HUN-2008-3-008
a) Hungary / b) Constitutional Court / c)   / d) 06-11-2008 / e) 132/2008 / f)   / g) Magyar Közlöny (Official Gazette), 2008/157 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
Sources - Hierarchy - Hierarchy as between national sources.
Sources - Hierarchy - Hierarchy as between national sources - Hierarchy emerging from the Constitution - Hierarchy attributed to rights and freedoms.
General Principles - Certainty of the law.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Prohibition of torture and inhuman and degrading treatment.
Fundamental Rights - Civil and political rights - Right to physical and psychological integrity.
 
Keywords of the alphabetical index:
 
Police, powers / Detainee, rights / Search, body / Privacy, personal, right / Fundamental right, regulation exclusively by law.
 
Headnotes:
 
Under the Constitution, fundamental rights are to be regulated exclusively by Act of Parliament. A ministerial decree cannot contain rules pertaining to fundamental rights and duties. The Court accordingly struck out the section of the decree that pertained to body searches on formal grounds.
 
Summary:
 
I. A petitioner sought to challenge the constitutionality of a non-statutory provision regulating searches. Decree no. 19/1995 (XII.13.) of the Ministry of the Interior deals with the regulation of police jails. Under Section 16.1, upon arrival, the clothing of a detainee and, if necessary, his or her person, may be searched by somebody of the same sex. In justified cases body searches may include body cavity searches. A physician is to perform the body cavity search. During searches of clothing, no other detained person may be present. During body searches, other detainees and persons of the opposite sex are not allowed to be present. Under the Decree, the notion 'detained' includes those placed under short-term arrest, held in custody, or placed in pre-trial detention.
 
The basis of the petition was that the ministerial decree on body searches contravened Article 8.2 of the Constitution, as it constituted non-statutory regulation of issues involving fundamental rights and duties which could only be regulated by statute.
 
The petitioner also argued that the challenged Section of the Decree ran counter to Article 54.1 of the Constitution, in that it made insufficient provision for the possible timing, place and manner of the body search.
 
II.1. In the Court's jurisprudence statutory regulation is required for any direct and significant restriction of fundamental rights and, in certain instances, the determination of the content of such rights and the manner of their protection. The need for statutory regulation depends on the particular measure and the intensity of its relationship to fundamental rights (Decision no. 64/1991 (XII.17.)), [HUN-1991-S-003]. In this particular case, the regulation of body searches (including body cavity searches) concerned the fundamental right of the detained to human dignity. A body cavity search is an invasive search procedure which can be a serious assault on a person's privacy and dignity.
 
Section 31 of Act XXXIV of 1994 on the Police ("the Police Act") allows a policeman to perform a search of clothing, but not a body search. Law-Decree no. 11 of 1979 on the enforcement of punishment and measures makes no provision for body searches. Consequently, a body search that includes all body orifices may only take place according to the ministerial decree.
 
Based on the Court's reasoning, the challenged provision of the Decree was held to be unconstitutional, given that by regulating body searches it also decided on the question of privacy and human dignity, pertaining to Article 54.1 of the Constitution. Under Article 8.2 of the Constitution, such a decision could only be made by statute. The Court declared Section 16.1 of the Decree null and void as of 30 June 2009 and called upon Parliament to enact legislation on body searches before then.
 
2. In the second part of its decision the Court assessed whether the content of the challenged provision of the Decree, viewed in tandem with the relevant provisions of the Police Act, is necessary and proportionate to the aim (security reason) to be achieved.
 
Treatment of detainees should be based upon the requirement of proportionality (Section 15 of the Police Act). If means of coercion are applied during police procedures, injuries should be avoided as far as possible (Section 17 of the Police Act). Moreover, the rights of a detainee should only be restricted to the extent that this is necessary to prevent him or her from absconding or hiding, altering or destroying evidence, or for reasons of safety and the maintenance of order in jail (Section 18.3 of the Police Act).
 
When applying Section 16.1 of the Decree, the Police should take into account the above provisions of the Police Act. These will assist them in decision-making as to the necessity for a body search is necessary or the justification for a body cavity search is justified.
 
When Section 16.1 is interpreted in this manner, the content of the challenged provision does not run counter to Article 54.1 of the Constitution, since it guarantees respect for individual privacy and dignity.
 
Cross-references:
 
-   Decision no. 64/1991 (XII.17.), Special Bulletin Leading Cases 2 [HUN-1991-S-003].
 
Languages:
 
Hungarian.