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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SZANYI v. HUNGARY - 35493/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 958 (08 November 2016)
URL: http://www.bailii.org/eu/cases/ECHR/2016/958.html
Cite as: CE:ECHR:2016:1108JUD003549313, [2016] ECHR 958, ECLI:CE:ECHR:2016:1108JUD003549313
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FOURTH SECTION
CASE OF SZANYI v. HUNGARY
(Application no. 35493/13)
JUDGMENT
STRASBOURG
8 November 2016
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 Szanyi v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,
András Sajó,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 6 and 20 September 2016,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 35493/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Tibor Jenő Szanyi (“the applicant”), on 27 May 2013.
2. The applicant was represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3. The applicant, a Member of Parliament at the material time, alleged in particular that the decisions to fine him and to ban his interpellations had violated his right to freedom of expression under Article 10 of the Convention.
4. On 7 November 2013 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1956 and lives in Budapest. At the material time, he was a Member of Parliament and a member of the largest opposition party, the Hungarian Socialist Party.
A. The fine imposed on the applicant
6. At the plenary parliamentary session on 18 March 2013 the applicant made an interpellation. After the respondent Government member’s reply, the applicant had the floor to give a counter-reply. According to the applicant and not contested by the Government, during his speech numerous remarks were made. Once the applicant finished talking, he sat down and showed his left middle finger in the direction of the Jobbik MPs.
7. On 25 March 2013 the Speaker initiated disciplinary proceedings against the applicant. He submitted a proposal to the plenary to fine him - under section 48(3) of Act no. XXXVI of 2012 on Parliament - 131,410 Hungarian forints (approximately 450 euros) for using a blatantly offensive expression.
The Speaker’s proposal reads as follows:
“SPEAKER OF PARLIAMENT
Decision in disciplinary matter
Proposal to impose a fine
According to the minutes of Parliament’s session of 18 March 2013, Tibor Szanyi MP used a blatantly offensive expression during the counter-reply (viszonválasza során, sic) of his interpellation.
For this reason, I propose, under section 48(3) of Act no. XXXVI of 2012 on Parliament and in application of my prerogatives under subparagraph 6 of the same, that Parliament
impose a fine
whose amount should be one-third of the MP’s honorarium, that is, HUF 131,410.
Budapest, 25 March 2013
Signed: László Kövér”
An affirmative decision was adopted by the plenary on 28 March 2013, without any remedy available.
B. The banning of the applicant’s interpellations
8. On 30 April 2013 the applicant submitted - under section 90 of Parliamentary Resolution no. 46/1994. (IX.30.) OGY (“the Rules of Parliament”) - an interpellation to the Speaker. It was addressed to the Minister of National Development and concerned the publication of the list of successful bidders in the national tender for tobacco retail licences.
9. It reads as follows[1]:
“The nation has acquired 1,500 tobacco retailers. They have most of the dough[2]; more precisely FIDESZ’s[3] pals and cronies have it. The mafia-government cannot be bothered that several thousands of petrol station keepers, grocers, newsagents or real tobacco retailers have lost their living.
Tobacco retailers have not had a significant margin, exactly 4.5 per cent. This was generally just enough to cover perhaps the overheads, although the costs of lease of the shop and the employees’ wages had to be generated beyond this profit. It has been the State in any case that got the real profit through the excise tax and the VAT.
What is happening now? Every twenty tobacco retailers will go bankrupt and be replaced by one, that is, instead of every twenty retailers, one will have the concentrated profit.
However, the newly introduced 10 per cent profit, now due to the cronies (csókosoknak járó), will result in a situation in which the [new] “national” retailers will have forty times higher profit than was usual. Forty-fold profit for the pals and the cronies! This is big-time bloody swinishness (vérbő disznóság)!
Tobacco licences are, in Europe, normally the privilege of those with impaired working abilities. Why? Because this work requires the least mobility, it is locally done and not too complicated. The government have finished off this tradition by forcing into unemployment tens of thousands of employees of small Hungarian enterprises; instead, they give all the opportunities to their obese pals, who can now freely select their underpaid dummy employees among the freshly expropriated losers.
The government’s trust of lies is disseminating their false sermon. But there is no point in lying; the tens of thousands who have been sacked and their families will not be deceived. But I am going even further. There is not one living soul in this country who would believe your deceitful talk.
Not even yourselves, since you are perfectly aware that you are legislating in order to rob. You have sacrificed tens of thousands of real Hungarian employments in order to be able to freely abuse the State monopoly.
I am asking therefore the Honourable Minister: is your face not burning with shame?
And if it is, are you then planning to surrender the power and duly hide your head? Or else are you planning to continue looting the country, now completely without a face, that is, barefacedly (pofátlanul)?”
10. The interpellation was refused by the Speaker on 6 May 2013 - under section 97(4) of the Rules of Parliament - with the reasoning that it contained statements that were injurious to the prestige of Parliament and inadmissible in a democratically functioning system.
No remedy lay against the decision.
11. The applicant submitted a further interpellation on the same topic on 21 May 2013. This interpellation reads as follows[4]:
“The recent weeks were mostly about you distributing tobacco licences. To benefit from that, one basically needed to be right-wing, extreme right-wing. But to get the golden prize of the juicy retail spots possibly generating millions per day, one needed to belong to, one way or another, the jamboree of buddies of the local FIDESZ-chieftains.
To win, you did not even need to have business premises. Originally, it was sufficient to undertake to sell tobacco and to adore FIDESZ. In exchange and ex post facto, you have increased the statutory profit rate and, at the same time, prohibited tobacco selling anywhere else, destroying tens of thousands of shops and their employees, under the slogan “let the strong live and the weak perish”.
You, a mercenary of FIDESZ, are apparently eager to keep serving the other projects of FIDESZ as well, that is, what you can buy in these [new] shops will include, in addition to tobacco, alcohol, gambling tickets, newspapers and even things to lick. The category of “things to lick” seems still to be open, but one can fear that whatever you can buy in these “Spahi-shops”, such as tax-free spirits, will be prohibited elsewhere. Amongst these, I am sure, you will consider sex toys, common horse-riding equipment, and, to please your [extreme right-wing] friends, maybe penis pumps as well or those dance bars around which naked strippers jerk.
I am asking you: have you calculated the damage you are causing to provincial Hungary through this operation? Will the licences issued be sufficient for the mayors and MPs of FIDESZ, reduced to a dummy existence after the falling down? Do you believe that the democratic forces winning the 2014 elections will allow your failed teams to continue operating on these looting fields?
My previous, prohibited question also targeted this issue: is your face not burning with shame? Since then, the answer has become clear: no, it is not, because you have already been, without a face, or to use your favourite expression, barefacedly playing games with the livelihood of the Hungarian people. You have pushed anyone into misery; you have taken away even the allowances of the most miserable, those disabled - just to be able to stuff your mafia feeding on public procurement.
I am asking therefore another question: are you willing to rush voluntarily onto History’s garbage dump, or do you want first to try your luck with the bold game called “power or prison”?
I am awaiting your reply!”
The interpellation was refused by the Speaker on 27 May 2013, with reasoning similar to the one above (see paragraph 10 above). No remedy lay against the decision.
II. RELEVANT LAW
12. The relevant domestic, comparative and international law is outlined in paragraphs 24 to 61 in the case of Karácsony and Others v. Hungary ([GC], no. 42461/13, 17 May 2016).
13. Section 48(3) of Act no. XXXVI of 2012 on Parliament provides as follows:
“... The remuneration ... of an MP whose intervention includes an expression susceptible to excessively injuring ... Parliament’s reputation ... may be reduced.”
14. Parliamentary Resolution no. 46/1994. (IX.30.) OGY (“the Rules of Parliament”), as in force at the relevant time, provided as follows:
Section 90
“(1) In order to ask for explanations, Members may address interpellations to those specified in the Fundamental Law on all matters within the function of the latter.
(2) The subject matter of the interpellation shall be indicated in the form of a title.
(3) The addressee shall be indicated in the interpellation, as well as the reason why he/she is competent to answer.
(4) The Speaker shall reject an interpellation which has not been submitted in accordance with paragraphs (1) to (3). The Parliament shall be informed thereof at on next sitting day.”
Section 97
“(4) A motion introduced not in conformity with the rules may be refused by the Speaker of Parliament.”
Section 115
“(2) Interpellations shall be submitted to the Speaker. An interpellation must contain the facts and circumstances related thereto.
(3) At the time as indicated in the orders of the day of Parliament’s sitting, at least ninety minutes shall be provided for debating each interpellation and question. Interpellations may be presented and questions may be asked in the first round by opposition parliamentary groups ...”
Section 116
“(1) Parliament can only debate interpellations submitted ... at least four days before the sitting day.
(3) The interpellation can be presented in three minutes. There shall be four minutes for the answer, and another minute to make a declaration related to the answer. When these time limits are exceeded, the chair of the sitting shall withdraw the right to speak, giving the reason of the withdrawal.
(4) The interpellation presented shall not contain any new facts that have not been mentioned in the written text of the same. ...”
Section 117
“(1) In case of a written response to the interpellation, the question and response shall be recorded in the minutes of the Parliament. The Speaker shall provide for sending the written answer to the Members. ...”
15. According to Resolution 36/1998-2002 ÜB of 24 February 2000:
“If an interpellation ... submitted does not comply with Article 7 (1) and (2) of the Fundamental Law[5] and/or section 90(1) to (3) of [the Rules of Parliament], the Speaker shall reject the interpellation ... exercising his/her right specified in section 90(4)[6] and extended by section 91(2) of [the Rules of Parliament]. The Speaker is entitled to reject the interpellation ... both ex officio and at the request of the interpellated ... Member of Parliament. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
16. The applicant complained that the measures of fining him and banning his interpellations infringed his right to freedom of expression under Article 10 of the Convention, since they did not serve a legitimate aim and were disproportionate. He claimed that declaring interpellations inadmissible for the protection of Parliament’s prestige constituted censorship and deprived the Members of Parliament of the possibility to express their opinion on issues of public interest.
