CASE OF BUDAHÁZY v. HUNGARY
No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1969 and lives in Diósd. 6. On 4 July 2002 the applicant organised a demonstration aimed at forcing the authorities to preserve the ballot papers of the 2002 legislative elections with a view to a potential recounting. The Government submitted that the ballot papers were bound for statutory destruction on 20 July 2002 as per section 5(3) of Decree no. 48/2001. (XII. 29.) BM on the Procedural Time-limits for the Legislative Elections of 7/21 April 2002. In the applicant’s view, the relevant law could be understood – and was by many – to the effect that the ballot papers could be destroyed as early as 7 July 2002. Previously, on 2 July 2002, Parliament had decided not to put on the agenda a bill for the amendment of the 90-day statutory preservation period of the ballots. 7. The event organised by the applicant – which had not been announced to the police – consisted of completely blocking all six lanes of a centrally situated bridge over the Danube, Erzsébet Bridge, by parking six cars across it, with their doors locked. The demonstration started at about 8.20 a.m. The demonstrators, including the applicant, refused to comply with the police’s order to remove the vehicles and leave. Apart from ambulances, no vehicles could pass the blockade. By 9.00 a.m. a crowd had gathered and the situation evolved into a massive traffic jam all over Budapest. At about 11.00 a.m. the cars were finally towed away by the police, and the traffic flow resumed at about 12 noon. 8. On 5 July 2002 the Pest Central District Court imposed a regulatory fine of 50,000 Hungarian forints (HUF) on the applicant. The court held that the applicant, by not complying with the police’s instruction to leave the site of the demonstration, had committed the regulatory offence of disorderly conduct within the meaning of section 142 (1c) of Act no. LXIX on Regulatory Offences. 9. International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the 2002 parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian electoral system had provided the basis for a generally transparent, accountable, free, fair and equal process. 10. The Hungarian media widely covered the events of 4 July 2002 and, in an official communiqué, the President of the Republic condemned the incident, declaring it illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner. 11. On 2 September 2002 the Budapest XI District Police Department fined the applicant for a parking offence which consisted of his parking his car in the middle of Erzsébet Bridge on 4 July 2002, necessitating its being towed away. On appeal, on 15 May 2003 the Buda Central District Court reduced the fine to HUF 5,000. 12. Criminal proceedings were subsequently instituted against the applicant and his accomplices. On 16 June 2008 he was convicted of “disturbance of public works” within the meaning of section 260(1) of the Criminal Code. 13. The Pest Central District Court dismissed the defendants’ arguments according to which they had been exercising their freedom of assembly. Making reference to the Court’s judgment in the case of Bukta and Others v. Hungary (no. 25691/04, ECHR 2007III), the court made a distinction, holding that the applicant’s action could not be regarded as a spontaneous and prompt response to an event (the court was satisfied that the statutory date for ballot paper destruction was 20 July 2002 as per Decree no. 48/2001 (see above paragraph 6)), nor was it lawful like in Bukta, since it had contravened the Highway Code and disturbed the functioning of “public works”. In the latter regard, the court observed that the demonstration had caused the traffic to become paralysed all over the capital for several hours and disturbed the running of 29 bus lines in respect of 642 scheduled individual bus trips, concerning approximately 23,000 passengers. The applicant was sentenced to 30 days of community work. 14. On 26 November 2008 the Budapest Regional Court upheld this judgment. In response to the arguments of the accused on appeal, the court noted that “the message of the judgment is not that non-notified assemblies cannot be peaceful; the message is that an assembly, notified or non-notified, is not peaceful where, by its very manner, it constitutes unlawful conduct.” The court referred to section 2(3) of Act no. III of 1989 on the Right of Assembly, according to which “the exercise of the right of assembly may not constitute an offence, or instigation thereto, or violate the rights and freedoms of others”. Quoting the Court’s judgment in the case of Ezelin v. France (26 April 1991, Series A no. 202), the Regional Court established that “in peaceful assemblies the protection provided under Article 11 shall be ensured for the participants as long as they do not commit any reprehensible act on such an occasion”. In sum, the court held that “it directly follows from the case law of the Constitutional Court and the European Court of Human Rights that the peaceful or non-peaceful nature of an assembly does not depend on whether a participant broke or smashed an asset or applied violence against a property. An assembly may be rendered non-peaceful by passive conduct as well. In its outward appearance the accused parties’ conduct seemed to be peaceful; it is the causal result of their conduct, the major disturbance of road traffic, which rendered their conduct non-peaceful and thereby not protected under the law.” 15. On 3 December 2009 the Supreme Court dismissed the defendants’ petition for review. It added to the reasoning of the lower courts that “criminal law rules cannot be excluded or restricted by invoking the right of assembly; the exercise of the right of assembly shall not be exempt from compliance with criminal law restrictions.” This decision was served on the applicant on 18 January 2010. 16. Section 260 of the Criminal Code, as in force at the relevant time, provided: “(1) Any person who interferes with the functioning of public works to a considerable extent by damaging their equipment, cables or interfering with them in any other way, is guilty of a felony punishable by imprisonment of up to five years. ... (4) For the purposes of this section, ‘public works’ shall mean public utilities, public transportation operations, telecommunications networks, as well as plants producing war materials, energy or basic materials designed for industrial use.” 17. Section 1 of Act no. V of 1991 on Certain Amnesty Measures provided (see paragraph 30 below): “In connection with the road blockades paralysing the country’s life from 25 to 28 October 1990, no criminal proceedings shall be instituted or conducted for ... d) the disturbance of public works (section 260 of the Criminal Code).” 18. The relevant domestic law on freedom of assembly, in particular Article 62 of the Constitution and Act no. III of 1989, is outlined in paragraphs 19 and 20 of the judgment Éva Molnár v. Hungary (no. 10346/05, 7 October 2008).