CASE OF BUKTA AND OTHERS v. HUNGARY
Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
5. The applicants are Hungarian nationals who were born in 1943, 1945 and 1951 respectively and live in Budapest. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 1 December 2002 the Romanian Prime Minister made an official visit to Budapest and gave a reception on the occasion of Romania’s national day, which commemorates the 1918 Gyulafehérvár National Assembly when the transfer of hitherto Hungarian Transylvania to Romania was declared. 8. The Hungarian Prime Minister decided to attend the reception and made that intention public the day before the event. 9. The applicants were of the opinion that the Hungarian Prime Minister should refrain from attending the reception, given the Gyulafehérvár National Assembly’s negative significance in Hungarian history. Therefore, they decided to organise a demonstration in front of the Hotel Kempinski in Budapest where the reception was to be held. They did not inform the police of their intentions. 10. In the afternoon of 1 December 2002, approximately 150 people, including the applicants, assembled in front of the hotel. The police were also present. There was a loud noise, whereupon the police decided to disband the assembly, considering that it constituted a risk to the security of the reception. The police forced the demonstrators back to a park next to the hotel where, after a while, they dispersed. 11. On 16 December 2002 the applicants sought judicial review of the action of the police and requested the Pest Central District Court to declare it unlawful. They asserted that the demonstration had been totally peaceful and its only aim had been to express their opinion. Moreover, the applicants pointed out that it had obviously been impossible to inform the police about the assembly three days in advance, as required by Law no. III of 1989 on the right of assembly (the “Assembly Act”), because the Prime Minister had only announced his intention to attend the reception the day before. 12. On 6 February 2003 the District Court dismissed the applicants’ action. Concerning the circumstances of the event, it noted that the demonstration had been disbanded after a minor detonation was heard. 13. The District Court also noted that the three-day time-limit for informing the police of a planned assembly could not possibly be observed if the demonstration had its roots in an event that had occurred less than three days beforehand. In the court’s view, the possible shortcomings of the Assembly Act could not be remedied by the courts. Therefore, the duty to inform the police about such meetings applied to every type of demonstration, including spontaneous ones. The court also noted that there might be a need for more precise and sophisticated regulations in respect of such events but said that this was a task for the legislator, not the courts. 14. The court also found that the duty to inform the police in advance about assemblies held in public served to protect the public interest and the rights of others, namely, the free flow of traffic and the right to freedom of movement. It observed that the organisers of the demonstration had not even attempted to notify the police. The District Court went on to say: “... under the relevant provisions of the domestic law in force, the fact that an assembly is peaceful is not by itself enough to dispense with the duty to inform the police. ... The court has not dealt with the issue whether or not the assembly was peaceful, since the lack of notification made it illegal per se and, therefore, the defendant dissolved it lawfully, pursuant to section 14(1) of the Assembly Act.” 15. The applicants appealed. On 16 October 2003 the Budapest Regional Court upheld the first-instance decision. It amended part of the District Court’s reasoning, omitting the remarks concerning the possible shortcomings of the relevant domestic law. Moreover, the Regional Court found, referring, inter alia, to the case-law of the Court and decision no. 55/2001. (XI. 29.) of the Constitutional Court: “... in the application of the relevant domestic law, the approach is obviously authoritative in that there is no exemption from the duty of notification and, therefore, no difference between ‘notified’ assemblies and ‘spontaneous’ ones – the latter are unlawful owing to the failure to respect the above-mentioned duty of notification.” 16. In sum, the Regional Court found that the restrictions imposed on the applicants were necessary and proportionate. 17. The applicants lodged a petition for review which the Supreme Court dismissed on 24 February 2004, without examining its merits, since it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. 18. Article 62 of the Constitution guarantees the right to freedom of peaceful assembly and secures its free exercise. 19. Section 6 of the Assembly Act requires the police to be informed of an assembly at least three days before the date of the event. 20. Section 14(1) of the Assembly Act requires the police to disband (feloszlatja) any assemblies held without prior notification. 21. Section 14(3) of the Assembly Act provides that if an assembly is dissolved its participants may seek judicial review within fifteen days.