EU funds What ought to be done to strengthen the anti-corruption framework and the independence of the judiciary

Enhanced police checks still in need of adequate safeguards

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Váltás magyarra

In 2013, Dávid Vig, a Hungarian citizen, was subject to a police ID check and a search of his outer clothing during a cultural festival held at a community centre in Budapest. Nothing incriminating was found on him and he was allowed to go on his way. The police measures were carried out in the framework of a so-called “enhanced check”, which was ordered by the National Police Commissioner to “carry out regular checks on illegal migration routes leading to the European Union and to operate a screening network preventing illegal migration”.

Mr Vig challenged the police measures, arguing, among others, that the legal provisions on enhanced checks gave the police an unfettered right to check and search anybody, without the people concerned being able to know the reasons for the measures, and without having a real possibility to seek a remedy against them. After exhausting the available domestic remedies without success, he submitted an application to the European Court of Human Rights (ECtHR) with the help of the Hungarian Helsinki Committee.  In its judgment handed down in the Vig v. Hungary case, the ECtHR found a violation of the applicant’s right to respect for his private life on the basis that there was not “any real restriction or review of either the authorisation of an enhanced check or the police measures carried out during an enhanced check” and “that the domestic law did not provide adequate safeguards to offer the individual adequate protection against arbitrary interference”.

In 2021, related Hungarian legal provisions were amended. The Hungarian Government claims that these amendments extended the statutory guarantees of enhanced checks, but the analysis carried out by the Hungarian Helsinki Committee shows that in fact this is not the case. As we present in our recent communication to the Committee of Ministers of the Council of Europe in its capacity of supervising the execution of ECtHR judgments, the amendments fail to provide answers to fundamental problems in the regulatory framework, and do not provide the necessary guarantees for an independent and meaningful review of ordering enhanced checks.

Among other deficiencies, the mandatory review of ordering an enhanced check, prescribed by the law, is conducted by the very same person who orders the enhanced check, so the review cannot be considered independent. The rules of the review are not determined, not even the consequence of the complete failure to carry out the review is set out by the law. In the absence of such norms, the lawfulness of the review cannot be assessed. In addition, the amendments expressly exclude the earlier existing possibility of submitting a complaint against the decision to order an enhanced check by those concerned (e.g. because they were stopped and searched in the framework of the enhanced check), which also means that the possibility of judicial review has been removed from the system.

Prescribing a time limit of two months for enhanced checks is one of the most significant improvements of the new legislative framework. It is to be noted, however, that according to the law, if the purpose of an enhanced check remains valid, the enhanced check may be prolonged by altogether four months. The prolongation is not subject to any specific review.

In addition to the analysis of the new legal framework, the HHC filed a freedom of information request with the National Police Headquarters on the enhanced checks ordered in Hungary in the period between December 2021 and June 2022. The data acquired illustrate that several challenges regarding enhanced checks have not been solved by the amendment of the relevant norms. Although in several cases the reasons for ordering the enhanced check seem sufficient and adequate, in numerous cases the police still provides a very broad and general explanation, e.g. claiming that the enhanced check is ordered “to prevent, detect or disrupt the perpetration of breaches of law”.

The Rule 9(2) communication of the HHC, submitted to the Committee of Ministers, is available here:

NGO communication with regard to the execution of the judgment of the European Court of Human Rights in the Vig v. Hungary case

 

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Hungarian Helsinki Committee