Tightening of the Criminal Code is Unconstitutional

According to human rights watchdog the Hungarian Civil Liberties Union, the proposed bill to change the Criminal Code as it relates to protecting human dignity and preventing falsification of evidence is unconstitutional as it violates the principles of freedom of speech and freedom of the press. By reacting to one particular case, this move from the legislative body would further deconstruct both its own prestige and that of the judicial branch.

The bill submitted by four MPs from the governing party would introduce specific additional regulations to the presently existing statement of facts of vilification in the Criminal Code: 1. Those who make audio or video recordings of false, forged, or untrue content with the intention of discrediting other persons could be incarcerated for up to one year. 2. Those who – again with the intention of discrediting– make such recordings accessible to others, even if they only show them to just one person, can be sentenced to up to two years. 3. If the recordings are made accessible to the wider public, or if the contents thereof harm the interests of others, sanctions could reach three years of confinement.

According to the Hungarian Civil Liberties Union (HCLU), the proposed bill is unconstitutional for several reasons. First, it would create an opportunity for investigative authorities to penetrate people’s private spheres as soon as the criminal procedure gets underway; and hence it would only be in the course of the procedure that these individuals have the possibility to prove the lack of intention substantiating the violation. Second, sanctions against publication are unusually severe; they would constitute disproportionate restraining power for individuals willing to unveil illegal (or presumed illegal) activities by publishing recordings of these activities in their possession. Publicity, investigative activities, and freedom of criticism are guarantees both for the quality of public life and for the prevention of misleading the public through fake recordings made with the intention of discrediting others. Third, the objectives listed for justifying the proposed bill can be reached by presently available means that do not restrict basic rights: Hungarian law provides the tools for remedying harm to human dignity, sanctioning falsification of evidence, and ensuring cleanliness of elections. At the same time, even the current legal environment has a substantial numbing effect on the Hungarian press according to HCLU. This is to say legislators would have a job to do; they should be tearing down legal barriers that make investigative activities, unveiling, and criticism risky, rather than setting up new ones.

This proposed tightening of the Criminal Code is a reaction from the governing parties to the so called Baja video scandal. But the Baja incident is under an ongoing criminal procedure, and the proposers of the bill gave no explanation as to why it is not sufficient to leave impeachment of the video forgers to the regular mechanisms of the judicial system. This sort of voluntarist tightening of criminal law raises doubts about whether democratic institutions, like the Parliament, are really fulfilling their constitutional functions, and undermines trust in the judicial branch of government. A constitutional democracy cannot afford to let this happen.

The Hungarian Civil Liberties Union’s Opinion on the draft bill No. T/12865. can be downloaded here.

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