Línea de Salida (LS) 2017

We have already dealt with this topic on numerous occasions. We have analysed several times the resolutions of the Constitutional Court, which declared as unconstitutional the criminal law restriction of hate speech beyond incitement, referring to unwarranted restriction of the freedom of expression. Although section 269 of the Penal Code has laid down sanctions for the crime of incitement against a community in unchanged form for decades, this provision as a result of the restrictive interpretation of the court in practice has not proved effectual.

We pointed out that the justification of the Constitutional Court Resolution 30/1992 (V. 26.) stated that ‘... the dignity of communities can be a constitutional limit to the freedom of expression. Thus, the Decision does not exclude the possibility for the legislature to extend the scope of crimi- nal sanctions beyond incitement to hatred. Nonetheless, there are other means available, such as expanding the possible use of non-material dam- ages, to provide effective protection for the dignity of communities.’ The resolution, therefore, does not exclude the possibility of the legislature pro- viding criminal law protection against hate speech, but not among crimes against public peace.

It also emerges from the resolutions of the Constitutional Court that it does not regard the instruments of criminal law as primarily suitable for restricting the negative offshoots of freedom of expression and freedom of the press, but rather civil actions threatening high level compensation for

non-financial damage [30/1992. (V. 26.) Constitutional Court Resolution, ABH 1992. 167., 178-180].

We have also presented repeatedly that the civil law instruments of per- sonality protection only offer the possibility of prosecuting individual rights and are not suitable for protecting the dignity of communities without legal subject. The basic procedural rule of personality protection is personal prosecution of a right: the courts, in the case of publication of comments which are degrading to any of the communities, will dismiss the personali- ty rights action due to the claimant (as a non-named and unidentifiable member of the group concerned) not having the right to bring such an action.

A community, as one of the external points of reference of the given per- son, is one aspect of defining self-identity. The right to belong to a commu- nity is unquestionably a personality right and a value which must be pro- tected.

Freedom of expression has a place and can have a positive social impact (even if it is insulting) where there is a possibility for debate. There is no way of reasoning with self-serving invective, and the base and prejudiced degradation of certain social groups. It is not possible to argue rationally against claims of the genetically-based criminal tendencies of the Gypsies or perhaps the Swabians, Armenians or another minority, because the suppo- sition itself is not rational. Extreme views voicing anger and rage must not receive greater protection than the injured community.

The legal institution of the public interest legal action can be suitable for protection of the dignity of the community and personality rights if it does not restrict the right to self-determination of another person. In cases, how- ever, where the hurtful, offensive, degrading expression of opinion does not address a concrete person, this question does not even arise.

In our view, the bringing of public interest suits, which in an appropri- ately circumscribed way would offer protection to the groups in society which are most vulnerable precisely against the forms of behaviour described and which also damage the public interest, would not stifle free- dom of speech.

Conduct violating the dignity of a minority community typically insults honour and/or reputation.

Injury of the dignity of the community occurs through arbitrary, unjusti-

fiably hurtful, degrading expression of opinion which does not correspond to even the basic rules of humane thinking and opinion-forming, or through claiming or reporting false facts, or showing true facts in a false light. Such conduct – using the power of publicity in a way that severely dis- torts views of the minority groups and harms the public interest – can blight co-habitation between the majority and the minority society.

In our view the right to launch a court action should be granted to the following:

1. the prosecutor generally, in view of the fact that the prosecutor has such a possibility in connection with other personality rights; 2. to the Parliamentary Commissioner for the Rights of National and Ethnic Minorities in the sphere of discrimination; 3. to civil organisations and foundations, leaving out the expression ‘of public utility or of exceptional public utility’, working towards the protection of human and civil rights.

We recommend restricting the right of civil organisations and founda- tions to launch a court action so that the nature and topic of the given case also decides which legal defence organisations may turn to the court. It would not be correct, if for example a gay organisation could launch a court action due to conduct violating the rights of a religious minority group.

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The Hungarian Guard – a new anti-minority