HUN-2004-3-007

a) Hungary / b) Constitutional Court / c)  / d) 28-09-2004 / e) 34/2004 / f)  / g) Magyar Közlöny (Official Gazette), 2004/136 / h) .

Keywords of the Systematic Thesaurus:

03.17

General Principles - Weighing of interests.

03.18

General Principles - General interest.

04.05.11

Institutions - Legislative bodies - Status of members of legislative bodies.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.01

Fundamental Rights - Civil and political rights - Right to dignity.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

05.03.24

Fundamental Rights - Civil and political rights - Right to information.

Keywords of the alphabetical index:

Parliament, member, immunity, scope / Parliament, member, defamation, against public officials / Parliament, member, defamation, against private persons.

Headnotes:

A member of parliament cannot be held responsible for their defamatory statements made in front of a plenary session or a committee, if the person about whom the remarks are made is another member of parliament or a politician acting in public. A member of parliament's defamatory statements concerning the commission of another member of parliament (or another public person) or their governmental activity falls within the range of parliamentary freedom of speech.

On the other hand, a statement of fact or a rumour capable of offending the honour of the authority or the persons referred to above or an expression directly referring to such a fact will be punishable if the person who made the statement, spread a rumour or used an expression directly referring to such a fact, knew the essence of his or her statement to be false or did not know about its falseness because of his or her failure to pay attention or exercise caution expected of him/her pursuant to the rules applicable to his or her profession or occupation, taking into account the subject matter, the medium and the addressee of the expression in question.

A member of parliament will also be held responsible for libel and defamation relating to persons not exercising public authority and non-public persons. The protection of honour and reputation has to be respected even during parliamentary debate and parliamentary activity, and the protection of this right has to be secured by legislation, in cases not associated with public affairs and relating to the honour of public or private persons.

Summary:

The basis of the case was a petition for the partial annulment of the second sentence of Article 4 of Act LV of 1990 on the legal status of members of parliament ("the Act"). According to the petitioners, that provision, according to which, during their activity members of parliament could be held responsible for their statements of fact or value judgment, violated the principle of freedom of expression in Article 61.1 of the Constitution and the right of access to public information.

The special position of the freedom of expression has been strengthened by the Constitutional Court several times, which has emphasised that while this position does not lead to the freedom of expression being unlimited, it undoubtedly means that it has to yield only to very few other rights and that the freedom of expression can be restricted only exceptionally and exclusively for the protection of another fundamental right or another constitutional principle. The Court assigned free speech a privileged rank in the hierarchy of rights: it is protected regardless of its content and all other rights conflicting with it have to be interpreted restrictively.

Parliamentary freedom of speech is an essential part of the freedom of expression. An important scene for the manifestation of the freedom of expression is parliament, the place where members of parliament make decisions directly concerning the fate of the country, on the basis of arguments and counter-arguments. Constitutional lawmaking is unimaginable without public parliamentary debate and the right of members of parliament to speak. Real public debate and the free manifestation of the ensuing legislative intent, however, are endangered if members of parliament can be held criminally liable for their statements in the parliamentary debate. Parliamentary immunity is one of the main guarantees of parliamentary freedom of speech, which means that members of parliament can freely debate public affairs, without the fear that their statements can be used against them in a criminal proceeding or a civil action afterwards. An important part of the duty of members of parliament is to check on the legislation, for which access to necessary public information is indispensable.

Free parliamentary debate of public affairs is thus one of the indispensable preconditions of legislation. It also enables voters to form an accurate notion of the activity of members of parliament and other significant public persons, and to take part in political discourse and decision-making in possession of adequate information.

According to Decision 30/1992 the right to human dignity can be a barrier to the freedom of expression. In Decision 8/1990 the right to human dignity is considered a definition of the general personal right, one aspect of which is the right to privacy and the protection of honour. Means of protecting honour can be found in criminal and private law and as the Constitutional Court stated in Decision 36/1994 "The use of criminal law in the protection of human dignity, honour and reputation cannot be considered, in general, to be disproportionate, and thus unconstitutional". At the same time, the decision drew attention to the fact that because of the high constitutional value of the freedom of expression in public matters, the protection of the honour of authorities and public officials as well as other public figures can justify less restriction on the freedom of expression than the protection of the honour of private persons.

The Court then examined the question, on the basis of the second statement of Article 4 of the Act, which behaviour parliamentary immunity does not protect and whether the threat of criminal liability can be justifiable in the case of such behaviour.

As regards the question of how statements of facts of libel and defamation can be constitutionally applied to the freedom of speech of politicians acting in public, Decision 36/1994 gives guidance. For the definition of the parliamentary immunity of members of parliament it is essential to consider the constitutional requirements contained in the decision. In relation to persons and institutions exercising public authority and politicians acting in public, the decision makes a distinction between a value judgment and a statement of fact, making the former unpunishable and the latter punishable in certain cases.

On the basis of the constitutional requirement stated in the decision, the expression of a value judgment capable of offending the honour of an authority, of an official person or of a politician acting in public, and expressed with regard to his or her public capacity, is not punishable under the Constitution.

In other words, parliamentary immunity should be extended to cover statements of opinion containing value judgements of members of parliament, concerning other members of parliament, persons exercising public authority or politicians acting in public, and relating to public affairs. In the case of a statement of fact or a rumour capable of offending honour or an expression directly referring to such a fact, parliamentary immunity can only be suspended if the member of parliament knew the statement to be essentially false.

On the basis of the first part of the previously mentioned constitutional requirement, members of parliament therefore have criminal liability only for deliberately untrue statements offending their fellow members, other persons exercising public authority or politicians acting in public. For the sake of political freedom of expression the decision defined the constitutional content of Articles 179 and 180 of the Criminal Code, and the Court has to consider this when judging cases relating to public affairs concerning public persons.

The present decision of the Court emphasises that the constitutional value of the freedom of expression and freedom of the press relating to public affairs is outstandingly high, as one of the essential elements of Article 61.1 of the Constitution is the free debate of public affairs and the free criticism of public persons. In this way the Court found the above mentioned constitutional requirement authoritative according to the following.

On the basis of the constitutional requirement of the decision, persons exercising public authority or other public persons may only invoke libel or defamation within the limited scope defined by the Court. The criminal offence of libel defined in Article 179 of the Criminal Code can now only be committed deliberately, and it is enough to establish that the perpetrator is aware that the statement is capable of breaching honour.

The Court emphasised that the constitutional requirement of the decision can by no means mean that the legislature should make the Criminal Code suitable for the punishment of a criticism of public persons in the case of defamation if the perpetrator did not know about the falseness of his/her statement or rumour because of his or her failure to pay attention or exercise caution expected of him/her pursuant to the rules applicable to his or her profession or occupation, taking into account the subject matter, the medium and the addressee of the expression in question. This would violate the freedom of political expression enshrined in Article 60.1 of the Constitution. In this way the Court upheld the constitutional requirement stated in the decision.

The contested part of Article 4 of the Act is in this way not unconstitutional in itself, since the limitation of the freedom of expression can be justified in defence of the right to personal dignity of private persons and the protection of honour of public persons, in cases not relating to public affairs.

Languages:

Hungarian.