The fundamental principles of criminal procedure law in the constitutions of EU member states
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Date
2013
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Károli Gáspár Református Egyetem, Állam- és Jogtudományi Kar
Abstract
At the beginning of 2012 the new Fundamental Law of Hungary2 (herein after referred to as: FL) entered into force. The adoption of the FL on April 2011 put an end to a long period of constitution making, as all governments which took office after the change in the political system in 1989 defined their intention to make a new basic law, but this is the first time when it was finally realised. The FL replaced the constitution of 1949 (herein after referred to as: Constitution), which was first compiled at Soviet pattern after the Second World War, then was modified fundamentally in 1989 in order to meet the requirements of constitutions of democratic, rule of law states.
Both the Constitution and the FL contain provisions about the fundamental guarantees and principles of criminal law and procedure. Moreover, the FL provides for even more guarantees as it has added two more internationally recognised basic principles to the list of those already mentioned in the Constitution before. In this paper I review the process how the fundamental principles of criminal procedure were incorporated into the basic legal document of Hungary, then I will compare the text of the Fundamental Law with the constitutional provisions of the countries of Europe. It is always interesting to observe the list of those fundamental principles which are considered important enough to be regulated at the highest level of the hierarchy of laws. Nowadays it is not only a matter of the countries’ own decision but also subject to the text of certain international agreements and conventions which bind the governments. Still, it will be apparent from the comparison that even though the fundamental principles of criminal procedure law are generally accepted throughout Europe there are different levels of constitutional protection.
At the beginning I shall state that when I reviewed the national constitutions I looked especially for the principles of criminal procedure law. The general organisational principles, such as the right to court, the independence of judges, the requirement of impartiality are generally present in all constitutions, as these are requirements for all procedures, not only for criminal procedures. Therefore I directed my attention towards those which specifically concern criminal procedure, such as the presumption of innocence, the right to defence, the right to appeal, the guarantee of fair trial, the guarantee of personal freedom and the conditions for its limitation, and the prohibition of torture and inhumane or degrading treatment. I also observed some criminal law principles, such as nullum crimen sine lege / nulla poena sine lege, as these usually go hand in hand with the mentioned procedural rights and requirements.