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: