a)  Hungary / b)  Constitutional Court / c)  Plenary / d)  13-02-2019 / e)  1/2019. (II. 13.) AB / f)  Rejection of a constitutional complaint against Ruling 23.Szef.27/2017/3. of Budapest-Capital Regional Court and declining a constitutional complaint against Section 170 of Act no. II of 2012 on minor offences, minor offences proceedings and record / g)  Magyar Közlöny (Official Gazette), 2019/20 / h)  CODICES (Hungarian).
Keywords of the systematic thesaurus:
Fundamental Rights - Civil and political rights - Freedom of expression.
Keywords of the alphabetical index:
Expressive activity, exercise, form.
Pouring removable paint on a public memorial may be considered as a form of expression if, from an objective perspective, such an action is capable of carrying thoughts to the public.
I. Under Sections 26.1 and 27 of Act no. CLI of 2011 on the Constitutional Court, the applicants (perpetrators of a minor offence) filed a constitutional complaint against Ruling 23.Szef.27/2017/3. of the Budapest-Capital Regional Court, against Ruling 8.Sze.8736/2017/2. of the Central District Court of Pest and Section 170 of Act no. II of 2012 on minor offences, minor offence proceedings and record (hereinafter, the «Act»).
The applicants claimed that the above provision and rulings breached their right to freedom of expression, enshrined in Article IX.1 of the Constitution. The facts of the case were that the applicants had thrown balloons filled with orange paint at the Soviet military memorial located at Szabadság Square in Budapest several times. As a result, painted spots appeared on the surface of the memorial. The applicants were arrested for committing the minor offence of public nuisance. They contended at court that they had not committed a minor offence; their actions were political in nature, expressing their opinion on the «Russian-friendly» foreign policy of the Government. They added that their acts did not cause any damage to the memorial as the paint (and this had been acknowledged by the authorities) could very easily be washed off with water.
The Central District Court of Pest held that the actions of the perpetrators, on the basis of Section 170 of the Act, should be viewed as a minor offence, as they objectively disturbed public peace. The applicants appealed but the Budapest-Capital Regional Court rejected their claim. The Regional Court concurred with the first ruling, but added that political opinion could be expressed by means other than verbal ones, provided the subject of the act was objectively clear for bystanders. This was not the case in the present proceedings.
In their constitutional complaint, the applicants claimed that their acts were clearly and univocally political in nature but that the courts had not made the necessary assessment. Their actions should, they argued, be deemed as an unconventional form of expression, even if they were shocking or disturbing, since other measures would have been ineffective in this case. The courts should have established that their actions did not pose a threat to society or disturb public peace, and so the key ingredients of a minor offence were missing. The applicants pointed out that under the case-law of the Constitutional Court, preserving the public peace was a hypothetical goal and this meant that the limitation of the right to the freedom of expression of a political nature was more restrictive. They also challenged Section 107 of the Act since its wording was too broad and its concept ran counter to the practice of the Constitutional Court.
II. The Constitutional Court declined the applicants’ complaint against Section 170 of the Act, finding it ill-founded in this respect.
It then examined which acts could be considered as «expression», protected by Article IX.1 of the Fundamental Law. From a constitutional law perspective, the word «expression» has to be examined both in terms of the democratic functioning of the political community and in terms of individual self-expression. The Constitutional Court concluded that citizens could participate in public debate in many ways, not just in written or spoken form. The Constitution protects the passing of political opinions to others, irrespective of how this is manifested.
However, an assessment was needed as to whether a particular act fell within the scope of freedom of expression. The Constitutional Court pointed out - taking note of case-law from the Supreme Court of the United States and the European Court of Human Rights - that for an action to be considered as an expression of opinion, the perpetrator’s intention of acting and the purpose of expressing his or her opinion were necessary but not sufficient conditions. The action would only enjoy constitutional protection if it was capable of conveying these thoughts to the public from an objective point of view.
Courts, when deliberating on whether a particular action should be considered as «expression» need to consider the potential for clashes with other fundamental rights, such as the right to property. Clashes will occur when property has been damaged due to an action which was regarded as expression. The Constitutional Court observed that one of the special features of monuments is that they express in physical form a message addressed to the community. They can of course be covered, unveiled or shrouded in wreaths. Negative opinions and protests about monuments may take a physical form. Blemishing a monument will only fall within the scope of expressing opinion in public affairs if this action represented a communication interpretable by the public in line with the subjective intention of the person «expressing his or her opinion» and in accordance with objective evaluation. An assessment would also be needed over whether in such a case freedom of expression or the protection of public order should enjoy priority.
Finally, the Constitutional Court concluded that the interpretation of the law provided by the Regional Court (that the aspects of freedom of expression were only applicable under certain conditions to a case of pouring paint on a statue) was compatible with the Constitution. The Regional Court did not violate the criteria of constitutionality by failing to categorise the applicants’ actions within the scope of the freedom of expression. The Constitutional Court rejected the constitutional complaint.
III. Justice Egon Dienes-Oehm, László Salamon, István Stumpf, Marcel Szabó and András Zs. Varga attached a concurring reasoning, while Justice Ágnes Czine, Imre Juhász, Béla Pokol and Mária Szívós attached a dissenting opinion to the Decision.