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TATAR AND FABER v. HUNGARY - 26005/08 [2012] ECHR 984 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/984.html
Cite as:
59 EHRR 8,
(2014) 59 EHRR 8,
[2012] ECHR 984
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SECOND
SECTION
CASE OF TATÁR AND FÁBER v. HUNGARY
(Application
nos. 26005/08 and 26160/08)
JUDGMENT
STRASBOURG
12 June
2012
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 Tatár and
Fáber v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Dragoljub
Popović,
Isabelle
Berro-Lefèvre,
András
Sajó,
Guido
Raimondi,
Paulo
Pinto de Albuquerque,
Helen
Keller, judges,
and
Stanley Naismith, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 26005/08 and 26160/08)
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 two Hungarian
nationals, Mr József Tatár and Mr Károly Fáber
(“the applicants”), on 30 May 2008.
The
applicants were represented by Messrs Sz. Balsai and T. Gyurta,
lawyers practising in Budapest. The Hungarian Government (“the
Government”) were represented Mr L. Höltzl, Agent,
Ministry of Public Administration and Justice.
The
applicants alleged, in particular, that the prosecution conducted
against them for having organised a political “performance”
constituted an unjustified interference with their right to freedom
of expression.
On
15 February 2011 the applications were communicated to the
Government. It was also decided to rule on the admissibility and
merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1967 and 1969 respectively and live in
Budapest.
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.
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.
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.
The
applicants complained about the decision of the Budapest 5th District
Police Department without offering any particular arguments.
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.
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.
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.
II. RELEVANT DOMESTIC AND INTERNATIONAL TEXTS
Act
No. III of 1989 on the Right to Freedom of Assembly (“the
Assembly Act”) provides as follows:
Section 2
“(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 ...”
Section 3
“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. ...”
Section 6
“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.”
Section 8(1)
“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.”
Act
No. LXIX of 1998 on Administrative Offences (as in force at the
relevant time) provides as follows:
Abuse of the right of assembly – Section 152(1)
“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...”
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...”
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.”
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.
...”
The
Guidelines on Freedom of Peaceful Assembly Adopted by the Venice
Commission at its 83rd Plenary Session (Venice, 4 June 2010) provide
as follows:
Section B – Explanatory Notes
“... 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicants complained that the prosecution conducted against them on
account of the “performance” which they had carried out
amounted to an unjustified interference with their right to freedom
of expression. They relied on Articles 6 §§ 1 and 3, 10 and
14 of the Convention.
The
Court considers that this issue falls to be examined under Article 10
of the Convention alone, which reads as follows:
“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, in the interests of national
security, territorial integrity or public safety, for the prevention
of disorder or crime, ...”
The
Government contested the applicants’ argument.
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The Government’s arguments
The
Government argued that the case did not concern the applicants’
freedom of expression as such but a particular form of political
expression falling within the scope of Article 11 governing freedom
of assembly. They had not been prevented from expressing their
political views in public or sanctioned for having done so. Rather,
they had been prosecuted for deliberately disregarding the rules
governing the exercise of the freedom of assembly. The restriction
imposed on the applicants’ freedom of peaceful assembly had
been based on section 6 of the Assembly Act and section 152 of the
Act on Administrative Offences. Undisputedly, they had expressed a
political opinion on public ground (which fell under the jurisdiction
of the Assembly Act) although characterising their action as a form
of artistic expression which, as a cultural event, would fall outside
the scope of the Assembly Act, but would have been subject to an
authorisation from the municipality, never obtained. The fact that
the applicants had labelled their action as a “performance”,
a term foreign to the Assembly Act, was irrelevant since in the
domestic jurisprudence it was the aim (i.e. the joint expression of a
political opinion), the venue (i.e. public ground) and the organised
nature of an event which was decisive to qualify it as an “organised
event” falling under section 6. Obviously, the different forms
which an assembly might take or the labels attached to them by the
organisers could not be enumerated with absolute precision in the law
but it was not contrary to the requirement of foreseeability to
define an assembly by its purpose and to clarify the scope of the law
by judicial interpretation. The interference was therefore prescribed
by law.
