Constitutional review of the provision of the Criminal Code regarding the prohibition of the use of symbols of totalitarian regimes

21 February 2013

The petitioner challenged that phrase of the Section 269/B of Act IV of 1978 on the Criminal Code which prohibited the use of the five-pointed red star among the other symbols of totalitarian regimes. Having regard to the fact that the challenged provision prohibited the use of the symbols of the communist as well as the nazi regime, the Constitutional Court has examined the constitutionality of the whole provision due to a strong correlation. The Constitutional Court took its previous Decision no.  14/2000 in connection with the constitutionality of Section 269/B into account, however in the view of the Constitutional Court the recent  judgement of the European Court of Hunan Rights regarding the concerned provision has resulted such a legally significant new circumstance which made the repeated examination necessary.

The Constitutional Court has declared that the criminal threat to the use of symbols of totalitarian regimes might be justified to protect the human dignity and the the constitutional values. The  Constitutional Court argued that the current regulation defines the range of criminal conducts too widely and it is not sufficiently clear as the use of the symbols is punished in general; also the consideration of the purpose, the method or the result of the use for each symbol might be indispensable. These circumstances mentioned above might result in controversial judgements in the field of the judicial practice. These characteristics of the concerned provision have violated the requirement of legal certainty and have restricted disproportionately the freedom of expression.

The Constitutional Court has annulled the unconstitutional provision with effect from the 30th of April 2013. It has more reasons; on the one hand if the concerned provision had been annulled with the promulgation of the decision of the Constitutional Court, those conducts that were penalised earlier by the law-maker would have remained unregulated. On the other hand, the Constitutional Court provides time to the law-maker to develop new regulation in conformity with the Fundamental Law.

The Constitutional Court has pointed out that the arisen constitutional concerns relating to Section 269/B are valid for the provision of the use of symbols of totalitarian regimes in the new, promulgated but not yet effective Criminal Code (Section 335) as well.

Dr. András Bragyova, Dr. Egon Dienes-Oehm, Dr. András Holló, Dr. László Kiss and Dr. Béla Pokol judges attached concurring opinion and, Dr. Péter Paczolay, Dr.István Balsai, Dr. Barnabás Lenkovics, Dr. Péter Szalay and Dr. Mária Szívós judges attached dissenting opinion to the decision.

As far as the dissenting opinions are concerned, Dr. Péter Paczolay judge, President of the Constitutional Court, has argued that the challenged regulation of the Criminal Code should be annulled with the promulgation of the decision and not with an effect from the 30thof April regarding the fact that a fundamental right, the freedom of expression, is violated. However, Dr. István Balsai, Dr. Barnabás Lenkovics, Dr. Péter Szalay and Dr. Mária Szívós judges have proposed that the current prohibition of the use of symbols of totalitarian regimes remains as it is in the constitutional regulation.