a) Hungary / b) Constitutional Court / c) / d) 21-02-2013 / e) 4/2013 / f) On the prohibition of the use of symbols of totalitarian regimes / g) Magyar Közlöny (Official Gazette), 2013/28 / h) .
Keywords of the Systematic Thesaurus:
Sources - Categories - Case-law - International case-law - European Court of Human Rights.
General Principles - Certainty of the law.
Fundamental Rights - Civil and political rights - Freedom of expression.
Keywords of the alphabetical index:
Symbol, communist / Symbol, nazi / Totalitarian regime, symbols, ban.
A provision of the Criminal Code prohibiting the use of symbols of totalitarian regimes violates the requirement of legal certainty, and in this context, the freedom of expression.
I. The applicant, Mr Attila Vajnai challenged in his constitutional complaint that phrase of Section 269/B of Act IV of 1978 on the Criminal Code which prohibited the public use of a five-pointed red star among other symbols of totalitarian regimes. As the provision under dispute prohibited the use of symbols of the Communist as well as the Nazi regime, the Constitutional Court extended its review and examined the constitutionality of the whole provision due to a strong correlation. The Constitutional Court had to take its precedent into account. In its Decision 14/2000, the Constitutional Court, referring to the special historical past of Hungary, upheld the provision declaring it a criminal offence to publicly use the symbols of despotism (the swastika «Hakenkreuz», the SS sign and the arrow-cross, hammer and sickle and the five-pointed red star). In 2008, the European Court of Human Rights in Vajnai v. Hungary held that the conviction of Mr Attila Vajnai, the vice-president of the left-wing Workers' Party for having worn the red star on his jacket, was an interference with his right to free expression. Although the Constitutional Court referred in Decision 14/2000 to historical circumstances, the European Court of Human Rights considered that twenty years after the fall of Communism there was no «real and present danger» of its restoration and found the ban of the Criminal Code indiscriminate and too broad in view of the multiple meaning of the red star.
II. In its recent decision the Constitutional Court allowed the constitutional complaint lodged by Vajnai and found that criminalising the public use of the symbols of despotism was unconstitutional. The main reason for overruling Decision 14/2000 was the Vajnai judgment of the European Court of Human Rights. The Constitutional Court also took into consideration the entry into force of a new Constitution called the Fundamental Law in 2012.
Having examined the constitutionality of the provision as a whole, the Court held that the challenged provision defined the range of criminal conducts too widely; public use of totalitarian symbol is punished in general. Section 269/B of the Criminal Code does not take into account the motive of the act, and the context and consequences of using these symbols. The provision defines the type of behaviour subject to criminal sanction too broadly, which might result in controversial judgments. It does not meet the requirements of constitutional criminal law, according to which any provision defining behaviour punishable under criminal law must be specific and clearly defined. The Constitutional Court accordingly held that the provision in question violated the principle of the rule of law and legal certainty and through this restricted disproportionately the freedom of expression. The Court annulled the provision pro futuro as of 30 April 2013, to allow Parliament sufficient time to prepare a provision in compliance with the Fundamental Law. The Constitutional Court also pointed out that the constitutional concerns with regard to Section 269/B are valid for Section 335 on the use of totalitarian symbols in the new, already promulgated but not yet effective Criminal Code.
III. Justices András Bragyova, Egon Dienes-Oehm, András Holló, László Kiss and Béla Pokol attached a concurring opinion and István Balsai, Barnabás Lenkovics, Péter Szalay and Péter Paczolay attached a dissenting opinion to the decision.