Article 10 of the Convention 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
17. The Government submitted that the applicant could have challenged the impugned legislation as such before the Constitutional Court in the form of a constitutional complaint, which constituted an existing remedy available in respect of parliamentary disciplinary law. In their view, he had not, therefore, exhausted the domestic remedies available.
18. Referring to its relevant findings in Karácsony and Others v. Hungary ([GC], no. 42461/13, § 83, 17 May 2016), the Court is satisfied that this complaint cannot be rejected for non-exhaustion of domestic remedies.
19. It is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, either. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
20. The applicant submitted that the impugned measures did not serve a legitimate aim, were disproportionate, had a chilling effect on Members of Parliament expressing their political opinion on issues of public interest, and were meant to discourage open debate on the side of members of the opposition party. In short, they amounted to censorship.
21. Any limitations on free expression should be applied narrowly, given the utmost importance of this right, even more so in the course of a public debate. In his expression and in his intended interpellations he had not endangered the functioning of Parliament or prevented other MPs from performing their duties. He had had no intention of breaking the Rules of Parliament or obstructing the activities of Parliament. His conduct had not been disruptive, unlike that of other MPs in previous terms. During the previous term of Parliament between 2006 and 2010, the then opposition (at the time of the events complained of forming a two-thirds majority) had chosen to leave the plenary session every time the Prime Minister held a speech, in order to protest, an event that had lasted several minutes during which time the official work of Parliament had practically been at a standstill. On those occasions no one had been fined, as the right of the opposition to express its political views on the leader of the government had outweighed the obstruction it had caused.
(b) The Government
22. The Government submitted that although there had been an interference with the applicant’s right to freedom of expression, the scope of application and the reasons for the imposition of the impugned measures had been sufficiently clear and precisely formulated, and the sanctions had been foreseeable under the regulation and the established practice of Parliament. The interference was necessary in a democratic society in order to achieve the legitimate aims of ensuring the proper functioning and the authority and dignity of Parliament, and was lawful under the Act on Parliament.
23. Under the Court’s case-law concerning the duties and responsibilities mentioned in Article 10 § 2 of the Convention, such duties and responsibilities were to be understood as flowing from the specific situation of the person actually exercising the right to freedom of expression. In assessing those duties and responsibilities, the situation and legal status of the given person must be taken into account. Thus, the duties and responsibilities need to be assessed in the light of the societal and professional characteristics of the activities carried out by the person in question. Hence, MPs also had to exercise their rights by paying due regard to their special situation.
24. In addition to the separation of powers and Parliament’s autonomy, the political nature of these disciplinary decisions also excluded legal control over them. The regulation secured an on-the-merits discretionary right to Parliament as it ensured for it the right to regulate its members. A chair’s actions inevitably flowed from political discretion. It should not be overlooked that in Parliament political dialogue was being conducted, that is, the speeches and conduct in the debate and violating the Rules of Parliament, the assessment of the injury caused, and the imposition of a sanction proportionate to the injury were issues requiring mostly political deliberation, the review of which from a purely legal aspect would be difficult.
25. Furthermore, the sanctions imposed on the applicant were not disproportionate to the legitimate aims pursued since the applicant had had the opportunity to express his opinion in a manner compatible with the Rules of Parliament. In any case, the fine imposed for the gesture demonstrated on 18 March 2013 had not prevented the applicant from expressing his views and could not therefore be seen as censorship (see Lingens v. Austria, 8 July 1986, Series A no. 103).
The Government also submitted that the Hungarian system of maintaining order in Parliament was in compliance with the principle of progressivity meaning that normally a harsher sanction was preceded by a mere call to order or a warning - although it is true that sometimes the sudden occurrence of serious disturbance might call for the immediate application of one of the more severe measures.
Lastly, the Government added that an English translation of the interpellations did not fully reflect their original vulgar tone.
2. The Court’s assessment
(a) Whether there was an interference
26. The Court observes that the applicant was subjected to a fine as a sanction for the non-verbal expression which he had made.
Moreover, he was prevented from making the interpellations he intended. The Court notes that interpellation in Hungarian law is a right for MPs to bring controversial issues to the attention of the governing majority and to require explanations, and that the interpellation has to be made in a limited time-frame of three minutes plus one. For an MP to be able to make one, he or she is required to submit its text, containing the related facts and circumstances, beforehand to the Speaker (see paragraph 14 above). For the Court, interpellation thus constitutes political speech, undoubtedly protected by Article 10 of the Convention, which was in essence admitted by the Government.
It follows that there has been an interference with the applicant’s right to freedom of expression.
(b) Prescribed by law
27. The Court observes that the impugned measure (the fine) was based on section 48(3) of Act no. XXXVI of 2012 on Parliament and section 97(4) of the Rules of Parliament and was therefore prescribed by law.
However, in so far as the interpellations are concerned, the Court observes that the grounds for rejection of an interpellation are purely formal (see paragraphs 14 and 15 above) and that it has not been argued that the formal conditions were not met in the applicant’s case. The Court will take into account this circumstance when examining the necessity of banning the interpellations.
(c) Legitimate aim
28. Referring to its conclusions on this point in Karácsony and Others (cited above, §§ 128-29), the Court accepts that the interference pursued the legitimate aims of protection of the rights of others and the prevention of disorder, within the meaning of Article 10 § 2 of the Convention.
(d) Necessary in a democratic society
(i) General principles
29. The principles governing the issue at hand, as present in the Court’s case-law, are outlined paragraphs 132 to 147 of Karácsony and Others (cited above) as well as in Handyside v. the United Kingdom (7 December 1976, § 49, Series A no. 24) and Jerusalem v. Austria (no. 26958/95, §§ 36 and 40, ECHR 2001-II).
30. In addition the Court would add that Article 10 does not prohibit prior restraints on publication as such. This is borne out not only by the words “conditions”, “restrictions”, “preventing” and “prevention” which appear in that provision, but also by the Court’s considerations in the cases of The Sunday Times v. the United Kingdom (no. 1) (26 April 1979, Series A no. 30) and markt intern Verlag GmbH and Klaus Beermann v. Germany (20 November 1989, Series A no. 165). On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so where the press is concerned, because news, dealing with a topical issue, may be regarded as “perishable commodity” and to delay the publication thereof, even for a short period, may well deprive news of all the value and interest. The Court considers that, in certain circumstances, the timeliness of a parliamentary interpellation is of comparable importance. Moreover, interpellation in the Hungarian system is a right of each Member of Parliament. It constitutes an important minority right that needs special protection in the parliamentary activity of a democracy (see Karácsony and Others, cited above, §§ 147 and 157).
(ii) Application of those principles to the present case
(α) The fine imposed on the applicant
31. With regard to the fine imposed on the applicant for his conduct at the session of 18 March 2013, the Court considers that the interference consisted in the application of a sanction in a process where the procedural guarantees and those of the appearance of non-partisanship were insufficient, even if the applicant’s non-verbal expression was grossly inappropriate and vulgar.
In this connection, it is of concern that the Speaker’s proposal forming the basis for the sanction sustained by the applicant does not offer a transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision.
32. For essentially the same reasons as the ones set out in paragraphs 148 to 162, in particular paragraphs 151, 154, 156 and 158 in Karácsony and Others (cited above) - notably the absence of effective and adequate safeguards against the abuse of disciplinary powers, the lack of adequate reasoning in the decisions and the non-availability of a parliamentary procedure in which the applicant could have been heard - this interference cannot be considered “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.
(β) The banning of the applicant’s interpellations
33. The States - or indeed Parliaments themselves - are competent to regulate independently the time, place and manner of speech in Parliament; and correspondingly the Court’s scrutiny in this respect should be limited. The disciplinary supervision by the Speaker of Parliament is - in principle - an important counterweight to the Member of Parliament’s privileges. By contrast, States have very limited latitude in regulating the content of parliamentary speech. However, some regulation may be considered necessary in order to prevent forms of expression such as direct or indirect calls for violence. In verifying that the freedom of expression remains secured, the Court’s scrutiny in this context should be stricter. In any case, through the generally recognised rule of parliamentary immunity the States provide an increased level of protection to speech in Parliament, with the consequence that the need for the Court’s intervention could nonetheless be expected to be rare. The Court attaches importance to protection of the parliamentary minority from abuse by the majority. It will therefore examine with particular care any measure which appears to operate solely, or principally, to the disadvantage of the opposition. In the present case, the interference concerned exclusively the content of parliamentary speech, entailing a narrow margin of appreciation of the State’s side - all the more so since the proposed interpellations were devoid of any appearance of a call for violence (see Karácsony and Others, cited above, §§ 140, 146 and 148).
34. In assessing the proportionality of this interference, the Court will consider the nature of the intended expression in the context of the legitimate aim sought to be protected, the impact on order in Parliament and the authority of Parliament, the process applied and the sanctions imposed.
The nature of the expression
35. Contrary to the argument of the Government, according to which speech in Parliament does not fall under the ordinary standards of speech as it entails special responsibilities of members, the Court reiterates that freedom of expression is especially important for elected representatives of the people, interference with which can only be justified by very weighty reasons (see Karácsony and Others, cited above, § 137).
36. The Court notes that the applicant, a member of the parliamentary opposition, intended to express his views on the Government’s project to re-regulate tobacco retail. The interpellations, introduced under the relevant rule of the Rules of Parliament, concerned a public matter of the highest political importance that is directly related to the functioning of a democracy. The Court observes at this juncture that to submit an interpellation is a statutory right of MPs, not subject to the Speaker’s discretionary power (see paragraph 14 above).
37. It is true that the applicant was not prevented from expressing his views on the bill in the eventual voting process. However, the interpellations concerned the Government’s responsibility for the consequences of the bill; and the views contained in them cannot be equated with the political act of agreement or disagreement expressed by the vote. The ban on the two intended interpellations resulted in a situation where the applicant was effectively hindered in participating in the debate - a situation having substantial impact on the functions of parliamentarians related to the representation of their constituents. In view of the importance of such political expressions, only very weighty reasons justify an interference with parliamentary interpellations, especially when such interference occurs by way of a prior prohibition applied to a certain interpellation intended by an MP in an ongoing debate.
