International law and its relation to domestic law

Upon ratification, international treaties do not automatically become an integral part of domestic legislation. To become domestic law, ratified treaties must first be promulgated by a legislative act, e.g., a government decree.

The Hungarian Constitution states that the country’s legal system accepts the generally recognized principles of international law and that it shall harmonize domestic law with obligations assumed under international law. (Article 7(1) of the Constitution of the Republic of Hungary, 20 August 1949)

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International law and its relation to domestic law

Upon ratification, international treaties do not automatically become an integral part of domestic legislation. To become domestic law, ratified treaties must first be promulgated by a legislative act, e.g., a government decree.

The Hungarian Constitution states that the country’s legal system accepts the generally recognized principles of international law and that it shall harmonize domestic law with obligations assumed under international law. (Article 7(1) of the Constitution of the Republic of Hungary, 20 August 1949) The Constitutional Court has held that international law prevails over domestic law, with the exception of the Constitution. (Decision No. 53/1993. (X. 13.) AB of the Constitutional Court of the Republic of Hungary) In other words, the Hungarian legal system has a three-level hierarchy, with the Constitution on top, followed by international law, and domestic law at the bottom. In case of conflict, the superior legal norm prevails over the inferior.

FREEDOM OF ASSEMBLY

Legal framework

The Constitution provides that:

- The Republic of Hungary recognizes the right to peaceful assembly and shall ensure the free exercise thereof; and

- A majority of two-thirds of the votes of the members of parliament present is required to pass the law on the right of assembly. (Article 62 of the Constitution)

Issues related to freedom of assembly are regulated by Act III on Freedom of Assembly. (Adopted on 24 January 1998. Hereinafter referred to as the Law) There are other pieces of legislation that have relevance to freedom of assembly (including acts implementing international treaties: Act CXV of 2001 on the Status of Official and Contractual Soldiers; Act LXIX of 1999 on Offences; Act XXXIV of 1999 promulgating the Council of Europe Framework Convention for the Protection of National Minorities; Act XXXIV of 1994 on the Police; Act XXXI of 1993 promulgating the Convention for the Protection of Human Rights and Fundamental Freedoms; and others). Secondary legislation regulating freedom of assembly also exists, most relevant being the Decree of the Minister of Interior on the duties of the police related to assuring the order of assemblies.( Decree of the Minister of Interior No. 15/1990. (V. 14.) BM on the duties of the police related to assuring the order of assemblies. Other secondary legislation includes Decree of the Minister of Interior No. 40/2001. (XII. 23.) BM  Article 119; Decree of the Minister of Interior No. 24/1998. (VI. 9.) BM, Article 7; Decree of the Minister of Interior No. 3/1995 (III. 1.) BM on the Rules of Service of the Police, Articles 67. (6)-(7); 68. (1)-(2); 106. (10); Decree of the Minister of Defence No. 6/1987. (X. 15.) HM on the Rules of Service of the Armed Forces of the Republic of Hungary, Annex, Point. 10)

Types of assemblies defined and protected in domestic law

Peaceful assemblies, manifestations, and demonstrations can be organized on both private and public property.

Possible limitations/restrictions/conditions, including notice requirements

Exercising one’s freedom of assembly should not be used to commit a crime or to encourage anyone else to do so. In addition, it may not be used to violate the rights and freedoms of third parties. If an assembly endangers the functioning of the parliament or the courts, or if traffic cannot be re-routed, then the police may disallow the assembly to take place within 48 hours of receiving notification.

An assembly shall be dissolved in the following cases:

- If it leads to the commitment of a crime or encouragement to commit a crime, or if it violates the rights and freedoms of third parties;

- If participants are in possession of weapons or if they are strapped;

- If it is held without giving the obligatory notification, in cases where such notification is required;

- If it is held in violation of a prohibition against such an assembly.

In all such cases, participants shall be warned prior to the dissolution of the assembly. (Articles 2. (3), 8. (1), and 14 of the Law)

The organizer shall notify the competent police office (in Budapest, the Budapest Police Office) three days before the planned date of an assembly. The written notification shall contain the following information: the start and finish time of the planned assembly, the place and route, its purpose and agenda, an approximate number of participants and the number of organizers, the name of the organizer(s) or of the representative of the organizer(s). (Articles 6 and 7 of the Law) Such notification is compulsory; thus, spontaneous demonstrations in public places are forbidden; they are allowed only on private property.

Place, route, and time of assemblies

Assemblies may be held on both private and public property; in the case of the latter, however, there are certain limitations. If an assembly is held on a public road, the manager of public roads shall be informed by the police. (Article 8 (1) of the Law)

Power to ban assemblies

The police may ban a gathering on two grounds:

- If an assembly endangers the functioning of the parliament or the courts; or

- If traffic cannot be re-routed.

