Summary of the decision: In a constitutional complaint procedure, the Constitutional Court annulled the judgement of the Budapest-Capital Regional Court of Appeal delivered in the subject matter of the violation of the right to image. The television channel that submitted the constitutional complaint had aired a report in the news about a trial at the Curia, and in the broadcast the face of the accused person had been masked, but the face of the staff member of the penal institution accompanying the accused person had been visible. The employee of the penal institution had filed a claim against the TV channel and as a result the proceeding courts condemned the channel for the violation of personality rights, as the concerned employee of the penal institution had not agreed to the disclosure of his image. The petitioner then submitted a constitutional complaint with reference to the violation of the freedom of expression and the freedom of the press. According to the petitioner, the concerned video recording provided information about the events of the present time and it was a report about an event challenging the public interest in terms of exercising public authority, therefore no consent by the affected person was necessary for making the recording and airing it. The Constitutional Court held that the relevant constitutional question in the case was whether the image of a person exercising public authority at a court trial could be disclosed freely with reference to the freedom of the press, i.e. whether a media content showing an identifiable a person attending a court trial and exercising public authority there could be made accessible. As interpreted by the Constitutional Court, if a person exercising public authority becomes identifiable in this quality in a certain media content, the protection of the image, in itself, shall not justify the restriction of the freedom of the press. The “protection of the image” may only restrict the freedom of the press, if the disclosure of the image causes the injury of a fundamental right or of another constitutional value. Therefore, as a general rule, the persons exercising public authority should tolerate the disclosure of their image during their official activities. The order of the trial and the independence of the judicial system are constitutional values that, in general, justify the restriction of the freedom of the press, however, it does not mean that the activity of the press could be totally restricted at a court trial. Nevertheless, if the persons directly affected by the lawsuit do not raise an objection against reporting by the media, then other persons may not challenge the exercising of the freedom of the press by referring to the order of justice. As the courts that had proceeded in the case had delivered judgements contrary to these constitutional limitations, the Constitutional Court annulled the challenged judgements.

The regulation in the Act on Offences regarding the prohibition of staying habitually on public ground is not contrary to the Fundamental Law. The Constitutional Court rejected the judicial initiatives challenging the provisions of the Act on Offences prohibiting staying habitually on public ground. The Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct.

The petitioning judges held the challenged provisions to be contrary to the principle of the rule of law as well as the right to human dignity. They referred to a decision of the Constitutional Court adopted in 2012 – annulling a statutory definition of a minor offence of essentially similar content – as well as to the text of the Fundamental Law amended meanwhile, which does not justify the criminalisation of staying habitually on public ground.

In the decision published today by the Constitutional Court, with due account to the amended regulation of the Fundamental Law – prohibiting for everyone in general staying habitually on public ground – it took a stand on the inapplicability of the 2012 decision of the Constitutional Court. The Constitutional Court shall follow the text in force of the Fundamental Law and it is not empowered to review the content of the Fundamental Law or the amendments of the Fundamental Law. In the course of exercising his or her constitutional rights, the individual is responsible not only for himself or herself, but also for the other members of the community; the exercising of rights should be in balance with his or her responsibility for the community.

Violating a prohibition laid down in the Fundamental Law, i.e. an unlawful conduct shall not be protected by the Fundamental Law. According to the decision, the challenged regulation complies with the constitutional requirement applicable to the law on minor offences, and also enforces its guarantees. The regulation shall impose a sanction against anyone who resists to dispense with staying habitually on public ground despite of the relevant prohibition laid down in the Fundamental Law and despite of receiving multiple explicit warnings. Therefore, the relevant statutory definition of the offence does not sanction a state (being homeless), but it shall impose a legal consequence on violating the obligation of cooperation.

The Constitutional Court pointed out that in the respective case the examination focused on the right of self-determination and the autonomy of action, as the restrictable part of the former, rather than the untouchable “core dignity” of human dignity. This, however, may not result in the violation of a certain prohibition under the Fundamental Law, or the committing of a minor offence. In line with the values of the Fundamental Law, no one shall have the right to be destitute or homeless; this state is not part of the right to human dignity.

To the contrary, if the State left the individual alone without caring for him or her, it would cause an injury, since the right to human dignity is seriously violated by the marginalisation of the individual from the human society. The Constitutional Court underlined that the petitioning judges failed to verify that those who use the services of the welfare system are treated as objects and that they are dehumanized. Neither is it verified that in case of using the services of the welfare system, the affected persons are placed among circumstances without human dignity. If indeed such a situation would still occur, the protection of fundamental rights shall be granted for the party whose right has been violated.

