In his essay Gábor Attila Tóth writes about the contents of the right to freedom and personal security, embedded in 55. § of the Constitution. In his opinion the fact that procedural guarantees protecting the right to freedom are not only means, but the constitutional procedure is the valuable content itself, springs from the equal human dignity of members of the political community, based on 54. § (1) of the Constitution and expressed in several other constitutional paragraphs: it secures the subject of the procedure to be treated with respect to his human dignity and personality. In this way not even persons in custody become "servants of the state", because the power of the state is restricted even in the most serious cases of the deprivation of personal freedom. With the deprivation of a person's physical freedom for either a shorter or a longer time, the person doesn't lose all of his/her rights recognized by the Constitution. The constitutional approach based on the moral command of the respect for human dignity requires respect for the personality of people in custody, and respect for the value of their human nature at all costs. In this sense personal freedom and custody do not exclude each other completely.
The leaders of three human rights NGOs tell their opinion about the changes in the state of human rights in Hungary, and the work of their associations. Balázs Dénes, leader of the Hungarian Civil Liberties Union is of the opinion that civil protectors of rights can never count on the global agreement of society. Ferenc Kőszeg, leader of the Hungarian Helsinki Committee has also experienced that the demagogic reasoning of how much it costs to give priority to human rights when solving a certain problem, is often operative. Imre Furmann, leader of the Defence Bureau of National and Ethnic Minorities Rights says that while the number and activity of human rights associations has grown, the sensibility of citizens has lessened, and they show a tendency of submissing to a certain phenomenon, instead of trying to change it. Balázs Dénes emphasizes that many questions of human rights can be accepted with people only if we make them understand that it is not a theoretical problem, but one that influences their everyday lives. So he is optimistic about recognizing the importance of patients' rights; in his opinion the more often and the more people experience the impairment of these rights, the stronger their claim to changing the situation will get. The prospects, however, are further spoiled by the fact that the conceptual, great change of public health has still not happened. As regards discrimination, and based on their research, Ferenc Kőszeg thinks that the prejudiced nature of judicial work cannot be substantiated statistically, it is obvious however, that in the course of identity check there is discrimination against gypsies.
Concerning the institution of legal aid, János Bánáti emphasised: for the renewal of this institution, for the achievement of the aim (that the legal aider should give real, effective protection to the accused) not only raising the charge of legal aiders, but a new system of distributing cases should be a solution. He agrees with all who are of the opinion that the body deciding about the necessity of providing legal aid and the body appointing the legal aider should be separate.
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According to András Kristóf Kádár, the aim of the system of legal aiding is that in cases of the accused being increasedly defenceless, it should guarantee the full manifestation of the right to fair trial and the right to defence, by effective defender's help. In his opinion, as long as the four basic functions that are necessary for the operation of this system do not belong to one particular body or a group of bodies operating in harmony, and legal aiding remains the duty of investigation authorities, as long as there is no mechanism to personal quality assurance that would be more effective than the indirect mechanism of the chamber, as long as nobody pays attention to the operation of the system as a whole on the basis of gathered data, and as long as the main role in planning the budget does not belong to those who perform all or most the functions, the Hungarian legal aider system will not meet the constitutional requirements.
Mátyás Bencze spoke of the formal judicial judgement of pre-trial detention, and reminded us that in some recent cases that got increased attention custody lasted for an extremely short time, then either the court in question, or the court of the second instance revised the previous decision, and released the accused. Due to this increased attention the conditions of pre-trial detention were examined more carefully and thoroughly than usual, and they came to the conclusion that its use is disregardable.
András Schiffer's writing evaluates the recent modification of the Act on Data Protection in relation to judgements in two recent cases concerning obtaining public information. One of the cases was started by several civil associations for the publicity of data concerning the restarting of the second block of the Atomic Plant in Paks, the other case was started by the Hungarian Civil Liberties Union against the Constitutional Court, for the surrender of a petition handed in by a Member of Parliament. In the author's opinion the dismissing judgements in both cases were made because of the modified paragraphs of the Act, at the same time he says that the modification does not solve all the problems of the publicity of public information, raised by these trials.
In her essay Renáta Uitz examines the question how much the petition concerning the legal recognition of the registered partnership for gay couples fits the Hungarian history of protecting homosexual rights. When doing this she also examines what reasoning and considerations having gone through foreign and international forums are to be best harmonized with the resolutions of the Hungarian Constitution, while legalizing registered same-sex partnership.
Relating to the new conception of the Civil Code, and examining the plan concerning registered partnership, József Kárpáti concludes that the wording of the latest norm text is some kind of advance compared to the previous system, however, it does not introduce an institution of registered life partnership that would be real, guarded by real legal guarantees, and fitting between the institutions of traditional partnership and marriage. The announcement of partnership is only a declaration, for which there had been a legal possibility anyway; the only change is that the client does not have to make it probable that he/she needs a certificate.
In his writing about life imprisonment the author expressed his opinion that the exclusion of the possibility of probation on the basis of judicial discretion or ex lege is against the rule of law, and does not meet the requirements of the constitutional restriction of the right to personal freedom, and that it unconstitutionally restricts the right to human dignity. Real life imprisonment does not only limit a person's
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personal freedom, but completely abolishes it, so it concerns the essential content of a fundamental right. The author is of the opinion that the vague prospect of personal amnesty cannot change the fact that life imprisonment degrades the convict into an object. The petition to abolish life imprisonment has been lying on the table of the Hungarian Constitutional Court for a year.
In this column we present the press release of 27[th] April 2005 on the judgment of the Polish Constitutional Tribunal concerning European Arrest Warrant. Besides, we give a selection of the decisions of the Strasbourg Court, and sum up briefly some of the recent decisions of the Hungarian Constitutional Court.
The Right to Self-Determination, or Where Do the Limits of Limits Lie?-in her article Eszter Csernus sums up her experience about the manifestation of patients' rights, gained as the representative of a human rights ngo. In her opinion the manifestation of the right to self-determination concerning health, and its practicability leaves a lot to be desired. Among existing restrictions we can find some in which for the sake of others' health and public health, patients' rights are restricted, and some, which for the sake of the concerned's personal protection restrict the right to self-determination, and some, which cannot be justified either by the protection of others', or that of public health. We can also find some restrictions which come from differences in opinion: from professional differences of opinion among the concerned, the experts supporting them and the majority of doctors, or the difference of the notion of family of the concerned and part of the society; and some restrictions, which are based on misconceptions, fears and misconceived roles. Finally, we have to face that an insufficient regulation can in practice make the manifestation of a right impossible that would otherwise be guaranteed by law.
Concerning the Code on Criminal Punishment under construction, the Hungarian Helsinki Committee has made an analysis. The creators of the essay are glad to see that finally an Act will secure the rules manifested in prisons. They object to it, however, that the so-called milder executive rules are abolished. They feel the practice highly problematic that the staff of the Investigation Department of the county superintendant of police can have an office in prisons. The police officers working there operate the informer-system in prisons, they gather information among the people in custody about the preparation of activity endangering the order of the institution, or crime planned within the institution or for after release. Only the results of this information gathering are shared with the accountable leaders of the prison, however, the proofs for the authenticity of the information are not shared. The Code under preparation would legitimise the system of regimes employed in prisons today, which, in their opinion - as it can modify the judgement of the court-is lawful only if a court, that is, a penal judge can revise it.
In this column we recommend the book of András Kristóf Kádár: The presumption of guiltiness and the book of István Kemény, Béla Janky and Gabriella Lengyel on the situation of the Hungarian Roma population between 1971-2003. ■
Visszaugrás
