Court/Judicial body: Constitutional Court of the Republic of Hungary
Date: 13 December 2004 CRC
Provisions: Preamble Article 1: Definition of a child Article 4: Implementation of rights Article 24: Health and health services Article 33: Drug abuse
Other international provisions: UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Single Convention on Narcotic Drugs Convention on Psychotropic Substances
Domestic provisions: Hungarian Constitution, Article 16: Every child shall have the right to the protection and care required for his or her proper physical, mental and moral development Criminal Code, Section 283(1)(c) and (d): Exemptions to the offence of misuse of narcotic drugs
Background: Five petitions were submitted to the Constitutional Court concerning the statutory definitions of the misuse of narcotic drugs in the Hungarian Criminal Code. Section 283(1)(c) and (d) state that no punishment shall be imposed on the ground of misuse of narcotic drugs on a person: over the age of 18 who cultivates, produces, obtains or keeps a small quantity of narcotic drugs for own use by using a person under the age of 18; or between the ages of 18 and 21 who offers or hands over to a person under the age of 18 a small quantity of narcotic drugs on the occasion of consuming narcotic drugs jointly; or below the age of 21 who offers or hands over a small quantity of narcotic drugs on the occasion of consuming narcotic drugs jointly inside or in the immediate vicinity of a building serving the purpose of public education, child welfare, child protection or cultural activities. The petitioners argued that these provisions were contrary to: Article 16 of the Hungarian Constitution, which requires the State to protect and care for a child’s physical, mental and moral development; and Article 33 of the CRC, which obliges the State to protect children from the use of narcotic drugs. The Court consolidated the petitions and judged them in a single procedure.
Issue and resolution: Protection of children from the use and production of narcotic drugs. The Constitutional Court held that the failure of the Hungarian parliament to adopt domestic laws and regulations to guarantee the enhanced protection of children from narcotic drugs, as required under the Hungarian Constitution, CRC and other international conventions, was unconstitutional and a breach of the State’s legislative and international duties. The Court called upon the Hungarian parliament to rectify these offending provisions by 31 May 2005.
Court reasoning: Having examined the provisions of relevant international treaties, including the CRC, the Court found that the misuse of narcotic drugs to the detriment of or by using children is to be considered as a serious offence, and in such cases the States must ensure the applicability of criminal sanctions against perpetrators. Hungary, as a signatory to the CRC, has an obligation to adopt legislation that takes into account the interests of the child, which have primacy over everything else. Article 33 of the CRC calls upon States to adopt legislation for the protection of children from the use of narcotic drugs. Similarly, international obligations requiring action indicate that criminal law may be applied for the protection of children, for the elimination of threats to children related to the misuse of narcotic drugs, and for preventing children from having access to substances altering consciousness and harming health. The CRC requires that children be protected from exposure to narcotic drugs in order to ensure their mental and moral development and health. The challenged legal provisions do not meet the legal requirements for the protection of children from narcotic drugs.
Therefore, the provisions are unsatisfactory, unconstitutional, and violate the CRC and other international treaties.
Excerpt citing CRC and other relevant human rights 5. The relevant provisions of the Child Convention are as follows: “ Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” “ Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.” … According to the Preamble of the Child Convention, “childhood is end to special care and assistance” as well as to protection. It does not relate in general to securing an atmosphere necessary “for the harmonious development of the child’s personality”, but to acknowledging that the minor “should be fully prepared to live an individual life in society with human dignity”. To this end, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection …” To concretise the group of persons protected by its provisions, the Convention specifies that persons below the age of 18 shall be considered as children ( Article 1). Pursuant to Article 4, it is the duty of the States Parties’ legislatures to take action for the enforcement of all rights granted in the Convention in the case of all children under the age of 18. In relation to the misuse of drugs, Article 33 provides that the States Parties shall take all appropriate measures – including legislative ones, among others – to protect children “from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.” In Article 24 para. 3 of the Child Convention the States Parties have undertaken to take all “effective and appropriate” measures with a view to abolishing “practices prejudicial to the health of children”. … … Article 33 of the Child Convention calls upon the States Parties – specifying the acts constituting the offence – to adopt legislation for the protection of children from misusers of narcotic drugs. 2. The Constitutional Court has already interpreted – in another context – the relations between the Child Convention and the Constitution, pointing out the principles to be followed by criminal legislation as well. It was emphasised in Decision 995/B/1990 AB that children are end to the fundamental constitutional rights, but “to make the child able to fully exercise such rights, all conditions necessary for becoming an adult must be secured for him or her in line with his or her age.”
The State of Hungary as a signatory party to the Child Convention has an obligation – directly deducible from the Constitution – to create, in every field of law, legislation that takes into account the interests of the child, which have primacy over everything else. “Protecting and taking care of children is a constitutional obligation not only of the family but of the State and society as well.” For full compliance with this obligation, all necessary means of criminal law must be applied… … The [Criminal Code] contains rules acknowledging the aim of the enhanced protection of minors concerning the misuse of narcotic drugs. However, due to factors of legal uncertainty and gaps in “conformity with the Conventions”, the result of the regulation, i.e. the level of protection, is not harmonised in all respects with the aims and requirements of the international treaties, thus violating Article 7 para. (1) of the Constitution. This is primarily caused by the strong relativisation – from the aspect of constitutionality – of the differentiation between acts of consumption and distribution – justifiable on the basis of penal dogmatics – with regard to the endangerment of minors. This approach only partly ensures the comprehensive institutional protection that is required by the UN Convention and the Child Convention, and that is in accordance with the Constitution as well. … 2.1.1. It is defined in the Child Convention as an objective and as a duty requiring legislation to keep minors away from narcotic drugs and psychotropic substances – in order to ensure their proper mental and moral development – in view of their “mental immaturity” and considering the dangerousness of such substances. The implementation of the duty of protection from illicit consumption declared in Article 33 of the Convention and the obligation of keeping away from practices prejudicial to health defined in Article 24 necessitate the emergence of a situation where children have no access whatsoever (not even as employees, for example) to such substances and preparations.
The above provisions and the Preamble reflect the very idea that for the appropriate mental and moral development of the child and for his or her becoming mature enough to make decisions about his or her own life it is not enough to provide the same level of protection as in the case of adults in general. … … it can be concluded that the provisions supporting the enhanced protection of minors under criminal law – through which the Child Convention provides for the primary obligation of the legislator to develop a high level of protection – are not enforced in the provisions of the CC under review due to their deficiencies.
Follow Up: The offending provisions were deleted from the Hungarian Criminal Code.
CRIN Comments: CRIN believes this decision is consistent with the CRC. Article 33 requires States to take all appropriate measures, including legislative measures, to protect children from the illicit use of narcotic substances and to prevent the use of children in the production of such drugs. Accordingly, States can impose criminal sanctions on adults if they involve children in the use or production of drugs. Citation: Decision 54/2004 (XII. 13.) AB
Link to Full Judgment:http://www.mkab.hu/letoltesek/en_0054_2004.pdf