SECOND SECTION
CASE OF
SÁSKA v. HUNGARY
(Application no.
58050/08)
JUDGMENT
STRASBOURG
27 November 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Sáska v. Hungary,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi,
President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section
Registrar,
Having deliberated in private on 6 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58050/08) against the Republic of Hungary lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Hungarian national, Mr Béla Sáska (“the
applicant”), on 27 November 2008.
The applicant was represented by Ms R. Németh, a
lawyer practising in Budapest. The Hungarian Government (“the Government”) were
represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and
Justice.
The applicant alleged that his right to freedom
of assembly had been unjustifiably interfered with.
On 15 February 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant lives in Budapest.
On 13 October 2008 the applicant applied to the
Budapest Police Department for authorisation for a political demonstration in front
of Parliament, in Kossuth Square, a vast open area traditionally used for
political demonstrations. The declared objectives of the demonstration were,
among others, commemoration of the revolution of 1956 and of the tumultuous
events in Budapest in 2006 as well as to call attention to the perceived
absence of legal certainty in the country. The event was scheduled for Friday, 17 October
2008.
According to Parliament’s official and public activity
log available on the Internet, the only event taking place on that date in
Parliament’s building was a conference and open day organised by the Hungarian
Alliance for Enhancing Female Careers under the title “Employment - Equality of
Chances - Competitiveness”. No parliamentary session was scheduled.
On 14 October 2008 the Police Department proposed
to the applicant that the planned demonstration be held in a secluded part of
Kossuth Square, rather than its entirety. The applicant refused this
suggestion.
On 15 October 2008 the Police Department forbade
the demonstration. It was of the view that the planned demonstration would ‘gravely
endanger’ the functioning of Parliament, which was a legitimate ground for
prohibiting it under section 8(1) of the Assembly Act. In particular, the
speeches and music - belonging in the programme and amplified - might disturb
the MPs’ work. Moreover, the participants - whose number was estimated at 150
to 200 persons - might physically impede the MPs’ driving in and out of
Parliament’s car park, which, in the authority’s view, amounted to restricting
their freedom of movement and to inhibiting the functioning of the organ of the
people’s representation.
The applicant applied for judicial review. He
submitted in particular that another demonstration with an agenda identical to
his but scheduled for Wednesday, 15 October 2008, had not been forbidden
on exactly the same location; this fact showed, in his view, discrimination
against him and his planned event. According to Parliament’s official and
public activity log available on the Internet, on 15 October 2008 five
parliamentary commissions were in session.
On 22 October 2008 the Budapest Regional Court
dismissed his complaint, endorsing in essence the Police Department’s
reasoning.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE
CONVENTION
The applicant complained under Article 11 of the
Convention about the refusal of his application to organise a demonstration. He
also invoked Articles 1, 6, 9, 10, 13 and 14 of the Convention.
The Court considers that this complaint falls to be examined
under Article 11 alone, which provides as follows:
“1. Everyone
has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the
state.”
The Government contested that argument.
A. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Government submitted in particular that the
interference, lawful, had pursued the legitimate aim of securing the unimpeded operation
of the representative bodies of the people (that is, public safety and the
protection of the rights and freedoms of others). Furthermore, they argued that
the applicant had been adamant in rejecting the police’s suggested compromise
to limit the area in question to a secluded part of Kossuth Square, although
this solution would have been reconcilable with the undisturbed work and the
free movement of the MPs. The envisaged event, foreseen to involve 150 to 200
participants and sound amplification, would have constituted a large crowd in
Kossuth Square, capable of disrupting Parliament’s activities if spread over
the entire area. In the light of this, the interference had not been
disproportionate in their view.
The applicant contested these arguments in
general terms.
The Court observes that it is not in dispute
between the parties that there was an interference with the applicant’s right
to freedom of assembly, and it has no reason to hold otherwise. Such an
interference will constitute a violation of Article 11, unless it was
prescribed by law, pursued a legitimate aim for the purposes of Article 11 § 2
and was necessary in a democratic society.
The Court further notes that it is not in
dispute between the parties either that the interference was prescribed by law,
namely, by section 8(1) of the Assembly Act and that it pursued the
legitimate aims of public safety and the rights and freedoms of others. Again,
it has no reason to hold otherwise.
It remains to be ascertained whether the interference was
necessary in a democratic society.
The Court recalls the relevant principles of its
case-law, primarily enounced in cases concerning Article 10 of the Convention,
according to which the Court’s task, in exercising its supervisory
jurisdiction, is not to take the place of the competent national authorities
but rather to review under Article 10 the decisions they delivered pursuant to
their power of appreciation. This does not mean that the supervision is limited
to ascertaining whether the respondent State exercised its discretion
reasonably, carefully and in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole and
determine whether the reasons adduced by the national authorities to justify it
are “relevant and sufficient” and whether it was “proportionate to the
legitimate aim pursued”. In doing so, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they relied on an
acceptable assessment of the relevant facts (see, among many other authorities,
mutatis mutandis Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 45 in fine, ECHR 2007-IV; Hertel
v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions
1998-VI; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99,
§§ 68 to 71, ECHR 2004-XI; Steel and Morris v. the United Kingdom, no.
68416/01, § 87, ECHR 2005-II; Mamère v. France, no. 12697/03,
§ 19, ECHR 2006-XIII; and Jersild v. Denmark, 23 September
1994, § 31, Series A no. 298).
These principles have been found applicable in
the context of Article 11 as well (see e.g. Hyde Park and Others v. Moldova (nos. 5 and 6), nos. 6991/08 and 15084/08, §§ 42 to 47, 14 September 2010).
In the present case, the Court notes that the
domestic authorities invited the applicant to exercise his right to demonstrate
in cooperation with the authorities, limiting the area in question. For the
Court, the right to freedom of assembly includes the right to choose the time,
place and modalities of the assembly, within the limits established in paragraph
2 of Article 11. While the limitation proposed by the police may have respected
as such the essence of the applicant’s rights under Article 11, the Court finds
that this was not demonstrated to be the case. It is not the role of the Court
to carry out such assessments in the absence of a proper domestic consideration
of the matter, in particular if the authorities did not provide “relevant and
sufficient” reasons for the proposed restriction.
The Court notes the applicant’s unrefuted
assertion that another demonstration planned on exactly the same location for
15 October 2008 had not been forbidden by the authorities. For the Court, this
is a remarkable element, since on that date - unlike on 17 October 2008 -
five parliamentary commissions were in session (see paragraph 10 above),
evidently entailing the presence and movement of numerous MPs.
In the light of this fact, the Court finds
unconvincing the Government’s argument that the restriction on the applicant’s
rights was necessitated by the requirement to secure the unimpeded work and
movement of the MPs. This consideration cannot be regarded as a relevant or
sufficient reason, especially since on the date of the event planned by the
applicant no parliamentary activity was underway (see paragraph 7 above). Therefore,
the Court cannot but conclude that the prohibition of the demonstration did not
respond to a pressing social need, even in the face of the applicant’s
intransigence in considering the police’s conciliatory suggestion (see paragraph
8 above). Thus, the measure was not necessary in a democratic society.
Accordingly, there has been a violation of Article 11 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 25,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim.
The Court considers, in the light of the
circumstances of the present case, that the finding of a violation itself constitutes
sufficient just satisfaction.
B. Costs and expenses
The applicant made no costs claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 11 of the Convention;
3. Holds that the finding of a violation itself
constitutes sufficient just satisfaction;
4. Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 27 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Guido
Raimondi
Deputy Registrar President
