a)  Hungary / b)  Constitutional Court / c) / d)  24-01-2007 / e)  2/2007 / f) / g)  Magyar Közlöny (Official Gazette), 2007/7 / h) .
Keywords of the systematic thesaurus:
General Principles - Certainty of the law.
General Principles - Clarity and precision of legal provisions.
General Principles - Proportionality.
Fundamental Rights - General questions - Limits and restrictions.
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 - Rules of evidence.
Fundamental Rights - Civil and political rights - Right to private life.
Keywords of the alphabetical index:
Data, personal, treatment / Information, confidential / Data, collection, secret / Informational self-determination, right.
The use of secret data collection poses a serious interference with individual life and liberty. It should, accordingly, only be carried out in exceptional circumstances, on a temporary basis and as a last resort. More stringent regulation is needed of such secret methods than is needed for public procedures.
I. The Constitutional Court examined the provisions of the Act on Criminal Procedure, the Act on Police and the Act on Excise Taxes and Special Regulations on the Marketing of Excise Goods (hereinafter: Excise Act) relating to secret data collection.
The petitioners suggested that some of the concepts in the Act on Criminal Procedure and the Act on Police relating to the conditions under which secret data collection should be used are ambiguous and hard to understand. This is not compatible with principle of certainty of law, under Article 2.1 of the Constitution. There is also too much scope for permission being given by judges for secret data collection. It is almost impossible for a trial judge to check documentation gathered from secret data collection and deployed in the preliminary proceedings. This is difficult to justify, under the Constitution. The accused and his or her counsel are denied access to the documents. As a result, it is the public prosecutor who decides whether the documents can be used, and the defence team and Court have no way of verifying his or her reasoning. The petitioners contended that this infringes a wide range of rights, including fair trial, right to defence, right to reputation, inviolability of the home, and protection of confidential matters and data.
II. A judicial assessment was launched of the relevant provisions of the Excise Act on secret data collection because they enabled the customs authorities to use secret data collection methods for which, under the Code on Criminal Procedure, leave is normally needed from the Court.
The Constitutional Court observed that there is a necessity for secret data collection in the course of state criminal proceedings. However, the protection of the rule of law and fundamental rights requires that such investigatory methods should be the subject of detailed legal regulation. The interference they bring to the lives of individuals mean that they can only be deployed in exceptional circumstances, on a temporary basis and as a last resort. A stricter form of regulation is needed than would be the case where the procedure is not a clandestine one.
The Act on Police does not define necessity in this context but simply lists the general objectives of criminal prosecution as conditions justifying secret data collection. It gives authorities leeway to deploy such methods in a wide range of circumstances, from the prevention of crime to the identification of perpetrators, as well as the protection of those participating in the administration of justice.
The Act on Criminal Procedure allows for deployment of these methods in a narrower range of circumstances. For instance, secret data collection can be used to confirm the identity and residence of the perpetrator, to assist in their capture and in the exploration of the evidence to be evinced. Both Acts state that clandestine methods can be used where the offence is a more serious one, and both also list other types of crime where this is possible (irrespective of the sentence it carries). The lists in both Acts contain several ambiguous concepts, which are difficult to interpret. This gives rise to excessive legislative subjectivity. A general procedure for the deployment of clandestine methods is lacking, and this infringes the principle of legal certainty.
Secret data collection violates the right to privacy. Sometimes, states need to restrict fundamental rights, in order to carry out effective criminal prosecutions. However, safeguards should exist within the laws on procedure. This is not the case here. The Constitutional Court accordingly directed the repeal of these legal provisions.
The Constitutional Court then examined provisions of the Act on Criminal Procedure, which make it possible to use the results of secret data collection without leave from the Court and in a manner which is almost free of restriction. Judges should evaluate evidence, the legality of its acquisition and the weight it should be accorded without unwarranted restrictions on the rights of parties to the case. Judicial procedure cannot be a mere formality, with effective decision-making taking place outside the court's remit. The above Act makes no provision for an assessment of the necessity and proportionality of secret data collection, which is an infringement of the right to informational self-determination under Article 59.1 of the Constitution. The Constitutional Court pronounced the provisions of the Act on procedure unconstitutional.
Finally, the Constitutional Court examined the Excise Act, under which customs services may examine postal packages without court leave and based on mere supposition. The state can justify this, due to the requirement for fair and proportionate taxation. The rules allowing the revenue authorities to search various locations, premises and means of transportation are not necessarily unconstitutional. Using clandestine methods to achieve this aim, however, for which court leave would normally be needed, results in an unnecessary and disproportionate restriction of fundamental rights. The Constitutional Court directed the repeal of these provisions too.