a) Hungary / b) Constitutional Court / c) / d) 06-05-2009 / e) 53/2009 / f) / g) Magyar Közlöny (Official Gazette), 2009/62 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Certainty of the law.
Fundamental Rights - Civil and political rights - Individual liberty.
Fundamental Rights - Civil and political rights - Right to private life.
Fundamental Rights - Civil and political rights - Right to property.
Keywords of the alphabetical index:
Violence, domestic / Injunction, restraining order / Vagueness.
Where a person repeatedly injures a relative's dignity and mental health, but not so severely or in such a way as to cause immediate concern, a protection order is unconstitutional. Verbal insults, expressions that harm self-esteem and self-respect are not in themselves legitimate reasons for restricting fundamental rights (personal freedom and property rights) of a person.
I. On 15 December 2008 Parliament adopted legislation to deal with protection orders in cases of violence towards relatives, referred to here as "the Act". Once the Act had been adopted but before its promulgation, the President of the Republic referred it to the Constitutional Court for ex ante review.
Restraining as a new legal instrument became part of Hungarian law with effect from 1 July 2006. Provisions on restraining orders were introduced into the Hungarian legal system as part of Act XIX of 1998 on Criminal Procedure. These rules enable anybody needing protection during the course of criminal proceedings to apply for a restraining order. The restriction may last from ten to a maximum of thirty days, and is issued by the criminal judge with responsibility for the criminal proceedings. The problem with this amendment is that it has introduced restraining into the Hungarian legal system without linking it to the phenomenon of domestic violence in general.
The Act declared that protection orders would restrain the defendant or perpetrator from causing further violence to the complainant or survivor, his or her dependents and other relatives and relevant persons. The Act removes the necessity to file charges in order to avail oneself of these protective measures, and the police can issue an order ex officio expelling somebody temporarily from their home if they are endangering the life, health or freedom of another. A civil judge will issue the restriction, and a respondent may be ordered out of the house and to keep away from the survivor.
The President raised concerns over the clarity of the definition of the notions of 'violence' and 'relatives'. There is no requirement under the Act for the police to have formed a suspicion that a crime has been committed before they issue the measure. The notion of 'violence' is ambiguous and too vague. The Act allows restraint from seventy-two hours to a maximum of thirty days. In view of the ambiguity of the notion of 'violence', this may result in a breach of the right to property guaranteed by Article 13 of the Constitution and personal freedom under Article 55 of the Constitution.
The President noted the broad scope of the concept of "relative" under the Act. For instance, a complainant in an intimate relationship with the respondent, whilst not living with them, could lodge a complaint that might result in the defendant being restricted from his or her own property.
II. Section 1.1 of the Act defines violence between relatives for the purposes of the legislation as grievous and immediate, repetitive or repeated endangering of the life, dignity, right to sexual self-determination, physical and psychical health of a relative. Endangering can also be manifested in omission.
Section 1.5 of the Act defines "relatives" as spouses, next of kin, adopted persons, stepchildren, foster children, adoptive parents, step-parents, foster parents, brothers, and sisters; common-law spouses, spouses of the next of kin, fiancé(e)s; next of kin, brothers, and sisters of a spouse; and spouses of bothers and sisters. Relatives can also include former spouses, former partners, former fiancé(e)s, legal guardians, and persons under the care of the legal guardian, carers, wards and those in an intimate relationship but not living together.
Having considered the relevant international instruments dealing with domestic violence, and the international legal principles, recommendations and best practice of other countries, the Constitutional Court held that protection orders restrict the perpetrator's right to property and personal freedom. This limitation is constitutional, if the legislation in question is narrowly tailored to the aim to be achieved, i.e. the safety of the complainant.
Under the Act, protection orders can only be granted if evidence with a bearing on the place and circumstances of the violence, together with a statement by the complainant, is submitted. In the Court's view, however, the facility to grant protection orders is unconstitutional where somebody is endangering their relative's dignity and mental health on a repeated basis but not in a severe manner that raises immediate concern. Verbal insults, expressions that endanger self-esteem and self-respect are not in themselves legitimate reasons for restricting the fundamental rights (personal freedom and property right) of the respondent.
With regard to the concerns over the definition of relatives, the Court pointed out that the fact that the complainants' circle might include the perpetrators' relatives is not unconstitutional. It is in line with the aims of the Act, to protect the safety of all those who live together. The problem with the definition of 'relative' is that it includes those who have an intimate relationship with the perpetrator but do not live with them.
The aim of protection orders is to expel somebody posing a threat to the life, health or safety of another from their shared dwelling for a period of time to protect the safety of the relative. The complainant and the defendant can use the same apartment for a short period of time without living together. Nonetheless, the Act even allows a protection order to be made against the owner of the property in case of violence, a facility that represents a disproportionate limitation on the owner's right to property and privacy.
Justice András Bragyova attached a separate opinion to the judgment, in which he emphasised that regulating restriction orders is an important constitutional goal. The essence of such legislation is that where there are allegations of immediate danger of violence, it provides police officers with the authority to order a respondent out of the home. The legislator cannot avoid using vague legal notions, since police officers and civil judges will be interpreting the relevant provisions in each and every case in the application of the law.
Justice László Kiss also attached a separate opinion to the decision, stressing that the Act provides for the issue of emergency protection orders in situations when there is immediate danger of an act of violence. The police and the courts can duly interpret the procedural requirements. The procedure is transparent and in harmony with the Constitution in prioritising the safety of the survivor over property rights and other considerations. Significantly too, the Act provides legal remedies that serve as a guarantee against arbitrary application of the law.