EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 20-12-2011 / e) 166/2011 / f) / g) Magyar Közlöny (Official Gazette), 2011/155 / h) CODICES (Hungarian).
Keywords of the systematic thesaurus:
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Institutions - Judicial bodies - Organisation - Prosecutors / State counsel - Powers.
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Scope - Criminal proceedings.
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
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Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.
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Keywords of the alphabetical index:
Headnotes:
Amendments made to the Criminal Procedure Code introduced a rule that certain cases are heard at the Court where the prosecutor presses charges and the manner in which witness data is handled limits the freedom of information and the introduction of a 120-hour detention rule, resulting in the defendant having no access to an attorney for the first 48 hours have raised concern on whether they respected the Constitution and international treaty obligations.
Summary:
I. A recent amendment to the Criminal Procedure Code allowed the Prosecutor General to bring a criminal case in a different court from the court which would normally have jurisdiction over it, provided the new court could try the matter within a reasonable time. The right only applies to specific crimes such as organised or economic crime.
It was suggested that the whole "package" amending the Criminal Procedure Code (or some of its elements) were unconstitutional and could infringe international treaties such as the European Convention on Human Rights. Several applicants, including the President of the Supreme Court, accordingly challenged the modification to the Criminal Procedure Code before the Constitutional Court.
Amongst the modifications to the Criminal Procedure Code was a rule which would have permitted the Prosecutor General to hand-pick a particular court to try certain crimes such as organised or economic crime, pressing charges before a court other than the legally designated one if this was deemed necessary in terms of the speed of the proceedings. The rationale behind the modification was to equip the prosecution service with stronger and more efficient tools, in order to provide more successful criminal investigations and trials in a timely manner, especially in economic and special criminal cases such as corruption or abuse of official power.
II. However, the Court found the above rule to be unconstitutional. Based on jurisprudence from the European Court of Human Rights, the Court held that it infringed the European Convention on Human Rights by impairing the right to an impartial court and violating the principle of fair trial. Pressing charges before a court other than the legally designated court would only be constitutional and in accordance with the Convention if the decision was made within the independent judiciary and if the rules concerning the initiation of criminal proceedings before a judge other than the natural judge were clear and predictable, containing normative conditions with no room for manoeuvre.
The Court had held in an earlier case (Decision no. 104/2010) that there was no constitutional reason or objective on the basis of which the investigating authority, the prosecutor or the court could be entitled to refuse a request for the closed handling of a witness’s personal data. Granting a possibility of judicial discretion in the course of the criminal proceedings was an unnecessary restriction of the witness’s right of informational self-determination. In the instant case the Court also held that handling of witness data in a way that limits the right of informational self-determination was against the Constitution.
The Court also held that the 120-hour pre-trial detention rule in certain special crimes (organised and economic, for example), were unconstitutional. Under Article 55.2 of the Constitution any individual suspected of having committed a criminal offence and held in detention must either be released or brought before a judge in the shortest possible time span. 120 hours cannot be perceived as the "shortest period of time". The Court took into account the Judgment delivered by the European Court of Human Rights in the case of Brogan and Others v. the United Kingdom, when the Court concluded that the periods of 102 hours did not satisfy the requirement of promptness required by ["const-eng-ech-0-005"]Article 5.3 ECHR.
Finally, the Court held that the provision according to which the defendant would have no access to an attorney during the first 48 hours pre-trial detention infringed the Constitution by impairing the rights of the defence and violating the right to an effective remedy.
III. Justice Balogh, Justice Bragyova, Justice Dienes-Oehm, Justice Holló and Justice Lenkovics attached concurring opinions; Justice Dienes-Oehm, Justice Holló, Justice Kiss, Justice Lévay and Justice Szívós attached separate opinions to the judgment.
Supplementary information:
Shortly after the Court annulled the provision on changing the venue of the trial, Parliament inserted the rule into the Amendment to the Fundamental Law; as a result, the Court will no longer be able to decide on the constitutionality of it.
Cross-references:
European Court of Human Rights:
- Brogan and Others v. the United Kingdom, 11209/84; 11234/84; 11266/84; 11386/85, 29.11.1988, Series A, no. 145-B, Special Bulletin ? Leading cases ECHR [ECH-1988-S-007].
Hungarian.