HUN-2000-2-002
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.
 
Headnotes:
 
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.
 
Summary:
 
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.
 
Supplementary information:
 
Justice Holló attached a concurring opinion to the judgment, in which he emphasised that the main reason for criminalising certain uses of the symbols of the communist and nazi regimes was to protect the values enshrined by Articles 2.1 and 3 of the Constitution (democracy and the rule of law). In his opinion, it is within the scope of the free expression clause of the Constitution to use these symbols as a trademark, or to wear them in a coat. The Court, therefore, should have narrowed the scope of the challenged criminal provision in order to harmonise it with the right to freedom of expression.
 
Based upon Constitutional Court Decision no. 30/1992, in which the Court held that the right of expression has a special place among the constitutional fundamental rights, in effect amounting to the "mother right" of the so-called fundamental rights of communication, Justice Kukorelli argued in his dissenting opinion that the challenged provision restricted the freedom of expression guaranteed in Article 61.1 of the Constitution to an unnecessary and disproportionate degree and was therefore unconstitutional.
 
According to Justice Kukorelli, the disputed provision of the Criminal Code does not meet the requirements imposed on restrictions of rights. As the Constitutional Court declared in its previous decision, the laws restricting the right to freedom of expression must be strictly construed. The laws restricting this freedom are to be assigned greater weight if they directly serve the realisation or protection of another individual fundamental right, a lesser weight if they protect such rights only indirectly through the mediation of an institution, and the least weight if they merely serve some abstract value as an end in itself (public peace, for instance). In the instant case, the challenged criminal provision limits this fundamental right in the interest of maintaining the public peace. Using, distributing and displaying the symbols of the communist and nazi regime does not violate anyone's right to human dignity. It is, in itself, unable to result in this infringement. Moreover, the right to human dignity is an individual right, and not the right of an unidentifiable group of people. The subject of the right to human dignity is not a group, not a community, but the individual. The fact that using these symbols could very well hurt the feelings of those who survived the communist and the nazi regimes, does not mean that the right to human dignity of these people is at stake. No one has the right to force the state to restrict a kind of speech because it hurts his or her feelings.
 
The Court in its Decision no. 30/1992 declared that the right to the free expression protects opinions irrespective of the value or veracity of their content. Therefore when someone expresses that he or she agrees with the view represented by the dictatorships of the century, this could not be punished constitutionally. That does not mean that the state could not differentiate between democratic and anti-democratic movements; the state can take steps against the latter without violating the right to freedom of expression.
 
Last, but not least, in Justice Kukorelli's view the criminal sanctions applied by the challenged provision could not be justified by the unique historical circumstances of Hungary, either. On the contrary, the past of this country would justify greater freedom of expression in order that the public opinion will become more and more tolerant.
 
Languages:
 
Hungarian.