In both cases, the police shall make a decision within 48 hours of receiving notification of the planned assembly. (Article 8 (1) of the Law) The Law stipulates that the general rules of administrative procedure are applicable to the police; thus, the police must provide justification for such a decision. (Article 43 (1-c) of Act IV of 1957 of the General Rules of Administrative Procedure)

Requirements for organizers; their rights and duties (including liability and penalties)

The following people have the right to organize an assembly: Hungarian citizens, foreign citizens with resident or immigrant status in Hungary; or foreign nationals with authorization to stay in Hungary. In any case, the organizer of an assembly must have reached the age of consent. There are no quantitative restrictions with regard to organizers.

An organizer’s duties include the following:

- Submitting written notification of a planned assembly to the police;

- Ensuring that public order is maintained and guaranteeing security at the assembly;

- Dissolving the assembly in case of danger;

- Taking joint responsibility for any damages caused.

An organizer may be fined a maximum of 100,000 HUF for the following actions:

- Organizing or holding an assembly without providing proper notification, in cases where such notification is required;

- Not informing the police upon changing the date of the planned assembly;

- Holding an assembly that has been prohibited. (Article 152 of Act LXIX of 1999 on the Offences)

Unlawfully preventing another individual from exercising his or her right to free assembly through the use of violence or threats of violence is a felony, and anyone doing so shall face a maximum of three years in prison. (Article 228/A of Act IV of 1978 on the Criminal Code of the Republic of Hungary)

Requirements for participants; their rights and duties (including liability and penalties)

Everyone has the right to exercise their freedom of assembly; there are no quantitative restrictions. Assembly participants may freely express their opinions and may make their position known to those concerned. Upon the dissolution of an assembly, participants have the right to file a complaint for unlawful dissolution within 15 days of the dissolution.

Assembly participants have the following duties:

- They may not be in possession of a weapon while attending an assembly;

- They must leave the place of the assembly at the time set in accordance with the notification; and

- They have joint responsibility, along with the organizer(s), for any damages caused.

State and police powers and responsibilities (including liability and penalties)

An organizer may request that the police help ensure that public order is maintained, as well as to remove anyone interfering in the maintenance of public order. The police are entitled to be present at assemblies.

The police shall dissolve an assembly in the following cases:

- If it leads to the commitment of a crime or encouragement to commit a crime, or if it violates the rights and freedoms of third parties;

- If participants are in possession of weapons;

- If it is held without providing the obligatory notification, in cases where such notification is required;

- If it is held in violation of a prohibition against such an assembly.

In all such cases, participants shall be warned prior to the dissolution of the assembly. (Article 14 of the Law)

The Hungarian legal system contains several acts stipulating the responsibility of the armed forces, including the police.

A police officer who has committed an ultra vires act (e. g. homicides; battery; violation of personal freedom) is liable for it (Act IV of 1978 on the Criminal Code). 

There are special legal acts that apply to officials (for example, police officers) who have committed a crime, such as maltreatment in official proceedings, (Article 226 of the Criminal Code) forced interrogation, (Article 227 of the Criminal Code) unlawful detention, (Article 228 of the Criminal Code) violation of freedom of association and assembly, (Article 228 (a) of the Criminal Code) breach of duty in service, (Article 348 of the Criminal Code) omission of taking measures by a superior, (Article 361 of the Criminal Code) and omission of control. (Article 362 of the Criminal Code)

Since all of these crimes are subject to prosecution, the state, namely prosecutors and the police, is bound to pursue the perpetrators of such crimes. In certain cases, crimes related to one’s official position can be committed in conjunction with other crimes, e.g., an official could violate an individual’s freedom of association and assembly in conjunction with maltreatment in official proceedings or with battery; unlawful detention can occur along with forced interrogation, etc.

If a police officer breaks the rules of official service, he or she will face disciplinary measures. (Article 119. (1)-(2) of Act XLIII of 1996 on the Service of Official Members of the Armed Forces)

Any person injured as a result of the violent actions of a police officer shall have the right to compensation. In accordance with the rules of indemnification, any person who causes damage to another person in violation of the law shall be liable for such damages. Such a person shall not be liable if they are able to prove that they acted in a manner that can generally be expected in such a situation. (Article 339 of Act IV of 1959 on the Civil Code of the Republic of Hungary) The victim may file suit on the grounds of liability for damages caused under the jurisdiction of government administration (including the police) if the damage cannot be remedied through ordinary legal measures. (Article 349 of the Civil Code of the Republic of Hungary)

The organizer of the assembly is jointly responsible for causing such damages (in this case, responsibility also lies with a police officer); therefore, the victims can sue either the organizer or the police officer. (Article 13. (1) of Act III of 1989 on Freedom of Association)

Rights of appeal

The organizer of an assembly has the right to request that a refusal to hold an assembly be reconsidered by a court, provided that the request is made within three days of notification about the refusal. The court will make a decision within three days. No further appeals can be made following the decision of the court. (Article 9 of the Law)

Analysis was written with the assistance of the Permanent Mission of Hungary to the OSCE, which completed the ODIHR questionnaire.

Posted in October 2006

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