Furthermore, the State’s obligation of protecting institutions shall result from the Fundamental Law. The State can fulfil this obligation by providing for introducing the affected persons into the welfare system. In the absence of cooperation by the individual, the sanction under the law applicable for minor offences shall be the ultimate tool available for the State. At the same time, the Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct. In addition, the authorities applying the law should take into account the constitutional obligation aimed at protecting the vulnerable, as well as the fact that the protection of the rights of the affected persons can only be granted by way of introducing them into the welfare system. Justice Béla Pokol attached a concurring reasoning and Justices Ágnes Czine, Imre Juhász, Ildikó Hörcherné Marosi, Balázs Schanda, István Stumpf and Péter Szalay attached dissenting opinions to the decision.

The Constitutional Court stated that the ruling No. 59.Szk.1163/2017/6/I of the Szombathely District Court is in conflict with the Fundamental Law, therefore the Constitutional Court annulled it. The petitioners of the constitutional complaint painted with colour paint the cracked parts of a pavement segment partly for the purpose of preventing accidents and partly for the purpose of calling the attention of the authority and of the general public to the defects of the pavement surface. The authority of infractions warned the petitioners because of committing a public cleansing misdemeanour. The court proceeding with the case on the basis of the objection made by the petitioners then concluded that the petitioners’ conduct of using other person’s property for the expression of their opinion without the consent of the owner had been dangerous to the society as it had violated the owner’s right of disposal. The petitioners turned to the Constitutional Court against the final ruling of the court. In the petitioners’ opinion, the judicial decision injures their right to the freedom of expression as well as their right to the freedom of artistic creation. The Constitutional Court has found the petition well-founded. All conducts bearing a communicative message and not affecting the object of private property or affecting it with the owner’s consent, and not causing damage to the object of public property shall be covered by the constitutionally protected realm of expressing opinions. The person expressing an opinion share his or her ideas not only by saying words, but also by using images, symbols or by wearing items of clothing. It is the duty of the courts to assess whether the conduct under review is protected by the freedom of expression or it is an act of vandalism. In the present case, the conduct was an act of communication interpretable by the public both according to the subjective intention of the person “expressing the opinion” and according to an objective assessment. The Constitutional Court stated: the court failed to interpret the petitioners’ conduct adequately, and it restricted disproportionately the petitioners’ right to the freedom of expression. The court also failed to take note of the absence of the conduct’s dangerousness to the society. Justices dr. Egon Dienes-Oehm, dr. István Balsai, dr. Imre Juhász, dr. Attila Horváth, dr. Béla Pokol and dr. Mária Szívós attached their dissenting opinions to the decision, while Justices dr. István Stumpf and dr. András Varga Zs. attached concurring reasonings.

The Constitutional Court stated that the judgement No. Pfv.IV.21.749/2016/9 of the Curia is in conflict with the Fundamental Law, therefore the Constitutional Court annulled it. In the underlying case of the constitutional complaint the petitioner asked the court – after the rejection of its request for the disclosure of data of public interest – to bind the Curia to disclose the data related to the opinions obtained in the context of preparing the relevant uniformity decision of civil law. Following the court procedures and finally after the Curia’s decision, the petitioner turned to the Constitutional Court, among others because the petitioner claimed that the Curia had also ruled – unfoundedly –, on the basis of allegations rather than on the basis of the documents, on not allowing access to the contents of the opinions by way of a request for data of public interest. The Constitutional Court has found the petition well-founded. The decisions of public servants are prepared freely, informally and free from public pressure. Thus the requirement of publicity applies only to the final outcome rather than the intermediary working materials. The legal interpretation that considers the totality of the requested documents – irrespectively to their content – as data that serve the purpose of supporting the decision-making, this way preventing access to the documents, allows for the unjustifiably broad – therefore unnecessary – restriction of the right to access data of public interest. In the case under review, the Constitutional Court established that, as the court had had no information about the identity of the persons who had provided external opinion and about the content of the opinions, it had decided in the case without actually examining the material justification of restricting publicity. This way the court placed the totality of the requested documents under the restriction of publicity without paying attention to their content. A judicial decision that allows for the restriction of fundamental rights to an extent wider than necessary is incompatible with the Fundamental Law. The Constitutional Court, therefore, annulled the challenged judgement of the Curia as set forth in the holdings of the decision. Justice dr. László Salamon attached a concurring reasoning and Justice dr. Béla Pokol attached a dissenting opinion to the decision.

