Case Summary and Outcome

The Hungarian Constitutional Court held that the act of mocking Catholic communion during a protest against the Catholic Church’s position on abortion was not a form of protected expression. At an event protesting the Polish Catholic’s support for a total abortion ban, some protesters mimicked the act of communion. Two Catholic plaintiffs brought an action against the protesters arguing that their conduct had infringed their dignity and ability to freely exercise their religion. The court of first instance dismissed the application which was then overturned on appeal before being reinstated by the Curia. The Constitutional Court emphasized the distinction between criticizing a religious community and mocking the religion itself, and that in order to protect the dignity of a religious community acts which mock a “religious belief, symbol, act or ritual’ can be restricted. It held that the protesters’ conduct undermined the dignity of the plaintiffs’ religious community without justification.

Facts

In 2016, during a protest in front of the Polish embassy in Budapest against the Polish Catholic Church’s position in support of a total ban on abortion in Poland, one participant imitated the rite of receiving Holy Communion by placing a white pill from a bag marked “abortion pills” on the tongues of two other participants, accompanied by the words “the body of Christ”. Following the events at the demonstration, two individuals brought an action before a civil court, asking the court to declare that the protesters had violated their dignity and their right to the free exercise of their religion, through their membership of the Catholic religious community as an essential feature of their identity.

Section 2:54 (5) of the Civil Code states: “any member of the community may enforce his or her personality rights for a legal injury that is seriously offensive to the community or that is unduly insulting in its manner of expression, committed with great publicity, in relation to his or her membership of the Hungarian nation or of a national, ethnic, racial or religious community, which constitutes an essential characteristic of his or her personality”.

The Metropolitan Court of Budapest, acting at first instance, dismissed the claim. The judgment found that the acts had occurred at an event organised in the context of a public debate on a public issue – the adoption of an abortion law in Poland, and so should be interpreted as a criticism of the Catholic Church’s views on abortion. It found that the protesters’ opinion was not aimed at defaming the Catholic faith, but could be interpreted as a sharp, sarcastic criticism of the position of the Catholic Church and the community of believers on the abortion debate. It held that there was no violation of section 2:54 (5).

The plaintiffs appealed the decision. The Budapest Court of Appeal reversed the judgment of the court of first instance and found an infringement of section 2:54 (5). The Court examining the conduct – in particular the protesters’ imitation of the communion ceremony – and found that the acts were defamatory, insulting and humiliating. It found that their conduct clearly constituted a defamation of religion, and that the act of mocking did not demonstrate their position on the abortion issue as it could not be interpreted as a criticism of the Church’s position on the abortion debate. The Court specifically focused on the receiving of the Holy Communion with the abortion pill and held that this was a defamation of the religion of the plaintiffs, capable of causing serious offence to the Catholic community in a highly publicised manner.

The Curia, acting on a petition for review of the final judgment, repealed the judgment of the Budapest Court of Appeal and upheld the judgment of the court of first instance. The Curia held that the protesters expressed their position against the Catholic Church in the social and public debate surrounding the authorisation or prohibition of abortion in a mocking and ironic way. It based its decision on judgments from the Constitutional Court (decision 8/2018 (VII. 5.) and the European Court of Human Rights (Otto-Preminger-Institut v. Austria) which had held that church office holders are obliged to tolerate criticism on social and political issues that affect the religious community and are part of public debates but that persons speaking out on such issues must avoid, as far as possible, expressions that are unnecessarily offensive and do not contribute to the free discussion of public affairs. The Curia held that the manner and form of the protesters’ expression was justified for the purpose of expressing their views and was not gratuitous or self-serving. It acknowledged that the use of certain liturgical elements in the performance may have been offensive to members of the given religious community, but stressed that the basis for establishing an infringement is not individual sensitivity but only the expression of an opinion that is seriously offensive or unjustifiably offensive in its manner of expression according to popular opinion. As this was not present in the case, the Curia held that the requirements of section 2:54 (5) could not be established.

The plaintiffs filed a constitutional complaint, seeking a declaration that the judgment of the Curia No. Pfv.IV.21.163/2/4 and the judgment of the Metropolitan Court of Budapest No. 70.P.22.286/2016/13 were unconstitutional and that the Court annul them, invoking a violation of Article II and Article IX (4)-(5) of the Fundamental Law.

Decision Overview

The Constitutional Court delivered a unanimous decision The central issue for the Court’s determination was whether the protesters’ conduct was constitutionally protected expression.

