HUN-1999-3-005

a) Hungary / b) Constitutional Court / c)  / d) 25-06-1999 / e) 20/1999 / f)  / g) Magyar Közlöny (Official Gazette), 56/1999 / h) .

Keywords of the Systematic Thesaurus:

05.02

Fundamental Rights - Equality.

05.03.32

Fundamental Rights - Civil and political rights - Right to private life.

05.03.45

Fundamental Rights - Civil and political rights - Protection of minorities and persons belonging to minorities.

Keywords of the alphabetical index:

Sexual intercourse between siblings / Sexual orientation / Homosexuality.

Headnotes:

Article 203.3 of the Criminal Code, which holds that "unnatural" sexual intercourse between siblings of the same sex is unlawful but that "unnatural" sexual intercourse between siblings of different sexes in not, is contrary to the prohibition of discrimination.

Summary:

The petitioner sought to challenge the constitutionality of Article 203 of the Criminal Code. According to Article 203.1 of the Criminal Code, all sexual intercourse between persons who are direct descendants or ascendants related by blood (e.g. parents and children) is a crime. Article 203.3 provides that "normal" heterosexual intercourse and "unnatural" homosexual intercourse between siblings are misdemeanours. "Unnatural" heterosexual intercourse between siblings is not mentioned in this provision.

The petitioner argued that this provision as a whole violated Article 70/A of the Constitution which prohibits discrimination. The Court found the petition to the partially founded.

In its reasoning, the Court stated that the provision according to which all sexual intercourse between direct descendants or ascendants related by blood was a crime did not infringe the constitutional principle of the prohibition of discrimination, since, according to Articles 15 and 16 of the Constitution, the state shall protect the institutions of marriage and the family and make special efforts to ensure a secure subsistence, education and upbringing for young people and protect their interests. However, it held that Article 203.3 of the Criminal Code was unconstitutional since it differentiated arbitrarily between "unnatural" sexual intercourse between siblings of the same sex and siblings of different sexes.

Since under Article 70/A of the Constitution, discrimination on the basis of race, colour, gender, language, religion, political or other opinion, national or social origins, financial situation, birth or on any other grounds whatsoever is prohibited, Article 203.3 of the Criminal Code is unconstitutional.

Supplementary information:

Two judges attached a dissenting opinion that the challenged provision was not contrary to the Constitution.

Languages:

Hungarian.