a)  Hungary / b)  Constitutional Court / c) / d)  10-07-2009 / e)  74/2009 / f) / g)  Magyar Közlöny (Official Gazette), 2009/96 / h) .
Keywords of the systematic thesaurus:
Fundamental Rights - General questions - Entitlement to rights - Natural persons - Incapacitated.
Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.
Fundamental Rights - Economic, social and cultural rights - Freedom of contract.
Keywords of the alphabetical index:
Capacity, contractual / Guardianship, register, access.
In the course of certain legal relations, parties need to know the mental capacity of those with whom they are dealing. Public access is possible to the register of persons under legal guardianship, but any data disclosed from this register should be limited to that which is absolutely necessary for the realisation of the objective of the request.
I. A Hungarian human rights NGO asked the Constitutional Court to assess the constitutionality of certain provisions of Act III of 1952 on the Code of Civil Procedure ("the Act") and the whole of 13/2002 Ministerial Decree ("the Decree"). These rules require the courts to register the fact that somebody has been placed under guardianship. Anyone who can prove that they have a legal interest may obtain information from the register of incapable adults. The petitioner raised concerns over the compliance of these provisions with Article 59.1 of the Constitution, which ensures the right to informational self-determination, as well as the lack of precise definition within the Act or Decree of the concept of "legal interest" and the way it should be justified.
II. The Court first considered whether the personal data protected by the Constitution includes the status of a person's placement under guardianship. Under Article 59.1 everyone is entitled to protection of his/her personal secrets and data. Since 1991 the Court has accorded an active and broad interpretation to the right to personal data protection in the sense of a 'right to informational self-determination'. This right generally protects against the collection and processing of personal data by the state. Disclosing of data from the register of incapable adults is a special type of data transmission by the state. The data in question is information relating to someone's mental condition. Therefore, the Court held that personal data protected by the Constitution includes the act and status of placing somebody under guardianship as well as the personal circumstances that led to this placement. The Court based its reasoning on the relevant decision by the German Federal Constitutional Court BVerfGE 78 (84) and the Council of Europe Council of Ministers Recommendation no. R(99)4 on adults and incapacity.
The Act and Decree restricted the right to informational self-determination, which protects data relating to someone's state of mind. The Court went on to consider whether the statutory restriction observed the principle of necessity and proportionality.
Local courts make capacity determinations and maintain up to date registers of incapable adults. Members of the public can obtain information from the register by filing a request with the Court.
According to the Constitutional Court, the regulation has a legitimate aim: the protection of legal relations, participants in which are intended to be informed about the restricted legal capacity of those placed under guardianship. It is important to protect those under guardianship against loss incurred in connection with legal transactions entered into without the necessary permission or approval of the guardian. However, it is equally important for those entering a legal transaction to be appraised of all relevant information about the contracting parties, including their ability to conduct their own affairs. In order to achieve these legislative objectives, public access to the information is necessary. The Court however had to balance the gravity of the encroachment against the reasons justifying it. Having done so, the Court concluded that the boundaries of what is reasonable had been overstepped in this instance, as there was a possibility that archived data might be transmitted as well as current data. Also, the documentation with the help of which data could be obtained gave access to more personal information about the person under guardianship than necessary. It did not simply make a statement about the type of a person's legal capacity, material which is relevant to legal relations, but divulged what almost amounted to a full documentary on the guardianship. The current regulations did not restrict the use of data to the verification of legal capacity. The Court accordingly upheld the challenged regulation with a given constitutional sense. It held that in the application of the Act and Decree, those seeking information should only be given access to personal data indispensably necessary for the realisation of the objective of the request.
Justice Lenkovics attached a separate opinion to the judgment, in which he was joined by Justice Trócsányi. They found that the current legal regulations were sufficient to protect personal data and so the Court should not have determined constitutional requirements for the possible interpretation of the Act.