The expression of opinion is free, the dividing line is the protection of human dignity5 February 2021
The Constitutional Court decided in its most recent sitting on two cases implying the assessment of the limitations of the freedom of expression and freedom of the press, as well as the constitutionality of relevant judgements by the courts and the Curia. In both cases, the fundamental statement made by the Constitutional Court was paying respect to the inviolability of human dignity as also enshrined in the Fundamental Law.
The Constitutional Court found that the judgements delivered by the Curia and the Budapest-Capital Regional Court in the subject-matter of offending the Catholic community were in conflict with the Fundamental Law and, therefore, annulled them. The basis of the case, the background of the procedure was as follows:
The petitioners, as members of the Catholic religious community, turned as plaintiff to the Budapest-Capital Regional Court because of a demonstration held in 2016 in front of the Polish Embassy in Budapest. The demonstrators protested against the tightening of the Polish abortion law and its support by the Catholic Church. The demonstration also included a performance imitating the Eucharist, in which one protester – one of the defendants in a subsequent lawsuit – placed a white tablet from a bag labelled “abortion pill” on the tongue of the other two defendants, accompanied by making the statement “Body of Christ”. This was later published on the internet for the general public. In their action, the plaintiffs asked the court to declare that through their affiliation with the Catholic religious community, which was an essential feature of their personality, the defendants violated their human dignity and their right to practice their religion freely. The Budapest-Capital Regional Court acting on first instance dismissed the action and the Curia, in its judgement closing the review proceedings, upheld the judgement of first instance. The plaintiffs then turned to the Constitutional Court. In their petition, they asked for declaring that the judgement of the Curia was contrary to the Fundamental Law and for its annulment, as they considered the court’s and the Curia’s judgements to be contrary to the provisions of the Fundamental Law stating that the exercise of the freedom of expression should not be aimed at offending the human dignity or the religious community of others.
In its decision, the Constitutional Court found that the challenged judgements acknowledged that the petitioners had been offended through their religious community. At the same time, they accepted the offensive communication as a constitutionally protected expression of opinion, without examining the content of the opinion of the specific conduct actually complained about or its contribution to the discussion of a public affair. Consequently, the courts hearing the case could not have examined with due diligence whether or not the communication at issue was intended to offend the community concerned. With regard to offensive communication, the courts stated that members of the religious community were subject to a broad tolerance obligation similar to that of public figures. As a result, the protection of the dignity of the petitioners’ religious community was undermined by the demonstrators’ exercise of freedom of expression. The Constitutional Court found that the challenged court decisions were in conflict with the Fundamental Law and therefore annulled them. At the same time, however, it stressed that due to the limitations of its competence, the Constitutional Court did not establish in its decision whether or not the specific act complained of in the case seriously harmed or unjustifiably offended the Catholic religious community and, through it, the human dignity of the petitioners. It will be up to the courts proceeding repeatedly to judge upon these issues.
The Constitutional Court also ruled on the case of the HVG newspaper’s cover page, known as “Nagy Harácsony” (a play on words with the terms “Great Christmas” and “great grab-all”). In its decision, the Constitutional Court rejected the constitutional complaint in which the petitioner requested the Constitutional Court to declare the conflict with the Fundamental Law and annul the Curia’s judgement on the violation of the personality in the context of belonging to a religious community. The background and the basis of the Constitutional Court’s procedure were as follows:
The petitioner, as plaintiff, filed a lawsuit against the defendant’s newspaper publisher for violating their personality rights, because the defendant presented on the cover of its weekly newspaper a redesigned version of the painting Adoration of Shepherds by Gerard Von Honthorst. The faces of the original characters were replaced by the faces of public figures, and the image of the child Jesus was replaced by a pile of gold coins; according to the petitioner, in a way that offends the Catholic Christian community. The petitioner’s action was dismissed by the courts of first and second instances, and the Curia, acting upon the petitioner’s application for review, upheld the final judgement. According to the petitioner, the Curia’s judgement violates their right to human dignity, freedom of religion and the fundamental right to have the symbols and liturgy of their religion respected, and to practice their religion in undisturbed manner in the community space, because the Curia and the proceeding courts have accepted without criticism the defendant’s argument that the communication complained about was aimed at criticizing the politicians concerned and had no anti-religious purpose. The petitioner therefore turned to the Constitutional Court seeking a declaration the Curia’s judgement was in conflict with the Fundamental Law.
In the opinion of the Constitutional Court, the courts that acted in the basic proceedings have recognized correctly that the main issue to be assessed was the purpose of the communication, as a question of primary importance. In addition, by examining the front page in question, the Curia also stated, on the one hand, that it was not aimed at offending Christians and it did not convey a negative value judgement about believers. On the other hand, it identified the specific political opinion conveyed by the authors, the form of expression of which was not found to be arbitrary or unjustified in relation to the content of the opinion.
Taking into account the reasoning of the Curia’s judgement, therefore, in the opinion of the Constitutional Court, it can be stated that the challenged judgement remained within the scope of constitutional interpretation, therefore it rejected the constitutional complaint. Justices Tünde Handó, Mária Szívós, Imre Juhász, Attila Horváth and László Salamon attached dissenting opinions to the decision.