a) Hungary / b) Constitutional Court / c) / d) 28-04-2005 / e) 17/2005 / f) / g) Magyar Közlöny (Official Gazette), 2005/56 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Weighing of interests.
General Principles - General interest.
Institutions - Executive bodies - Application of laws - Delegated rule-making powers.
Institutions - Judicial bodies - Procedure.
Institutions - Public finances - Taxation.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Scope - Criminal proceedings.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right of access to the file.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to have adequate time and facilities for the preparation of the case.
Keywords of the alphabetical index:
Criminal procedure, costs / Disclosure, filess, access , mandatory fee.
Requiring the payment in advance by an accused of a mandatory fee for obtaining a copy of the important documents in his or her criminal case-file is unconstitutional. It is not enough to have regulations, which result in the waiving of that fee for the financially needy. It is a constitutional requirement that all accused in the criminal justice system have free and equal access to personal copies of the important documents in their own criminal case-file. Everyone, regardless of income or wealth, has a right to a fair trial and legal defence, which includes the obtaining without a fee the important documents in their own criminal case-file.
Several applicants have asked for a constitutional review of the regulations of the Code of Criminal Procedure as well as the Act on Fee Regulation that require an accused to pay a fee in order to receive a copy of the important documents in their own criminal case-file. The amount of the fee is directly linked to the number of copied pages required.
The applicants first argument was that the regulations concerning that fee were unconstitutional in both form and content. According to the Constitution only statutes may regulate fundamental rights. The applicants asserted that those rules restricted constitutional rights and had been adopted by ministerial decree. Those regulations, they claimed, were not specifically derived from any particular statute and hence they were unconstitutional and should be stuck down. The Court rejected that argument and concluded that the regulations were derived, though not specifically, from the Act on Fee Regulation and that there was a general connection between them, which was enough to satisfy the constitutional requirement.
The second, more significant, argument was that those provisions were unconstitutional in their content. The applicants argued that the fee regulations, which had the effect of a mandatory fee in exchange for the important documents in their own criminal case-file, violate two constitutionally protected rights of the accused: the right to a fair trial (Article 57.1) and the right to legal defence in criminal proceedings (Article 57.3). The mandatory fee must be paid either by the accused, the defence lawyer, or the legalguardian in the event that the accused is a youth. If the fee cannot be paid, then a copy of the important documents in their own criminal case-file cannot be obtained and, hence, there is no opportunity to prepare a proper legal defence. Consequently, that would result in an unfair disadvantage to the accused and lead to an unfair trial.
Responding to those objections, the Court emphasised that in criminal cases, the important documents in their own criminal case-file are necessary in order to reasonably assess the legal situation of the accused and to be able to form an informed opinion about the case. The Court in its Decision no. 6/1998 [HUN-1998-1-003] determined that an effective legal defence can only be prepared if the defence is given the opportunity to take away personal copies of the important documents in their own criminal case-file in order to prepare an appropriate legal defence. To have access only to the original copies is not enough to be able to properly examine the documents and to prepare a proper defence.
Adequate time and facilities for the preparation of a defence are a necessary part of the constitutionally protected right to a legal defence. This reinforces the argument that it is unconstitutional to withhold copies of important documents, which are crucial to the preparation of a legal defence. For the financially needy, tying a mandatory fee to the opportunity to obtain the important documents in their own criminal case-file is the equivalent of withholding these documents. This results in the infringement of their constitutionally protected right to a legal defence.
Included, as part of the constitutionally protected right to a fair trial is the idea of "equality of arms". As between the parties, they must have access to similar legal tools and resources with which they can defend themselves. It is unfair to allow one side to have a personal copy of important documents free of charge, while the other side must pay a fee, that is to say surmount an obstacle in order to have the same resources at their fingertips. By putting up that extra obstacle with the knowledge that people who cannot afford to pay for these copies will not be able to obtain them, infringes on the equality of arms principle.
Article 70.I of the Constitution states that everyone, in accordance with his or her income and wealth, has a duty to contribute to public revenues. The government has a wide discretion to decide for which things public revenue is to be collected and used. The Court does not have jurisdiction to interfere with the specifics of how the government decides to collect and allocate its funds. Based on that alone, the decision to implement a fee for the photocopying costs of the important documents in their own criminal case-file does not run counter to the Constitution, since the Court does not have jurisdiction to review the preferred method of public revenue collection. The Court may only review such regulations on the ground that they infringe on other constitutionally protected rights.
Fundamental rights, although protected by the Constitution are subject to regulation. Article 8.2 of the Constitution allows Parliament to make laws regulating fundamental rights but those laws may not constrain the essence of the rights. There is a two-part test for a valid regulation of a right: first, the restriction must be necessary to protect another constitutional right or to achieve another constitutional goal; and second, the benefit must be proportional to the restriction of the right.
According to the Court, the impugned fee regulations were not necessary to achieve the constitutional goal of Article 70.I. There is no infringement of Article 70.I if the government does not tie a fee to obtaining photocopies of the important documents in their own criminal case-file, as there are real alternatives that the government can implement in its collection of public funds. The fee regulations in question failed the first part of the test by restricting a right, without it being necessary to do so to promote another constitutional right or goal.
The Court found that each regulation individually, read on its own, did not amount to a rule of a mandatory fee payment and hence, did not violate the Constitution. However, when all the laws and regulations were read together, the outcome was that either an accused, a defence lawyer or the legal guardian in the event that the accused is a youth, would have to pay the fee regardless of their financial status if they wished to obtain a copy of the important documents in their own criminal case-file. Due to the complexity of those regulations, no one specific regulation or article of a regulation could be stuck down as unconstitutional. The Court therefore called upon the Parliament to consider the issues in its judgment and bring about modifications necessary to protect and safeguard the rights enshrined in the Constitution.