HUN-2002-3-004
a) Hungary / b) Constitutional Court / c)   / d) 04-09-2002 / e) 37/2002 / f)   / g) Magyar Közlöny (Official Gazette), 2002/123 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
General Principles - Weighing of interests.
General Principles - General interest.
General Principles - Reasonableness.
General Principles - Prohibition of arbitrariness.
Fundamental Rights - General questions - Entitlement to rights - Natural persons - Minors.
Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Rights of victims of crime.
Fundamental Rights - Civil and political rights - Right to private life.
 
Keywords of the alphabetical index:
 
Sexual orientation / Homosexual, offence, punishment / Child, protection.
 
Headnotes:
 
It is necessary that a criminal provision for differentiation between non-fundamental rights not be unjustified, that is, not be arbitrary, and not violate inalienable human dignity. Heterosexual and homosexual orientation equally belong to the essence of human dignity and, therefore, exceptional justification is required for them to be separated from one another and for the unequal treatment of the dignity of persons in question.
 
The duty of the state to protect the interest of children arising from Article 67.1 of the Constitution is not a strong enough constitutional justification where, in relation to criminal provisions protecting children's healthy sexual development from the influence of adults, protected age is determined differently on the basis of whether sexual activity takes place between persons of the same or the opposite sex.
 
Summary:
 
In the course of a petition for ex post facto norm review and review proceedings initiated by a court, the Constitutional Court struck down the sodomy laws in the Hungarian Criminal Code (HCC) which were aimed at sexual activity between members of the same sex (the offences of engaging in an unnatural sexual act with a person with consent of that person and engaging in an unnatural sexual act with a person without the consent of that person). By the terms of the Criminal Code, a person over 18 years of age engages in an unnatural sexual act where he or she has sexual contact with a 14-to-18 year old person of same sex with his or her consent. However, it is not a crime for persons of 14-18 years of age to engage in sexual activity with each another, be they members of the same or opposite sex.
 
A sexual act is any act of gross indecency, with the exception of sexual intercourse, aimed at causing sexual arousal or gratification [HCC 210/A. § (2)].
 
In dealing with the offence of engaging in a sexual act with a person without the consent of that person, the Hungarian Criminal Code uses the same considerations for the commission of the crime and its punishment, but separate legal provisions. The name of the offence is a "crime against pudency" (Article 198 of HCC) where the perpetrator and the victim are of the opposite sex, and it is called "engaging in an unnatural sexual act with a person without the consent of that person" (Article 200 of HCC) where the perpetrator and the victim are of the same sex. The legislature differentiates between the two offences in that a crime against pudency is punishable only on the basis of private prosecution, whereas engaging in an unnatural sexual act without the consent of the other person is punishable independent of the plaintiff's wishes (Article 209 of HCC).
 
After a detailed analysis and comparison of legal history, the Constitutional Court examined the relevant decisions of European legal fora and it declared the provisions in question to be unconstitutional. According to the Constitutional Court, Article 199 of HCC is contrary to Article 70/A.1 of the Constitution on the ground that it is unjustifiable on the basis of objective facts, thereby making an arbitrary distinction based on sexual orientation of persons over 18 years of age who have engaged in sexual activity with persons from 14-to-18 years of age with their consent.
 
1. In the question of the constitutionality of Article 199 of HCC, the Constitutional Court did not base its decision on the so-called necessity test, but rather on the rationality test applied in the case of constitutional review of Article 203.3 under which "unnatural" sexual intercourse between siblings of the same sex was unlawful (Bulletin 1999/3 [HUN-1999-3-005]).
 
According to the Constitutional Court, in the case of Article 199 of HCC a comparable group is formed by those persons over the age of 18 who engage in a sexual act with younger persons who are over 14 years of age with their consent. Under Article 199 of HCC, distinction within this group is made, in a particular case, exclusively on the basis of the sexual orientation of the man or woman over the age of 18.
 
The legislature identifies the legal purpose of the offence in Article 199 of HCC as the promotion of the healthy sexual development of the young. On the basis of Article 67.1 of the Constitution, the state has a constitutional duty of protection towards all members of this age group to ensure their adequate physical, psychological and moral development, and their healthy sexual development also falls within that protection. One of the means that can be used to meet that legal responsibility of protection is criminal punishment. Under Article 199 of HCC, in the 14-to-18 year old age group, the mere sexual orientation of a young boy or girl in a particular case may form the basis of the state's interference by way of criminal law into his or her sexual activity with an adult person.
 
Heterosexual and homosexual orientations equally belong to the essence of human dignity and, therefore, exceptional justification is required for them to be separated from one another and for the unequal treatment of the dignity of the persons in question. Such justification is, for example, the differentiation of homosexual orientation in the case of the right to marry (Bulletin 1995/1 [HUN-1995-1-002]).
 
The possible differences in heterosexual and homosexual development are undoubtedly strengthened by a social environment showing a lack of understanding or rejection of a relationship. Differences can be pointed out in the personal development of teenage boys and girls, too. Historically these differences led to - among others - different treatment in criminal law of the sexual relationship between men and women in most European countries.
 
According to the Constitutional Court, these differences do not, however, constitute a reasonable and objective justification for the state to define protected age differently.
 
2. It was also because of a violation of Article 70/A.1 of the Constitution that the Constitutional Court found Article 200 of HCC unconstitutional. There is no reasonable justification for the legislature to treat the crime against pudency and that of engaging in an unnatural sexual act without the consent of the other person as different offences exclusively on the basis of the sexual orientation of the perpetrators, just as there is no reasonable justification for the different rule of making the possibility of punishing the offence subject to private prosecution.
 
As to the punishment and commission of the offence, the expressions "engaging in an unnatural sexual act without the consent of the other person" defined in Article 200.1 and "crime against pudency" defined in Article 198.1 of HCC are perfectly similar. In addition to the similar qualifying conditions and punishments, the differentiation of the criminal provisions between the two offences is based exclusively on the sexual orientation of the perpetrator. The Constitutional Court has seen no reasonable and objectively justifiable ground for such differentiation.
 
The Constitutional Court found another legal differentiation leading to discrimination, namely, that of the perpetrator of a crime against pudency being punishable only upon the victim's private prosecution, whereas the perpetrator (of the crime of engaging in an unnatural sexual act without the consent of the other person) is punishable regardless of the victim's wishes.
 
Making the punishment of forced sexual acts subject to private prosecution serves to protect the victim's privacy. It is the competence of the legislative power to decide whether a perpetrator's punishment at all costs or the protection of a victim's privacy is the more significant interest.
 
The legislative power decides on the basis of a weighing of the importance of public interests (the state's duty to punish crimes) and private interests (respect for the victim's private sphere). The victims of crimes against pudency and engaging in an unnatural sexual act without the consent of the other person form a homogeneous group. From the point of view of the victim, it is mere coincidence whether he or she falls victim to a heterosexual or homosexual perpetrator; from the point of view of the protection of his or her private sphere, the sexual preference of the perpetrator makes no difference. Within that homogeneous group of victims of sexual crimes, differentiation between victims is made arbitrarily, and, in that respect, unconstitutionally.
 
Moreover, the differences in the likelihood of punishment based upon private prosecution between the cases of crimes against pudency and engaging in an unnatural sexual act without the consent of the other person are also discriminatory from the point of view of the perpetrators. It is not justifiable to make a distinction between similarly punishable perpetrators of heterosexual and homosexual violence, which would deem it acceptable in the former case to consider the victim's wishes and deem it unacceptable in the latter case.
 
Supplementary information:
 
In reference to the striking down of the provision on engaging in an unnatural sexual act with a person with the consent of that person, Justice Németh stated the following in his concurring opinion: the parties taking part in the proceedings have not shown sufficient justification for a declaration of the constitutionality of the differentiation. Justice Kiss in another concurring opinion found the lack of objective grounds insufficient for the staking down of the provision, and emphasised that the state had to have an active role in the shaping of children's sexual orientation. In a separate opinion, Justice Strausz questioned the striking down of the provision, stating that state protection was justified, as "the pursuit of a sexual life different from the standard and biologically normal sexual orientation requires a serious decision, commitment, even the undertaking of social disadvantages". Justice Vasadi found neither the provision on the offense of engaging in an unnatural sexual act with a person with consent of that person nor that on engaging in an unnatural sexual act with a person without the consent of that person to be unconstitutional. In her opinion, the fact that the making of the decision as to whether there was an objective reason for the differentiation between homosexual and heterosexual perpetrators did not fall within the duty of the Constitutional Court but rather within that of social and natural sciences, was ground for upholding the former provision. The different treatment in criminal law of the crime against pudency and that of engaging in an unnatural sexual act without the consent of the other person is explained by the fact that the latter is directed not only against sexual freedom, but also against sexual self-definition. The so-called "majority view" may, in turn, be the basis for judging a particular crime more strictly.
 
Cross-references:
 
-<IN:0.25,0,-0.25>   Decision no. 14/1995 of 13.03.1995, Bulletin 1995/1 [HUN-1995-1-002];
 
-<IN:0.25,0,-0.25>   Decision no. 20/1999 of 25.06.1999, Bulletin 1999/3 [HUN-1999-3-005].
 
Languages:
 
Hungarian.