The Court discussed the scope of freedom of expression and noted that it goes beyond oral and written communications as “the person expressing their opinion may communicate their ideas not only in words but also, for example, by using images, symbols or wearing clothes – symbolic speech, as manifested in the use of symbols, may be one of the classic issues of freedom of expression”. [para. 25] In this context, the Court underlined that “it is a necessary, but by no means a sufficient condition for treating an act as an expression of opinion that the perpetrator acts with the purpose of expressing his or her opinion – even though, from the point of view of freedom of opinion, the primary consideration for the law enforcement authorities in assessing an act is the purpose or motive of the perpetrator in taking the action” [para. 36] It added that “the form of communication chosen should be an objectively suitable means, a medium for the communication of ideas”. [para. 36]

After establishing the principles concerning the scope of freedom of expression, the Court stated that “a person who uses seriously offensive or insulting expressions in order to humiliate the human dignity of another person is not exercising their freedom of expression in matters of public affairs”. [paras. 26 and 29] With reference to the Constitutional Court cases 13/2014 (IV. 18.) and 13/2014 (IV. 18.), the Court highlighted the importance of human dignity – which it described as “the direct embodiment of our humanity” – and that it serves as “the boundary of freedom of public debate” as “[s]peech on public affairs must yield to this inalienable essence of human dignity that determines human status”. [paras. 26 and 29]

The Constitutional Court’s jurisprudence has confirmed that freedom of opinion may involve a certain degree of exaggeration and provocation in order to control public power or those exercising public power and to inform and draw the attention of public opinion. This does not cover self-serving communications outside the scope of public debate, such as those relating to private or family life, which are intended to humiliate or insult, or to use abusive or offensive language or to cause other legal harm, or an opinion expressed in a public debate if the views violate the inalienable core of human dignity, and thus amount to a manifest and serious denigration of human status. The limit to freedom of expression, however, is not the insult to someone, but an insult to human dignity. Expressions that are subjectively offensive to the personality but do not violate human dignity are protected by freedom of expression.

According to section 2:54 (5) of the Civil Code, a communication can be classified as “seriously offensive” or “unduly insulting in its manner of expression” if it “violates the inalienable core of the human dignity of the members of the community, or if it is otherwise self-servingly directed at violating the dignity of the community or its members”. [para. 25]

The Court outlined two approaches to identify expression of opinions that are closely related to the discussion of public affairs but which are “unduly insulting in their manner of expression”: “if the person expressing the opinion could have sought a form of expression that was neutral or non-offensive from the point of view of the community concerned”; or “the form and style of expression chosen must not be inconsistently or excessively offensive, but criticism, irony, a certain degree of provocation, and, where appropriate, mildly offensive or insulting communications remain protected by the freedom of expression” [paras. 26-27] The Court held that the second approach was the correct one.

Accordingly, the Court held that the established constitutional principles supported a finding that the protesters’ expression could be considered expressions of opinion on a public issue, and that the purpose and form of the communication must be given decisive importance. It accepted that the use of insulting or offensive communications about the beliefs and rituals of religious communities in a self-serving manner, not as part of the debate on public affairs, is not protected by freedom of expression, and stressed that the use of symbols of religious communities in the context of criticising the discussion of public affairs, in particular when expressing an opinion through visual or communicative acts, is not inherently self-serving and unlawful. [para. 34]

The Court focused on the context of the conduct as well as the content of the expression: “[a]lthough the context of a disputed communication may provide a point of reference in judging it, the use of an otherwise offensive or insulting term does not render it lawful to use it in the context of a social debate if it does not convey a valuable opinion or if it does not consistently fit into the debate.” [para. 35]. It also looked at the intention between the expression and noted that a communication that intends to offend the dignity of a specific community is “expressly prohibited” by the Fundamental Law but that “even in the absence of such an intention, it may be considered to be unduly offensive”. [para. 35]

With reference to the European Court of Human Rights case of Otto Preminger Institut v. Austria, the Court noted that the lower courts that had dismissed the action had accepted that the protesters’ conduct was a constitutionally protected expression of opinion “without “examining its opinion content and its contribution to the discussion of a public matter” and, consequently, without “examining with sufficient care […] whether the contested communication was intended to offend the community concerned”. [para. 36] It found that the failure to take these assessment criteria into account meant that the “protection of the dignity of the petitioners’ religious community was undermined, without any justification in terms of the exercise of freedom of expression”. [para. 36]

On the right of religious communities to express opinions on public issues, the Court underlined that “the opinion of the religious community is also open to debate, and even if the criticism takes the form of mockery, it is constitutionally protected” [para. 39]. It noted that “a distinction must be made between criticising the religious community and mocking the religion itself. Expressions of opinion that mock a religious belief, symbol, act or ritual may be restricted in order to protect the dignity of the religious community or its members”. [para. 39]

Accordingly, the Court found that the judgments of the Curia and the Metropolitan Court of Budapest were contrary to the Fundamental Law and therefore annulled them.