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BUKTA AND OTHERS v. HUNGARY - 25691/04 [2007] ECHR 610 (17 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/610.html
Cite as:
[2007] ECHR 610
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SECOND
SECTION
CASE OF BUKTA AND OTHERS v. HUNGARY
(Application
no. 25691/04)
JUDGMENT
STRASBOURG
17
July 2007
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 Bukta and Others v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr V.
Zagrebelsky,
Mrs A. Mularoni,
Mrs D.
Jočienė,
Mr D. Popović, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 25691/04) 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 three Hungarian nationals, Mrs Dénesné
Bukta, Mr Ferdinánd Laczner and Mr Jánosné
Tölgyesi (“the applicants”), on 13 April 2004.
The
applicants were represented Mr. L. Grespik, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Hötzl, Agent, Ministry of Justice and
Law Enforcement.
The
applicants alleged that their peaceful assembly had been disbanded by
the police in breach of Articles 10 and 11 of the Convention.
On
4 September 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
The
applicants are Hungarian nationals who were born in 1943, 1945 and
1951, respectively, and live in Budapest.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
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. The latter commemorates the 1918 Gyulafehérvár
National Assembly, which declared the annexation of Transylvania,
hitherto Hungarian, to Romania.
The
Hungarian Prime Minister decided to attend the reception, making that
intention public the day before the event.
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 about their intentions.
In
the afternoon of 1 December 2002, approximately 150 persons,
including the applicants, assembled in front of the Hotel. The police
were also present. There was a sharp 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.
On
16 December 2002 the applicants sought judicial review of the action
of the police, requesting 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 Act 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.
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 that a minor detonation had
been heard.
The
District Court also noted that the three-day time-limit to inform the
police of a planned assembly could not possibly be observed if the
reason giving rise to the demonstration arose less than three days
beforehand. In the court’s view, the possible shortcomings of
the Assembly Act could not be remedied by jurisprudence. Therefore,
the duty to inform the police about such meetings was applicable 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 this was a
task for the legislator, not the courts.
Moreover,
the court found that the duty to inform the police in advance about
assemblies held in public served the protection of the public
interest and the rights of others, namely, the undisturbed
circulation 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 to say that:
“... flowing from the relevant provisions of the
domestic law in force, the peaceful manner of an assembly in itself
is not enough to dispense with the duty to inform the police. ...The
court did not deal with the issue whether or not the assembly had
been peaceful, since the lack of notification had made it illegal as
such and, therefore, the defendant had dissolved it lawfully,
pursuant to section 14 § 1 of the Assembly Act.”
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 to, inter alia, the case-law of
the Court and Decision No. 55/2001. (XI. 29.) of the
Constitutional Court – that,
“... in the application of the relevant domestic
law, the approach shall obviously be authoritative in that there is
no exemption from the duty of notification and, therefore, there is
no difference between ‘notified’ assemblies and
‘spontaneous’ ones – the latter are unlawful due to
the failure to respect the abovementioned notification duty.”
In
sum, the Regional Court found that restrictions imposed on the
applicants were necessary and proportionate.
The
applicants lodged a petition for review with the Supreme Court. On 24
February 2004 the Supreme Court dismissed their petition, without an
examination of its merits, since it was incompatible ratione
materiae with the relevant provisions of the Code of Civil
Procedure.
B. Relevant domestic law
Article
62 of the Constitution guarantees the right to freedom of peaceful
assembly and secures its free exercise.
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.
Section
14 § 1 of the Assembly Act requires the police to disband
(feloszlatja) any assemblies which are held without prior
notification.
Section
14 § 3 of the Assembly Act provides that if an assembly is
dissolved, its participants may seek judicial review within fifteen
days.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicants complained that their peaceful demonstration had been
disbanded due to a mere absence of prior notification, in breach of
Article 11 of the Convention, which reads insofar as relevant as
follows:
“1. Everyone has the right to freedom
of peaceful assembly ...
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 ... for the prevention of
disorder or crime, [or] ... for the protection of the rights and
freedoms of others. ...”
A. Admissibility
The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Whether there was an interference with the exercise of freedom
of peaceful assembly
The
Government did not dispute that the applicants could rely on the
guarantees contained in Article 11; nor did they deny that the
dispersal of their demonstration interfered with the exercise of the
applicants’ rights under that provision. The Court sees no
reason to hold otherwise. The Government contended, however, that the
interference was justified under the second paragraph of Article 11.
2. Whether the interference was justified
It
must therefore be determined whether the sanction complained of was
“prescribed by law”, prompted by one or more of the
legitimate aims set out in paragraph 2, and was “necessary in a
democratic society” for achieving them.
a. “Prescribed by law”
There
was no dispute between the parties that the restriction imposed on
the applicants’ freedom of peaceful assembly was based on
section 14 of the Assembly Act, the wording of which is clear.
