a)  Hungary / b)  Constitutional Court / c) / d)  26-05-1992 / e)  30/1992 / f) / g)  Magyar Közlöny (Official Gazette), 53/1992 / h) .
Keywords of the systematic thesaurus:
General Principles - Democracy.
General Principles - Nullum crimen, nulla poena sine lege.
General Principles - Proportionality.
General Principles - Prohibition of arbitrariness.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Freedom of expression.
Keywords of the alphabetical index:
Hate speech / Hatred, incitement.
The freedom of expression is the "umbrella right" of the fundamental rights of communication. Free expression of ideas and beliefs, free manifestation of even unpopular or unusual convictions, is fundamental to a pluralist, democratic society. The constitutional boundary of the freedom of expression has to be drawn in such a way that in addition to the individual's subjective right to free expression, it is necessary to consider the (free) formation of public opinion as an indispensable democratic principle.
The petitioners sought the ex post facto review of the constitutionality of Article 269 of Act IV of 1978 on the Criminal Code.
Article 269.1 provides that anyone who, before a large public audience, incites hatred against the Hungarian nation, any other nationality, people, religion or race, or certain groups among the population commits an offence punishable by up to three years' imprisonment. Under paragraph 2 of the same article, anyone in the same circumstances who uses an offensive or denigrating expression or commits similar acts against the groups above commits an offence punishable by up to one year's imprisonment, corrective training or a fine.
The petitioners submitted, inter alia, that Article 269 was unconstitutional because it punished behaviour which fell within the scope of the freedoms of expression and of the press under Article 61 of the Constitution, the freedom of thought under Article 60 of the Constitution and the right of asylum under Article 65 of the Constitution.
In approaching the question of the constitutionality of Article 269 of the Criminal Code, it was necessary to examine the dividing line between the freedoms of expression and of the press on the one hand, and behaviour prohibited as criminal and subject to criminal sanction on the other. It was important to determine whether and on what terms a constitutional fundamental right might be limited or restricted, and if two such rights conflict on what criteria one of them would take priority. The State could only restrict a fundamental right in order to protect or realise another if the restriction was proportional, and even then the legislature was required to use the least restrictive means available for the achievement of its objective. It was not permissible to impose restrictions that were arbitrary, unjustified or disproportionate to the objective to be achieved.
The restriction of the freedom of expression and the freedom of the press under Article 269.1 was justified by the historically proven harmful effect on certain groups of incitement to hatred, the protection of fundamental constitutional values and the fulfilment of international treaty obligations by Hungary. Further, the impact and consequences for an individual and society of the prohibited behaviour were so grave that other forms of accountability (e.g. civil liability) were inadequate to deal with persons who publicly incited racial hatred. Consequently, since only a criminal sanction was sufficient to respond effectively to the behaviour, it was important to scrutinise strictly which breaches of the law against inciting racial hatred were punishable by criminal sanctions: thus criminal sanctions could only be applied when absolutely necessary and only as justified in accordance with the principle of proportionality if, as in the present case, there were no other means of protecting the State under the rule of law and in line with its social and economic aims and values.
Moreover, Article 269.1 was sufficiently definite and did not define too broadly the scope of behaviour subject to criminal sanction. Constitutional criminal law required that the provision designating a type of behaviour against which criminal sanctions may be applied must be specific, clearly defined and demarcated. Thus a clear expression of the legislative intent concerning the content of the unlawful act was also necessary. The definition of the crime had to contain an unequivocal message putting a person on notice as to when a crime would be committed, while simultaneously minimising the opportunity for arbitrary interpretation by those applying the law. Incitement to hatred included behaviour which was capable of whipping up such intense emotions in the majority of the people that they might, upon giving rise to hatred, might result in the disturbance of social order and peace; this also included the danger of the large scale violation of individual rights. Bearing in mind the danger to individual rights and through this the threat to public order, the restriction on the freedom of expression in Article 269.1 was to be regarded as necessary and proportionate, and accordingly constitutional.
Article 269.2 of the Criminal Code, however, was unconstitutional. The freedom of expression had only external boundaries: unless and until it clashed with such a constitutionally-drawn external limit, the opportunity and fact of the expression of opinion was protected irrespective of the value or veracity of its content. The Constitution guaranteed free communication - as a manifestation of individual behaviour and as a social process - and it was not the content to which the right of free expression related. Although everyone was entitled to support or oppose an opinion provided that some other right was not violated to such an extent that freedom of expression was pushed back, Article 269.2 did not establish an external boundary; rather, it classified opinion on the basis of content. The message conveyed by certain words was so clearly linked to a given situation and cultural context (which was subject to change) that the abstract, hypothetical definition of an offensive or denigrating expression - in the absence of an actual breach of the peace - was a mere assumption which did not sufficiently justify the restriction of the external boundary, i.e. the violation of another right, which was itself uncertain.
Moreover, a further distinction had to be made between incitement to hatred under Article 269.1 and the use of offensive or denigrating expressions under Article 269.2. Apart from public gatherings, the "public at large" effectively meant the press. The freedom of the press now meant that anyone speaking out publicly could not invoke external compulsion, and any journalist or writer risked his entire moral credibility through his writings. Anyone known for using scurrilous or derisive language would earn a reputation for this: such abusive language needed to be answered by sanctions for which the payment of a large sum of damages would be considered adequate. Criminal sanctions, as previously indicated, could be applied for the defence of other rights and only when unavoidably necessary; they were not to be used as a means with which to shape public opinion or the manner of political debate. Consequently, Article 269.2 would be declared null and void.