20. P. 85.346/2003/10.
IN THE NAME
OF THE REPUBLIC OF HUNGARY!
versus the defendant, represented by the barrister Dr Géza Gulyás,
Hegedűs Loránt, Jr, defendant
in which the plaintiff sought that a breach of his personal rights be established, the court delivered the following
VERDICT:
The Court has established that the defendant, with his article “Christian Hungarian State” published in issue 3 of Ébresztő in 2001, especially with the parts of the article calling for exclusion breached the plaintiff's personal rights, including, with reference to the plaintiff, the ban of any form of unfair discrimination against persons.
The Court bans the defendant from repeating said offence.
The Court orders the defendant to pay the State trial costs of HUF 15,000 upon reception of notice from the Charges Office.
An appeal may be filed against the case within 15 days, said appeal is to be submitted at the Pest Central District Court in 3 copies, addressed to the Budapest City Court.
Before the appeal deadline expires the litigating parties may jointly request that the appeal is considered without a hearing.
If the appeal is directed against the trial costs, or the justification of the verdict, either party may request that the appeal is considered by the Court of Appeals in a hearing.
JUSTIFICATION:
In the trial the court established the following facts:
The defendant's writing, entitled “Christian Hungarian State” was published on the front page of the third issue of 2001 of the MIÉP's 16th District paper, Ébresztő. In this the defendant discussed his views of what he believes to be the historical role of Jews.
Amongst others the defendant discussed that as a result of
the compromise (in 1867 with the Austrian Empire – the translator) and
self-surrender there appeared in the country “the army of riff-raff from
Galicia, who, as ancient man made flesh have chewed and still chew apart our
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home, our home which through ruin and the bones of its
heroes, comes back to life again and again.
Having lost their
Old Testament Zion because of their sins, their revolt against God, let the New
Testament's greatest promise of life, let Hungarian Zion be destroyed too.”
Furthermore the defendant expands: “And because you cannot drive every Palestine
from the shores of the Jordan with Fascist methods putting the nazis to shame,
well, they come again to the shores of the Danube, as internationalists, as
nationalists, as cosmopolitans once more to kick Hungarians, because they feel
like it.”
References to Saint Stephen's welcoming state were termed
by the defendant “their usuring
screeches,” and as a contrast quoted László Németh: “we want today such a clean situation as
there had been in St Stephen's multilingual state, where under the cloak of
patriotism a minority could not lie its way into the majority.”
The article concludes with the following words:
“Hark then Hungarian, hear the one life-giving message of a thousand
years of Hungarian Christian statehood, the message passed down through a
thousand years of legal continuance: EXCLUDE THEM! BECAUSE IF YOU DO NOT DO SO,
THEY WILL DO IT TO YOU!”
The article generated a lively debate, a criminal trial was launched against the defendant, said criminal trial concluded with the defendant given a suspended prison sentence in a non-binding verdict.
Plaintiff filed a letter of lawsuit on 21st January, 2003 against the defendant, requesting that with regard to the above article, and according to section 76 of the Civil Code the Court establish that the defendant breached the plaintiff's personal rights with the above article, and especially the ban on negative discrimination of individuals (on the basis of race, natioanlity, creed, etc.), and breached the plaintiff's right to honour and human dignity. Plaintiff requested that the court ban the defendant from repeating the offence.
Defendant asked that the lawsuit is rejected, arguing that the article did not refer to the plaintiff, did not mention the plaintiff, therefore the plaintiff has no legal recourse with reference to the article.
The lawsuit is well-founded.
In the trial the court had to take a stance in two questions.
1. Does the plaintiff have the right to sue because of the contents of the article?
2. If the Court answers yes to the previous question, then did the defendant breach the plaintiff's personal rights with the contents of the article?
ad 1.
Under paragraph (1) of section 75 of the Civil Code personal rights must be observed by everyone. These rights are protected by law.
Under section 76 of the Civil Code a breach of personal rights is any negative discrimination of private individual on the basis of their sex, race,
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nationality or creed, furthermore the illegal limitation of the freedom of conscience, injury against body or health, honour or dignity.
Under paragraph (1) of section 85 of the Civil Code personal rights – with the exceptions discussed in paragraphs (2) and (3) – may be personally asserted only. Paragraphs (2) and (3) serve to protect the rights of those who cannot act for themselves, or are dead.
