BUDAPEST CITY COURT

As Court of Appeals

52.Pf. 29 063/2003/4

 

 

In the name of the Republic of Hungary!

 

The Budapest City Court, in the case of the self-represented plaintiff Dr György Ádám against the defendant Loránt Hegedűs, Jr represented by the barrister Dr Géza Gulyás, in a lawsuit of breach of personal rights, started at the Pest County Central District Court under the number 20. P. 85.346/2003 on July 1st, 2003, following the defendant's appeal bearing the number 11, brought the following

 

verdict.

 

The Court of Appeals oveturns the verdict of the original Court, and rejects the lawsuit.

 

The Court orders the plaintiff to pay, within 15 days, a total of HUF 20,000 /twenty thousand/ as combined trial costs, and to pay to the Hungarian State HUF 15,000 /fifteen thousand/ lawsuit charge and HUF 12,000 /twelve thousand/ appeal charge, unpaid after express warning.

 

There is no appeal against the verdict.

 

Justification

 

The original court established that the defendant breached the plaintiff's personal rights, especially breaching the ban on any form of unfavourable discrimination against persons, with his article Christian Hungarian State published in issue 3 of Ébresztő in 2001, especially with the passages calling for discrimination. The Court banned the defendant from committing similar breaches of law in the future. The Court ordered the defendant to pay trial costs of HUF 15,000 to the state.

According to the justification of the verdict, the plaintiff asked that it be established that the defendant, with his article, breached the plaintiff's personal rights, primarily the ban on any form of unfavourable discrimination against private persons, and the plaintiff's right to honour and human dignity. The plaintiff asked the Court to prevent the defendant from committing such breaches of the law again. The defendant asked that the lawsuit be rejected, arguing that the article did not refer to the plaintiff, did not even mention the plaintiff, thus the plaintiff has no right to litigate.

First of all the original Court had to answer the question whether the plaintiff has the right to sue because of the contents of the article. The original Court cited section 75 of the Civil Code, section 76 of the Civil Code, and paragraph (1) of section 85 of the Civil Code. Interpreting this latter, the Court established: paragraph (1) of section 85 aimed to ensure that a person should not be allowed to bring a lawsuit for an injury suffered by another person. The PK 13 ruling, often cited by the litigating parties and Judges is not a binding item of legislation when deliberating individual cases, and it is unsuitable for the interpretation of paragraph (1) of section 85 of the Civil Code. The ruling refers to amendments in the press, and nothing else, but it also cannot be applied in the case of section 85 of the Civil Code, because it would bring the entitled person into a less favourable position than allowed by the Constitution. Naming a given person by name is not necessary for someone to be personally affected, it suffices if a person's essential substance identifiable. That someone is Jewish, is an essential, integral part of their personality,  and its recognition, or the feeling of recognition thereof forms a basis for the person being affected. A community, or a group possessing certain qualities, always consists of specific people, which specific people often cannot be named individually because of the size of the group, but the statements made with a reference to the whole of the group refer individually to every member of the group, under the principle of the many includes the few. It is beyond doubt that the Court will have additional work, because in every instance the conditions of belonging to a group must be established in every instance, in order to decide whether an individual has the right to launch a lawsuit as a member of a group. This, however, cannot be a point of consideration with respect to the protection of a person's constitutional or civil rights, and neither is the fact that several lawsuits of a similar content and similar aim could be launched. Precedents do not form an inflexible system of norms, which could not be broken by the interpretation the Constitution or international obligations. Precedents can and must change. After the original Court established that the plaintiff has the right to sue, it sought to determine whether the statement pointed out by the plaintiff indeed constituted discrimination. The original Court's answer was yes, explaining that the statement in question included a call to discrimination against a certain section of society. The statement itself is unequivocally an act of discrimination, if the call results in discrimination. A call to exclusion, being against the law and the Constitution, can only manifest itself through the breach of personal rights.

 

The defendant presented an appeal against the verdict of the original Court, in which he sought the overturning of the verdict, the rejection of the lawsuit, and that the plaintiff be charged to pay the trial costs. According to the defendant the original Court brought an illegal verdict by failing to apply section 85 of the Civil Code, by failing to observe compulsory precedents, and by applying an interpretation in conflict therewith. The judiciary can, under no circumstances, place itself into the position of the legislative. Under paragraph (1) of section 85 of the Civil Code, personal rights may only be asserted in person. The plaintiff received no personal injury of any kind, as a result of the article, the article is not about the plaintiff, and until the submission of the lawsuit the defendant was unaware of the existence of the plaintiff, the defendant to this day does not know the plaintiff. No manner of wise words may make up for the complete lack of itemised law, and no metaphysical speculation may take the place of the binding legislation. The original Court was throughout in conflict with paragraph (1) of section 85 of the Civil Code, this dispute is, however, hopeless, because the Court is not a legislative organ. The reasoning of the original Court cannot be accepted, not even in the way it was applied in the case of the previous, losing plaintiffs, as the plaintiff does not even claim to belong to the Jewish community, or that he is of Jewish extraction, in which knowledge it is absurd that the Court should establish a breach of personal rights, which, according to the plaintiff himself, could not happen to the plaintiff. On this basis anyone could file a lawsuit – and according to the first degree Court's reasoning with success – for instance in defence of the personal rights and interests of a Kurd in Turkey, or a Hungarian in Transylvania, even though they are not Kurds or Hungarians.

In his counterappeal the plaintiff asked that the original verdict is maintained. The plaintiff, having analysed the appeal per item, deemed every detail of the appeal to be unfounded. According to the plaintiff the original Court did not enter into conflict with paragraph (1) of section 85 of the Civil Code, but interpreted and applied it correctly. The original verdict is not in conflict with paragraph (1) of section 85 of the Civil Code, but with the Supreme Court's PK 13 ruling, more precisely, it proves its inapplicability to the present legal dispute. The defendant's argument that the plaintiff never even claimed to belong to the Jewish community is a deliberate distortion of the plaintiff's statements. The plaintiff has been regarded as Jewish since his childhood, without exception, and his fate was arranged in keeping with this opinion – formed of him, by others.

 

The appeal is founded, according to the following.

 

The original Court acted correctly when it investigated first whether the plaintiff had the right to sue because of the contents of the article, but arrived at a mistaken conclusion. The decision in the matter depends on the interpretation of paragraph (1) of section 85 of the Civil Code, thus it depends on: how the passage stating that personal rights – with the exception of circumstances not arising in this case – may only be asserted in person is interpreted. The Supreme Court's ruling PK 13 could indeed not be regarded as a binding interpretation of the law, if for no other reason, than because it refers to amendments in the press, regulated in section 79 of the Civil Code. However, this latter fact allows us to conclude, that the contents of the ruling are only applicable to amendments in the press. Section 79 of the Civil Code is in the Personal rights subchapter of the Civil Code, the same place as section 76, which formed the basis of plaintiff's lawsuit, section 85 applies equally to sections 76 and 79. Moreover, the behaviour of commission in the present case is identical, in that according to the lawsuit the defendant harmed plaintiff's personal rights by way of a press publication.

In order for the otherwise absolute personal rights /personal rights are to be honoured by everyone/ to become relative between the persons determined in paragraph /1/ of section 75 of the Civil Code, a specific breach of personal rights must take place between the given persons, in all cases of sections 76 to 83 of the Civil Code. Such a legal relationship is to arise between the parties for the plaintiff to be allowed to demand the application of sanctions set down in section 84 of the Civil Code against the defendant.

According to the Court of Appeals, the conclusion is that if the plaintiff cites in his lawsuit that the defendant breached one or more of his personal rights in a press statement, the lawsuit is founded if the press statement refers to the plaintiff by name or any other manner, or if the plaintiff is personally identifiable on the basis of the contents of the press statement. It is evident, that if anyone should write down a text, which can be interpreted as one in breach of personal rights, but does not bring said  text to anyone's attention, a breach of personal rights cannot be established. But the case is the same if the defendant publishes a statement with such content, but in its text does not specify that it refers to the plaintiff, the plaintiff's being affected is not known to the reader, the plaintiff's being affected is not established in their minds. This occurred in the present case, because the article did not make a reference of any kind to the plaintiff, the plaintiff was not identifiable as an individual from the statement.

The Court of Appeals notes that a different interpretation of paragraph (1) of section 85 of the Civil Code under identical conditions – a member of a group, who is not identifiable with the whole is given the right to litigate with reference to a press statement – would raise several difficult questions. What are the qualities that define a person as a member of a group? Is it necessary, and concurrently is it sufficient if a person regards him/herself as a member of a group – this would be in compliance with the freedom of choice of identity recognised by Hungarian law – or – as suggested by the plaintiff in the current case – the deciding factor is to be whether others, another group of people – which is to be identified as well – regard the plaintiff as a member of the group in question or perhaps should other criteria – of origins, genetics, religion, culture – be investigated? The members of which groups are entitled to the protection of their personal rights, and the members of which groups are not? Would not the right of suing, granted to all members of a potentially million-member-strong group destroy the very purpose of the right to demand protection of personal rights as an institution?

Because, according to the explanation above, under the currently effective legislation the plaintiff has no right to sue, irrespective of the above questions, the lawsuit is unfounded. Therefore the Court of Appeals has overturned the original Court verdict, as set down in paragraph (2) of section 253 of the Civil Code, and rejected the lawsuit.

The Court of Appeals has ordered the losing plaintiff to pay trial costs for both the original hearing and the appeals hearing, on behalf of the solicitor-represented defendant, under paragraph (1) of section 78 of the Civil Code.

The defendant did not provide evidence of the solicitor's fees and costs, therefore the Court of Appeals determined the trial costs with regard to the amount of work carried out by the defendant's legal counsel, as set down in section 2 and paragraph (2) of section 3 of the statutory instrument 8/2002./III.30./ IM.

The Court of Appeals decided on who should pay for lawsuit and appeals charges unpaid under the right of deferral of payment of charges pending binding verdict, under section 2 of the statutory instrument 6/1986.VI.26./IM.

 

 

26th February, 2004. Budapest

 

 

                                                             Dr Mrs András Felkai, by her own hands

                                                                     chairwoman of the council

 

Dr Tibor Tóth, by his own hands         Dr Laura Salamon Laura

                                                                                  by her own hands

     presenting Judge                                                         Judge

 

 

To certify this document: