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Decision 15/2020 on scare-mongering
Constitutional complaint aimed at establishing the conflict with the Fundamental Law and annulling Section 337 para. (2) of the Act C of 2012 on the Criminal Code (scare-mongering)
The Constitutional Court has ruled that the new criminal law regulations on scare-mongering, to be applied during a special legal order, are not in conflict with the Fundamental Law. At the same time, the decision established as a constitutional requirement that the provision on the offence of scare-mongering only sanctions the disclosing of a fact which the perpetrator should have known was false at the time the act was committed or which was distorted by the perpetrator himself, and which is suitable to prevent or frustrate defense during the special legal order. At the beginning of the coronavirus epidemic, the Parliament adopted an amendment to the Criminal Code effective from 31 March 2020, the essence of which is that scare-mongering to the general public is subject to stricter sanctions during a special legal order, such as an epidemic. According to the petitioner who submitted a constitutional complaint to the Constitutional Court, the new regulation restricts the right to freedom of speech and provides a completely unpredictable, wide space for arbitrary application of the law, furthermore it is incomprehensible and leaves the addressees of the norm in uncertainty. Therefore, the regulation does not comply with the principles of constitutional criminal law and the relevant case law of the Constitutional Court, therefore it needs to be annulled. In the petitioner’s view, it is neither necessary nor proportionate to restrict freedom of expression during a special legal order, by imposing a criminal sanction more severe than the existing one, implying imprisonment as much as of up to 5 years. According to the petitioner, if someone claims something in good faith, that is, he does not know the untrue basis of his claim or disclosure, he could still be held criminally liable for his act under the new legal provision. The plenary session of the Constitutional Court took the issue to its agenda out of turn and adjudicated the case. In its decision, the Constitutional Court found that scare-mongering according to the disputed statutory provision concerns a narrow scope of communications: it prohibits the communication to the general public of knowingly false or distorted facts, but only if it is performed during the period of special legal order, in a manner suitable for hindering defense. However, the prohibition is only applicable to stating knowingly false or distorted facts, it does not apply to critical opinions. The threat under criminal law therefore does not extend to facts the untrue nature of which the perpetrator was unaware of. If, on the other hand, someone states knowingly false facts that could hinder the defense, it is necessary and proportionate to restrict the freedom of opinion on the basis of the public interest in defense. Considering the above, the Constitutional Court rejected the constitutional complaint. However, with regard to the seriousness of the threat of punishment, the Constitutional Court, in the interests of legal certainty and acting ex officio, considered it necessary to reinforce in the form of a constitutional requirement the interpretation of the new statutory definition of an offence in accordance with the Fundamental Law. In the constitutional requirement it stated that the new provision of criminal law only threatens with punishment the communication of a fact the falseness of which the perpetrator should have been aware of at the time of committing the act and which actually impedes or is likely to impede defense during the special legal order. If the fact claimed at the time of committing the act is disputed and only proves to be false at a later date, it does not constitute scare-mongering, consequently the person disclosing the fact cannot be held criminally liable. Justice Ágnes Czine attached a dissenting opinion to the decision.