The grammatical and teleological explanation of paragraph (1) of section 85 of the Civil Code is none other than that an injury suffered by one, cannot be sued for by another, who suffered none. The explanation is that in case of personal rights only the person involved who can, in person, subjectively decide whether they suffered an injury, and if yes whether they wish to take steps against it. The legislator never intended a contrary interpretation for the judiciary.
The court did not accept in this respect the defendant's citation of the Supreme Court ruling PK 13. The PK 13 ruling says that corrections in the press may be demanded by the one, whose person is – by mention of name or in another way – referred to in a press publication, or someone whose identity is recognisable from the press publication. As the text clearly indicates, this interpretation was intended by the Supreme Court exclusively for procedures of corrections in the press. With reference of section 85 of the Civil Code the PK 13 cannot be applied because the party attempting to assert their right would be placed at a more disadvantageous position than the Constitution allows. An Unconstitutional interpretation is forbidden in case of all laws.
In case of fundamental rights, analogies, implicit interpretations may only be applied to favour the plaintiff!
The PK 13 ruling, often cited by parties and judges, is not a binding rule in the course of individual cases, and is furthermore unsuitable for the interpretation of paragraph (1) of section 85.
Direct, personal involvement does not in this case mean that a person is to be mentioned by name, such an implicit interpretation would be extraordinarily unfair and injurious for those involved, as there are numerous ways in which someone can make unfavourable, injurious or discriminative statements without specifically naming the person referred to.
It is sufficient if an essential substance of a person is recognisable, a substance which is an attribute of his existence, which is recognisable to others too.
The person involved need not be recognisable by name, it is sufficient if the notion is conveyed that the person is the member of a certain community, that person at this point becomes identifiable in this respect. The Civil Code does not determine which
20. P. 85.346/2003/10.
part of the personality, which essential aspect therof is to be recognisable.
Someone's being Jewish, is such an essential, integral part of their personality, that the recognition, or perceived recognition therof forms a sufficient basis for the personal involvement of a given person with reference to the given utterance or statement.
The notion of the general always manifests itself through the existence of the specific, whether we assume an objective or subjective existence. Notions, thus the notion of a community, amongst others, exists specifically, in reality, in a physical manner through natural persons.
Notions and their real elements cannot be separated, as without material existence the notions covering these would not exist either, these interrelations are inseparable.
Neither the Constitution or the individual laws name people by name, yet in a given case any natural person may file a lawsuit and seek to assert their rights citing the Constitution or the Civil Code.
The essence of the fundamental right to human dignity, the ban on discrimination is specifically that no part of the person, no essential aspect of a person may remain unprotected. This follows from an un-restrictable necessity for the wholeness of human existence.
Belonging to a community is an innate, inalienable aspect of every man and woman, such a characteristic, which cannot be ignored with reference to the existence of a person!
The relationship between the natural persons making up the community and the community itself is inseparable, this absolutely essential correlation cannot be abstracted, separately evaluated, as a community and the individual are each other's genetic attributes.
The ban on discrimination sets down an extraordinarily unique human right as an individual right, but this right is at the same time the immanent pre-requisite of the operation and efficency of every other fundamental rights.
The majority of fundamental rights could not be asserted if the legal system did not ensure the equality of smaller and larger sections of society.
The ban of discrimination is thus one of the sources of all other fundamental rights.
The spirit of equal dignity is eroded if society differentiates along group characteristics, which are morally irrelevant, arbitrary, such are discrimination along racial and religious lines.
If members of a group are repeatedly undesired near the living space of the majority, then this not only suggests personal antagonisms, but also suggests the inferiority of the undesired group towards the minority, as well as the hitherto neutral members of the majority.
When considering discrimination, the values of the injured person or threatened group is relevant.
Because discrimination, in almost all cases, has a stygmatising effect as well.
20. P. 85.346/2003/10.
If collective rights protect the individual's equal freedom and dignity, then their existence proves that they rest on the same moral a principles, which guarantee an individual's rights as a citizen.
The existence of collective rights, identification by
oneself, or identification by another (see case in question) with
reference to aspects of a group cannot strip the individual of the integrity
of their general human rights.
