a) Hungary / b) Constitutional Court / c) / d) 25-04-2004 / e) 18/2004 / f) / g) Magyar Közlöny (Official Gazette), 2004/70 / h) .
Keywords of the Systematic Thesaurus:
General Principles - General interest.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Freedom of expression. (Freedom of expression, regulation )
Keywords of the alphabetical index:
Hatred, incitement / Public order, threat.
When regulating hate speech, the legislator should take into account that the freedom of speech may be limited by criminal sanctions only in cases of what is known as the most dangerous conduct, that is to say, behaviour capable of stirring up such intense emotions in the majority of the people and, which upon giving rise to hatred, might result in the endangering of fundamental rights, which, in turn, could lead to the disturbance of the social order and public peace (this danger must be clear and present).
The subject of the case was the amendment of the Act on the Criminal Code, which was accepted on 8 December 2003 by the parliament and referred to the Constitutional Court by the President of Hungary. The amendment changed several elements of Article 269 of the Criminal Code on incitement to racial hatred, and completed it with the new paragraph 2.
Article 269 of the Criminal Code in force provides that anyone who, before a large public audience, incites hatred against the Hungarian nation, any other nationality, people, religion or race, or certain groups among the population commits an offence punishable by up to three years' imprisonment.
Article 269.1, as amended, would provide that anyone who, before a large public audience, inflames to hatred or calls for violent action against any nation, any other nationality, people, religion or race, or certain groups among the population commits an offence punishable by up to three years' imprisonment. Under the new paragraph 2, someone who publicly insults the dignity of a person because of his or her national, racial, ethnic or religious affiliation could be found guilty of a misdemeanour and be sentenced to up to two years' imprisonment.
Before the promulgation of the law in question, the President of Hungary challenged the above-mentioned provisions. According to the President, Article 269.1 violated Article 61.1 of the Constitution on the freedom of speech for the reason that the expression "inflame to racial hatred" risked lowering the threshold of punishability by the interpreting courts. As to the behaviour referred to in the term "calls for violent action", that term was unconstitutional, as it did not require the violation of individual rights. In the President's opinion, Article 269.2 also violated freedom of speech as it protected the public peace only in a way that was abstract and too general.
The Constitutional Court first had to resolve the issue whether changing the wording of the provision from "incite racial hatred" into "inflame to racial hatred" in Article 269.1 lowered the threshold of punishability. The Court emphasised that on the basis of its Decisions nos. 30/1992 and 12/1999 [HUN-1999-3-003], the legislator could limit freedom of speech by criminal sanctions only in the case of what was known as the most dangerous conduct. The Court also stressed that freedom of speech could not be restricted in a way as to lower the legal regulation's threshold of punishability under the limit of what was still considered constitutional.
The Court considered that in the case under review, the purpose of the legislator was to include in the term "inflame to hatred" not only the most dangerous conduct. The insertion of the term "inflame to hatred", the further emphasis on the call for violent action, and the joint treatment of those two new kinds of conduct of perpetration clearly indicated the legislator's intention to make punishable conduct that fell outside the concept of incitement to hatred, as defined in Decision no. 30/1992 of the Constitutional Court. By doing so, the legislator also made punishable behaviour that fell within the scope of freedom of expression and thus unnecessarily limited Article 61.1 of the Constitution.
When examining the term "calls for violent action", the Constitutional Court emphasised that the conduct of perpetration did not reach the level of punishability, and that the threat of violating a particular individual right was not a condition for committing the crime. The legislator wanted to make punishable the attempt to persuade others to take violent action. Apart from that, the disturbance of the public peace was not required for the commission of the crime, nor did the call for violent action have to be one that was fit for the purpose of disturbing the public peace. Endangering the public peace in such an abstract way did not justify the use of criminal sanctions.
Finally, the Court also examined the constitutionality of Article 269.2, under which a person who publicly insults the dignity of another because of the latter's national, racial, ethnic or religious affiliation could be found guilty of a misdemeanour and be sentenced to up to two years' imprisonment. It stated that according to its established practice, the expression of an opinion in the form of disparagement that did not reach the level of incitement to hatred was not punishable, since it fell within the scope of the freedom of expression (Article 61.1 of the Constitution). The Court also considered that when choosing the criminal sanctions to protect the right to human dignity and public peace against hate speech, the legislator did not choose the least restrictive means to limit the freedom of speech, but instead restricted the freedom of speech disproportionately. The Court reiterated its reasoning in Decision no. 30/1992 that abusive language needed to be answered by sanctions for which the payment of a large sum of damages would be considered as adequate. Criminal sanctions could be used for the defence of other rights and only when unavoidably necessary; however, they were not to be used as a means of shaping public opinion as to the manner of political debate.
Furthermore, the Court stressed that not all disparagements or humiliations violating human dignity on the basis of ethnical, racial or religious grounds amounted to a direct and obvious danger of disturbance of the public peace. In the absence of an actual breach of the public peace, the violation of the public peace remains an assumption, which was not enough for the limitation of the fundamental right to free speech. Consequently, both Article 269.1 and Article 2 were declared unconstitutional.
Decisions nos. 30/1992 (to be published in the Special Bulletin) and 12/1999, Bulletin 1999/3 [HUN-1999-3-003].