Petition of the Ombudsman to the Constitutional Court on the provisions concerning the confinement and detention of juvenile offenders

Press release:

Petition of the Ombudsman to the Constitutional Court on the provisions concerning the confinement and detention of juvenile offenders

The provision of the Regulatory Offences Act making it possible to order confinement and detention for regulatory offences is contrary to the Fundamental Law and the UN Convention on the Rights of the Child, which has been promulgated in Hungary. Since, in spite of previous warnings by the Ombudsman, the new Regulatory Offences Act, effective as of 15 April, still allows the above sanctions, the Commissioner for Fundamental Rights has requested the Constitutional Court to review certain provisions of the Act.

Ombudsman Máté Szabó already established in November 2010 that the provision of the Regulatory Offences Act then in force, which terminated the prohibition of the confinement of juvenile offenders and even permitted that fines imposed on them be converted to confinement, was contrary to the right of children to care and protection, as well as to their right to liberty of the person. In the concrete case, three secondary school girls as part of a dare tried to steal some costume jewellery, and when the security guard of the shop noticed what they were doing, they claimed to regret what they had done and gave back the jewellery. The police took the fifteen years old girls to the police station, detained them for a day and a half and justified their proceedings with the amended regulations. As a matter of fact, in August 2010 Parliament did delete those provisions of the Regulatory Offences Act which in the case of juvenile offenders prohibited the imposition of confinement.

The Commissioner requested the Minister of the Interior to remedy the impropriety. He in turn informed him that the measure was justified, because otherwise law enforcement would lack the necessary means against offenders and that confinement contributed to the forming of the personality of young people. The Ombudsman did not accept this response and the Minister of the Interior promised that when drafting the new Act on Regulatory Offences the Ministry would, based on the experience gained in applying these measures, reconsider the rules on the confinement and detention of juvenile offenders.

Despite the Ombudsman's concerns, however, the new Regulatory Offences Act, effective as of 15 April 2012, continues to provide for the possibility of confinement and detention for juvenile offenders and of converting fines to confinement. The absurdity of the situation is shown by the fact that while only children over sixteen years may be sentenced to community service, children over fourteen may forthwith be sentenced to confinement. Since the legislator did not take steps to redress the situation which is contrary to fundamental rights, the Commissioner has initiated the review of the contested provisions of both the old and the new Act with the Constitutional Court.

In his petition Máté Szabó explains in detail that the concept introduced by the law-maker and retained in the new Regulatory Offences Act cannot be reconciled with either the provision of the Fundamental Law on the protection of the rights of children, nor with the international commitments undertaken by Hungary, and that it violates several provisions of the Convention on the Rights of the Child. The Ombudsman repeatedly points out that in regulatory offence proceedings of persons under eighteen the application of short deprivation of liberty unnecessarily and disproportionately restricts the fundamental rights of the persons concerned. In the case of juvenile persons the restriction of personal liberty is harmful and may only be applied in serious cases and as a last resort. According to the Commissioner, in a democratic State under the rule of law it cannot be justified that to a short-term deprivation of liberty there is no alternative measure or instrument as restrains rights to a lesser extent, ensuring education and restoration instead of reprisal.

The Commissioner for Fundamental Rights requested the Constitutional Court to annul the provisions that make it possible to deprive of their liberty juvenile offenders who commit regulatory offences. At the same time the Commissioner has indicated that the annulment in itself would not completely remedy the existing impropriety; for that it would be necessary to adequately supplement the Act. Consequently, the Ombudsman has also requested that the Court establish that the present legal situation is contrary to an international treaty, as in the Regulatory Offences Act Parliament failed to lay down the exempting rules which would provide for the enforcement of the principles of the Convention on the Rights of the Child, guaranteeing enhanced protection for minors.