Therefore, the requirement of foreseeability was satisfied. The Court
sees no reason to depart from the parties’ view.
b. “Legitimate aim”
The
applicants did not address this issue.
The
Government submitted that the restrictions on the right of peaceful
assembly on public premises serve the protection of the rights of
others, for example the right to free movement or the orderly
circulation of traffic.
They
further submitted that freedom of peaceful assembly cannot be reduced
to a mere duty on the part of the State not to interfere. On certain
occasions, positive measures have to be taken in order to ensure its
peacefulness. The three-day time-limit is therefore necessary for the
police to co-ordinate with other authorities, to redeploy police
forces, to secure fire brigades, the clearance of vehicles, etc. They
drew attention to the fact that if more than one organisation
notified the authorities about their intention to hold a
demonstration at the same place and time, additional negotiations
might be necessary.
In
the light of these considerations, the Court is satisfied that the
measure complained of pursued the legitimate aims of the prevention
of disorder and the protection of the rights of others.
c. Necessary in a democratic society
The
applicants submitted that their spontaneous demonstration had been
peaceful and was disbanded solely because the police had not had
prior notice, pursuant to section 14 of the Assembly Act. This
measure could not be justified by the fact that a minor detonation
had been heard; to hold otherwise would enable the police to dissolve
any assembly on such grounds, without any further justification.
The
Government submitted that the applicants’ assembly was
dispersed not because of the lack of prior notice but due to the
detonation, which the police classified as a security risk to the
State officials present at the Hotel Kempinski.
The
Court observes that paragraph 2 of Article 11 entitles States to
impose “lawful restrictions” on the exercise of the right
to freedom of assembly.
The
Court finds, in the domestic court decisions dealing with the
lawfulness of the events, that the legal basis for the dispersal of
the applicants’ assembly lay exclusively in the lack of prior
notice. The courts based their decisions, declaring the police
measures lawful, solely on this argument and did not examine other
aspects of the case, in particular, the peaceful nature of the event.
The
Court recalls that the subjection of public assemblies to a
prior-authorisation procedure does not normally encroach upon the
essence of the right (see Rassemblement Jurassien Unité v.
Switzerland, no. 8191/78, Commission decision of 10 October 1979,
Decisions and Reports 17, p. 119). However, in the circumstances
of the present case, the absence of information available to the
public sufficiently in advance about the Prime Minister’s
intention to attend the reception in question left the applicants
with the option of either dispensing with the use of their right to
peaceful assembly altogether, or of exercising it in defiance of
administrative requirements.
In
the Court’s view, in special circumstances when an immediate
response might be justified, in the form of a demonstration, to a
political event, to disband the ensuing, peaceful assembly solely
because of the absence of the requisite prior notice, without any
illegal conduct by the participants, amounts to a disproportionate
restriction on freedom of peaceful assembly.
In
this connection, the Court notes that there is no evidence to suggest
that the applicants represented a danger to public order beyond the
level of the minor disturbance which is inevitably caused by an
assembly in a public place. The Court recalls that, “where
demonstrators do not engage in acts of violence, it is important for
the public authorities to show a certain degree of tolerance towards
peaceful gatherings if the freedom of assembly guaranteed by Article
11 of the Convention is not to be deprived of all substance”
(Oya Ataman v. Turkey, no. 74552/01, 5 December 2006,
§§ 41 42).
Having
regard to the foregoing considerations, the Court finds that the
dispersal of the applicants’ peaceful assembly cannot be
regarded as having been necessary in a democratic society in order to
achieve the aims pursued.
Accordingly,
there has been a violation of Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicants invoked Article 10, which provides:
"1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, ... for the prevention of
disorder or crime, [or] ... for the protection of the ... rights of
others, ..."
The
Court considers that, in the light of its finding of a violation of
Article 11 of the Convention in the circumstances of the present case
(paragraph 39 above), it is unnecessary to examine the applicants’
complaint under Article 10 separately (see Ezelin v. France,
judgment of 26 April 1991, Series A no. 202, § 35).
III. 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
Each
of the applicants claimed 10,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government found the applicants’ claims excessive.
The
Court considers that the finding of a violation constitutes
sufficient just satisfaction for any moral damage the applicants may
have suffered.
B. Costs and expenses
The
applicants also claimed the global sum of EUR 2,000 for the costs and
expenses incurred before the Court.
The
Government found the applicants’ claim excessive.
According
to the Court’s case-law, an applicant is entitled to
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the amount claimed, EUR 2,000, to
the applicants jointly.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
11 of the Convention;
Holds that there is no need to examine
separately the complaint under Article 10 of the Convention;
Holds that the finding of a violation
constitutes sufficient just satisfaction for any moral damage the
applicants may have suffered;
Holds
(a) that
the respondent State is to pay the applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 2,000 (two thousand euros) in respect of costs and expenses, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
