a)  Hungary / b)  Constitutional Court / c) / d)  13-02-2007 / e)  3/2007 / f) / g)  Magyar Közlöny (Official Gazette), 2007/16 / h) .
Keywords of the systematic thesaurus:
Institutions - Judicial bodies - Decisions.
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts - Habeas corpus.
Keywords of the alphabetical index:
Detention, maximum length.
Legislation which allows for detention for seventy two hours for a minor offence, with no legal remedy available, is incompatible with the guarantees contained in the Hungarian Constitution.
I. The petitioner argued that the Act on Misdemeanours is unconstitutional, as there is no provision for legal remedy in relation to custody. Article 55.2 of the Constitution states that somebody suspected of having committed a criminal offence and who is under arrest, must either be released promptly or be brought before a judge. The judge is required to hear the suspect, and to make a prompt decision in a ruling containing written reasons as to the release or detention of the suspect.
II. The Constitutional Court observed that Article 55.2 of the Constitution shifts emphasis onto judicial authorities in cases of pre-trial detention. The requirement of promptness is crucial. An individual's right to liberty and security under the Constitution is effective only if the duration of the proceedings is within the legal limits and is appropriate to the circumstances of the case.
Article 57.5 sets out a universal right to seek legal redress against court decisions, the public administration or other authorities, which infringe their rights or interests. The availability of rectification for legal injury is essential.
The Act on Misdemeanours provides that custody can be imposed until the Court has arrived at a decision on the merits or for a maximum of seventy two hours. If somebody is caught carrying out a crime which carries a custodial sentence, their personal freedom is restricted by the police. There is a possibility for complaint, arising from the arrest. The police authorities will take somebody into custody after an arrest. In this case, there is no guarantee of legal remedy under the Act. A complaint can be lodged following the court's decision on the merits. Before the trial, the Court will decide whether custody is justified. If this is not the case, the matter is referred to the police. The Court will then make a decision on the basis of general rules. This decision is open to legal remedy.
The Constitutional Court noted that the Act contained no effective legal remedy in respect of custody. Although the time limit of seventy two hours custody was not, per se, unconstitutional, it was not compatible with the requirement of promptness or access to courts.
The Constitutional Court also noted that, under Article 57.5 of the Constitution, rights of recourse against decisions by public administration and other authorities are only available at the end of the proceedings, at the stage of appealing against the decision. There can be no justification for the lack of legal remedy in the case of custody, at the time it is being imposed. Parliament will have to decide how best to tackle this problem, whether by extending the opportunity for legal recourse or by shortening the time limit.
Because of the lack of guarantees in Articles 55.2 and 57.5 of the Constitution, the Constitutional Court found unconstitutionality arising from omission. It called on Parliament to fulfil its legislative duties.
Judge András Bragyova's concurring opinion stated that the ruling on unconstitutionality manifested in omission should have been based entirely on Article 55.2 of the Constitution (habeas corpus).
The current custody regulations do not restrict the right to legal remedy, but they do restrict personal freedom, protected by Article 55 of the Constitution. By comparison, the restriction of the right to legal remedy is of secondary importance. The seventy two hour deadline in the Act on Misdemeanours is unconstitutionally long.
Article 55.2 of the Constitution further provides that where there is to be removal or restrictions on individual liberty, this should be for "the shortest possible duration" and a judge should take that decision, with written reasons. The current situation is manifestly unconstitutional in that it is seventy two hours before a judicial decision is made on the restriction of the personal freedom of an individual in custody. Elemér Balogh and Péter Paczolay joined the concurring opinion.
Judge Péter Kovács also gave a concurring opinion, in which he expounded the relevant case-law from the European Court of Human Rights.