrict the right to the protection of personal data in association with Article 40/A.2 of the Constitution. The use of personal data for police purposes, however, did not relate to a particular task, but to a whole body, without any restriction on content. Thus the purpose of the further application of special data collected for criminal purposes could not be stated, and it could not be judged whether the restriction of the right to the protection of personal data was in harmony with the goal to be achieved, justified and necessary. The Constitutional Court held that the clause "police, or else" in Article 77.1 of the Police Act violated Article 59.1 of the Constitution and annulled it.
 
3. According to Article 80.1 of the Police Act the body handling police data can handle data concerning previous convictions or sensitive data exclusively in the case of a person suspected of committing a crime listed in Article 84.i-n of the Police Act. Article 84.i-n of the Police Act does not list particular crimes, and is not concerned only with the data of accused persons. According to the petitioners this lack of clarity also violates Article 59.1 of the Constitution. The Constitutional Court agreed, and stated that Article 80.1 of the Police Act was difficult to interpret and was ambiguous because of the wording of Article 84.i-n.
 
4. According to Article 85.1 of the Police Act the body handling police data cannot give information to those concerned on data defined in Article 84.i-n. According to the petitioners this provision violates the Constitution, because it cannot be justifiable that individuals concerned cannot get information on where and for what purposes their personal data are used. During constitutional examination the Constitutional Court stated on the one hand, that the protection of state security, crime prevention or the rights of private persons could make it necessary to prohibit providing information on data listed in Article 84.i-n of the Police Act. However, it also stated that on the basis of this provision it cannot be defined or delimited precisely in which cases the police cannot inform the individuals concerned, that is, who is concerned according to the provision. When restricting fundamental rights no such legal uncertainty is permissible. Due to the difficulties of legal interpretation the application of the legal provision becomes unpredictable and legal security is violated. As a result, the Constitutional Court ruled that Article 85.1 of the Police Act did not conform to Article 2.1 of the Constitution, and thus also violated Article 59.1 of the Constitution.
 
Supplementary information:
 
The Constitutional Court rejected several petitions concerning the Police Act. Several constitutional justices expressed dissenting opinions in this regard.
 
1. Regarding personal and institutional security, Article 39.1 of the Police Act makes it possible for police officers to enter premises without an administrative decision. The relevant rules are defined in point c. of Article 46.1 of the Police Act. According to the petitioners this violates Article 59.1 of the Constitution. The Constitutional Court rejected this petition by a majority decision. Constitutional judge Árpád Erdei expressed a dissenting opinion, and argued for the unconstitutionality of the debated provision. Erdei's opinion was shared by constitutional judges Attila Harmathy, Éva Vasadi and István Kukorelli. According to the latter, further points of Article 39.1 of the Police Act were also unconstitutional.
 
2. Point c. of Article 97.1 of the Police Act provides that domicile is any dwelling (holiday home, country cottage or other premises, institution or place used for the purposes of inhabitation) and any premises, institution or enclosed area belonging to it. According to the petitioners the protection of domicile and private sphere also belongs to private premises not used for the purposes of inhabitation, even if they do not belong to the domicile. Non-public private institutions and private offices should get the same protection as domicile, but the debated disposition excludes this. The Constitutional Court rejected these petitions. Constitutional judges András Holló, Éva Vasadi and István Kukorelli however were of the opinion that this provision also violated the Constitution.
 
Languages:
 
Hungarian.