HUN-2000-2-001

a) Hungary / b) Constitutional Court / c)  / d) 05-12-1999 / e) 13/2000 / f)  / g) Magyar Közlöny (Official Gazette), 46/2000 / h) .

Keywords of the Systematic Thesaurus:

02.01.03.02.01

Sources - Categories - Case-law - International case-law - European Court of Human Rights.

04.02

Institutions - State Symbols.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

Keywords of the alphabetical index:

National symbol, denigration / Human dignity, as community right.

Headnotes:

It is not against the free speech clause of the Constitution to punish a person who, in front of a large public gathering, uses an offensive or denigrating expression with reference to the Hungarian anthem, flag or coat of arms or commits other similar acts. However, criticising the national symbols, expressing scientific views relating to their history, their value or their significance, their artistic illustration or representation and suggestions on changing these symbols fall within the scope of the free expression clause of the Constitution.

Summary:

The Constitutional Court based its argument upon Articles 75 and 76 of the Constitution. Under these provisions, the national symbols are constitutional values and therefore subjects of constitutional protection. According to the Court, the national symbols have two meanings. First, they are the symbols of the sovereignty of the Hungarian State. Second, these symbols can be used to express one's feelings on belonging to the Hungarian State and community. Therefore, many people would be outraged, shocked and deeply offended by the destruction of symbols which they hold in great respect. In addition, because of the last decade of history in Hungary, as a result of which the importance of the national symbols increased, it is justified to protect these symbols even in the Criminal Code. On the basis of the above, the Court found the challenged criminal provision justified and necessary. As far as the proportionality of the provision protecting the national symbols is concerned, in the Constitutional Court's view, the impact on and consequences for the society of the behaviour prohibited by the challenged provision is so grave that other forms of responsibility, such as the application of the instruments of civil law liability, would be inadequate for dealing with the perpetrators of such behaviour. In addition, the sanctions applied by the criminal provision are the least serious sanctions.

Supplementary information:

Four judges attached concurring opinions to the decision. Justice Erdei held that conviction for using an offensive or denigrating expression against the Hungarian anthem, flag or coat of arms or committing other similar acts was not inconsistent with the free expression clause of the Constitution, for two reasons. First, as the Court emphasised, the freedom of expression in this case met constitutional standards. Second, the legislator restricted free expression in the interest of the community's dignity, in this case that of the Hungarian nation. According to Justice Erdei, the Court should have based its decision partly on the community's right to human dignity.

Justice Harmathy emphasised that the Court should have taken into account those decisions of the European Court of Human Rights which recognised one's religious faith (others' rights and interests) as a legitimate aim to limit free expression. According to him, the feeling of belonging to a nation is similar to the feeling of belonging to a religion.

Justice Kukorelli noted in his concurring opinion that because the challenged provision of the Criminal Code was too vague to meet the standard set by the Constitutional Court in its earlier decisions, the Court in the instant case should have reduced the excessive broadness of the examined provision by assessing which acts were protected by the constitutional provision of freedom of expression and which were not.

Last, but not least Chief Justice Németh emphasised that the fact that the Constitution included provisions dealing with the national symbols had nothing to do with the constitutionality of the criminal provision in question. According to him, the provision was not contrary to the Constitution, because, as the European Court of Human Rights emphasised in its recently published Rekvényi case, the past decade of history in Hungary justified such a restriction.

Languages:

Hungarian.