Abstract
The purpose of this article is to present the legal protection of detainees provided by constitutional courts in relation to fundamental rights enforced during the execution of criminal sentences. The research is based on certain decisions of the Hungarian Constitutional Court and the Italian Constitutional Court in the field of penitentiary law. The paper first examines the constitutional normative level (ie. the text of the Constitutions). After examining the relevant provisions (fundamental rights and constitutional principles), the article analyses the purpose of punishments, its constitutional implications, and the most important decisions related to punishments and to penitentiary law, by studying the constitutional jurisprudence. From a comparative perspective, the article seeks answers also to the following procedural differences: who can initiate the procedures of the constitutional courts, (if individual claims are possible or only judges can initiate the constitutional procedure), whether the constitutional right protection is on an abstract or concrete level, and if there is any requirement of exhausting prior legal remedies. By studying legal practice in the light of the latest developments, we can also find answers to the question of what competing fundamental rights and constitutional values can justify the restriction of fundamental rights of convicted persons, based on the case law of the two constitutional courts. Certain major decisions shed light on the latest developments and remedies that are available for the convicted people in order to seek constitutional protection. The article also shows what the role of the Constitutional Court can be in the protection of the fundamental rights of detainees. The research focuses mainly on the national constitutional level, therefore international law and EU law are not within the scope of the article.
Keywords: penitentiary law, constitutional rights of prisoners, constitutional criminal law, constitutional standards for penitentiary institutes, right to life and dignity, comparative law, limitations of fundamental rights, law enforcement
I. Introduction
The thirty-fifth anniversary of the foundation and operation of the Constitutional Court of Hungary gives an occasion to analyse its practice from different points of view. In order to have a wider view, it is worth to compare the procedural and substantial foundations and the practice with the regulation and case-law of another country. We chose the Italian Constitutional Court as a point of reference as it has a nearly seven-decade practice and wide jurisprudence on the protection of those in penitentiary institutes. The purpose of this article is, with the help of the comparative method, to present the constitutional level of legal protection provided to those condemned to imprisonment in Hungary and in Italy. The Article gives a light on the protection given by constitutional courts in relation to fundamental rights enforced during the execution of criminal sentences, based on certain decisions of the Hungarian Constitutional Court and the Italian Constitutional Court in the field of penitentiary law.
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service.