According to the recent decision of the Constitutional Court, no rumour-spreading shall be established when a report is published in the press on a press conference about public life issues of public figures, if the reporting gives accurate account of what has been presented there, without any own assessment, by clearly indicating the sources of information, and by providing an opportunity to publish the reply or the rebuttal of the person affected by the statements of facts that may infringe one’s reputation. The Court annulled the judgement that had reached a conclusion to the contrary. The reporting about the press conference of public figures shall be regarded as an exemption when journalists are exempted from their obligation of verifying the truthfulness of the facts published. The constitutional complaint was filed to the Constitutional Court by the publisher of an internet news portal. The petitioner complained about being challenged at court for the violation of personality rights on the basis of a report published about a press conference on the issue of tobacco shop competitions held by an MP of a party in the Parliament. According to the challenged judgement, false statements of facts injuring the reputation of another politician were communicated at the press conference and the news portal should have objective liability for spreading rumour about it. The Constitutional Court established that this interpretation of the concept of rumour-spreading – which is in line with the customary judicial practice – is incompatible with the constitutional requirements originating from the freedom of press. Communicating to the public the events of public life is an essential element of the activity of the press playing a central role in forming democratic public opinion. The communication of information in the public interest, including the statements made and the positions taken by public figures, is the primary constitutional duty of the press and no one may be condemned for performing their duty under the Fundamental Law. The accurate disclosure of what has been stated at the press conference in line with the actual news is the essential interest of the public debate. However, the Constitutional Court holds that the exemption from liability of the press reporting about a press conference is not unconditional: it should be examined whether the journalist conveyed to the public the statements made by other persons truly and by clearly indicating their source, without providing own evaluation, and whether he provided an opportunity for the person affected by the challenged statements to confute. Justices István Balsai, Ágnes Czine, Egon Dienes-Oehm, László Salamon, Péter Szalay and Mária Szívós attached dissenting opinions to the decision.
Requiring those taking part in a public employment programme to keep their living space tidy as a condition of participation constitutes an indirect violation of the principle of general equality and discrimination relating to the right to private life.
In the case of a sexual act committed against a victim under the age of 12 years – if the victim is a family member of the perpetrator or the victim is in the care, custody or supervision of, or receives medical treatment from the perpetrator – the Criminal Code differentiates between the acts performed by coercion and the ones committed with the victim’s consent. In case of committing the crime with coercion, the penalty shall be imprisonment between five to fifteen years, while in the case of acting with the victim’s consent the penalty shall be imprisonment between five to ten years. On the other hand, the uniformity decision of the Curia ruled that irrespectively to committing the criminal offence with coercion or with the victim’s consent, the perpetrator shall be punishable with imprisonment between five to fifteen years.
According to the judges who turned to the Constitutional Court, the uniformity decision was in conflict with the Fundamental Law as it draws conclusions contrary to the provisions of the Criminal Code to the detriment of the perpetrator by setting the maximum duration of the imprisonment in fifteen years instead of ten years. The Constitutional Court found the judicial initiatives to be well-founded. The Court established that the Criminal Code cannot be interpreted in a way supporting the content of the uniformity decision. Therefore if the relevant act is committed with the consent of the victim, the punishment can only be imprisonment of five to ten years as laid down in the Criminal Code. The Constitutional Court pointed out in its decision that the only limitation on the judicial interpretation of the law is the subordination to the Acts of Parliament and this limit should never be crossed in the interpretations.
The Constitutional Court also mentioned in the reasoning of its decision that if the lawmaker holds the review of the Criminal Code to be justified, it is free to apply the solution chosen by the Curia, however, it takes a decision by the Parliament. Thus, according to the decision, the Parliament may remove the sexual acts against children from the present framework and regulate it in the form of an individual statutory definition.
Judge Dr. Béla Pokol attached a concurring opinion and Judges Dr. Ágnes Czine, Dr. Ildikó Hörcherné Dr. Marosi, Dr. László Salamon, Dr. István Stumpf, Dr. Marcell Szabó and Dr. Péter Szalay attached dissenting opinions to the decision.
In the underlying case of the decision, a hind dashed against a car and the driver sued the hunters’ society for damages. The court that delivered the final decision rejected the claim by stating that according to the case law applicable at the time of adjudicating the case the affected parties had to bear their own risks in the absence of culpability. However, the statutory regulation in force at the time of the collision regulated differently by allocating the liability for damages to the hunters’ society that had the right to hunt. Accordingly, the problem in the case concerned was that the statutory provisions in force when the damage was done were contrary to the case law referred to in the final decision.
The Constitutional Court holds that the court procedure neglecting, without reasoning, the legal regulation in force violated the fundamental right to fair court proceedings because the lack of reasoning came along with judicial “arbitrariness”. The court indeed acted arbitrarily when, instead of the applicable legal norms in force, it took into account a case law the underlying legal norms of which had already been annulled by the lawmaker earlier.
The Constitutional Court also established that a judicial judgement, which neglects the law in force without a due ground to do so, is arbitrary and it is incompatible with the principle of the rule of law. Based on the above, the Constitutional Court established that the judgement was contrary to the Fundamental Law and annulled it.
Judges Dr. Egon Dienes-Oehm, Dr. Ildikó Marosi and dr. László Salamon attached dissenting opinions to the decision.
The Constitutional Court established in its decision announced in its open session of 13 June 2017 that certain provisions of the Act on National Security Services violate the judicial independence enshrined by the Fundamental Law and the fundamental right to the respect of privacy, therefore it annulled these provisions. Although the protection of national security interests is a constitutional objective and at the same time the duty of the State, the challenged regulation may open the door to misuses that are incompatible with judicial independence. According to the Constitutional Court, the prominent role fulfilled by judicial independence in terms of the rule of law requires the rules pertaining to the judicial branch of power to be extremely clear.
The President of the Curia asked for the establishment of the lack of conformity with the Fundamental Law and the annulment of those provisions of the Act on National Security Services that deal with the national security vetting of judges and the reviewing of the national security vetting procedure. According to the petitioner, the Act exempts Members of the Parliament from the scope of persons affected by national security vetting, but judges are not exempted, thus opening the door to the arbitrary selection of the affected personal scope. According to the petitioner’s concerns, it is not possible to establish with certainty which judges are subject to the relevant regulation and which ones are not. As claimed in the petition, as the challenged statutory regulations violate – among others – legal certainty originating from the rule of law, the principle of division of powers, the right to lawful judge and the principle of judicial independence, they are in conflict with the Fundamental Law.
The Constitutional Court found that the petition was well-founded and it established that certain parts of the text of the Act on National Security Services are in conflict with the Fundamental Law therefore it annulled those provisions. In the case concerned, the Constitutional Court implemented the weighing between the alleged or real national security interest and the violation of the fundamental rights claimed by the petitioner. According to the Act, the unrestricted national security vetting of judges may become the general rule, however, in the opinion of the Constitutional Court, there is no national security interest resulting directly from the Fundamental Law that would justify its necessity.
The appropriate regulation of the termination of the service relationship is an essential element of judicial independence. The Constitutional Court established that “not maintaining” the judicial service relationship after the national security vetting may open the door to misuses which is incompatible with the requirement that judges – appointed by the President of the Republic – may only be removed from office on grounds and according to procedures specified in a cardinal Act.
The Constitutional Court also established a conflict with the Fundamental Law regarding certain elements of the new regulation dealing with the review procedure of national security vetting by claiming that the content of these provisions is not clearly defined.
Judge Dr. Ágnes Czine attached a concurring opinion and Judge Dr. Mária Szívós attached a dissenting opinion to the decision.