a) Hungary / b) Constitutional Court / c) / d) 21-05-1999 / e) 12/1999 / f) / g) Magyar Közlöny (Official Gazette), 44/1999 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Rule of law.
General Principles - Certainty of the law.
General Principles - Clarity and precision of legal provisions.
General Principles - Legality.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Freedom of expression.
Keywords of the alphabetical index:
Hatred, incitement / Sanction, criminal.
By penalising any kind of act which could incite hatred among the general public against the Hungarian nation, any national, ethnic or racial group or certain groups of the population, the Criminal Code violated the constitutional principle of legal certainty, since the provision in question was not clearly defined and specific. A clear expression of the legislative intent concerning the content of the unlawful act is a constitutional requirement.
The petitioners sought a determination of the unconstitutionality of Article 269 of the Criminal Code, under which a person who incites hatred or carries out another act which could incite hatred among the general public against the Hungarian nation, any national, ethnic or racial group or certain groups of the population, commits a criminal offence. In the petitioners' view, the part of the provision under which acts which could incite hatred were punishable violated the constitutional principle of legal certainty and the fundamental right to freedom of expression.
The Court, referring to its previous Decision no. 30/1992 (V. 26), emphasised that according to the requirements of constitutional criminal law, any provision defining behaviour punishable under criminal law must be specific and clearly defined. An unequivocal message must be contained in the definition, placing the person on notice as to when he commits a crime sanctioned by criminal law. The Court therefore had to examine whether Article 269 was sufficiently definite and did not define the type of behaviour subject to criminal sanction too broadly.
By failing to define specifically the act which was unlawful, the Court held that the provision of the Criminal Code in question violated the principle of the rule of law and legal certainty and restricted the freedom of expression guaranteed in Article 61.1 of the Constitution to an unnecessary and disproportionate degree. It was therefore unconstitutional.