HUN-2007-3-007

a) Hungary / b) Constitutional Court / c)  / d) 22-11-2007 / e) 91/2007 / f)  / g) Magyar Közlöny (Official Gazette), 2007/159 / h) .

Keywords of the Systematic Thesaurus:

05.02

Fundamental Rights - Equality.

05.03.12

Fundamental Rights - Civil and political rights - Security of the person.

05.03.13.01.02

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

05.03.32.01

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

Keywords of the alphabetical index:

Civil proceedure, witness protection / Witness, protection / Legislative omission.

Headnotes:

If individuals who received witness protection (and secret handling of their data) during criminal proceedings are then deprived of such protection when called as witnesses in civil proceedings arising from damages for a criminal act, this violates the prohibition against discrimination.

Summary:

I. The petitioner requested a ruling of unconstitutional omission to legislate from the Constitutional Court. The petitioner expressed concern that the legislator had made no provision in civil procedure for the secret handling of the personal data of witnesses, who had been allowed secrecy during criminal proceedings, but were denied such protection during civil proceedings on damages caused by a criminal act or offence.

The Civil Procedure Act does not recognise the institution of confidential witness data. As a result, judges hearing civil lawsuits are under no obligation to accommodate requests to keep witness data secret. Ultimately, the decision whether to grant such requests rests with the judge. Witnesses under threat or other undue influence will make it difficult or even impossible to pass an objective judgment in a case.

II. The Constitutional Court observed that the fulfilment of the constitutional duty of jurisdiction and the state obligation to protect fundamental rights gives the basis for the protection of witnesses' lives, physical integrity and personal freedom. However, the right to defence of witnesses and victims is not a constitutional fundamental right, and the state has no constitutional duty to regulate and operate the witness protection system. The legislator is free to decide who to include in this system, and under what circumstances.

In this case the Constitutional Court found that there had been an unconstitutional omission to legislate, based on Article 70/A.1 of the Constitution. When judging discrimination, the bases for comparison were the provisions. These related to individuals who received protection as witnesses in criminal proceedings by secret handling of their data, who were then called as witnesses in civil proceedings regarding a remedy for damages resulting from a criminal act. The victim of the criminal act does not belong to this personal sphere, because he or she participates in the civil proceedings as a party, not a witness. The procedural position of witnesses belonging to this homogeneous group is comparable and essentially identical. Therefore, according to the Constitutional Court the differentiation between individuals taking part in the procedures as witnesses, in relation to the secret handling of personal data is not justified. It is arbitrary, and contravenes the prohibition of discrimination. The Constitutional Court called upon Parliament to fulfil its obligation to legislate by 30 June 2008.

Languages:

Hungarian.