38. Considering the language used by the applicant in the draft interpellations, the Court is satisfied that, although written in a controversial, sometimes rude, and in any case quite polemic style, those texts cannot be reasonably seen as giving rise to very weighty reasons for the restrictions complained of, especially since they did not contain any gratuitous personal denigrations. That said, the obscene references in the second interpellation remain highly problematic, even in the face of the fact that it was written in response to the ban on the first one. Subject to paragraph 2 of Article 10, freedom of expression 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 the State or any sector of the population (see Handyside, loc. cit.). In the consideration of the nature of the expression, the Court finds that the protection of minority members and parties within Parliament is also of concern, and special weight must be paid to ensuring their ongoing right to express opinions, and the public’s right to hear those viewpoints. Given the importance of public exposure to minority views as an integral function of democracy, minority members should have leeway to express their views, even if in harsh language, within a reasonable framework (see Karácsony and Others, cited above, § 141).
39. The Court observes nevertheless that although the reasons for banning the interpellations did not specifically mention this element, the second text contained some phrases with sexual connotation which may raise some concerns from the perspective of parliamentary decorum.
Impact on order in, and authority of, Parliament
40. The Court notes the importance of orderly conduct in Parliament and recognises the importance of respect for constitutional institutions in a democratic society. The Court has to satisfy itself that the domestic authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts.
41. In terms of their actual impact and the infringement of the rights of others, the Court cannot see how the applicant’s expressions could have disturbed the actual functioning of Parliament. The Government have not adduced cogent reasons justifying the measure applied by the Speaker so as to protect Parliament’s authority, allegedly challenged by the offensive accusations directed against the Government policy. Moreover, the Speaker’s decision did not provide any relevant explanation on that.
42. Moreover, it cannot be argued that the Government as a collective political entity has a right not to be criticised in harsh terms as long as it is not demonstrated that such criticism affects the rights of the individual members of the Government in a manner contrary to Article 10. However, such a personal attack has not been argued in the present case.
The process leading to the interference
43. The Court observes that the ban was imposed without any debate, which did not offer any protection to a member of the opposition at the material time. Moreover, the impugned decisions of the Speaker did not specify, even less give reasons, why the proposed interpellations were “injurious to the prestige of Parliament and inadmissible in a democratically functioning system” (see paragraph 10 above), necessitating a sanction effectively preventing the applicant from making those interventions (see, in the context of ex post facto sanctions, Karácsony and Others, cited above, §§ 156-58) - and this without any procedural safeguards available.
Sanctions imposed
44. The Court observes that a prior call to order or warning, at least once, is European standard in the framework of parliamentary discipline (see Karácsony and Others, cited above, §§ 51 and 57). However, in the present case, censorship was directly exercised, without considering any less intrusive measures. At this juncture, the Court notes that the principle of progressivity of sanctions referred to by the Government (see paragraph 25 above) does not seem to have come into play in the instant case.
Conclusion
45. Noting that the interpellations were banned for their style and contents rather than not meeting the formal requirements - which appears to have been the sole valid ground for rejection (see paragraph 27 above) - the Court concludes that these interferences were devoid of a compelling reason, since the interests of the authority of, and order in, Parliament were not demonstrated to be seriously affected, nor was it shown that these interests were on balance weightier than the right to freedom of expression of the opposition. Moreover, the procedural guarantees and those of the appearance of non-partisanship (see Karácsony and Others, cited above, § 157) were insufficient. Therefore, the interferences cannot be considered “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.
46. There has accordingly been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 10 OF THE CONVENTION
47. The applicant complained of a violation of Article 13 of the Convention read in conjunction with Article 10, as under domestic law no remedy lay against the decisions complained of.
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
48. The Government contested that argument.
49. The Court considers that, while this complaint is also admissible, it is not necessary to examine it separately (see Karácsony and Others, cited above, § 174), having regard to its conclusion under Article 10 of the Convention (see paragraph 46 above).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
50. The applicant further complained that the measures showed that he was discriminated against on account of his political opinion, contrary to Article 14 of the Convention, which provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
51. The applicant submitted that only opposition members of Parliament were subjected to disciplinary sanctions by the Speaker. He also maintained that the Speaker had expressed on several occasions his disapproval of the communication methods used by opposition parties in Parliament.
52. The Government observed that the applicant’s arguments in this connection relied only on the general statement that opposition members were more frequently found to have violated the Rules of Parliament. However, for the Government, such an overall consideration could not justify a conclusion that the applicant was discriminated against, since such figures simply flow from the fact that opposition party MPs more frequently express their opinion by means violating the Rules of Parliament.
53. The Court’s case-law establishes that where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, ECHR 2001 III (extracts)).
54. Even assuming that the majority of MPs sanctioned for their alleged disturbing behaviour in Parliament were members of the opposition, in the absence of a showing that behaviour similar to that of the applicant has been tolerated in the case of majority members, the Court does not consider that this in itself discloses a practice which could be classified as discriminatory within the meaning of Article 14. Having regard to all the materials in the case file, there is no substantiation of the applicant’s allegation that he was discriminated against in the enjoyment of any of his Convention rights.
55. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. 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
57. The applicant claimed 450 euros (EUR) in respect of pecuniary damage, that is, the amount of the fine. In respect of non-pecuniary damage, he claimed EUR 60,000.
58. The Government contested this claim.
59. The Court considers that in the event that the applicant has paid the fine imposed on him (see paragraph 7 above), the Government should cover the pecuniary loss incurred on that account by reimbursing the amount of the fine to him.
60. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage the applicant sustained.
B. Costs and expenses
61. The applicant also claimed EUR 2,650, plus 27% VAT, for the legal fees incurred before the Court. This sum corresponds to 13 hours of legal work billable by his lawyer.
62. The Government contested this claim.
63. 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 considers it reasonable to award the full sum claimed.
C. Default interest
64. 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
1. Declares, by six votes to one, the complaints under Article 10 and Article 13 read in conjunction with Article 10 admissible;
2. Declares, by six votes to one, the remainder of the application inadmissible;
3. Holds, by five votes to two, that there has been a violation of Article 10 of the Convention in respect of the fine imposed on the applicant;
4. Holds, by six votes to one, that there has been a violation of Article 10 of the Convention in respect of the banning of the applicant’s interpellations;
5. Holds, unanimously, that it is not necessary to examine separately the complaint under Article 13 read in conjunction with Article 10 of the Convention;
6. Holds, unanimously, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;
7. Holds, by five votes to two,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 450 (four hundred and fifty euros), plus any tax that may be chargeable, in respect of pecuniary damage in the event the applicant has already paid the fine;
(ii) EUR 2,650 (two thousand six hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
8. Dismisses , unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Vincent A. De Gaetano
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Wojtyczek and Kūris are annexed to this judgment.
V.D.G.
A.N.T.
PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE KŪRIS
1. I begin with my dissenting views, which constitute the main thrust of my approach to the present case.
I respectfully disagree with the majority that by imposing a fine for the “non-verbal expression which [the applicant] had made” (as his action is called in § 26 of the judgment) the Hungarian Parliament violated his rights under Article 10 of the Convention. In the circumstances of the case, the imposition of that penalty on the applicant was both proportional and necessary in a democratic society not only from the substantive angle but also from the procedural point of view, with which the majority, as they themselves state, are “concerned”. I find the substantiation of the finding of the said violation utterly defective.
I
2. Mr Szanyi was sanctioned, that is to say was fined, for putting up the middle finger of his left hand at other MPs during the Parliament session. There is no need to enlarge on what that gesture meant and to argue that it was vulgar and outrageous. That “non-verbal expression” was a barefaced, ostentatious manifestation of unparliamentary speech (for further convenience, in this opinion I use the word “speech” in its broader sense, which encompasses also symbolic speech, that is to say body language). Unparliamentary speech, verbal or non-verbal (that is, symbolic expressions), is by definition grossly inappropriate and unacceptable in all parliaments of the civilised world. Vulgar, obscene expressions may be and indeed are tolerated in many other fields of life (for instance in fiction, theatre, the cinema, etc.). In parliaments, however, they are malum in se, not merely malum prohibitum (even if a prohibitum element often is also there). In a parliament, unparliamentary speech can and must be censured, and an MP who resorts to it can and must be sanctioned, as a rule, by the respective parliament itself and without undue delay. The fact that certain manifestations of unparliamentary speech may at the same time constitute political speech, which is protected inter alia by the Convention, does not prevent those expressions from being unacceptable in a parliament, and therefore constituting an actionable activity. This goes without saying. These are the rudiments of parliamentarianism, but also of civic culture, and not only civic culture, but culture per se.
3. At the material time, section 48 of Hungary’s Parliament Act no. XXXVI of 2012, as quoted in Karácsony and Others v. Hungary ([GC], no. 42461/13, § 26, 17 May 2016; referred to in § 12 of the present judgment, which states that it relies heavily on Karácsony and Others), provided:
“(1) The chair of the session shall call speakers to order if they use an indecent expression that is indecent or offensive to the authority of Parliament or to a person or group, particularly any national, ethnic, racial or religious community, and shall simultaneously warn them of the consequences of using the offensive or indecent expression repeatedly.
(2) The chair of the session shall withdraw the right of members to speak if they persist in using an offensive or indecent expression after being called to order.
(3) If during his or her speech a member uses an expression that is gravely offensive to the authority of Parliament or to any person or group, particularly any national, ethnic, racial or religious community, or the offensive expression used by him or her causes grave disorder, the chair of the session may propose, without calling to order or issuing a warning, the exclusion of the member from the remainder of that day’s sitting and the imposition of a fine against him or her.
...
(6) The chair of the session, in the absence of a proposal to apply any sanction referred to in subsection 3, may propose the imposition of a fine against the member within five days of his or her using the gravely offensive expression.
(7) Parliament shall decide on the proposal for the imposition of a fine referred to in subsections 3 and 6 during the session following the proposal, without a debate. The amount of the fine may not exceed one third of the member’s monthly remuneration.”
4. The applicant did what he did. Under domestic law the Speaker of Parliament should have called him to order or excluded him from the remainder of that day’s sitting. It appears that that would probably have been in line (or at least I hope so) with Karácsony and Others (cited above), where the Court in no way objected to (albeit without explicitly approving) the respondent Government’s arguments that “clearly abusive speech or conduct of an MP nullifies the protection of his or her right to freedom of expression or may be considered an abuse of the right” (§ 155). But it was too late for such immediate intervention, as the Speaker seems not even to have noticed the indecent gesture at that moment (this part of Mr Szanyi’s performance lasted for only a second). But that gesture was noticed (and, as the minutes of the Parliament session of that day reveal, even applauded) by some other MPs and caught by the Parliament TV camera and the media. At some later point, having become aware of Mr Szanyi’s “non-verbal expression”, the Speaker proposed to impose on him the sanction provided for in section 48 of the Parliament Act. Had the sanction been not applied, it would have been most surprising - not because Mr Szanyi was a member of opposition, but because of the very nature of his “non-verbal expression” and its connotations.
5. In the present judgment, the finding of a violation of Article 10 on the grounds of the imposition of a fine on Mr Szanyi for his “non-verbal expression” is based on three presumptions. The first presumption is that all speech in a parliament is political speech and that all political speech, irrespective of its contents, enjoys high procedural protection under Article 10; even if an MP clearly, blatantly, cynically misuses and abuses his or her freedom of expression, all procedural guarantees (or “safeguards”, as the two words are used interchangeably in this judgment, but also in Karácsony and Others [cited above], on which, as already mentioned, this judgment claims to rely so heavily) must be available to the abuser, otherwise no sanction can be imposed on him or her for that “political” speech. The second presumption is that an MP may be a person so unintelligent and/or irresponsible that he or she is unable to understand what actions are not tolerated per se in a cultured society and, like a small child, has to be explicitly informed that a no-no is a no-no and that if he or she commits a no-no, a sanction will follow; that information must be provided to him or her under a competitive, quasi-judicial procedure which should satisfy the strict requirements of due process; where such information was not provided to him or her or was provided in some simpler way (orally, for example), that MP is absolved from responsibility. The third presumption is that if an MP resorts to unparliamentary speech, he or she can still not only defend the expression used, in a parliamentary debate, but also legitimately expect that that debate may be used as (that is to say, be converted into) a forum for justifying the respective manifestation of unparliamentary speech, with the result that no sanction will be imposed for even the most obscene “political” expression and that the use of that expression may be forgiven or even encouraged.
The first presumption runs against logic. The second presumption runs against common sense. The third runs against conventional morality and democratic traditions. This analytical partitioning, however, is (as many attempts at such partitioning appear to be) over-simplistic in its manner of reflecting the multiple facets of the three presumptions: in fact, they all run against logic, common sense, conventional morality and democratic traditions, each in its own way.
6. In the judgment, the finding of a violation of Mr Szanyi’s right under Article 10 is based on two arguments, laid down in as many as eighteen lines of two paragraphs, namely 31 and 32. The first one relates to a mechanistic parallel between the situation under consideration, in its procedural aspect (that is to say from the angle of the applicant’s procedural guarantees under Article 10), in the instant case and the one examined in Karácsony and Others (cited above), that is to say a parallel in which the essential difference between the two is not taken into account, nor even looked at. The second argument concerns at least one important fact which has not been dealt with, geared to making the finding of a violation look better substantiated and more convincing, at least on the surface.
Let us have a closer look at the two arguments advanced by the majority.
II
7. The parallel between the instant case and Karácsony and Others (cited above) amounts to effectively putting an equals sign between the two situations in their procedural aspect. The majority explicitly state that the finding of the violation of Article 10 is based on
“essentially the same reasons as the ones set out in paragraphs 148 to 162, in particular paragraphs 151, 154, 156 and 158 in Karácsony and Others (cited above) - notably the absence of effective and adequate safeguards against the abuse of disciplinary powers, the lack of adequate reasoning in the decisions and the non-availability of a parliamentary procedure in which the applicant could have been heard” (§ 32).
This “robotic” parallel, which perhaps could not be drawn any more tersely, allows the majority to conclude, without any “supplementary” reasoning on the merits of this particular case, that the
“interference [with Mr Szanyi’s rights under Article 10 on account of imposition on him of a fine for his “non-verbal expression”] cannot be considered “necessary in a democratic society” within the meaning of Article 10 § 2” (ibid.).
But it can be considered - and should. There is a crucial difference between the two cases which should not escape the Court’s attention. Even more, the Court should avoid camouflaging any essential difference between the situations under examination by concentrating on their less important distinguishing features.
8. Karácsony and Others (cited above), was about the sanctioning of opposition MPs for bringing and displaying a large placard and banners in the parliamentary chamber and using a megaphone to speak during voting. The Court considered that displaying a placard or a banner in Parliament was not a “conventional manner” for MPs to express their views on a given subject debated in the House and that by having chosen this “form of conduct”, as well as having used a megaphone, the applicants disrupted the order in Parliament (§ 149). The Court stated that the applicants
“had been free to convey the same message in their parliamentary speech stricto sensu and had they done so the consequences of their actions might have been entirely different” (ibid.).
Paradoxically enough (or perhaps not at all, given the presumptions underlying the majority’s reasoning - see paragraph 5 above), no such suggestion is to be found in the present judgment. The Court does not even hint that Mr Szanyi, too, could have chosen some other “form of conduct” in order to “convey” what he considered to be his “message” (on the condition that there can be some “proper” form of conduct to convey, especially in a national parliament, that type of “message”). Also, in Karácsony and Others the Court stated that the actions of the applicants (that is to say MPs who had displayed the placard and banners and used the megaphone in the parliamentary chamber) were “gravely offensive to parliamentary order” (§ 150). In the present case there is no statement of this sort. Instead, the majority finds it necessary to mention that
“[a]ccording to the applicant and not contested by the Government, during his speech numerous remarks were made” (§ 6).
9. The latter distinction is of not much relevance. In fact, it is not even a real distinction, because, of course, there must have been all sorts of remarks during the protest action staged by the applicants in Karácsony and Others (cited above). On top of that, no one who has listened to or read Mr Szanyi’s speech, which is sprinkled with vociferous and highly colourful expressions, would be surprised that during that speech remarks indeed were made. Mr Szanyi’s speech and the remarks made during his address are not reproduced in the judgment, but they are to be found in the minutes of the Parliament session;[7] as to the content of the remarks (if any) that may not have been reflected in the aforementioned minutes, no reliable information had been presented to the Court, not even by the applicant. After all, remarks during speeches are far from being uncommon in parliaments worldwide. Middle finger showings are not - so far.
10. The relevant difference between the situation in Karácsony and Others and in this case, the distinction which really matters when the two situations are compared from the point of view of the procedural guarantees (safeguards) under Article 10, lies in the fact that these guarantees are not a goal in itself. The very word “guarantee” (or “safeguard”) implies that making use of them is capable of bringing about a different outcome in an applicant’s case. Thus, a “guarantee” which, as a matter of principle, cannot bring about a different result would not be a guarantee at all but a mere formality, effectively a sham safeguard. Procedural guarantees are there not just for the sake of it. They must perform a function.
11. There is a tremendous difference between the conduct of the applicants in Karácsony and Others (cited above) and Mr Szanyi’s conduct.
The former, although objectionable, involved a non-obscene political protest and therefore could be defended (as a matter of principle), whereas the “non-verbal expression” of the applicant in the instant case, being committed in the parliamentary chamber, was not defensible at all - on any grounds, under any circumstances. A middle finger is a middle finger. It means what it means. A four-letter word is a four-letter word. Obscenity is obscenity. Period.
12. In the context of the “placard, banners and megaphone situation” examined in Karácsony and Others (cited above), the Court held that a sanctioned MP should dispose of “basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed on him or her” (§ 154) and that there must be a “measure of legal protection ... against arbitrary interferences by public authorities with the rights safeguarded by the Convention”, including such “procedural safeguard” as “the right for the MP concerned to be heard in a parliamentary procedure before a sanction is imposed” (§ 156). If these doctrinal provisions, pertaining to the procedural aspect of the applicable provision of the Convention, are read as absolute, any imposition of a sanction on an MP for expression in a parliament without him or her being heard should amount to the denial of the procedural guarantees under Article 10. Pursuant to section 48 (7) of the Parliament Act, the imposition of the fine on the applicant for his middle finger gesture precluded a prior debate. Thus, the majority may seem right in finding a violation of Article 10 in respect of Mr Szanyi.
13. This would be a formalistic, extremely dogmatic self-righteous attitude based on an absolutist, indiscriminate, exclusively verbatim reading of the doctrinal provisions cited above, detached from the situation under examination, to which these provisions are nevertheless applied.
However, these doctrinal provisions do not lend themselves to such an uncritical, indiscriminate, absolutist, extremely formalistic, exclusively verbatim interpretation. They should be read not in detachment from, but in connection with the substantive aspect of the applicable provision of the Convention, which is Article 10. It is a truism that legal procedure has been invented not for its own sake, but it must serve some substance. Legal procedure must be socially useful. Legal requirements, not excluding those set forth in this Court’s case-law, must make at least some practical sense. This equally applies to the sanctioned MP’s right “to contest the disciplinary measures imposed on him or her”, as expounded in Karácsony and Others.
14. Coming back to Mr Szanyi’s situation, one should legitimately ask: what would that debate, which the Parliament Act had explicitly not allowed and which the majority found to have automatically breached the applicant’s rights under Article 10, have had to focus on? The judgment does not address this question. It is regrettable. But why not ask it? So, what could be the answer to it?
One possible answer would be that the applicant could have asserted that he had not done what was alleged, that is to say that the accusations were false. But this would be a most unrealistic hypothesis. Such denial would have been futile. By the time the fine was imposed on the applicant, the whole of Hungary had already seen his middle finger spectacle on TV.[8] Naturally, the applicant himself never denied that he had made the gesture. Another hypothetical, but no less unrealistic answer would have been that the applicant pleaded that he did not know that the gesture was not unacceptable, at least in the parliamentary chamber. Come on. This is the Parliament, not a kindergarten, and Mr Szanyi was an elected member of that Parliament. Moreover, as one could infer from his public statements available urbi et orbi on internet, he even seems to be proud of his show. Or (one more hypothetical answer to the principal question not addressed in the judgment) perhaps the Parliament had to debate whether, under any specific circumstances, Mr Szanyi’s vulgar gesture could be considered forgivable and thus permissible? This, again, is not serious. In a parliament, unparliamentary speech is unacceptable and therefore actionable by definition.
However, even if there were any circumstances which could hypothetically - even if only in the applicant’s mind - justify his gesture, no information was provided to the Court that Mr Szanyi (or anyone else) ever expounded them under due parliamentary procedure or informed the Speaker or any other official of them, if they (they might, for example, consist of remarks made during his speech) overstepped any legal or moral frontier.
This last issue merits a closer look, even it requires going a little beyond the case-file, to the internet.
15. If Mr Szanyi thought that he had some plausible version (however difficult that might be to imagine) which hypothetically justified what he did, he was not prevented from presenting that version to the Speaker and/or to Parliament. More specifically, if the applicant thought that there had been any external cause - namely other than his own spiritual condition, intellect, mentality, mind-set, attitudes, habits or level of culture (?!) - which made him unable, during the Parliament session, to keep the middle finger of his left hand in its normal position, he was at complete liberty to come forward with his version of events. After all, it was he who made the vulgar gesture in Parliament, so arguably he owed at least some kind of explanation to that Parliament (or its Speaker)? On the web, one can find several explanations by Mr Szanyi, which I consider rather inconsistent and contradictory, none of them cogently setting out why, or even to whom, he made that gesture, although it seems that the applicant uttered no apology or regret for having done so. Be that as it may, no explanation in the media or in any other non-parliamentary forum can replace an official motion, which has to take place in Parliament. For such an official explanation, the applicant had ample time between 18 March 2013, when he so blatantly misbehaved, and 25 March 2013, when the Speaker initiated disciplinary proceedings against him, and even more time until 28 March 2013, when the plenary voted on imposing the sanction on him.
There is nothing in the case-file to suggest that the applicant ever attempted to provide any official explanation.
17. In Karácsony and Others (cited above), the conduct of the applicants was not malum in se. Therefore, a debate on their conduct where they could “contest the disciplinary measures” was reasonable. Regarding Mr Szanyi’s middle-finger gesture, it is difficult to discern the sense which such a debate might have had, had it taken place (see paragraph 12 above). What is more, such a debate would have been counterproductive and undesirable because of its negative educational value. Had such a debate taken place, it would have suggested that what is malum in se in the parliament of a civilised country may in fact be malum licitum and therefore not malum at all. When an MP ends his speech with showing a middle finger to other MPs and, through the intermediary of the parliamentary TV channel and the omnipresent media, to the widest possible audience (national and international), any hint that the sanctioning measures taken by that parliament may be “arbitrary interferences by public authorities with the rights safeguarded by the Convention” (compare Karácsony and Others (cited above), § 156, referred to “in particular” in § 32 of the judgment) sounds like a sick joke.
18. On the other hand, the Hungarian legislature (just like that of any other member State) is not prevented from laying down, in its domestic law, that even in such cases as Mr Szanyi’s a sanctioned MP is granted all the imaginable “procedural safeguards”. As it transpires from Karácsony and Others (cited above), in certain (probably not so rare) cases such safeguards may actually be necessary. It also transpires that the domestic legislation applied in that case was far from perfect. If these procedural safeguards are not provided when they are necessary, the finding of a violation of Article 3 would probably raise little doubt. However, if such safeguards are not necessary or if their use would even be counterproductive, as in Mr Szanyi’s specific case, then refraining from providing for them in legislation should remain within the margin of appreciation of the member States.
19. This Court was not intended as a supra-national constitutional court, never mind as a supra-national legislature for internal parliamentary procedures. Therefore (but not only because of that), it should be very careful about prescribing the inclusion of certain requirements in national parliamentary procedures. Even more so, the Court should not force the re-writing of national parliamentary procedures on the basis of its own doctrinal provisions, which are usually drawn up in respect of one specific situation, by interpreting them in such an absolutist, dogmatic, mechanistic manner that they become effectively universal and have to be rigidly applied to all other situations, ignoring the factual specificities of the latter. The Court’s doctrinal prescriptions must be kept under constant supervision in order to prevent them from becoming too insensitive to the specificities of the individual cases under consideration, let alone being blindly applied to all cases which superficially resemble that in respect of which the respective doctrinal provision was first formulated.
20. As mentioned above, according to domestic law the imposition of the fine on the applicant had taken place without a debate. That legislation, as it transpires from Karácsony and Others (cited above), is deficient, at least to the extent that it does not allow such a debate in cases where it would be useful and meaningful.
Nevertheless, what this Court must focus on is not the legislation (in particular, that on parliamentary procedure), but its application, because justice or injustice is done to an applicant when the law is applied to him or her. The application of a domestic law, even a deficient one, does not always necessarily entail the violation of a provision of the Convention.
21. If one is concerned not only with the legislation applied but also with its actual mode of application, one could ask (and the Chamber should have asked): has the applicant in the instant case, Mr Szanyi, suffered injustice by being sanctioned by the Parliament for his “non-verbal expression”?
Definitely not.
22. Even though in most instances a sanctioned MP should have at his or her disposal “basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed on him or her” (see § 12 above), situations may occur where the use of such safeguards would do a disservice to democratic culture.
Mr Szanyi’s case is precisely of this type. By refusing to allow a debate before the vote on the imposition of the sanction for resorting to the unparliamentary speech at issue, the Hungarian legislature has a priori sent a clear message that a taboo is a taboo, and that foul-mouthed ribalds who blatantly and cynically abuse their freedom of expression will not be given a bonus - a chance to publicly contest what may be called a healthy reaction to such abuse, which is what, in fact, the imposition of a fine on the abuser represents. It is Mr Szanyi’s problem that he did not understand or, worse still (although judging from his statements on the web, this would actually seem to be the case), deliberately ignored civilised societies’ “thou-shalt-not” message, which was absolutely clear.
23. Nevertheless, even after having flouted that message, the applicant did in fact enjoy one - most important! - procedural guarantee, namely the fact that the fine was imposed on him not unilaterally by the Speaker (who initiated the sanctioning procedure) but by a parliamentary vote. It takes a great deal of imagination to consider that imposition as “arbitrary interference by [a] public authority” (compare Karácsony and Others (cited above), § 156, referred to “in particular” in § 32 of the judgment) with Mr Szanyi’s right under Article 10.
III
24. The second argument underpinning the finding of a violation of Article 10 is no less bewildering than the first one. It is largely a factual argument.
25. The majority finds it necessary to express its “concern” that the Speaker’s proposal to impose a fine on the applicant
“does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision” (§ 31).
It also finds that there was a “lack of adequate reasoning in the decisions” (§ 32).
Are these allegations weighty enough to substantiate (together with the first argument) the finding of a violation of Article 10? I think not.
26. Let us first of all examine the allegation that the Speaker’s proposal “does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision”. This reproach is artificially stretched out to conclude that there has been a violation of Article 10. What allows me to assert that this reproach is “stretched out” is that it is factually incorrect, and that that factual incorrectness is masked. The description of the conduct, which the majority says is missing, is indeed provided, and is pointed out in the Speaker’s proposal. The Speaker, in his proposal, which is reproduced in § 7 of the judgment, refers to the minutes of the Parliament session. The minutes are a publicly accessible official document. They graphically and unambiguously describe the applicant’s actions. The relevant passage of the minutes reads:
“Dr. Tibor Szanyi sat down, then pointed the middle finger of his left hand to the left” (“Dr. Szanyi Tibor leül, majd a bal kezének középső ujját felfelé tartva balra int.”).
27. It will always remain a mystery for the readership, why and how one could assert that the Speaker’s proposal does not offer “any transparent description” or “consideration”. Not “any”?! But this is the expression used, this is precisely what the majority say.
Maybe it is only a lapsus linguae and the majority wanted to state that there was “too little” “transparent description” or “consideration”? This hypothesis would be worth exploring, as of all the possible hypotheses it is the only one which could give some weight to the majority’s argument.
But, as we shall see below, it does not.
28. So, what is not transparent in the description provided above, which even a child would understand? Nothing. What “circumstances or reasons” are not considered? None of any relevance. Indeed, how “detailed” would the “consideration of the circumstances or reasons for the decision” have to be in order to be sufficient for the majority? Is it not enough that the Speaker refers to the minutes of the Parliament session, which state that Mr Szanyi “pointed the middle finger of his left hand” at other MPs, and calls that gesture a “blatantly offensive expression”? On top of that, the Speaker also refers to section 48 (3) and (6) of the Parliament Act, enshrining his power to propose the sanction to be imposed on any MP who “uses an expression that is gravely offensive to the authority of Parliament or to any person or group”.
What other “detailed” reasons should be provided in a document like this? Since when have Speakers of Parliament been required to write treatises instead of drawing up simple and clear procedural motions?
In view of the fact that Speaker’s proposal refers to both the Parliament Act and the minutes of the parliamentary session and that it provides the prima facie assessment of Mr Szanyi’s conduct, the majority’s reproach that the Speaker’s proposal “does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision” is void of any factual content. If I may be permitted to use the Court’s “routine” vocabulary (albeit for different reasons), this allegation is manifestly ill-founded.
29. References to other documents are a usual and a perfectly legitimate practice in all sorts of legally relevant acts, and so far not only have not been questioned but have been routinely resorted to by this Court itself. For instance, this very judgment extensively refers, in §§ 12 and 32, without reproducing the text, to the Court’s judgments adopted in other cases. And this is perfectly legitimate. It is practical, pragmatic. References save time and resources. References, especially to publicly accessible sources, do not make the text which contains those references opaque (or insufficiently transparent).
30. It is not that mysterious alleged lack, in the Speaker’s proposal, of “any transparent description [or] consideration” which poses a problem. It is the lack of transparency in the reasoning on which the finding of a violation of Article 10 in this judgment is based. I really mean it. What is really not “transparent” in the instant case is this very judgment. It is not transparent because it does not cite or otherwise refer to the minutes of the parliamentary session to which the Speaker refers and wherein the impugned conduct is described in - as has been already shown - sufficient “detail”. The omission of this important factual detail may create, in the minds of readers of the judgment, an erroneous impression that the aforementioned minutes are not sufficiently clear about the applicant’s conduct. In fact, they are absolutely clear. The only problem is that not every reader will consult them (after all, they are in Hungarian, which is certainly not an easy language). Still, the minutes are there, so the “transparent description” is there, too. Why pretend that it is not?
31. I now turn to the second allegation - that there is a “lack of adequate reasoning in the decisions” (§ 32). It is no less perplexing than the one just examined. First of all, it is not clear what “decisions” the majority have in mind. Why in the plural? How many decisions were there? There was the Speaker’s proposal to impose a sanction on Mr Szanyi, to which the Parliament voted in the affirmative. One proposal - one decision.
Alright, the plural may also be a lapsus linguae. Let us limit ourselves to the single decision by the Parliament. Again, this document (just like the minutes of the Parliament session dealt with above) is not reproduced in the judgment. But such reproduction may be not necessary at all. One should not be surprised if that decision indeed lacks any detailed reasoning. Does it make that reasoning which it contains not “adequate”? Of course not, because that affirmative vote, whatever its documentary form, should be seen in context - in this case in the context of the Speaker’s proposal and the documents referred to therein, as well as in the context of Mr Szanyi’s performance on the parliamentary TV channel, with which, by the day of the decision, the whole of Hungary had many opportunities to familiarise itself.
As a rule, such decisions by parliaments (not just the Hungarian one) do not contain any explicit reasoning. In this particular case, the reasoning had been provided by the Speaker, who - I repeat - referred to other documents and called Mr Szanyi’s gesture a “blatantly offensive expression”. What else? Should the decision have contained a thorough analysis as to whether the middle finger is indeed an “indecent expression” and “gravely offensive to the authority of Parliament or to any person or group” (to use the language of section 48 of the Parliament Act)? An explanation that a middle finger is a no-no? It is obscure what “reasoning” would have satisfied the majority as “adequate”.
32. In Karácsony and Others (cited above), the Court considered that “any ex post facto decision imposing a disciplinary sanction should state basic reasons, thus not only enabling the MP concerned to understand the justification for the measure but also permitting some form of public scrutiny of it” (§ 158). As already mentioned, in the present judgment the Court refers to this paragraph “in particular” (§ 32). This reference makes this argument one of the decisive ones for finding a violation of Article 10.
33. Just as I disagree with the uncritical, indiscriminate, absolutist, extremely formalistic, dogmatic, exclusively verbatim reading of the doctrinal provisions from Karácsony and Others (cited above) to the effect that a sanctioned MP should have at his or her disposal “basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed on him or her” and that there must be a “measure of legal protection ... against arbitrary interferences by public authorities”, including “the right ... to be heard in a parliamentary procedure before a sanction is imposed” (see § 13 above), I also object to the equally uncritical, indiscriminate, absolutist, extremely formalistic, dogmatic, purely verbatim reading of the doctrinal provision that “any ex post facto decision imposing a disciplinary sanction should state basic reasons, thus not only enabling the MP concerned to understand the justification for the measure but also permitting some form of public scrutiny of it”. This would amount to the Court setting forth an extremely rigid universal rule for the member States’ national parliaments in what has traditionally been their domain.
34. To wit, there can be situations in which stating such “basic reasons” in that particular decision (document) is not necessary at all. Therefore, the absence of such a statement of reasons cannot even minimally add to the substantiation of the finding of a violation of Article 10.
Again, Mr Szanyi’s case is precisely of this type. To suppose that because of the “lack of adequate reasoning in the decisions” (in fact, one decision) this particular MP was not “enable[d] ... to understand the justification for the measure” would be contrary to common sense, because (I have to repeat myself; compare § 5 above) MPs are usually not unintelligent and/or irresponsible enough not to understand what actions are not tolerated in a cultured society and to have to be explicitly informed that a no-no is a no-no.
However, such a supposition would not only run counter to common sense. In the instant case, it would be unfair to Mr Szanyi himself, who, ironically, falls victim of the presumption (or prejudice?) that (at least some) MPs are not able to understand what almost every child does, namely the difference between “go-ahead” and “off-limits”.
35. As to the “some form of public scrutiny of [the measure]”, also indiscriminately - by an “umbrella” reference - imported from Karácsony and Others (cited above, § 158) alongside the supposition that an MP may not be able to understand the reasons for the penalty imposed on him or her, its application in the present case does not take into account the obvious fact that not only was the measure publicly delivered and reflected in the minutes of the Parliament session of the respective day, but also Mr Szanyi’s performance, due to the TV, internet and other media, has already become, in Hungary, public “property”. As to what else might be needed for “public scrutiny”, the judgment does not clarify.
IV
36. My principal disagreement with the majority pertains to the assessment, under the Convention, of the imposition of the fine on Mr Szanyi. But I must add a number of further remarks.
37. I find much to commend in Judge’s Wojtyczek’s approach (laid down in his dissenting opinion) to the inapplicability of Article 10 to speeches pronounced or actions performed in a national parliament. Still, my position is less extreme.
38. In my opinion, even if not all political speech falls within the ambit of Article 10, some of it may do. In the present case, the interpellations by Mr Szanyi contained both elements which fall within that ambit and elements which do not. Without going into greater detail, I admit that I had to sacrifice my genuine reservations as to the latter in order to be able to examine - with the majority - the former.
39. Having said that, I have to express my disagreement with the doctrinal statement that
“interpellation ... constitutes political speech, undoubtedly protected by Article 10 of the Convention” (§ 26; emphasis added).
Of course, there can be doubts - and very legitimate doubts. This doctrinal statement by the majority is not founded, to say the least. It is a further reflection of an absolutist, uncritical approach to issues under Article 10, on which this judgment is so heavily based. The majority seems to pay no attention whatsoever to the fact that Article 10 is somewhat exceptional in the whole context of convention law. It is one of the two Articles (the other being Article 5 of Protocol no. 7, but from a rather different angle) which explicitly mentions the responsibilities of right-holders and the only Article which mentions their duties.
Most regrettably, this judgment is not the only one where the right-holders’ duties and responsibilities, which should be inseparable from freedom of expression, tend to be ignored.
40. I agree with the majority in regard to point 6 of the operative part of the judgment, which stipulates that “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant”. For me, however, the “violation” mentioned in this point is the one found in point 4 of the operative part (“there has been a violation of Article 10 of the Convention in respect of the banning of the applicant’s interpellations”), but not point 3 (“there has been a violation of Article 10 of the Convention in respect of the fine imposed on the applicant”), with which I strongly disagree.
41. However I voted against point 7 of the operative part, which contains, inter alia, a proviso that the respondent State is to pay the applicant EUR 450 (that is, the amount of the fine imposed on him), “plus any tax that may be chargeable, in respect of pecuniary damage in the event the applicant has already paid the fine”.
Is difficult to grasp either the awarding of pecuniary damage or the proviso. The Government had informed the Court - as explicitly stated in their submissions - that the fine imposed on the applicant was not paid by him. Also, the fine seems not to have been deducted from the applicant’s income, property or bank account. Mr Szanyi himself had not submitted any documents showing that he sustained “pecuniary damage” on account of the fine imposed on him. What is more, immediately after the imposition of the fine on the applicant he had publicly stated (again, the statement is available
on the web[9]) that he was not going to pay that fine (and that there was no legal mechanism allowing for deduction), but would rather “go to Strasbourg”. Which he did.
It is a usual practice of the Court that in such cases, where the applicant fails to substantiate the pecuniary damage allegedly sustained by him, the Court does not award it. In the instant case, however, not only had the applicant not shown that he had sustained any “pecuniary damage”, but, as one can infer from Mr Szanyi’s public statement referred to above (the content of which is, in fact, confirmed by the Government in their submissions), he had not paid it. Had the applicant done so after his petition was lodged with the Court, he was under an undisputed obligation to additionally inform the Court of this new development. Which he did not do.
In the absence of any evidence that the fine had been paid (or deducted), the Court should have not speculated as to whether the applicant might have paid the fine. This inconsistency probably will leave readers guessing why this particular applicant has been granted such preferential treatment.
42. The majority admit that the applicant’s conduct was inappropriate. That being so, the admittance (once in the whole text) is worded in such a way that that inappropriateness does not seem to raise any special concern for the Chamber (unlike the Speaker’s proposal, which allegedly, but not in fact, “does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision”). This admittance reads:
“[T]he Court considers that the interference consisted in the application of a sanction in a process where the procedural guarantees and those of the appearance of non-partisanship were insufficient, even if the applicant’s non-verbal expression was grossly inappropriate and vulgar” (§ 31; emphasis added).
Procedure over substance. The former matters a lot, the latter effectively nothing.
43. It is somewhat ironic that on the day following the Chamber’s vote on the judgment in the present case (that is to say before the judgment was made public) the President of a distant Pacific archipelago State, while addressing, in a public speech, the European Union, showed his middle finger - symbolically to the EU - and uttered a four-letter word aimed at the latter body, thus “transparently” and “adequately” explaining, what that gesture meant. This made news worldwide.
