Ombudsman and Deputy Commissioner for National Minorities Take Stand on Police Measures Taken as Part of Intensified Control - AJBH-EN
Ombudsman and Deputy Commissioner for National Minorities Take Stand on Police Measures Taken as Part of Intensified Control
A complainant objected to the police measures (identity check, frisking, mobile phone control) taken against him, in his view, because of his Roma nationality, and he also expressed his concerns about the intensified control that was used as the legal basis for such measures. He also complained that his personal data had been recorded despite the fact that the identity check was not followed by any further police measures or procedures.
The Commissioner for Fundamental Rights and the Deputy Commissioner for the Rights of National Minorities in Hungary established, in their joint report on cases No. AJB-729/2021 and AJB-730/2021, that ordering intensified control, or the effect thereof both in time and space may directly affect the fundamental rights of the persons who stay in the area in question at that time, as their identity can be checked, or even their clothes (vehicles) can be searched at any time whatsoever, solely because of the fact of intensified monitoring, this is why it is especially important to comply with the guarantee statutory conditions and to provide appropriate information to those concerned in advance.
The Ombudsman and the Deputy Commissioner for the Rights of National Minorities in Hungary pointed out that the decisions on nationwide intensified monitoring that served as the legal basis for the identity checks and the clothes searches with regard to the complainant, which had been ordered by the Chief Officer of the National Police Headquarters, raise concerns with regard to the rule of law, both from a formal and content point of view. Thus, these establish an impropriety with regard to the requirement of legal certainty deriving from the principle of the rule of law as provided for by Article B) of the Fundamental Law of Hungary, and one with regard to the right of privacy stipulated in Article VI of the Fundamental Law of Hungary. As regards checking the complainant’s mobile phone, it was pointed out that checking such devices cannot be justified by the practice of similar controls performed on the persons subjected to an identity check, or on the data of the documents, and intensified controls cannot establish a legal basis for such actions, either. Furthermore, it was concluded that the procedure conducted by the police unit that executed the measure caused an impropriety with regard to the right to personal data as provided for in Article VI of the Fundamental Law of Hungary. It was also established that, as a result of the recording of the personal identification data of the complainant not affected by the further measure or procedure, the action of the police unit caused an impropriety with regard to the right to personal data.
The Commissioner for Fundamental Rights and the Deputy Commissioner for the Rights of National Minorities in Hungary proposed that the Minister of the Interior consider reviewing the rules of intensified control in order to remedy the exposed improprieties and to prevent these in the future, and to initiate the modification of the regulations, also taking into account the respective decision of the European Court of Human Rights.
The Chief Officer of the National Police Headquarters was at the same time requested to review the practices applied in ordering intensified control, and to pay special attention to providing appropriate information to those concerned; to ensure that the police units reporting to him act by observing the respective statutory requirements when they check the mobile phones; and to elaborate specific proposals and measures in order to eliminate the impropriety regarding the protection of personal data by also taking into account the earlier conclusions of the Independent Police Complaints Board and the position taken by the president of the National Authority for Data Protection and Freedom of Information.