Hungarian constitutional court strikes down hate speech law

From the Budapest Times:

Tuesday, 08 July 2008
‘Amendments would restrict freedom of expression to unacceptable degree'

The spectre of the Holocaust was invoked last week when controversial legislation criminalising hate speech was thrown out by the Constitutional Court.

The court last Monday rejected two amendments to Hungary’s laws on inflammatory public discourse that would have made ‘hate speech’ a criminal offence punishable by up to two years in prison.

In the wake of a perceived rise in open attacks on minority groups by extremists, the government last autumn brought in legislation on hate speech. It aimed to restrict public speech that denigrates and foments prejudice against minority groups on the grounds of religion, ethnicity or sexuality.

The amendments tightening the law were passed by parliament in November 2007 and February this year, but referred to the court by President László Sólyom, who felt the stricter rules on public discourse might be unconstitutional.


Freedom versus dignity

The Constitutional Court ruled last Monday that the amendments were indeed unconstitutional. Péter Feldmayer, president of the Federation of Hungarian Jewish Communities (MAZSIHISZ), said that the human right to dignity is paramount. Criticising the court’s decision, he said the court now appears to consider freedom of speech to be of equal importance. Feldmayer did, however, agree that the legislation struck down last Monday was flawed.

Others reacted more angrily to the court’s decision. Socialist MP Tamás Suchman, one of the authors of the controversial legislation that would criminalise hate speech, last Wednesday visited the president of the court, Mihály Bihari.


Auschwitz diary presented

Suchman gave Bihári a copy of the diary his mother kept in the ghetto in the southern Hungarian town of Kaposvár and continued at Auschwitz. Speaking after the meeting, Suchman said the timing of the court’s decision was a slap in the face for those commemorating “the 600,000 who were deported and murdered” in the closing days of the Second World War.

Suchman said that legal regulation is needed because there is little chance at the moment in Hungary of a broad alliance across the political, religious and social spectrum.

He acknowledged as a positive exception the move by the Fidesz mayor of the southern town of Hódmezővásárhely, who recently banned the far-right Magyar Gárda from holding rallies there.

President László Sólyom had referred the two amendments to the Constitutional Court in the wake of concerns expressed by civil liberties groups. The chairman of the Hungarian Civil Liberties Union (TASZ), Balázs Dénes, said in February: “It limits the basic right to freedom of speech in an unprecedented way.”


In the clauses

The new clauses would have widened the scope of people offended by purveyors of hate speech to take legal action, as well as putting peddlars of inflammatory rhetoric at risk of imprisonment.

The first amendment enabled a person to bring a civil action against a speaker even if the hate speech was not aimed directly at the plaintiff, but rather the ethnic or social group to which he or she belongs.

The second made hate speech a criminal offence punishable by a prison sentence of up to two years. The latter was voted through mainly by backbench Socialist MPs without the support of the cabinet after opposition Fidesz MPs had left the chamber.


Unacceptable restriction

In handing down its ruling, the court stated that only natural persons are entitled to have their human dignity protected by legislation, and that it cannot be applied to broader communities or groups. The court decided that both of the amendments would restrict freedom of expression to an unacceptable degree.

“In a free and democratic society the expression of extreme and exclusive opinion does not endanger the foundations and operations of society, because by expressing such views, the discriminator confines itself to the periphery,” the court said in its ruling.

The original bill on hate speech was passed last October as the government sought to address a perceived increase in activity by right-wing extremists. The most high-profile example was the creation of the Magyar Gárda (Hungarian Guard), a uniformed group set up by the extreme nationalist Jobbik party.


Open season on Jews & Gypsies

Socialist MPs Gergely Bárándy and Tamás Suchman, the sponsors of the amendment bills, immediately voiced their disappointment at the court’s decision. At a press conference Bárándy said the ruling means it is now possible to “denigrate Jews and Gypsies publicly and with impunity”. Suchman said that the move would reassure those who “even if they are not neo-fascists… still represent extreme right-wing beliefs that the whole of civilised Europe opposes.”

The Socialist MPs pledged to resubmit legislation to curb hate speech to parliament as many times as are necessary until it is voted through.

The main opposition party in Hungary, the centre-right Fidesz, had rejected the amendments all along. Fidesz MP Róbert Répássy, speaking to the news agency MTI, merely characterised the affair as evidence that the Socialists “repeatedly abuse their powers as legislators”.


Outrage out front

The issue of the influence of extremists on Hungarian society has been thrown into sharp focus since autumn 2006 and a series of anti-government demonstrations. Protests began as a genuine expression of public outrage at government austerity measures and the leak of a tape on which Prime Minister Ferenc Gyurcsány acknowledged his party had systematically lied about the parlous state of national finances to secure re-election. However, far-right groups – fired up by a degree of public sympathy in adversity that has since waned considerably – began to play a more prominent role in protests and riots.

The setting up by the extremist party Jobbik of Magyar Gárda helped far-right groups, which have no representation in parliament, to attract a great deal of media coverage. The group’s activities – such as inflammatory rhetoric at gatherings and numerous marches through Roma villages against “Gypsy criminality” – have sparked outrage, primarily among Jewish groups and representatives of the Roma community that makes up some 7% of Hungary’s population.


Gárda on trial

The trial of the Magyar Gárda dragged on last Monday at Budapest City Court, amidst a strong police presence. Some fifty uniformed members of the controversial organisation held a vigil outside the courthouse.

No verdict was reached as more and more witnesses appeared to speak in defence of the Gárda. Frustration at the slow pace of the trial prompted one of the prosecuting parties, the legal counsel for the Federation of Hungarian Jewish Communities, Oszkár Egri, to comment: “There could be 32 filibusters who could read the complete works of Balzac to drag things out and stop us reaching a decision in the case.”

The move to disband the Gárda was initiated by the Budapest prosecutor’s office, which claims the group, which was officially registered as a cultural organisation, is guilty of infringing the rights of Roma citizens. The trial will continue on 1 September.