HUN-2000-2-004
a) Hungary / b) Constitutional Court / c)   / d) 06-06-2000 / e) 18/2000 / f)   / g) Alkotmánybíróság Határozatai (Official Digest), 6/2000 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
General Principles - Certainty of the law.
General Principles - Weighing of interests.
General Principles - Prohibition of arbitrariness.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - General questions - Emergency situations.
Fundamental Rights - Civil and political rights - Freedom of expression.
 
Keywords of the alphabetical index:
 
Information, false, freedom of expression / Public order / Public peace / Society, openness / Society, tolerant.
 
Headnotes:
 
It is against the free speech clause to punish a person who, in front of a large public gathering, asserts or distributes untrue facts or true facts in a way that may threaten to disturb the public order, since imposing penalties for such behaviour restricts freedom of expression in an unnecessary and disproportionate way.
 
Summary:
 
A judge of a district court initiated proceedings before the Constitutional Court for a preliminary ruling in a pending case on the basis that she considered one of the applicable provisions of the Criminal Code to be unconstitutional.
 
The petition asserted that Article 270.1 of the Criminal Code, according to which it was a misdemeanour to assert or to distribute untrue information or true facts in a way that may threaten to disturb the public order, violated Article 61 of the Constitution. Moreover, because the wording of the provision in question was too vague, there was a danger of its being interpreted it in a subjective way, contrary to the principle of prohibition of arbitrariness.
 
According to the Court, the behaviour subject to criminal penalties - the assertion or distribution of untrue information or true facts in a certain way - falls within the scope of the freedom expression clause. The value of the freedom of expression would be very low if it did not protect a person who distributed false information. The right to free expression protects opinions irrespective of the value or veracity of their contents.
 
Since the aim of the challenged criminal provision was to protect the public peace, the Court had to examine whether the mere possibility of the disruption of public peace justified the restriction of the right to freedom of expression. The Court cited its previous Decision no. 30/1992 of 26 May 1992, in which the Court had held that "public peace" itself is not unrelated to the conditions surrounding the exercise of the freedom of expression. Where one may encounter many different opinions, public opinion becomes tolerant, just as in a closed society an unusual voice may instigate much greater disruption of the public peace. In addition, unnecessary and disproportionate restriction of the freedom of expression reduces the openness of a society. On the basis of this, the Court in the instant case held that the legal definition of the misdemeanour amounted to an abstract protection of the public order and peace as an end in itself. A misdemeanour would be committed even if under the given circumstances the assertion of false information did not result in even the threat of violating an individual right. But such an abstract threat to public peace was not sufficient justification to permit, in accordance with the Constitution, the use of criminal law sanctions to restrict the right to freedom of expression, a right whose exercise is indispensable for the functioning of a democratic state under the rule of law.
 
As far as Article 270.2 of the Criminal Code was concerned, the Court held that the provision had to be examined in the light of Article 8.4 of the Constitution. According to Article 270.2 of the Criminal Code, a person who acted as described by Article 270.1 of the Criminal Code in an emergency situation or during a state of war would commit a criminal offence. Under Article 8.4 of the Constitution, during a state of national crisis, state of emergency or state of danger, the exercise of fundamental rights may be suspended or restricted, with the exception of the fundamental rights enshrined in Articles 54, 55, 56, 57.2, 57.3, 57.4, 60, 66, 67, 68, 69 and 70/E of the Constitution. That means that Article 8.4 allows the state to suspend or restrict the fundamental right to freedom of expression ensured by Article 61 of the Constitution in an emergency situation. But because subsection 2 of Article 270 was not a free-standing provision, the Court had to annul both subsections of Article 270 of the Criminal Code.
 
In addition, the Court held that Article 270.1 of the Criminal Code did not meet the standard of legal certainty as applied by the Court in its previous decisions, since when applying the challenged criminal provision an ordinary court judge had to take into account several commentaries and cases that were not legally binding, which could very well may lead to an arbitrary interpretation of the statute.
 
Supplementary information:
 
One judge attached a dissenting opinion to the judgment, in which he argued that the Court should have had to uphold the challenged criminal provision, since freedom of expression did not protect the dissemination of false information. It is contrary to the desired peace of society if everyone can say deliberately or publish false information.
 
Languages:
 
Hungarian.