20 Jan Insufficiently limited powers of the police led to a violation of the Convention
In the case of Vig v. Hungary (application no. 59648/13, 14.01.2020) the European Court of Human Rights found a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned the applicant’s being searched by the police while at a festival. In January 2013 the National Police Commissioner ordered that “enhanced checks” be carried out in Hungary in order to “to operate a screening network preventing illegal migration”. As part of this, checks were carried out at a Sirály Community Centre in Budapest where the applicant was attending a festival. Relying on Article 8 (right to respect for private and family life) of the European Convention, the applicant complained that his being stopped and searched by the police had breached his rights and that he had not had a remedy with regard to those breaches.
The Court tooke note of the powers conferred on individual police officers under Police Act. The Police Act authorises police officers to check a person’s identity and search persons at a location specified by a senior police officer, to apprehend a perpetrator or prevent an activity endangering public security. The legislation does not state that those measures are implemented in respect of persons who are suspected of wrongdoing. Thus, it is not necessary for a police officer to demonstrate the existence of any reasonable suspicion against the person subjected to the measures; the only condition provided for in the legislation is that the identity check and search has to be related to the objectives described in section 30 of the Police Act. As evidenced by the present case, in practice, a police officer has the discretion to carry out measures in respect of anybody who is present at the location where an enhanced check is carried out.
The Court also noted that whereas an individual can challenge the police measures carried out in respect of him or her by way of a complaint to a police department, and subsequently by way of a judicial review, the present case demonstrates that those remedies are limited to assessing the manner in which the measures were carried out, and do not cover the necessity of the identity check and search. In general, in the absence of any obligation on the part of a police officer to demonstrate that a person who is checked and searched is involved in or in any way linked to any of the activities described in section 30 of the Police Act, it appears that it is not possible to prove that a police officer has exceeded his or her powers when he or she has decided to perform an enhanced check on a given individual at an authorised location.
In the absence of any real restriction or review of either the authorisation of an enhanced check or the police measures carried out during an enhanced check, the Court is of the view that the domestic law did not provide adequate safeguards to offer the individual adequate protection against arbitrary interference. Therefore, the measures complained of were not “in accordance with the law” within the meaning of Article 8 of the Convention.
References from the official website of the European Court of Human Rights