CASE OF TATÁR AND FÁBER v. HUNGARY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicants were born in 1967 and 1969 respectively and live in Budapest. 6. On 27 February 2007 the applicants exposed, in the course of an event which they considered a “political performance” – necessitated by what they perceived as a general political crisis in the country following the tumultuous events of late 2006 –, several items of dirty clothing on a rope attached to the fence around Parliament in Budapest. They stated that the symbolic meaning of this expression was “to hang out the nation’s dirty laundry”. The applicants spent exactly 13 minutes on the scene, during which time they answered some questions from journalists who appeared on the scene. Afterwards, the applicants left on their own motion. 7. On the same day, the website of the daily paper Magyar Nemzet published a short article covering the incident, in which the applicants explained that the “performance” was meant to be provocative and for that reason had not been notified to the police. It was specified that the event had been prepared clandestinely, that only a few journalist had been invited and that no other protester had participated. 8. Subsequently the Budapest V District Police Department fined each applicant 80,000 Hungarian forints (HUF) (approximately 250 euros) for the regulatory offence of abusing the right to peaceful assembly. It was considered that their act had constituted an “assembly” which should have been declared to the authorities three days in advance. 9. The applicants complained about the decision of the Budapest 5th District Police Department without offering any particular arguments. 10. On 11 July 2007 the Pest Central District Court upheld the police decision, finding that the applicants, in breach of the relevant legal provisions, had failed to notify the police of their ‘demonstration’ and that the sanction imposed was proportionate to the gravity of the offence and adequate to motivate the applicants to abide by the law in the future. The court relied on the report of the police officer involved, the pictures recorded by the street cameras and the contents of the websites covering the incident. 11. On 26 July 2007 the applicants requested that a hearing be held in the case. At the hearing of 7 December 2007 the court heard the second applicant and the police officer. The first applicant did not wish to make a statement. The second applicant first made contradictory statements as to who had been notified of the event in advance, but finally confirmed, in reply to a question put by the judge, that an announcement of the event had been published on the website of the applicants’ organisation. In their closing statements, counsel for the applicants claimed that the applicants had not invited anybody to the event and that they had wrongly assumed that their actions had been lawful. 12. Based on the evidence before it, the District Court was satisfied that the event had been publicly announced and thus it had been an “organised event” falling within the scope of section 6 of the Assembly Act (as opposed to a cultural event as argued by the applicants), that the applicants had been aware that they should have notified the police of their performance and that the fine was necessary to prevent the applicants from further breaches of the law. It therefore upheld the decision of 11 July 2007. The decision of 7 December 2007 was served on 24 January 2008. 13. Act No. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides as follows: “(1) In the framework of the exercise of the right to assembly, peaceful gatherings, marches and demonstrations ... may be held where the participants may freely express their opinion. (2) The participants of an assembly are entitled to make their jointly formed position known to all interested parties ...” “The following shall not be covered by the Act: a) meetings falling within the ambit of the Act on Election Procedure; b) religious services, events and processions organised in the premises of legally recognised churches; c) cultural and sport events; d) events related to family occasions. ...” “The organisation of an assembly to be held in public shall be notified to the police department having jurisdiction over the venue of the assembly – in Budapest to the Budapest Police Department – a minimum of three days prior to the planned date of the assembly. The obligation to notify the police lies with the organiser of the assembly.” “If the holding of an assembly subject to prior notification seriously endangers the proper functioning of the representative bodies or the courts, or the circulation of traffic cannot be secured by another route, the police may ban the holding of the assembly at the place or time indicated in the notification, within forty-eight hours of the receipt of the notification.” 14. Act No. LXIX of 1999 on Administrative Offences (as in force at the relevant time) provides as follows: “Anyone who organises or holds a gathering, march or demonstration subject to notification without notification or the provision of prior information of the planned new date, or despite a prohibiting decision of the police, may be punished by a fine of up to HUF 100,000...” 15. According to decision no. 55/2001. (XI.29.)AB of the Constitutional Court: “[...T]he Constitutional Court holds that the enforcement of the fundamental constitutional right of assembly should be protected not only from undue interferences by the State but also from others, such as persons who dislike a certain demonstration or hold a counterdemonstration, as well as other persons who disturb public order. In other words, the State also has positive obligations in guaranteeing the enforcement of the right of assembly. The judgments of the European Court of Human Rights in cases related to the right of assembly support this view. ... It follows that the authorities are even allowed to use force, where needed, in order to secure the holding of lawful assemblies, and they shall prevent others from disturbing such assemblies. ... ... The necessity of the obligation of notification to assemblies to be held on public premises is justified by the fact that ... such premises constitute an area, road, street or square with unlimited access for everyone. This means that both the participants of the assembly and everyone else who does not participate should have equal access to the public ground. ... The State’s obligation to respect and protect fundamental rights is not limited to abstaining from violating such rights but includes the obligation of guaranteeing the conditions necessary for their enforcement ...; in order to prevent a potential conflict between two fundamental rights ... the authority should be statutorily empowered to ensure the enforcement of both fundamental rights ... This requirement justifies the obligation of notifying the authority in advance of the assembly to be held on public ground... ... The aim and the agenda of the assembly are pieces of information necessary for the authority partly for the assessment of whether the planned assembly is to be prohibited on the ground of seriously endangering the operation of the representative organs or of the courts, or on the ground of causing disproportionate prejudice to the order of traffic ..., and partly for determining the probability of [any incident occurring during the event warranting police intervention or dispersal]. ... ... The failure to notify the authorities of an assembly – or the holding of an assembly in a manner significantly different from that specified in the notification – cannot be interpreted as an insignificant administrative omission. Such a failure deprives the authority of the opportunity to assess whether the planned assembly would seriously disturb the operation of the representative organs or of the courts, or the order of traffic. To impose no sanction on holding the assembly at a time, location, or route other than that notified would make it useless to require a notification and would allow for abusing the right of assembly...” 16. According to decision no. 4/2007. (II.13.)AB of the Constitutional Court: “...The aim of assemblies held on the basis of the right to assembly is to enable the citizens exercising their right to assembly to form joint opinion and to share their views with others or jointly express those views.” 17. According to Decision no. 75/2008. (V.29.)AB of the Constitutional Court: “III. [The term ‘assembly’], as used in the Constitution ..., refers to joint expressions of opinions within fixed time-limits. ... The bodies applying the law must assess whether the notification pertains to a peaceful, joint expression of opinions falling under the scope of [the Assembly Act] or to a different use of the public area. IV. ... In today’s constitutional democracies, the primary purpose of assemblies held on public ground is the joint representation and demonstration of the opinions and views already formed. The main connection between freedom of expression and freedom of assembly is the joint, public expression of the opinion. The significance of the right of assembly as a communication right is increased by the fact that, in contrast with the press, it ensures for everyone the right to participate directly, without access barriers, in forming the political will. ... 3.1. ... Several types of assemblies on public ground may fall within the category of peaceful spontaneous assemblies. Indeed, spontaneous assemblies are not generated in a previously planned and arranged manner since they are the result of the actions of several persons who act, more or less, independently. ... 5.1. In the system of [the Assembly Act], assemblies not requiring notification include, on the one hand, events excluded from the scope of [the Act] (events of electoral, religious, cultural, sport or family nature). On the other hand ... it is not necessary to file a notification of assemblies falling under [the Act]. but not held on public ground... Furthermore, Section 6 of [the Act] does not apply to spontaneous assemblies held without prior organisation. Namely, the provision at issue requires the notification of “organising an assembly” to be held on public ground, and the statutory obligation is imposed on the organiser. ... The notification obligation ... forms a constitutional restriction on the right of assembly. This statutory provision is justified, on the one hand, by the need to have the public order secured by the police ... The notification and its confirmation by the police is a guarantee that the police shall implement the necessary tasks related to the security of the event. ...” 18. The Guidelines on Freedom of Peaceful Assembly Adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010) provide as follows: “... For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose... 16. An assembly, by definition, requires the presence of at least two persons.”