THE CONSTITUTIONAL COURT CALLED UPON THE LEGISLATOR TO AMEND THE REGULATIONS ON PROTECTING WITNESSES5 April 2019
The requirement of fair trial should not be injured in any official procedure, although the exact set of requirements may be different in the particular procedures. The Constitutional Court established: there is a lack of conformity with the Fundamental Law manifested in an omission, as the legislator failed to regulate the protection of the confidentially handled data of the witnesses when they fall under the scope of different Acts of procedure. The Constitutional Court called upon the Parliament to meet its legislative duty by 31 December 2019.
According to the decision of the Hungarian Competition Authority, the legal predecessors of the company petitioning the constitutional complaint committed a breach of the law when they held consultations about the prices of certain milled wheat products and they also divided the market between each other. The authority imposed on them a fine in the amount of HUF 1,000,000,000. At the beginning of the procedure, one of the companies that had participated in the cartel admitted the breach of law, provided detailed data about the operation of the cartel and its representatives subsequently became protected witnesses. The petitioner holds that – due to the false interpretation of the law by the Competition Authority – the witness received the status of “special protected witness” without any connecting procedural guarantees. According to the petitioner, the hearing of protected witnesses and using the relevant minutes as pieces of evidence violated the petitioner’s right to fair trial and the right to defence as it had no opportunity to verify whether the hearing of the protected witnesses took place in compliance with the procedural principles.
The Constitutional Court pointed out: the official procedures carried out in the cases of cartels may imply negative consequences similar to condemnation under criminal law for the person subject to the procedure, however, punishments seriously restricting the fundamental rights (e.g. imprisonment) shall not be connected to the anti-competitive behaviour. The competition supervision procedure is not a criminal procedure and the protection of witnesses in the administrative procedure does not need to provide the full scale of guarantees to the clients in the same manner as under criminal procedure law. The Constitutional Court held that the challenged regulation appropriately protects the right to personal data of the protected witness against the rights of the client of the official procedure, therefore it has rejected the relevant petition.
The Constitutional Court then examined whether the regulation of “protected witnesses” enforced in administrative procedures was in line with the requirements deductible from the Fundamental Law. Regarding cases of cartels, there can be a competition supervision procedure, an administrative action, a civil action, or – in the case of public procurement cartels – a criminal litigation as well. In these cases the participants of the processes of taking evidence are almost the same ones. There can be a case when the identity of the “protected witness” under the competition supervision procedure is revealed in another court procedure. This may affect adversely not only the person of the witness, but also other participants of the procedure. Based on the above, the Constitutional Court called upon the legislator to adequately regulate the protection of the witnesses’ confidentially handled data also in the case of different procedures.
Justices dr. Ildikó Hörcherné dr. Marosi, dr. Béla Pokol, dr. Balázs Schanda and dr. András Varga Zs. attached concurring reasonings, and Justices dr. Ágnes Czine, dr. Egon Dienes-Oehm, dr. Balázs Schanda, dr. István Stumpf and dr. Mária Szívós attached dissenting opinions to the decision. The full text can be accessed here and the data-sheet of the decision is available here.