Children forced into prostitution sent to jail? Provisions of the Misdemeanour Act ruled unconstitutional

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The Constitutional Court has finally ruled after two years in the case of the client of the Streetlawyer Association that children cannot be punished for prostitution. The Court has also found that the Misdemeanour Act did not adequately ensure the right to redress.

The client of the SLA, Anna, was convicted in 2017 for illegal prostitution. Anna’s father died young, her disabled mother raised her alone with her siblings. After losing their home, Anna and her siblings were taken to an orphanage. Anna came into contact with prostitution here. After the court ordered the juvenile Anna to pay a fine of HUF 50,000 (~EUR 170) for violating the rules prohibiting prostitution, we crowdfunded the fine for her and in the spring of 2018 we applied to the Constitutional Court.

For more than two years, the Constitutional Court has heard the case in an unusually large number of six sessions. Finally, in its decision released on Friday, ruled that several parts of the Misdemeanour Act are unconstitutional.

On the one hand, because the law hardly contains a rule in case someone wants to file a written appeal against a court decision taken at a hearing. In the case of the Streetlawyer, although the court briefly described its decision orally at the hearing, Anna received the specific order only after the court of second instance had already ruled on it. This closed the case legally. If not enough money had been raised from voluntary donations, then

Anna should have gone to an adult penitentiary at the age of 16 instead of school.

The Constitutional Court has also ruled that it is unconstitutional for the state to threaten children between the ages of 14 and 18 with imprisonment instead of providing child protection assistance. Punishing child prostitutes is not new, nor has it bothered previous governments to hold sexually exploited children accountable by authorities. As early as 2011, the Commissioner for Fundamental Rights (Ombudsman) indicated that the situation was unacceptable. In another report in 2018, he again called on the government to refrain from punishing children, as prostitution for children is always the result of coercion and exploitation, not the fulfillment of a child’s “free will”.

The government amended the law this year as a result of international and domestic criticism, so from July 1, 2020, children will no longer be punished in all cases. However, the bill itself highlights that many prostitution behaviors continue to be penalised, even if it is a 14-year-old. For example, if a child is prostituted in a private area without a health certificate, it is “harassing,” offering, or promoting another “sexual service” of the child. The Court did not address these criminalisation options.

According to the opinion of the Misdemeanour Working Group, formed by the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Streetlawyer Association, the decision of the Constitutional Court was a necessary but not a sufficient step in protecting children, as the government amended the law to continue to punish children forced into prostitution. Moreover, even after the amendment of the law, an effective, institutional response aimed at changing the conditions for prostitution is not provided. Placing a child in a special orphanage is only a symptomatic treatment, which provides a temporary solution to the situation.

Noémi Molnár, a volunteer lawyer, represented Anna in court:

“We are generally content with the decision, as the Hungarian Constitutional Court has now pointed to an unfair situation to which neither left-wing nor right-wing governments paid attention to for decades. Children are victims and not perpetrators. They need support, not being locked up in an adult penitentiary. However, I find it strange from the point of view of the rule of law that the Constitutional Court waited more than two years and then made public its decision days after the government’s amendment to the law came into force. ”

We would like to thank lawyer János Bólyai, social worker Dés Fanni, sociologist Viktória Sebhelyi and constitutional lawyer Flóra Kollarics for their help in Anna’s case.