CASE OF PATYI v. HUNGARY
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
5. The applicant was born in 1965 and lives in Budapest. 6. The applicant intended to organise demonstrations in order to call attention to the situation of those having sustained damage originating in a major bankruptcy case which had attracted considerable media attention in Hungary. On 5 February 2007 he applied to the Budapest Police Department for acquiescence in a demonstration on 10 March 2007 and in another one, of ongoing nature, from 10 March until 31 October 2007, both scheduled in Kossuth Square, in front of Parliament. 7. On 7 February 2007 the Budapest Police Department refused to deal with either of the applications. It observed that on 23 October 2006 the area in question had been declared by the Police Department itself a “security operational zone” (biztonsági műveleti terület) in view of the tumultuous events in Budapest in September 2006. Consequently, the measure – which was, after a prolongation, in place for an indefinite period of time – remained as such outside the Police Department’s competence as regards the prohibition of, or acquiescence in, a demonstration. 8. On 5 March 2007 the National Police Commander upheld this decision. 9. On 14 January 2008 the Budapest Regional Court dismissed the applicant’s request for judicial review, endorsing in essence the police authorities’ reasoning. This decision was served on 26 January 2008. 10. In another case concerning the same area, on 29 January 2007 a Mr K. challenged the police’s very decision to declare Kossuth Square a “security operational zone”. On 14 March 2007 the Budapest Police Commander rejected his complaint, but this decision was quashed by the National Commander on 16 April 2007. In the resumed administrative proceedings, on 22 June 2007 the Budapest Commander again rejected the complaint. On 19 July 2007 the National Commander upheld this decision. Mr K. challenged this ruling in court. 11. Mr K.’s action was dismissed by the Budapest Regional Court. However, on appeal the Supreme Court quashed this decision, together with the one of 19 July 2007. 12. In the resumed second-instance administrative proceedings, on 23 December 2009 the National Commander again upheld the Budapest Commander’s decision. Mr K. requested judicial review. 13. On 11 November 2010 the Regional Court quashed, in judgment no. 27.K.31.354/2010/9., both the first- and the second-instance administrative decisions and remitted the case to the Budapest Commander. The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “security operational zone” after the prolongation of 22 November 2006. Nor did they address the plaintiff’s suggestion that the mere fencing-off of Parliament’s immediate vicinity – rather than the global ban on Kossuth Square – would have been sufficient in the circumstances. 14. In the resumed first-instance administrative proceedings, on 4 April 2011 the Budapest Commander partly sustained Mr K.’s complaint, noting that, in the absence of evidence to the contrary, the proportionality of the impugned measure had successfully been challenged.