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2022. December 20.

Decision 3488/2022. (XII. 20.) AB

Decision number: IV/1970/2022.
Subject of the case:

Constitutional complaint seeking a declaration that section 75/B (2) c), section 75/B (3) b) and section 7/C (3) of the Act XLVII of 2009 on the Criminal Records System, on the Register of Convictions of Hungarian Citizens by the Courts of the Member States of the European Union and on the Register of Biometric Data in Criminal and Law Enforcement Matters are in conflict with the Fundamental Law and the seeking their annulment (disclosure of data relating to persons who have committed an offence against the freedom of sexual life or sexual morality which is harmful to children)

The Constitutional Court rejected the constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling the challenged judgement of the Curia. In the spring of 2020, a cartoon was published in a political newspaper published by the petitioner, in respect of which the plaintiff, a member of the KDNP party and a Christian person of the Roman Catholic faith, brought an action seeking a declaration that the petitioner had infringed the right to dignity of the Christian religious community by publishing the cartoon. The court of first instance dismissed the action, considering that the subject-matter of the cartoon in question was not religion or Christianity, but the communication of the Operational Coronavirus Response Team, and the cartoon itself was a tool used to express the message; the purpose of the expression was therefore not to offend the Catholic community. The Budapest-Capital Regional Court of Appeal, acting on the plaintiff’s appeal, partially reversed the judgement of the first instance by the judgement of second instance challenged in the constitutional complaint, and found that the petitioner had violated the plaintiff’s right to human dignity in connection with his membership of a Christian religious community. The Curia maintained the force of the final judgement. In the petitioner’s view, the court did not examine or wrongly assessed the circumstances of the specific case, such as the fact that the cartoon in question was not directed against a particular community, when it handed down the contested judgements. The Constitutional Court held in its decision that the court decisions in the case did not call into question the fact that the petitioner’s communication concerned public affairs. However, in addition to the social significance of the communication, the imagery and related texts contained negative value judgements about those who practice religion. The communication did not establish a clear causal link between the two, therefore, in the absence of a logical connection, the communication of the text offending religious sensitivity was self-serving. The Constitutional Court shares the view of the Curia that the use of a religious symbol is an end in itself if it does not contribute to the discussion of public affairs. In such a case, it is not a disproportionate restriction on the freedom of expression if the court grants primacy to the protection of the dignity of the religious community in the dispute. Therefore, the Constitutional Court did not find it verifiable that the courts had not taken into account the petitioner’s right to freedom of expression or that they had not carried out the fundamental rights assessment in accordance with the decisions of the Constitutional Court. Therefore, the Constitutional Court rejected the constitutional complaint.