Still, as our civic - and legal - culture now stands in the light of the present judgment, no one in Europe should be offended. The Strasbourg Court considers this eloquent gesture (and who knows how many other
“non-verbal expressions”?), even when made by an MP in a national
parliamentary chamber and on parliamentary TV camera, to fall within the scope of the notion of the freedom of expression and to indiscriminately, without exception, enjoy - as political speech - all the procedural guarantees under Article 10 of the Convention.
DISSENTING OPINION OF JUDGE WOJTYCZEK
1. I respectfully disagree with the approach adopted by the majority in the instant case. In my view, Article 10 is not applicable in the circumstances and the application should have been declared inadmissible. As Article 10 does not apply, there are no grounds for finding a violation of this provision.
2. Modern constitutional democracy is based on distrust toward State power holders. As Judge Sajó eloquently explained in his masterpiece, “No matter how expensive the constitutional order or how alien and partly unsuccessful legal regulation of the political sphere is, one has to be suspicious of the state and those who exercise power” (Limiting Government: an Introduction to Constitutionalism, Central European University Press, New York and Budapest 1999, p. 11, italics in the original). The main worry in a democratic State governed by the rule of law is how to place effective limitations on the actions of State officials. In this context, it is no surprise that the European constitutional tradition is based on certain clear distinctions: (i) between the individual and the State; and (ii) between private and official acts.
Human rights or fundamental rights protect the individual against the State. More specifically, they protect individuals while acting in their private capacity against illegitimate interference from State power. It is important to note in this respect that State power is exercised by individuals who are members of State organs and who act in an official capacity. Human rights do not protect State power holders, acting in their official capacity, against other State power holders (on this issue, see, in particular, W. Graf Vitzhum, Der funktionale Anwendungsbereich der Grundrechte in: Handbuch der Grundrechte in Deutschland und Europa, vol. II Grundrechte in Deutschland: Allgemeine Lehren, D. Merten, H.J. Papier (eds.), Heidelberg: C.F. Müller Verlag, 2006).
An act undertaken by an individual belongs either to the private or to the official sphere. Acts belonging to the private sphere may benefit from human-rights protection against acts belonging to the official sphere. Acts belonging to the official sphere cannot enjoy such protection. An individual may not invoke human-rights protection when he or she acts in his or her official capacity, especially when performing duties as a member of a State organ or a holder of State office. In the latter case, not only is the individual not protected by human-rights mechanisms, but he or she is bound by human rights in their vertical dimension (that is, in relations between the individual and the State). I have set out my views on these issues in detail in my dissenting opinion to the judgment in the case of Baka v. Hungary [GC], no. 20261/12, ECHR 2016).
The general principle that human-rights legislation protects individuals acting in their private capacity and not as State officials is commonly accepted. At the same time, the delimitation between private and official acts is not always obvious (see, in particular, J. Schabe, Grundrechtschutz hoheitlicher Funktionsträger in: Staat-Souveränität-Verfassung. Festschrift für Helmut Quaritsch zum 70. Geburstag, D. Murswiek, U. Storost, H.A. Wolff (eds.), Berlin: Dunkcher Humblot, 2000). It may be a particularly difficult one in respect of acts performed by office holders who exceed the scope of their powers; in particular, the line between illegal official acts and illegal private actions by office holders may be open to legal dispute.
3. Specific legal problems arise in the case of parliamentarians’ conduct. Parliament is by definition a venue where its members may speak freely and this is an indispensable element of a deliberative democracy. Speech in parliament is matter of the MP’s individual choice. It cannot be imputed to the State and a single MP cannot speak for the whole parliament. Adequate guarantees that the opposition’s voice can be heard in parliament are essential in a constitutional democracy. Issues placed on the parliamentary agenda may more easily attract the attention of the press and of citizens, and thus the ability to raise issues for discussion in parliament enables the opposition to trigger a broader public debate. It also forces the majority to engage in the debate and to take a stance on the issues under discussion. Furthermore, there is a fundamental difference between the situation of judges, whose freedom of speech is limited in many ways and, in particular, by the duty to speak in defence of judicial independence, and the situation of members of parliaments who enjoy the guarantees of a free mandate.
However, one cannot overlook the fact that speech in parliament is part of the parliamentary mandate. A free mandate is first and foremost a mandate granted by the people to its representative, in order to exercise State power in its name. Freedom of the parliamentary mandate is an essential element of the legal framework delimiting the scope of MPs’ powers. The mandate granted to an MP by the people is very wide-ranging and encompasses broad discretion with regard to parliamentary speech. At the same time, speech in parliament is part of an MP’s official functions. In speaking, MPs take part in the exercise of State power within a legally regulated decision-making process. Free speech in parliament has its source not in the inalienable human dignity of the MP but in the (extensive but nonetheless not unlimited) delegation of power by the sovereign people. It does not serve the personal self-fulfillment of the MP, but rather the common good. In other words: free speech in parliament is granted by the citizens for the benefit of the citizens and not for the benefit of the parliamentarians. Speech by a citizen exercising his or her fundamental human right and speech by an elected representative in the decision-making process, undertaken in the name of the people and for the people, are two different things. The latter is not a human right but a matter of the proper organisation of State institutions and decision-making processes in a representative democracy.
Carl J. Friedrich elegantly presented the gist of the question in the following way:
“Speech is the essence of parliamentary activity, is the very blood of Parliament’s corporate body politics. But just as blood has to flow through well encased channels in order to fulfill its salutary function, so speech has to be circumscribed and regulated in Parliament. Not the Tohu-bohu of a multitude of voices, but the balanced and order procedure of speech and reply, of argument and of debate is ‘speech’ within Parliament. The privilege of the ‘freedom of speech’ is not an absolute privilege of an individual member, it is relative freedom compatible with the freedom of others. In the words of the Marquess of Hartington, when discussing closure in the House of Commons in 1882: ‘... the privilege of speech is a privilege which the House permits to be exercised for its own instruction, for its own information, in order to form its own opinion, and ... not a personal privilege to be used irrespective of the convenience and the efficiency of the House...’” (C. J. Friedrich, Constitutional Governments and Politics. Nature and Development, New York and London: Harper & Brothers Publishers, 1937, p. 390).
Many decades have passed since these words were written, but their relevance remains unaffected.
More recently judge Sajó explained the present functioning of parliaments in the following way:
“Contrary to all eighteenth-century myths about the popular mandate of individual representatives, in reality the members cannot make individual decisions. Only the faction as a body may decide. The reason why the members have rights at all is to enable to legislative machinery to continue working ... It is not the individual who is entitled to speak in parliament and to submit proposals but the majority and the opposition or the factions; parliament’s chivalry is directed at the opposition” (Limiting Government..., op. cit., pp. 131-132).
4. MPs may speak at different venues and in very different capacities: as citizens, as MPs faithfully performing their duties, sometimes as persons trying to obstruct the parliamentary procedure illegally or exceeding the scope of their official functions. It follows that the decision to classify an act of speech pronounced by an MP as private or official requires a thorough consideration of all the relevant circumstances.
I note that the Hungarian Constitutional Court in its judgment no. 3206/2013 AB of 4 November 2013 declared Article IX(1) of the Hungarian Fundamental Law applicable in principle to parliamentary freedom of speech (see the summary in paragraphs 32-38 of the reasoning in the Court’s judgment in the case of Karácsony and Others v. Hungary ([GC], no. 42461/13, ECHR 2016 (extracts)). The Court stressed, nonetheless, the specific features of this speech. Furthermore, the precise scope of parliamentary speech covered by Article IX(1) of the Hungarian Fundamental Law is not clear. In any event, the interpretative decision of the Constitutional Court which makes Article IX(1) of the Hungarian Fundamental Law applicable to parliamentary speech does not alter the fundamental difference between this speech and private speech from the perspective of the Convention.
The instant case is a perfect illustration of the fact that parliamentary speech may touch upon the rights of third persons, and that there is a strong need for efficient protection of third persons against abusive parliamentary speech which violates their rights. The fact that speech is uttered in an official capacity may considerably increase its ability to cause damage to third persons.
5. An interpellation is an instrument of parliamentary control over the Government. It enables an MP to obtain an official reply from a member of the Government and to trigger a vote in the chamber on the matter. If the Member does not accept the answer, the National Assembly decides on the acceptability of the reply. If the parliamentary chamber rejects the reply, it may call upon a parliamentary committee to elaborate a proposal on the measures to be taken.
The ability to lodge an interpellation is a power granted to MPs in order to ensure the proper balance between the legislative and executive branches. It is not an individual human right stemming from human dignity and serving personal self-fulfillment, but an element of State organization. Moreover, there are constitutional democracies where parliamentary interpellations on the Hungarian model do not exist.
There can be no doubt that presenting interpellations (in writing or orally) and commenting on the official reply during a session of the parliamentary chamber are acts performed in an official capacity. The interference complained of did not affect in any way whatsoever the applicant’s ability to speak in his capacity as a citizen. In my view, the acts of speech at stake in the instant case belong to the sphere of official speech and cannot enjoy the protection of the Convention. It follows that Article 10 is not applicable in the instant case.
6. The majority’s reasoning also raises objections of another type. The majority considers that an interpellation is a way of exercising a legally protected freedom and assesses the applicant’s interpellation with the conceptual apparatus of limitations on freedom. Such an approach is difficult to accept from the viewpoint of legal theory. An interpellation is not only a channel for expressing views, but is first and foremost a way of doing things with words (compare J.L. Austin, How To Do Things With Words, Oxford: Clarendon Press, 1963). The capacity to lodge an interpellation is not a freedom but a power in the Hohfeldian sense (see W.N. Hohfeld, “Some fundamental legal conceptions as applied in judicial reasoning”, The Yale Law Journal, Vol. 23, no. 1, November 1913, pp. 16-59, and “Fundamental Legal Conceptions as Applied in Judicial Reasoning”, The Yale Law Journal, Vol. 26, no. 8, June, 1917, pp. 710-770), or a competence as understood by A. Ross (The Theory of Directives and Norms, London: Routledge and Kegan, 1968, pp. 130-133). The notion of power (competence) presupposes a precise determination of the power holder, the procedure for the exercise of the power, the possible content of the act to be performed, the scope of its addressees and the legal consequences. An act performed by the power holder can produce its intended effects only if it remains within the substantive and formal limits of the empowerment. Even assuming that the power of an MP to lodge interpellations is a human right protected under the Convention, it cannot be adequately assessed with the conceptual apparatus designed for the evaluation of restrictions on freedom.
