a)  Hungary / b)  Constitutional Court / c) / d)  13-12-2004 / e)  54/2004 / f) / g)  Magyar Közlöny (Official Gazette), 2004/198 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - Scope of review.
General Principles - Certainty of the law.
General Principles - Clarity and precision of legal provisions.
General Principles - Nullum crimen, nulla poena sine lege.
General Principles - Proportionality.
General Principles - General interest.
Fundamental Rights - Equality.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Economic, social and cultural rights - Right to health.
Keywords of the alphabetical index:
Drug, possession, use, liability / Drug, public health, danger / Treaty, implementation.
The use of drugs takes away part of the consumer's human dignity by making his/her ability to decide dependant on external factors. This brings into play the state's obligation of institutional protection supporting the right to health. Making the use of drugs permissible would eliminate the individual's right to free self-determination. "Self-overpowering" cannot be viewed as part of the right to free self-determination, since it has consequences for society and public safety. The "freedom of action creating and protecting values" can be practised only in a safe environment without fear. The relevant provisions of the Criminal Code protect the whole society from the dangers of drugs. In the field of special prevention, and because of the risk deriving from the "uncertainty of consumer freedom", the restriction of the right to free self-determination by making certain behaviour criminal cannot be viewed as either unnecessary or disproportionate.
Five petitions asked the Constitutional Court to review the constitutionality and the compatibility with international agreements of some provisions relating to drug consumption in the Criminal Code. They also asked the Constitutional Court to declare that the legislative organ haid failed to fulfil its legislative task ensuing from international treaties.
Some of the petitions attacked the Criminal Code on the basis that the text currently in force does not secure the right to self-determination which follows from the right to human dignity. Furthermore, the petitions complained that the present regulation declares the use of certain narcotic and psychotropic substances punishable without, on the one hand, reasonable considerations, and, on the other, a differentiation on the basis of whether the perpetrator obtains or keeps drugs for his/her personal use or for commercial purposes. Two members of parliament argued that the provisions securing exemption from criminal liability violate the New York Single Convention on Narcotic Drugs and the Vienna UN agreement on the ban of narcotic and psychotropic substances. In their opinion the phrases used in the Criminal Code, like "on the occasion of a common use of drugs" or "for a personal purpose" are legal notions without a clear content, and thus violate the requirement of legal certainty enshrined in Article 2.1 of the Constitution. Furthermore, the petitions referred to the protection of the interests of the young children's right to receive the protection and care of their family, the right to a healthy environment and the right to the highest level of physical and mental health.
The Court emphasised that the Constitutional Court is neutral and cannot take a stand either for or against criminal regulation relating to the use of drugs. Its review has to remain restricted to the duties relating to the state's obligation of institutional protection. It can compare personal rights and the state's related obligations with the effect of the use of drugs on the individual and society. Since the use of drugs creates an altered state of mind, the Court was of the opinion that the view according to which consumer behaviour only affects the individual was unsubstantiated, as the use of drugs took place in a social context. Thus, for the sake of protecting everybody's right to human dignity it is the duty of the state to remove the dangers affecting its citizens.
The petitions attacking criminal liability for the use of drugs on the basis of the violation of the right to self-determination were all rejected by the Constitutional Court. The court viewed the right to human dignity as one definition of the general right to personality, which encompasses various aspects, such as the right to free self-determination. The Court stated that in order to fulfil its obligations the state needs to protect not only individual fundamental rights, but also the values and situations relating to them. In this respect, the Constitutional Court applied the necessity-proportionality test and examined only whether the obligation of institutional protection based on the right to life can justify the restriction of the right to free self-determination, and if yes, where the boundaries of the restriction lie.
The right to physical and mental health requires an active participation on the part of the state. The state fulfils its duty if it protects its citizens from irreversible sanitary risks. This duty of institutional protection extends to consumers, as personal consumation is not based on a free, informed and responsible decision. The "right to self-preoccupation" is part of the right to free self-determination; however, the unrestricted "right to intoxication" cannot be deduced from the Constitution, not even indirectly.
The Court did not find it disquieting that the legislature had declared the use of different narcotics and psychotropic substances criminally liable to a different extent. The review of political decisions in the criminal field does not fall into the sphere of the Court's competence. The legal consequences of the use of substances affecting health are different in terms of age and culture: as their use dates back to hundreds of years, "European culture has 'learned' to live together with alcohol, nicotine and coffee".
The Court partially found the petition substantiated in the part where it was alleged that the phrases "for personal use" and "common use" violate the principle of legal certainty, since on the basis of "common use" it cannot be stated which level of common perpetration it means. It is also unclear how many persons can participate in the actions. Similarly, the phrase "occasion of use" is ambiguous, as the provisions of the Criminal Code do not specify whether this condition applies to single use or regular use in the same or different locations and personal spheres. It is ambiguous whether the contents of active ingredients have to be counted up in the case of repeated handover, or the individual occasions of handover have to be valued according to the accumulative rules in the general part of the Criminal Code. The resulting ambiguity can produce discrimination among legal entities. The questioned provisions violate the requirement of legal certainty.
Concerning the provision relating to "official licence" the Court found that the lack of harmony between underlying legal provisions and the Criminal Code creates an unconstitutional situation manifesting itself in omission.
The Court stated that the Criminal Code's provisions securing immunity for dependant consumers are not in harmony with the international agreements. The Court also found further omissions relating to international treaties. Because of partial incorporation of the relevant international treaties, the lists of narcotics and psychotropic substances are not available in Hungarian, and national, international and European Union law material are still mixed.
Supplementary information:
Constitutional Judge Mihály Bihari handed in a separate opinion to the decision, in which he found the statement of omissions unacceptable, since the arguments do not give an adequate reason for the statement of an unconstitutional situation. Constitutional Judge István Kukorelli also handed in a separate opinion. He argued that for the sake of the protection of the public interest, with reference to an abstract danger the use of drugs can be punishable only where two conditions are met: the criminal punishment has to be adjusted according to the dangers of the individual substances and, if the legislature creates penal laws concerning unspecific dangers, then the legal practice has to leave space for the consideration of particular conditions. According to Judge Kukorelli a majority opinion was not sufficient for the statement of unconstitutionality based on legal certainty, and he questioned the supposition that the protection of the interests of children and young persons based on Articles 16 and 67 of the Constitution would only be achieved by criminal accountability that makes no exceptions possible.