If all members of a community have suffered an injustice, then all of them are affected, thus any of them has the right to file a lawsuit.
When understanding the Civil Code the only correct tools are the Constitution and the international obligations assumed by the Republic of Hungary!
Under paragraph (1) of subsection A of section 70 of the Constitution the Republic of Hungary guarantees all persons within its borders their human and citizen's rights, without discrimination, be that by race, colour, language, religion, politial or other opinion, national or social origins, wealth, or circumstances of birth or any other aspect.
Under paragraph (2) any negative discrimination listed in paragraph (1) is strictly punishable by law.
Internal Hungarian law also includes the New York Treaty banning all forms of racial discrimination, ratified in the 8th statutory instrument of 1969. This defines the notion of racial discrimination, sets down a blanket ban of such discrimination, and calls on participating states to put an end to it.
Article 6 of the treaty states that the participating states through the relevant national courts and other state institutions provide effective protection and legal recourse to all persons within their sphere of authority from any act committed with the intent of racial discrimination, which, contrarily to the treaty, injures their human rights and fundamental freedom rights.
Furthermore they must ensure everyone's right that if such an injury is suffered they may seek just and suitable reparation for all damages suffered.
The Covenant of Civilian and Political Rights, ratified by the 8th statutory instrument of 1976, declares man's right to dignity, and the recognition of the equal and inalienable rights of the human community.
History shows that social discrimination placed in a historical, political social context, was never directed against specifically named persons, but always attacked certain communities, identifiable on the basis of certain common characteristics.
In the course of human history there has always been a tendency to make responsible certain groups, separated by easily identified characteristics, for various social ills and perceived unsolved tensions.
20. P. 85.346/2003/10.
Following inverted deductive logics the majority of society decides on the identifying points of the group, then reversing the process, based on these identifying points finds specific persons who fit the identifying points of this group's hypothetical and often wrongly determined values and formal aspects. This is then followed by repression, the discrimination itself is implemented along these hypothetical identifying points against those, who do or are perceived to fit these requirements.
Discrimination in practice cannot exist without the physical existence of specific persons, as every group is composed of real, specific persons.
Jewry in itself, as a notion does not exist, Jewry as a notion is made up of specific natural persons.
If in a given case the majority of the society intends to differentiate a part of society it is both impossible and unnecessary to name all the individuals it intends to differentiate, because it is perfectly happy, unfortunately in this case, with naming certain aspects, such as being Jewish, or external identifying points indicating belonging to the Jewish community, and thus makes it possible for anyone to perform discrimination and exclusion.
A community, or a group united by certain characteristics always consists of specific members, which members often cannot be named for the excessive size of the group, yet statement made with reference to the group itself refer separately to each and every member of the group as well, under the principle of the many includes the few.
History has proved it that discrimination directed against a community does or can result in irreperable, tragic consequences in the case of numerous specific natural persons, persons that can be named by name. It is an impossible notion that a statement, opinion, position or call to action against a community in general cannot refer to its individual members, because if this were the case, then for instance, the not infrequently state-endorsed discrimination in the past should have had no effect whatsoever on specific natural persons, or the natural persons affected by said laws would not have suffered great tragedies. It is the position of this Court that the Constitution and the international agreement cited ban all forms of discrimination, those referring to persons, to groups or communities.
The discrimination against communities and groups is dangerous, and forms a basis for the personal involvement and the legal right of the members of the community to launch a community precisely because it offers an extraordinarily wide scope for the other members of the society to interpret arbitrarily the discriminating act or statement with reference to specific persons.
20. P. 85.346/2003/10.
These discriminations are never based on exact, scientifically determined characteristsics, but arbitrary, haphazard ideas, taken out of context, in compliance with the spirit of the times, which are dangerous for this very reason to the members of the group.
All members of the community must be given the opportunity to defend themselves against such discrimination, because if they cannot defend themselves against the injuries suffered for belonging to a community, they would often remain completely defenceless.
In the case of communities it is often physically impossible, or technically unfeasible that the community as a whole take a stance in defence of its members, if for no other reason, then the large number of members of a given community, as it is impossible that every single member of a community of tens of thousands take a stance against the same breach of law, and in the same form.
The fact that physically a community's defence of its rights in a civilian court is impossible, does not mean that the members of the community should be prevented from asserting their constitutional or civilian rights.
For this reason the members of a community or group must at all costs be given the opportunity to assert individually their personal rights. It would be extraordinarily unfair and unjust if only the whole of a community could take action against an injury suffered by it, but its individual members could not.
The most dangerous aspect of discrimination against a community, and this forms the basis of individual assertion of rights, is that the question of belonging to a group is often decided by society in an entirely arbitrary manner, as it is sufficient that someone is considered as a member of a group on the basis of a discriminative order, and from then on the person could suffer injurious legal consequences, even if they are in fact not a member of the given group.
Thus then, if personal involvement could not be established, the given person would be completely prevented from the assertion of their rights, as they could not even claim actually to belonging to the group, because they are simply regarded as such by certain persons, certain groups.
On the basis of all this, personal involvement with reference to the statement is unequivocally well-founded.
Naturally it cannot be an argument that in such a case numerous lawsuits could be filed, with a similar content and a similar goal, as the assertion of rights cannot be hindered by issued of cost efficiency or other considerations of trial law.
The Court of Constitution ruled that the protection of the
dignity of a community is most reasonably defended with the tools of
civilian law.
20. P. 85.346/2003/10.
Because this trend was not followed through in the legislative, there is no specific empowering piece of legislation in this matter.
(30/1992.AB. ruling)
General personal rights are fundamental rights, in other words rights, which may be invoked by the Court of Constitution and the Courts to protect the autonomy of a person, if specifically named fundamental rights cannot be applied to a given situation. (8/1990.(IV.23.)AB. ruling)
The function of right to dignity is to ensure the equality of men. (23/1990.(X.31.) AB. ruling)
It is without doubt, that on this basis the Court must always examine the aspects of belonging to a group, the group's civilian law habit, or whether with reference to a specific community a person has the right to file a lawsuit, but this cannot be an item of consideration when protecting a citizen's constitutional or citizen's rights. In not one case the Court will have additional work to do, but this cannot be a consideration when ensuring the assertion of rights. Indeed there are many grounds on which a group can be identified within a society, it is the task and responsibility of the Court to decide in a case whether it is the group or its members have the right to assert their rights in a civilian court of law. Reference to precedents is not relevant in this area. Precedents are not, nor can they form such an inflexible system of norms (as a court's decision is not a norm either!), which cannot be breached by the interpretation of the Constitution and binding international agreements. Precedents can and must change! It is the change of precedents, which forms the organisational principle, which, in keeping with social changes, fills out material legal regulation, showing the desirable, ideal content of these regulations, and their effect on the people they are applied to, from the point of view of society.
ad.2
After the Court decided in the question of the personal involvement of the plaintiff, it then examined whether the statement which formed the basis of the complaint did constitute discrimination?
With reference to this part of the lawsuit the defendant made no submissions, the Court examined the attached text and established that the text, which formed the basis of complaint included an expressly discriminate call with reference to a certain group within society. Exclusion is unequivocally a discriminative act, a call to such action constitutes discrimination.
20. P. 85.346/2003/10.
The Constitutional ban on discrimination refers to the fact that the law must treat everyone as equal, as having equal dignity (9/1994.(IV.25.) AB. ruling).
Everyone includes the natural persons who make up the groups, the aspects by which their belonging to the group is determined can in some cases be an aspect which forms the basis of discrimination, and should be asserted as a constitutional right.
Discrimination realised through exclusion cannot under any circumstance be a legal response to perceived or actual social problems, because it is ab ovo against the low! A call to exclusion, because it is against the constitution and the law, can only exert its effect through a breach of personal rights.
Implicitly, every act of exclusion injures human dignity, because it aims to deny certain members of society the right to existence within society, this innate and inalienable right of man.
Naturally, society has the right to protect against phenomena threatening it or its achievements, but it can only do so with the means of criminal law. The defendant's statement is the clear, unequivocal expression of the above process.
The order referring to trial costs is based on point a. of paragraph 3 of section 39 of the 93rd Act of 1990, paragraph (1) of section 42 of the same act, and paragraph (1) of section 78 of the Code of Civilian Trial Law.
1st July, 2003 Budapest.
Dr György Mohay
Judge