Atlatszo.hu files constitutional complaint against police face blur

After the events of autumn 2006 in Hungary it is not a question anymore that the identification of acting police officers must be ensured in every constitutional way. At least we believe so, while the judicial practice – which otherwise contravenes both the Hungarian and the international constitutional practice regarding to public officials – eliminates the most important tool, namely the disclosure of the police officer’s portrait. Because of this we submitted a constitutional complaint (Hungarian, pdf) to the Constitutional Court against the uniformity decision which was adopted in last November by the Curia of Hungary.

This article of ours, or rather its illustration, is the basis of our constitutional complaint against the Curia’s uniformity decision No. 1/2012 BKMPJE. As it happened, we intended to illustrate László Tamás Papp’s reviews about József Debreczeni’s book on the events of autumn 2006 with genuine photographs which had been taken during the offense against the public building of the Hungarian Public Television (MTV). In our opinion, we ought to be lawfully permitted to publish the photographs without any alteration, as there are only private individuals in them who had been engaged in actions which generated publicity (limited public figures) and police officers, currently and pervasively involved in public affairs. But according to the uniformity decision “persons fulfilling service and working in a public place shall not be considered public entities, therefore, rendering public a photo or video record of them that makes identification possible, is subject to authorisation by the person concerned.” (The Curia of Hungary, 2012) However, uniformity decisions bound only the courts, but if we are not aware enough, it shall affect us as well, that is why we finally decided to blur the police officers’ faces on the photos but at the same time we submitted a constitutional complaint against the decision in question referring to the presumptive violation of the freedom of expression, freedom of media and right to information.

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The underlying principle of the Curia’s decision, which upholds its own earlier practice against a partially contravening ascertainment of the Pécs Regional Court of Appeal is – as it was stated also by the Chief Prosecutor who started the uniformity proceedings – that the behaviour of persons fulfilling service and working in a public place cannot be considered as public action. Because of this for publishing a photo or video record of them, their consent must be required. In the Curia’s opinion only those activities or public appearances can be considered as public actions which are based on the individual’s very autonomous decision and free will. According to the uniformity decision, this condition is not fulfilled in case of police officers, warders or when anybody else works in public places in order to acquit job descriptions.

The fact in itself, that the action is public – and here the Curia deals with the arguments regarding deliberately to the police – and that the police officer is an employee of a state outlet who personalizes the public power on his/her own, does not meet the necessary requirements of being a public figure. Moreover, such a statement that every data in connection with those who act on behalf of the state shall be public cannot be concluded from the regulations on the freedom of information. However, even the Curia acknowledges, that the actual possibility of the identification of the acting police officer is a constitutional requirement, but considers the norms prescribed by the act on the police – namely the requirement of identification number, testimonial, badge – as sufficient guarantees.

Notwithstanding this reasoning, in our opinion the uniformity decision interferes with the Fundamental Law, because the Curia missed the point when balanced the existing conflict between the freedom of expression and the moral rights of those who exercise public authority by profession. It is a recognized constitutional principle for a long while, that the freedom of expression shall be restricted only on a narrower ground for the purpose of protecting those, who act on behalf of the state. In accordance with this principle the act on the freedom of information declares that any data – other than public information – in connection with exercising public authority shall be considered as “data public on grounds of public interest”. The relevant court procedure rules clearly move in the same direction: the person, who acts on behalf of the state, shall not be entitled to oppose the use and publication of unaltered photographs which were taken while s/he was exercising public authority.

A different conclusion from the Court’s reasoning can also be derived from the identification requirement of the acting police officers: we think this requirement exists not only in the relation with the particular individual against whom the measures in question were taken, but also in the relation with the whole political community. The police officer’s right of personal portrayal is substantially weaker than the community’s interest to transparency since the disclosure of his/her identity does not mean real impairment of a right for a lawfully acting police officer. Moreover we do not see a legitimate interest which could support a strong restriction on the freedom of opinion for the purpose of protecting the law enforcement agencies, which has monopoly on legitimate violence, while the judges competent in criminal cases are bound to tolerate being photographed. Thus, the restriction on publishing recorded photographs – which act is constitutionally protected by the freedom of opinion, media and information – established by the uniformity decision, interferes with the Fundamental Law.

For the sake of completeness it is worth mentioning that the legislator would be able to harmonize the civil law regulations with the above cited norms, but has fallen short so far – recently for example during the adoption of the new Civil Code. After all, this default presents good opportunity for the Constitutional Court to decide on the issue.

This article was translated by Emese Szilágyi, published originally in Hungarian on 31 May 2013.