The
restrictions on the right of peaceful assembly on public premises
prescribed by the Assembly Act, including the requirement of prior
notification to the authorities, served the legitimate aims of
ensuring public safety, protecting the rights of others and
preventing disorder, the latter aspect also covering the police’s
positive obligation to remove the risk that those with opposing
political views interfere with the ongoing assembly. While it was
true that in the instant case the event had involved only two persons
and lasted a very short time, the exact number of participants could
not be predicted beforehand and the organisers could not know for
certain if another event would not coincide with theirs, therefore
the legitimacy of the requirement of prior notification prevailed,
even if, in retrospect, this assembly had proved to attract little
attention from the public. Moreover, the “performance” in
question was no spontaneous demonstration which would have been made
devoid of any purpose had the requirement of prior notification been
complied with (cf., a contrario, Bukta and Others v.
Hungary, no. 25691/04, §§ 31 to 39, ECHR 2007 III).
The
enforcement of the prior notification rule was necessary to enable
the authorities to take measures for the protection of public order
at the venue, including the protection of the rights and security of
the participants from unlawful interference by third persons as well
as the prevention of collision of assemblies.
The
Government also pointed out that to regulate a gathering of at least
two persons in a public place for a common expressive purpose as an
assembly is not contrary to European standards (cf. paragraph 16 of
the Explanatory Notes to the Guidelines on Freedom of Peaceful
Assembly adopted by the Venice Commission on 4 June 2010). In the
instant case, the event had been publicly announced, thus the number
of prospective participants had not been restricted to the
applicants. In any case, regulations making the requirement of prior
notification dependent on the expected number of participants would
be impractical and lend themselves to abuse.
Lastly,
in the Government’s view, the above legitimate aims could not
be achieved by a measure less restrictive than enforcing the rule of
prior notification – which could not be said to have placed a
disproportionate burden on the organisers. Furthermore, the police
had showed the requisite tolerance towards the demonstration at
issue, and the applicants’ expression of political views had
been unhindered. The subsequent administrative sanction did not
concern the exercise of their freedom of expression but their failure
to respect the notification rule. With reference to the Court’s
ruling in the case of Ziliberberg v. Moldova ((dec.), no.
61821/00, 4 May 2004), the Government pointed out that the
requirement of prior notification would be rendered “illusory”
if Article 11 were to prohibit sanctions for a failure to comply with
that requirement. The sanctions imposed on the applicants could not
be attributed any chilling effect either, since those sanctions were
mild and corresponded solely to the applicants’ deliberate
disregard of the notification rule.
2. The applicants’ arguments
The
applicants argued that their “performance” was an action
of expression, not subject to any notification rule, especially in
view of the fact that it had involved only two persons and lasted a
very short time. To hold the contrary would render participation in
social life virtually impossible. The argument pointing to the aim of
protecting public order was beside the point, since there was no
disturbance whatsoever to the public order, nor any danger of such,
given the artistic character of the event.
3. The Court’s assessment
The
Court notes that the Government’s arguments largely focus on
the assertion that the impugned event constituted an assembly
attracting the application of the rules of the Assembly Act and a
scrutiny under Article 11 of the Convention. However, it is satisfied
that the event, irrespective of the characterisation attributed to it
by the applicants, constituted predominantly an expression (cf. Açık
and Others v. Turkey, no. 31451/03, § 40, 13 January
2009), all the more so since it involved only two persons and lasted
a very short time. For the Court, it is difficult to conceive that
such an event could have generated the gathering of a significant
crowd warranting specific measure on the side of the authorities. As
regards the Government’s suggestion concerning the Guidelines
on Freedom of Peaceful Assembly adopted by the Venice Commission, the
Court would take the view that the Explanatory Notes to those
Guidelines specify the minimum number of participants required for
the constitution of an assembly; however, those Guidelines can by no
means be interpreted as stipulating that any common expressive action
of two individuals necessarily amounts to an assembly, especially in
the absence of intentional presence of further participants, as in
the present case.
The
Court would further note that the Assembly Act does not contain any
rule on the number of participants in an event, for it to fall within
the scope of the Act.
It
follows that the Court will examine whether there has been a
justified interference with the applicants’ freedom of
expression.
a. Whether there has been an interference
The
Court observes that the applicants were subjected to an
administrative fine as a sanction for the expression which they had
made. It follows that there has been an interference with their right
to freedom of expression.
Such
an interference will lead to the finding of a violation of Article 10
of the Convention, unless it was prescribed by law, pursued a
legitimate aim and was necessary in a democratic society to achieve
that aim.
b. Prescribed by law
The
Government adduced that the measure had been based on section 6 of
the Assembly Act and section 152 of the Act on Administrative
Offences. The applicants did not dispute this.
Having
regard to its conclusions about the necessity of the interference
(see paragraphs 36 to 42 below), and in view of the fact that the
foreseeability of the application of the law in question is closely
linked to the nature of the interference and of the right considered
in the context of the necessity of the interference, the Court finds
it unnecessary to examine this question in the circumstances (see,
mutatis mutandis, Dink v. Turkey, nos. 2668/07,
6102/08, 30079/08, 7072/09 and 7124/09, § 116, 14 September
2010).
c. Legitimate aim
The
Government argued that the interference pursued the legitimate aims
of ensuring public safety, protecting the rights of others and
preventing disorder. The applicants did not address this issue.
The
Court accepts that the measure pursued the legitimate aims cited by
the Government.
d. Necessary in a democratic society
i. General principles
The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, among many other authorities, Perna
v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V; Association
Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).
Although freedom of expression may be subject to exceptions, they
must be narrowly interpreted and the necessity for any restrictions
must be convincingly established (see Observer and Guardian
v. the United Kingdom, 26 November 1991, § 59, Series A no.
216). In particular, there is little scope under Article 10 § 2
of the Convention for restrictions on political speech or on debate
on questions of public interest (see Feldek v. Slovakia, no.
29032/95, ECHR 2001-VIII § 74;
Sürek v. Turkey (no.
1) [GC], no. 26682/95, § 61, ECHR 1999-IV).
The
Court’s task in exercising its supervisory function is not to
take the place of the competent domestic courts but rather to review
under Article 10 the decisions they have taken pursuant to their
margin of appreciation (see Fressoz and Roire v. France [GC],
no. 29183/95, § 45, ECHR 1999-I). This does not mean that the
supervision is limited to ascertaining whether the respondent State
exercised its discretion reasonably, carefully or in good faith; the
Court looks at the interference complained of in the light of the
case as a whole, including the content of the statement held against
the applicant and its context (see News Verlags GmbH & CoKG v.
Austria, no. 31457/96, § 52, ECHR 2000-I).
In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient”, and whether the measure taken was
“proportionate to the legitimate aims pursued” (see
Chauvy and Others v. France, no. 64915/01, § 70, ECHR
2004-VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see Zana v. Turkey,
25 November 1997, § 51, Reports of Judgments and Decisions
1997-VII). Article 10 is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb; such are the demands of that pluralism,
tolerance and broadmindedness without which there is no “democratic
society” (see Oberschlick v. Austria (no. 1), 23 May
1991, § 57, Series A no. 204).
ii. Application of those principles to the
present case
The
Court observes that the applicants were fined for having publicly
displayed for a short while, at a location adjacent to Parliament,
several items of clothing representing the “dirty laundry of
the nation”. For the Court, this action – which the
applicants described as a “performance” – amounts
to a form of political expression.
