HUN-2005-3-006

a) Hungary / b) Constitutional Court / c)  / d) 05-10-2005 / e) 36/2005 / f)  / g) 2005/132 / h) .

Keywords of the Systematic Thesaurus:

05.03.01

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

05.03.13.19

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.

05.03.32

Fundamental Rights - Civil and political rights - Right to private life.

05.03.32.01

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

Keywords of the alphabetical index:

Privacy, security camera in private sphere / Data, recorded, storage, prolonged.

Headnotes:

There is no compelling circumstance under which the extension of monitoring to the intimate sphere could be constitutionally permissible. The right to property and its protection cannot be an adequate reason either.

Summary:

I. The President proposed the constitutional review of the Act on the Protection of Persons and Safeguarding, and on Certain Activities of Private Detectives (henceforth, the Act).

The President was concerned that the Act's provisions on electronic monitoring devices did not adequately protect fundamental rights. As a result it violated Articles 54.1 and 59.1 of the Constitution. Article 30.3 of the Act was unconstitutional, because the regulation of the consent needed for electronic monitoring violated the right to human dignity and the protection of one's private life. The President was also concerned that the provisions concerning the duration of storage of recordings made with electronic monitoring devices allowed for storage for an unjustifiable length of time. This contravenes the constitutional principle of purposefulness, and resulted in a kind of stockpiling. He questioned the compliance of Article 31.4 of the Act with the Constitution, as it only allowed the subject control over the way information was used for an unjustifiably short time. This could be at variance with the right to informational self-determination, and in certain cases Article 57.3 of the Constitution.

II. The Court first examined the provisions of the Act concerning electronic monitoring devices.

The Act states that technical devices are only to be deployed to the extent necessary. It also prohibits the disproportionate restriction of the right to control over the way information is used. The Act only requires the subject's consent to the making of the record. Consent in this context can be by behaviour from which a certain inference can be drawn. Article 30.3 is drawn up in such a way that if consent is given to a recording by behaviour, this does not infringe the right to human dignity. Moreover, the provision is not sufficient to fully withdraw intimate situations from inspection. The Court went on to say that the phrasing of Article 30.3 on inferring consent from behaviour, even consent to be monitored in intimate situations, violates the right to human dignity. There are several other ways of protecting the right to property and the prevention of criminal offences which do not violate the right to human dignity, but still afford effective technical protection for property.

Article 31.2 provides that sound and video recordings are to be erased after a maximum of thirty days unless:

1. the client performs certain financial, postal work (in that case it is sixty days);

2. the court or another official body uses the recording as evidence in a legal case;

3. the subject requests the material to be stored for a longer period.

In determining the duration of storage the Act makes no distinction between the fields of activity of the property owners and the nature of the institution, neither does it take into account the value of the protected property and the extent to which it is under threat. According to the Court the duration of storage should be determined not only by reference to the activity of the client but also the extent to which the property is already protected. In any case if the surveillance is taking place in order to protect property which is only under threat in a general sense, storage for thirty days could result in a disproportionate restriction of the right to protection of personal data. For this reason Article 31.2 of the Act violates Article 59.1 of the Constitution.

The Court also assessed whether prolonged storage of data contravened the right to human dignity. The legal restriction on the length of time recordings can be stored is designed not only to prevent data being stored for the sake of it, but also to protect the individual, as it reduces the possibility of recordings being manipulated.

The point at which it is acceptable to restrict fundamental rights differs according to whether the recordings are being made or being stored. In the case of inspection and record-making the level of restriction is lower. The inviolability of the private sphere is of primary importance in setting the constitutional limits of the activity.

When the recordings are stored, the level of restriction is higher. Recordings made in the course of protecting property of people who are not behaving unlawfully can be highly sensitive. The nature of recordings lends itself to improper usage, violating the right to private life.

The Court looked at the short time available for postponing the erasing of data and the fact that the subject can only make a statement within a certain part of the period of storage. It ruled that this infringes the right to control over the way information is used. When electronic monitoring devices are used, the subjects have rights over the recordings made and stored on them, even if someone else handles them. However, the provisions of the Act mean that this right can only be exercised in part of the period of storage. There is considerable encroachment on the right to control over the way information is used, and so the phrase of the Act "within three working days" is unconstitutional.

In particular, the phrase runs against Article 57.3 of the Constitution. If the property owner believes a criminal offence is taking place, they should hand the person over to the officials, or inform an official body of the offence. If criminal proceedings are launched as a result, the property owner in possession of the recordings must hand them over to the authorities without delay. If the officials did not ask for the recordings, and the subject was out of time to request postponement of the destruction of the recordings, it would no longer be possible to use them as evidence for the defence in the proceedings. This would mean that the accused and the prosecutor did not have the same opportunities, and this violates the principle of equality of arms.

Justice Kukorelli gave a concurring opinion in which he was supported by Justice Kiss. Kukorelli suggested that legal entities under private law have no right to collect personal data in private property with the purposes of criminal prosecution or prevention of an offence. There are other ways of achieving these ends which are less restrictive of the right to human dignity. An example could be the electronic protection of goods or labels. The electronic monitoring allowed in private premises by the Act was unnecessary, and thus unconstitutional. This applied even when the subject gave their consent, as they were not really free to choose, they had no opportunity to agree on conditions concerning fundamental rights as equal partners, for example when out shopping in shopping centres.

Cross-references:

- Decision no. 22/2004, Bulletin 2004/2 [HUN-2004-2-006].

Languages:

Hungarian.