The legislative powers of the police to stop individuals
Police powers to stop and search are detailed in Act XXXIV of 1994 on the Police (hereinafter Rtv) Art. 24. The stop and search should be justified for reasons of public order, public safety, crime prevention, law enforcement and traffic control. The police have the power to stop and search if it is necessary to help other bodies and persons who have legitimate reasons to ask the help of the police. The law enforcement officers of the National Tax and Customs Authority also have the right to stop and check the identity of citizens. This power is specified in Article 110 of Act CLI of 2017 on Tax Administration. The rights of other quasi-policing organisations to stop and search citizens are specified in Article 18 of Act CXX of 2012 on the activities of the other law enforcement bodies. The police have the power to check the identity and address of a person.
The police can check the body, clothing and bags of a person in order to arrest an criminal offender or in order to prevent events which threaten public security (Article 25 of Rtv).
The obligation to register stops
The police is required to check the identity of a person in the Schengen Information System (SIS).Thus, the check is registered on the European database. This record is based on the European regulation of the SIS.
The police stop and search should be recorded by the officer in their daily report (Article 25 of the Decree of the Minister of Interior, No. 30/2011, published on 22nd September, on the service rules of the police). The report should contain the name and address of the person stopped. The report (and the personal data of the stopped person) should be preserved for 180 days.
If the stop is performed by municipal policing bodies (public safety surveillance – közterület-felügyelet), the stop should be reported by these municipal officers (Article 4 of the Decree of the Minister of Interior No. 43/1999, published on 26th November, on the measures of public safety surveillance).
Legislation procedures which protect citizens from police offences
The police stop and search, as a coercive act, can be challenged by a general remedy or by a complaint (panasz). There are two different types of complaint:
- The first complaint can be submitted to the police body which performed the stop. This complaint can be submitted within 30 days and it should be based on the infringement of the rights and legitimate interest of the person. The complaint is adjudicated by the oversight body of the organisation which conducted the stop. The procedure and the decision are administrative ones which can be sued in the administrative courts. If the oversight body is a local police body, it can be appealed. Judicial review is guaranteed because administrative decisions which cannot be appealed can be sued.
- The second type of complaint should be based on the infringement of fundamental rights. This complaint can be submitted within 20 days of the coercive act. The decision on this complaint is made by the national leader of the given police body (the High Commander, or High Captain [főkapitány] of the National Police, the Director of the Counter Terrorism Centre or the Director of the Internal Affairs Service). This decision is an administrative one, so it can be sued in the administrative courts. The difference in this type of complaint is that the decision of the national leader is based on the opinion of the Independent Law Enforcement Complaint Panel, which can be interpreted as an Ombudsman-type body, whose members are distinguished experts on the fundamental rights.
- These two types of complaint are regulated by Chapter IX (Articles 92-93/B) of the Rtv. The general procedural rules of the police bodies are regulated by the Act CL of 2016 on the Code of General Administrative Procedure.
Therefore, decisions on complaints are administrative ones which can be sued in the administrative courts. The procedure of the administrative courts is the procedure of the general administrative lawsuit. This judicial review is regulated by the Act I of 2017 on the Code of the Administrative Court Procedure. If the coercive act was done by a municipal policing body, there is a similar remedy. This is called a complaint (panasz). The complaint in the Act CXX of 2012, as a remedy against the coercive actions of officers of the public space surveillance, is an administrative proceeding. The complaint is decided by the leader of the general (and not the municipal) police authority. The decision on this complaint is a first tier administrative decision, that can be appealed to a second-tier administrative body, and these decisions can also be sued.
Resources
Annotated bibliography on Hungary
Blog Understanding the Practice of Police Stops in Europe – Homelessness criminalization in Hungary
