a) Hungary / b) Constitutional Court / c) / d) 03-07-2008 / e) 96/2008 / f) / g) Magyar Közlöny (Official Gazette), 2008/98 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Right to respect for one's honour and reputation.
Fundamental Rights - Civil and political rights - Protection of minorities and persons belonging to minorities.
Keywords of the alphabetical index:
Hatred, incitement / Defamation, racial.
Only natural persons are entitled to protection of their dignity by legislation. Such protection does not extend to broader communities or groups. However, the Court did not preclude the possibility of legal protection for the dignity of the individual, in view of their relationship with a particular community.
I. On 29 October 2007 Parliament amended the Civil Code. The new clause broadened the scope of people offended by purveyors of hate speech to take legal action. It enabled individuals to bring a civil action against a speaker, despite the fact that the hate speech was not directly aimed at the plaintiff, but at the ethnic or social group to which he or she belonged. The Amendment also enabled civil liberties groups to take legal action.
The President of the Republic referred the Amendment to the Constitutional Court. In his petition, the President expressed concerns that the Amendment restricted the fundamental right of freedom of expression disproportionately. It made no allowance, either for the intensity of the relationship between the group and its members, or the extensive and non-circumscribable nature of a community that was viewed as a group. It did not exclude the duty of compensation either. The President also pointed out that the minority situation of a community within a society could not substantiate its privileged nature based on the Amendment. Thus, the Amendment violated the requirement of equal treatment.
II. The Constitutional Court held the Amendment unconstitutional. It emphasised that the restriction of free expression is determined by the intensity of the relationship between the unlawful conduct and the resulting violation of subjective rights. The Court also stated that only natural persons are entitled to legislative protection of their human dignity. This cannot be applied to broader communities or groups. However, the Court did not exclude the possibility of legally protecting the "dignity" of the individual, in view of their relationship with a particular community. The Court pointed out that the amendment did not recognise the collective body of individuals as plaintiff; it did not bestow a "collective right". Instead, it created the possibility of protection for an individual claiming to be a member of the community, where that community faces a violation. Under the Act, the legal violation of the community is mirrored by the individual. The legislature wanted to guarantee the means of individual legal protection for the protection of communities.
In assessing the constitutionality of the Amendment, the Constitutional Court gave major importance to the fact that a chosen identity has uncertain boundaries. Several identities can exist, and their manifestations may vary to the outside world. Exercising a right is based on stating identity and belonging to the community, that is, on the individual's right to self-determination, against which the law may set only one criterion, that of good will. Any other duty to justify, doubt or check against this stated identity or the relation between the individual and the community or its intensity is impossible to interpret. Considering the great number of personal traits that are suitable for determining personality and forming a group, such a regulation does nothing to reduce the possibility of restriction of the freedom of expression to a minimum. It is possible to evaluate and sanction the same unlawful conduct as often as an individual in the community finds a particular disparaging opinion derogatory. Moreover, the possibility of civil liberties groups to take legal actions is impossible to interpret, since the Amendment guarantees individual legal remedies.
The Constitutional Court also stated that there was no well-founded reason for assigning personal traits to a group with the aim of only allowing the individuals of a minority access to this category. The Amendment ran the risk of leaving certain communities with particular traits without protection, due to their law.
Justices László Kiss and Péter Kovács made a concurring opinion to the decision. They felt that the Constitutional Court should have reviewed the existing practice of restricting freedom of expression.
Justice László Trócsányi also made a concurring opinion to the decision. In his view, the jurisprudence of the ordinary courts did not give protection against collective defamation; it did not accord recognition to community concerns. The aim behind the Amendment was to put the plaintiff's right to bring a civil action in case of collective defamation beyond dispute. According to Justice Trócsányi, judicial practice could have created an adequate test for legal protection. However, he agreed that in its present state the Amendment did not fulfil the requirement of equal treatment, and violated the right to self-determination.