a) Hungary / b) Constitutional Court / c) / d) 12-03-2008 / e) 32/2008 / f) / g) Magyar Közlöny (Official Gazette), 2008/40 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - International treaties.
Constitutional Justice - Jurisdiction - The subject of review - Law of the European Union/EU Law.
Sources - Hierarchy - Hierarchy as between national and non-national sources - Treaties and constitutions.
General Principles - Nullum crimen, nulla poena sine lege.
Fundamental Rights - Civil and political rights - Ne bis in idem.
Keywords of the alphabetical index:
European Arrest Warrant / Treaty, international, ratification.
Some provisions of the Act transposing into Hungarian law the EU treaty on the Surrender Procedure between EU member states, Iceland and Norway contravene the prohibition of double jeopardy. The Treaty cannot be ratified until either Parliament eliminates the unconstitutionality or Article 57.4 of the Constitution comes into force.
I. On 11 June 2007 the Hungarian Parliament enacted the agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway (hereinafter referred to as "the Treaty"). The President of the Republic initiated a preliminary constitutional review of the legislation enacting the treaty, and the declaration made in Section 4 of the Act.
The President observed that under Article 3.2 of the Treaty, surrender is subject to the condition that the acts for which the arrest warrant was issued constitute an offence under the law of the executing State. However, this article does not require that the constituent elements and its descriptions shall be the same.
Furthermore, under Article 3.3, States can in no circumstances refuse to execute an arrest warrant issued in relation to the behaviour of any person who contributes to the commission by a group of persons acting with a common purpose of one or more offences in the field of terrorism.
Article 3.4 enables the Contracting Parties to make a declaration to the effect that, on the basis of reciprocity, the condition of double criminality referred to in paragraph 2 shall not be applied. Hungary made such a declaration in Article 4 of the Act.
The President suggested that the above provisions contravened Article 57.4 of the Constitution.
II.1. Under Article 36.1 of the Act on the Constitutional Court, before ratifying an international treaty, Parliament, the President of the Republic and the Government may request the examination of the constitutionality of provisions of the international treaty thought to be of concern.
The Treaty, as an external Community Treaty, is an international treaty for the purposes of Article 36.1 of the Act on the Constitutional Court. As a result, the Constitutional Court did have a competence to decide on the merit of the case.
2. According to Article 57.4 of the Constitution, no one shall be declared guilty and subjected to punishment for an act, which did not constitute a criminal offence under Hungarian law at the time it was committed. The expression "under Hungarian law" refers first of all to the Hungarian legislation and especially to the provisions of the Criminal Code. However, it also refers to the generally recognised rules of international law (Article 7.1 of the Constitution) and to the primary and secondary sources of the Community law (Article 2/A. of the Constitution).
3. Firstly, the Constitutional Court declared Article 3 unconstitutional, as, despite the intention of the EU legislator, the Hungarian translation of Article 3.2 of the Treaty could be interpreted in a way that precludes the executing State from determining whether the offence in question constitutes an offence under its national law.
4. Secondly, the Court pronounced that provision of the Act that refers to Article 3.3 of the Treaty to be unconstitutional. The part of the provision that refers to "the behaviour of any person who contributes" is not in conformity with the relevant provisions of the Hungarian Criminal Code. Therefore, Article 3.3. of the Treaty would result in arrest warrants being issued against persons who would not be charged under the Criminal Code currently in force.
5. Last but not least, the Court found Article 4 of the Act unconstitutional.
Under Article 38.2 of the Treaty, Contracting Parties may make notifications or declarations provided for in some of the Articles of the Treaty. Hungary made such a declaration concerning Article 3.4 of the Treaty in Article 4 of the Act. Hungary declared that she would not apply the condition in Article 3.2. in the case of offences listed in Article 3.4, if they are punishable by deprivation of liberty or a detention order of a maximum of at least three years under the law of the issuing State, provided that the issuing State made a similar declaration.
As a result of this declaration, the Court held Article 4 of the Act unconstitutional. The Hungarian Criminal Code has no provision for the prohibition of unlawful trafficking in narcotic drugs and psychotropic substances.
Consequently, the Treaty may not be ratified until Parliament eliminates the unconstitutionality or the amendment to Article 57.4 of the Constitution enters into force. However, the new Article 57.4 of the Constitution only comes into force together with the Lisbon Treaty. The new article states that nobody will be pronounced guilty and subjected to punishment for an act, which did not constitute a criminal offence under Hungarian law at the time it was committed. Alternatively, to the extent that this is necessary to satisfy obligations under the EU law and in order to recognise each others' decisions on the basis of reciprocity, without limiting the essential content of any fundamental right, under the law of the state cooperating in the establishment of a territory based upon individual freedom, security and rule of law.
Péter Paczolay attached a concurring opinion to the judgment, which was joined by András Holló, István Kukorelli and László Trócsányi. The concurring opinion noted that Article 57.4 of the Constitution possesses an autonomous meaning. In the Court's jurisprudence "Nullum crimen sine lege" and "nulla poena sine lege" are fundamental constitutional principles whose legal content is determined by a number of criminal law provisions. The individual's constitutional rights and freedoms however are affected not only by the elements of an offence and the sanctions of criminal law, but also by the inter-connected and closed system of regulation of criminal liability, punishability and determination of penalty. Modification of every regulation of criminal liability has a direct and fundamental impact on the freedom and constitutional position of an individual. For that reason, the above articles of the Act are unconstitutional.
András Bragyova attached a separate opinion to the judgment. In his view, according to the majority opinion, any treaties and legislation on surrender procedure, which does not contain a prohibition of double criminality, contravenes Article 57.4 of the Constitution. This casts doubt on the constitutionality of the European Search Warrant. The dissenting opinion emphasised that the surrender procedure has nothing to do with the nullum crimen and nulla poena sine lege principles. The surrender procedure is based upon the Contracting Parties' mutual confidence in the functioning of their legal systems. The surrender procedure is not about pronouncing somebody guilty or punishing them for their actions. It is about making decisions on extradition. Therefore, the Court should not have to declare the challenged provisions of the Act unconstitutional on the basis of double incrimination.
Miklós Lévai also attached a dissenting opinion to the judgment. In his opinion, Article 3 of the Act is not unconstitutional, since even the Hungarian translation of Article 3.2 of the Treaty could be interpreted clearly. National judges can easily examine the requirement of double criminality, and it is within their competence to refuse the execution of an arrest warrant. This fact, coupled with the text of the Treaty itself, can guarantee the realisation of Article 57.4 of the Constitution.