On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the Fundamental Law concerning the relation between the Fundamental Law and the law of the European Union. The background of the case is that the European Commission sent an official notice to Hungary – in the framework of an infringement proceeding – in which it explained that according to the Commission’s interpretation the provisions of the Fundamental Law on asylum violate the relevant regulations of the European Union. The particular constitutional issue raised by the petitioner was the relation between the interpretation of the Fundamental Law by an organ of the European Union and the genuine interpretation provided by the Constitutional Court.The Constitutional Court pointed out: Hungary participates in the European Union in the interest of developing the European unity, for the purpose of expanding the freedom, prosperity and security of European nations. The Union law does not fit into the hierarchy of the domestic sources of law; it has been made part of the legal system by a constitutional order incorporated in the Fundamental Law. In most cases the parallel existence of Union law and domestic law does not cause any constitutional dilemma as the two normative systems are based on a common values. However, with regard to the assessment of certain national norms, the Constitutional Court and the European Union may reach different conclusions. Since the Fundamental Law requires compliance with the Union law, as a constitutional obligation, collisions may be resolved by paying respect to constitutional dialogue.However, the genuine interpretation of the Fundamental Law is the duty of the Constitutional Court and all organs or institutions shall respect it in their own procedures. The Constitutional Court has committed itself to constitutional dialogue: in the present case it interpreted the Fundamental Law in line with the so called Europe-friendliness by interpreting the content of the norm to also comply with the law of the European Union.Regarding asylum, the Constitutional Court underlined: the right to asylum is not the refugee’s individual subjective right and it stems from the international treaties undertaken by Hungary. A non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall have a claim, protected as a fundamental right, to have his or her application assessed by the authority. It is the duty of the Parliament to determine and lay down in a cardinal Act the fundamental rules on granting asylum.Justices dr. Egon Dienes-Oehm, dr. István Stumpf, dr. Mária Szívós and dr. András Varga Zs. attached concurring reasonings, and Justices dr. Ágnes Czine, dr. Imre Juhász, dr. Béla Pokol and dr. László Salamon attached dissenting opinions to the decision.

Constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling Section 353/A of the Act C of 2012 on the Criminal Code (facilitation and support of illegal immigration)

The Court examined the following: on what grounds may a physical act be regarded as an expression of opinion and whether in this context pouring paint on a monument is to be protected on the basis of the freedom of expression.
The petitioners of the constitutional complaint threw balloons filled with orange paint at the Soviet military memorial located on Szabadság Square in Budapest several times. According to their account, it was an act of raising attention to express their political opinion, namely their negative opinion about the Government’s policy of favouring Russia. The court of first instance established that the petitioners’ act classified as a minor offence of public nuisance. According to the reasoning, the apparently anti-social character of the petitioners’ act was at the same time suitable to incite indignation and alarm. The petitioners lodged an appeal to the Budapest-Capital Regional Court that maintained the force of the ruling of first instance. The court agreed that the political opinion can be expressed by means other than verbal ones, but at the same time the court also held it absolutely necessary that the target of the act should be clear for the bystanders – an element missing in the present case.
The Constitutional Court reinforced: the citizens participate in public debates in many ways – not only in written or oral forms. The Fundamental Law protects the passing on of political opinions to others — disregarding the form of its manifestation. It is important to assess, however, whether or not a certain act falls into the scope of the freedom of expression. The Constitutional Court pointed out – taking also into account the case law of the Supreme Court of the United States and of the European Court of Human Rights – that in order to consider an act as an expression of opinion, the perpetrator’s intention of acting for the purpose of expressing his or her opinion is a necessary but not sufficient condition. The act under review should also be a communication, which is interpretable by the public.
It is a special feature of monuments that they express in physical form their message addressed to the community. Monuments can be covered, unveiled, enwreathed etc. Negative opinions, protests about a monument may also take a physical form. Blemishing a monument, e.g. pouring removable paint on it may, under certain circumstances, fall into the scope of expressing opinion in public affairs, but only if the act is a communication interpretable by the public in line with the subjective intention of the person “expressing his or her opinion” and also according to objective evaluation. Even in such a case it should be assessed in the concrete case whether the freedom of expression or the protection of public order should enjoy priority.
As underlined by the Constitutional Court in this case: the interpretation of the law provided by the court of second instance, i.e. that the aspects of the freedom of expression are only applicable under certain conditions to the case of pouring paint on a statue, is compatible with the Fundamental Law. The court did not violate the criteria of constitutionality when it failed to include the concrete act under the scope of the freedom of expression, therefore the Constitutional Court rejected the constitutional complaint.
Judges dr. Ágnes Czine, dr. Imre Juhász, dr. Béla Pokol, dr. Mária Szívós attached dissenting opinions, while Judges dr. Egon Dienes-Oehm, dr. László Salamon, dr. István Stumpf, dr. Marcel Szabó and dr. András Varga Zs. attached concurring opinions to the decision.