Decision 19/2017. (VII. 18.) on annulling the decision on the uniform application of the criminal law No. 2/2016
6 November 2018
Decision number: Decision 19/2017. (VII. 18.)
Subject of the case:
On annulling the decision on the uniform application of the criminal law No. 2/2016 on interpreting sexual violence against a person under the age of 12 years
In the case of a sexual act committed against a victim under the age of 12 years – if the victim is a family member of the perpetrator or the victim is in the care, custody or supervision of, or receives medical treatment from the perpetrator – the Criminal Code differentiates between the acts performed by coercion and the ones committed with the victim’s consent. In case of committing the crime with coercion, the penalty shall be imprisonment between five to fifteen years, while in the case of acting with the victim’s consent the penalty shall be imprisonment between five to ten years. On the other hand, the uniformity decision of the Curia ruled that irrespectively to committing the criminal offence with coercion or with the victim’s consent, the perpetrator shall be punishable with imprisonment between five to fifteen years.
According to the judges who turned to the Constitutional Court, the uniformity decision was in conflict with the Fundamental Law as it draws conclusions contrary to the provisions of the Criminal Code to the detriment of the perpetrator by setting the maximum duration of the imprisonment in fifteen years instead of ten years. The Constitutional Court found the judicial initiatives to be well-founded. The Court established that the Criminal Code cannot be interpreted in a way supporting the content of the uniformity decision. Therefore if the relevant act is committed with the consent of the victim, the punishment can only be imprisonment of five to ten years as laid down in the Criminal Code. The Constitutional Court pointed out in its decision that the only limitation on the judicial interpretation of the law is the subordination to the Acts of Parliament and this limit should never be crossed in the interpretations.
The Constitutional Court also mentioned in the reasoning of its decision that if the lawmaker holds the review of the Criminal Code to be justified, it is free to apply the solution chosen by the Curia, however, it takes a decision by the Parliament. Thus, according to the decision, the Parliament may remove the sexual acts against children from the present framework and regulate it in the form of an individual statutory definition.
Judge Dr. Béla Pokol attached a concurring opinion and Judges Dr. Ágnes Czine, Dr. Ildikó Hörcherné Dr. Marosi, Dr. László Salamon, Dr. István Stumpf, Dr. Marcell Szabó and Dr. Péter Szalay attached dissenting opinions to the decision.