Ágnes Németh - Fülöp Morvay: The Protection of Fundamental Rights of Prisoners by the Constitutional Courts - Italian-Hungarian Comparison[1] (ABSz, 2025. Különszám, 22-35. o.)

Abstract

The purpose of this article is to present the legal protection of detainees provided by constitutional courts in relation to fundamental rights enforced during the execution of criminal sentences. The research is based on certain decisions of the Hungarian Constitutional Court and the Italian Constitutional Court in the field of penitentiary law. The paper first examines the constitutional normative level (ie. the text of the Constitutions). After examining the relevant provisions (fundamental rights and constitutional principles), the article analyses the purpose of punishments, its constitutional implications, and the most important decisions related to punishments and to penitentiary law, by studying the constitutional jurisprudence. From a comparative perspective, the article seeks answers also to the following procedural differences: who can initiate the procedures of the constitutional courts, (if individual claims are possible or only judges can initiate the constitutional procedure), whether the constitutional right protection is on an abstract or concrete level, and if there is any requirement of exhausting prior legal remedies. By studying legal practice in the light of the latest developments, we can also find answers to the question of what competing fundamental rights and constitutional values can justify the restriction of fundamental rights of convicted persons, based on the case law of the two constitutional courts. Certain major decisions shed light on the latest developments and remedies that are available for the convicted people in order to seek constitutional protection. The article also shows what the role of the Constitutional Court can be in the protection of the fundamental rights of detainees. The research focuses mainly on the national constitutional level, therefore international law and EU law are not within the scope of the article.

Keywords: penitentiary law, constitutional rights of prisoners, constitutional criminal law, constitutional standards for penitentiary institutes, right to life and dignity, comparative law, limitations of fundamental rights, law enforcement

I. Introduction

The thirty-fifth anniversary of the foundation and operation of the Constitutional Court of Hungary gives an occasion to analyse its practice from different points of view. In order to have a wider view, it is worth to compare the procedural and substantial foundations and the practice with the regulation and case-law of another country. We chose the Italian Constitutional Court as a point of reference as it has a nearly seven-decade practice and wide jurisprudence on the protection of those in penitentiary institutes. The purpose of this article is, with the help of the comparative method, to present the constitutional level of legal protection provided to those condemned to imprisonment in Hungary and in Italy. The Article gives a light on the protection given by constitutional courts in relation to fundamental rights enforced during the execution of criminal sentences, based on certain decisions of the Hungarian Constitutional Court and the Italian Constitutional Court in the field of penitentiary law.

From the comparative perspective the article seeks answers also to the procedural differences: who can initiate the procedures of the constitutional courts, whether the constitutional right protection is on abstract or concrete level and if only judges may initiate a procedure or even individual claims (of prisoners) are possible in the relative systems. By studying legal practice in the light of the latest developments, we can also find answers to the question of what competing fundamental rights and constitutional values can justify the restriction of fundamental rights of convicted persons, based on the practice of the two constitutional courts.

To find the answers, the paper examines first the constitutional normative level (ie. the text of the Constitutions), the peculiarities of the procedures of the constitutional courts and certain major decisions that shed light on the latest developments and tools that are available for the convicted people in order to seek constitutional protection. Our Article focuses on the national constitutional level, therefore it tends to refrain from references to international law or to EU law.

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II. Constitutional provisions: principles and fundamental rights in penitentiary law

When examining the fundamental rights protection system of the penal system, it is inevitable that as a starting point, we also examine the provisions of the constitutions. Constitutions are the roots of fundamental rights and constitutional principles that set the boundaries of legislation also in the field of penitentiary law. We examined therefore constitutional provisions at the top of the legal hierarchy in both countries to determine whether there are provisions specifically relating to punishment in criminal law and the enforcement of punishment, and if there are other general provisions that are taken into account while applying penitentiary law - during the enforcement of punishment. In the latter case, we examined what these general provisions are.

The Constitution of the Republic of Italy entered into force on the 1st January 1948. The Italian basic Chart has a direct reference to punishments. Already from the beginning, Article 27 established foundational principles for the Italian penitentiary system and for the laws that govern it. First, it establishes that criminal responsibility is personal. It also guarantees the presumption of innocence.[2] Moreover, it explicitly refers to punishments: "[p]unishments can not consist of treatments that are contrary to the sense of humanity and shall aim at re-educating the convicted person." What we witness, is that the Constitution of Italy itself defines the aim of punishments[3]. The Constitutional Court further elaborated the meaning of the aim of re-education. It referred to 'reintegration to the social order', 'socialisation'[4],[5], 'repentence'[6], 're-adaptation to social life'[7].

In the practice, these principles translate not only into mandatory rules and directives governing the organisation and operation of prisons, but also into rights for the detained people. As Judgement n. 26 of 1999 of the Constitutional Court of Italy stressed: "the enforcement of the sentence and the re-education that is its purpose - in compliance with the essential requirements of order and discipline - can never consist of 'penitentiary treatment' that involves conditions incompatible with the recognition of the subjectivity of those whose freedom is restricted. The dignity of the person (Article 3, first paragraph of the Constitution) [...], especially in this case, whose distinctive feature is the precariousness of individuals, deriving from their lack of freedom, in conditions that by their very nature are intended to separate them from civil society - is protected by the Constitution through the body of inviolable human rights that even prisoners carry with them throughout the course of their sentence, in accordance with the general approach that Article 1, first paragraph, of Law No. 354 of 1975 intended to give to the entire prison system."