a) Hungary / b) Constitutional Court / c) / d) 05-12-1999 / e) 14/2000 / f) / g) Magyar Közlöny (Official Gazette), 46/2000 / h) .
Keywords of the Systematic Thesaurus:
Sources - Hierarchy - Hierarchy as between national sources - Hierarchy emerging from the Constitution - Hierarchy attributed to rights and freedoms.
General Principles - Democracy.
General Principles - Weighing of interests.
Fundamental Rights - General questions - Entitlement to rights.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Freedom of opinion.
Fundamental Rights - Civil and political rights - Freedom of expression.
Keywords of the alphabetical index:
Symbol, communist / Symbol, nazi / Public order / Human dignity, as community right / Constitution, values.
The conviction of a person for using, distributing and displaying symbols of the communist and nazi regimes: red square, SS-symbol, swastika, arrow-cross, hammer and sickle in front of a large public gathering is not inconsistent with Article 61 of the Constitution, according to which everyone has the right to freedom of expression.
In the petitioners' view, the provision of the Criminal Code under which it is prohibited to use, distribute or display to the public symbols of the communist and nazi regimes violates Article 61 of the Constitution, which guarantees everyone the right to freedom of expression.
The Court, however, did not share the opinion of the petitioners. It reasoned that because it was only ten years since Hungary had begun its transition to democracy the existence of such a provision in the Criminal Code was justified. The other reason why the Court upheld the provision was that in the view of the majority of the Court, in order to protect the dignity of the communities and the public peace it was necessary to prohibit the distribution and dissemination of symbols of the communist as well as the nazi regime.
Maintaining the public order in itself would not be enough reason to restrict one of the most important fundamental rights of the individual; however, when an act breaches the public peace by infringing the dignity of a community determined by democratic values, the legislator has the right to protect the community and through this the public order by the least restrictive available measure. In this case, the Court found, there was no other means available to protect the dignity of the community and to maintain the public order. In addition, the Court pointed out that the challenged criminal provision did not punish those who use, distribute or display the symbols aiming at educating or informing the public about historical events or in order to illustrate them as an artistic expression.
The Constitution is not a document lacking values. It is based on democratic values and the free expression clause of the Constitution does not protect speech inconsistent with these values. The symbols in question were symbols of political dictatorships and the core idea which could be expressed by wearing these symbols is contrary to Article 2.3 of the Constitution, under which no activity of any organisation of society, state organ, or citizen may be directed at the acquisition or exercise by force of public authority, nor at its exclusive possession. Everyone has the right and obligation to resist such activities in a lawful manner.