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Hungary: The Hungarian Constitutional Court declares several rules of the act regulating the criminal registry unconstitutional

01 December 2008

The Hungarian Constitutional Court declares several rules of the act regulating the criminal registry (hereinafter: CRA) unconstitutional.

- the Court nullified rules on the scope of the registry, on data transfer from the registry and on rules of dactyloscopic and photo registryUnder the Act LXIII of 1992 on the Protection of Personal Data and Public Access to Data of Public Interest, criminal personal data is special data which shall not be processed unless ordered by an act. The State may only use the tool of restricting informational rights if it is the only way to secure the protection or the enforcement of another fundamental right or liberty or to protect another constitutional value.

As the introduction of the CRA declares, the overall goal of the registry is to enforce the criminal power of the state and to protect rights and interest of citizens. However, it is not enough for the constitutionality of restricting the fundamental right to refer to the protection of another fundamental right, liberty or constitutional objective, but the requirements of necessity and proportionality must be complied with as well: the importance of the objective to be achieved must be indispensable and proportionate to the restriction of the fundamental right concerned.

Criminal registry - in a broad sense - is part of criminal law, thus it shall comply with its constitutional requirements. Legal disadvantages like restriction of privacy can not be limitless, and the limits shall be in between reasonable limits.

Article 16 regulates the temporal scope of CRA. Criminal personal data is recorded in the registry from 3 up to 15 years, depending on the seriousness of the offence committed, on the punishment imposed, etc. However, the count of the temporal scope starts after the rehabilitation of the offender. As a result, even if a citizen is acquitted from any kind of criminal disadvantage (he or she is not under the effect of any punishment, and is not considered as an old offender who should have a clean record), his or her data is recorded on the "blacklist". The Constitutional Court ruled that any person rehabilitated has the right to self-identity and the right to determine the proceeding of his/her personal data and has the right to have "a clean record". The failure of disassociation of date proceeding of offenders and rehabilitated is unconstitutional as it means unnecessary and disproportionate distinction between citizens never been affected by criminal procedure and citizens who have been rehabilitated.

The Constitutional Court annulled the paragraphs (17.§-19/A.§) regulating the transfer to users permitted to require criminal personal data from the registry. As the Court declared, the registry itself is a restriction of a constitutional right, and this restriction is even more serious if many people or organizations are entitled to have access to these sensitive data. Personal data may be processed explicitly for specified and legal purposes. This reported and authentically recorded purpose shall be complied in all phases of the data processing. Without the consent of the data subject the processing for a new purpose is only legal if it is authorized by law with regard to the specified data and data processor. It follows from the principle of adherence to the purpose to be achieved that collecting and storing data without a specific goal:

"for the purpose of storage (stockpiling)", for an unspecified future use are unconstitutional."

If the purpose of data controlling is not accurately specified or the relevant legal authorisation is not unambiguous then controlling sensitive data establishes unconstitutional restriction of fundamental rights. In the case of CRA, the purposes are not clear in regard of many entitlements. The main reason of this unconstitutional situation is the content of the criminal registry. For instance, it contains the indictment even if the person has been acquitted later. It also contains information on confiscation (which is a "measure" that - per se - does not result personal criminal record) even if no punishment was imposed. As a result, those entitled to require information from the criminal registry, may be in possession of sensitive data incompatible with the original purpose of the criminal registry.

Thus to create a lawful legislation, the legislator has to give differentiated entitlements to different data claimants, considering the final purpose of the use of data.

According to the same reasoning, the Constitutional Court nullified rules of CRA regulating the temporal scope of dactyloscopic and photo registry. These rules made it possible to keep records of fingerprints for up to 20 years after rehabilitation. The Court also stated that the rule which makes it obligatory to take fingerprints of each person "suspected of intentional offence" is unconstitutional as this category is too broad. It also declared the paragraph of ministerial decree under which the authorities have the right to use force while taking fingerprint unconstitutional, because entitlement to use physical enforcement has to be given in an act adopted by the Parliament.

Other parts of the CRA have been criticized by the Court, nonetheless these articles could not have been nullified, because no proposal targeted them.

The Act which proclaimed the "Agreement Between the Government of the Republic of Hungary and the Government of the United States of American Enhancing Cooperation in Preventing and Combating Crime" just came into force two weeks ago. The decision of the Constitutional Court will influence the functional use of the agreement, under which the USA has entitlement to require sensitive criminal data (see article 11 of the Agreement) and dactyloscopic data (Article 3-7). Now the Hungarian legislator has to adopt new rules by July 2009, which - hopefully - will result in a more narrow access to sensitive personal data. Not just for the American administration, but for Hungarian public institutions.

Full text available at http://www.parlament.hu/irom38/06444/06444.pdf