While
it appears that the applicants had in advance publicised on their
website their intention to carry out the “performance”,
the Court nevertheless cannot share the Government’s view that
it was tantamount to an assembly for the following reasons.
The
Court has consistently held that the rights enshrined in Article 11
are specific in relation to those in Article 10 of the Convention
(see, e.g., Rai and Evans v. the United Kingdom (dec.), nos.
26258/07 and 26255/07, 17 November 2009), in particular because the
gathering of people on public ground may raise specific issues of
public order. However, it would point out that the mere fact that an
expression occurs in the public space does not necessarily turn such
an event into an assembly. The Court notes at this juncture that
various definitions of assembly may exist in the national legal
systems. It reiterates that its role is to supervise that the
application of the domestic law be in conformity with the Convention,
and would take the view that the term “assembly”
possesses – just like the term “association” (see
Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95
and 28443/95, § 100 in fine, ECHR 1999 III) – an
autonomous meaning; the classification in national law has only
relative value and constitutes no more than a starting-point. Such an
autonomous meaning serves the interests of the protection of the
right against improper classifications in national law. The Court
considers that, in qualifying a gathering of several people as an
assembly, regard must be had to the fact that an assembly constitutes
a specific form of communication of ideas, where the gathering of an
indeterminate number of persons with the identifiable intention of
being part of the communicative process can be in itself an intensive
expression of an idea. The support for the idea in question is being
expressed through the very presence of a group of people,
particularly – as in the present case – at a place
accessible to the general public. Furthermore, an assembly may serve
the exchange of ideas between the speakers and the participants,
intentionally present, even if they disagree with the speakers.
The
Court notes however that these elements are absent in the present
application where there was no intentional gathering of participants,
notwithstanding the fact that the event had been advertised on the
Internet; however, there is no appearance that this advertisement had
been aimed to recruit participants other than some journalists. In
these circumstances, the Court is satisfied that the “political
performance” in question was intended to send a message through
the media rather than the direct gathering of people – the
latter in any case being virtually unachievable in thirteen minutes
which was the duration of the performance. The Court recalls in this
connection that a press communiqué made in public, even where
there was a gathering of twenty-five people, was examined under
Article 10, rather than Article 11, of the Convention (see
Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97,
§ 26, ECHR 2005 I).
By
qualifying the expressive interaction of the two applicants as an
assembly, the authorities brought the Assembly Act into play, which
imposes a duty of notification on the organisers of an assembly,
failing which they commit a regulatory offence. The Court
acknowledges that such a notification might be justified in certain
cases, since it enables the authorities effectively to coordinate and
facilitate the assembly. However, in the Court’s view, there
was no need for such coordination in the present circumstances (cf.
Balçık and Others v. Turkey, no. 25/02, § 49,
29 November 2007), since nothing indicates that either the
public order or the rights of others were affected. The national
authorities’ approach to the concept of assembly does not
correspond to the rationale of the notification rule. Indeed, the
application of that rule to expressions – rather than only to
assemblies – would create a prior restraint which is
incompatible with the free communication of ideas and might undermine
freedom of expression.
Consequently,
the Court is not convinced that the domestic courts’ and the
Government’s arguments focusing on the necessity to sanction
the applicants’ non-compliance with the prior notification rule
were “relevant and sufficient” for the purposes of
Article 10 § 2 of the Convention. The Court would add that the
imposition of an administrative sanction, however mild, on the
authors of such expressions which qualify as artistic and political
at the same time can have an undesirable chilling effect on public
speech.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 10 of the
Convention.
II. 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 2,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government contested this claim.
The
Court considers that the applicants must have suffered some
non-pecuniary damage and awards each of them EUR 1,500 under this
head.
B. Costs and expenses
The
applicants also claimed a non-specified amount for legal costs
incurred before the Court.
The
Government contested this claim.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest rate 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 applications admissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,500 (one thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Hungarian forints at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