7. The references to the above-cited Karácsony and Others v. Hungary judgment seek to convey the impression that the reasoning in the instant case follows that judgment. In fact, it extends the application of the standards established in Karácsony to a completely different type of factual circumstance.
In the case of Karácsony and Others v. Hungary the Court had to deal with unlawful actions undertaken by MPs in order to disrupt a sitting of parliament. Such actions, although undertaken within the precincts of parliament, are clearly outside the scope of a parliamentary mandate. The Court commented in that judgment that the impugned behaviours were not “a conventional manner for MPs to express their views on a given subject debated in the House” (§149). The question of whether or not those behaviours are protected under Article 10 is open to dispute; however, I recognize that there are serious reasons to consider them as private speech, uttered not in an official but in a private capacity and therefore protected by Article 10.
In the instant case, the actions under consideration were part of an interpellation procedure. The applicant expressed views either orally during the examination of his interpellation by the National Assembly (paragraph 6) or in a written document (paragraphs 9 and 11). There is no doubt that the applicant acted in his official capacity. The impugned behaviours belong to official speech uttered within the performance of duties of a member of parliament.
Unlawful actions aimed at obstructing and disturbing parliamentary debates on the one hand, and speech in interpellation procedures on the other are two completely different types of speech which should not be confused. The judgment in the instant case could not therefore rely on the judgment in the above-cited Karácsony and Others case, but was required to rule on new legal issues concerning the applicability of Article 10 to the official speech of parliamentarians. These issues have not to date been decided by the Court.
8. The fact that Article 10 is not applicable does not mean that other Convention rights cannot be at stake in the instant case. For this purpose, it is necessary to examine not only the nature of the acts and conduct with which the respondent State interferes, but also the nature of the interference complained of by the applicant. A Convention issue may arise where a State interferes with an activity not covered by any Convention rights if the interference, by its nature, affects an individual’s life, health, personal freedom or property.
I agree that, by imposing a fine, the Hungarian parliament did interfere with the applicant’s human rights as protected by the Convention and the Protocols thereto. A fine is clearly an interference with the right of peaceful enjoyment of possessions, protected under Article 1 of Protocol No. 1 to the Convention. This part of the application should have been communicated and examined under Article 1 of Protocol No. 1 and also under Article 13 in conjunction with Article 1 of Protocol No. 1.
At the same time, I see no interference with the applicant’s Convention rights in the refusal to accept two of his interpellations. Those measures did not affect the applicant in person and did not interfere with any of his activities undertaken in a private capacity. They did not restrict his personal freedom or infringe upon his property. In particular, the applicant was not prevented from speaking on the issues he wished to raise, either in his private or in his official capacity. The only effect of the interference was that those to whom his interpellation was addressed did not have to provide an official reply to the interpellation and that the interpellation could not be examined during a sitting of parliament. Thus, the measure touched upon the applicant’s capacity to perform his official duties as a member of the legislature. This probably amounted to an infringement of the domestic provisions providing objective-law guarantees for the parliamentary opposition, but not of the applicant’s subjective human rights. Therefore, this part of the application remains completely beyond the material and personal scope of his Convention rights.
9. The judgment raises the most fundamental issues with regard to the understanding of human rights and their scope of application. It is based on strong implicit assumptions about the nature of human rights, which are accepted without the provision of any reasons for this acceptance. In my view, it is simply not possible to decide on the issue of the applicability of Article 10 to parliamentary speech without explaining the nature of the rights protected under the Convention. In particular, an explanation should have been given as to what a human right is, and to whom and against whom it offers protection. The public will judge whether the majority’s decision not to address those fundamental questions makes the reasoning more persuasive.
The reasoning in the instant case is based on the implicit assumption that behaviour by an individual may simultaneously be an exercise of State power and the exercise of a human right. I strongly oppose this view. Human behaviour belongs either to the private sphere or to the official sphere but it cannot belong to both. One cannot simultaneously claim the attributes of State power and human-rights protection. To hold otherwise, in defiance of the European constitutional tradition, would have required a thorough and extensive justification.
The majority’s approach results in the droit-de-l’hommisation of legal relations within the State apparatus. It artificially transforms issues of checks and balances within the organisation of the State into alleged human-rights issues. Under this approach, in deciding those issues the State cannot limit itself to seeking to optimise democratic decision-making processes, but must provide compelling reasons for not implementing certain constitutional solutions.
Yet expanding the personal scope of human rights affects the effectiveness of human-rights protection. It cuts off the branch on which the international human-rights protection system is seated. If every legal subject, including a holder of State power, is entitled to human rights, then we will end up with a situation in which no one enjoys effectively protected rights. Extending human-rights protection to State power holders when acting in their official capacity undermines the very idea of human rights.
10. The Karácsony and Others judgment is very problematic in its understanding of the principle of proportionality. It states that:
“...in the circumstances of the case the impugned interference with the applicants’ right to freedom of expression was not proportionate to the legitimate aims pursued because it was not accompanied by adequate procedural safeguards” (§161).
Such an approach mixes two completely different issues: proportionality on one hand and due-process guarantees on the other. Proportionality is a matter of substantive law, whereas procedural safeguards belong by definition to the domain of procedural law. It is true that substantive and procedural law may meet in certain legal provisions (for instance in those pertaining to MP immunities), which may have both a substantive and procedural dimension. However, the two planes must be distinguished in so far as possible. Proportionality analysis is independent from due-process standards and serves to assess the substance of a measure. A restriction may be proportionate to the aim pursued without having being imposed with all the necessary procedural guarantees and, vice versa, a restriction imposed with the due process of law may violate the principle of proportionality.
The instant judgment seems to follow the same path, although the terms used are somewhat more ambiguous:
“For essentially the same reasons as the ones set out in paragraphs 148 to 162, in particular paragraphs 151, 154, 156 and 158 in Karácsony and Others - notably the absence of effective and adequate safeguards against the abuse of disciplinary powers, the lack of adequate reasoning in the decisions and the non-availability of a parliamentary procedure in which the applicant could have been heard - this interference cannot be considered ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention” (paragraph 32).
The majority refrains from invoking the principle of proportionality but instead refers to the more general “necessity” clause.
I am not sure that the term “necessary” used in Article 10 § 2 and other similar limitative clauses encompasses procedural guarantees. Admittedly, when assessing the compatibility of an interference with Article 10 the Court has for some time considered whether there are sufficient procedural guarantees. However, the latter’s legal basis is not clear. Sometimes they are considered to be part of the proportionality test (see, for instance, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Kyprianou v. Cyprus [GC], no. 73797/01, §§ 171 and 181, ECHR 2005-XIII; Kudeshkina v. Russia, no. 29492/05, § 83, 26 February 2009; Morice v. France [GC], no. 29369/10, § 155, ECHR 2015; and Cumhuriyet Vakfi and Others v. Turkey, no. 28255/07, § 59, 8 October 2013); sometimes they belong to the requirement of legality “prescribed by law” (see, for instance, the judgments in Sanoma Uitgevers B.V. v. the Netherlands (no. 38224/03, Chamber judgment of 31 March 2009 and Grand Chamber judgment of 14 September 2010, § 100); and sometimes they are applied without reference to any specific principle or words used in Article 10 (see, for instance, Lombardi Vallauri v. Italy, no. 39128/2005, § 46, 20 October 2009). Be that as it may, the Court has so far never convincingly shown that such guarantees stem from the wording of Article 10. Assuming that they do, they should be clearly separated from the proportionality test.
Given the nature of the non-verbal expression in question, I do not consider that the fine imposed upon the applicant was disproportionate. In this respect, I fully share the concerns expressed in the very persuasive separate opinion of Judge Kūris. Flagrant unparliamentary behaviour by parliamentarians is a no less serious threat to constitutional democracy, its proper functioning and legitimacy than undue restrictions on the tools of parliamentary control, which are initiated mainly by the opposition. The sanction in the instant case seems necessary in a democratic society, not only to protect the rights of other persons but also for the prevention of disorder in a constitutional democracy. Whether the procedure in which it was imposed was fair is a completely different matter.
11. The analysis by the majority omits one important aspect of the case. The question of procedural guarantees in disciplinary proceedings in parliament should be placed in the broader context of MPs’ immunities and privileges as a whole. Hungarian Fundamental Law in its Article 4 § 2 (1) guarantees the immunities of members of parliament. Those guarantees are further substantiated in section 73 of the Parliament Act:
“(1) During and after the term of his or her mandate, the Member shall not be impeached at court or at other authority for the vote cast or the fact or opinion communicated by him or her in the course of exercising and in connection with his or her mandate.
(2) The immunity specified in paragraph (1) shall not apply to the liability of the Member under civil law and to the following criminal offences:
(a) agitation against a community, violation of national symbol, public denial of the crimes of the national socialist and communist regimes, misuse of top secret and secret data, misuse of confidential data, misuse of restricted data as laid down in Act IV of 1978 on the Criminal Code in force until 30 June 2013,
(b) incitement against a community, violation of national symbol, public denial of the crimes of the national socialist or communist regime, misuse of classified data as laid down in Act C of 2012 on the Criminal Code.”
(Official translation provided at the website of the Hungarian National Assembly, http://www.parlament.hu.)
Immunities are safeguards for the proper functioning of a democratic parliament. Their necessary “pendant” is restrictions on MPs’ freedom of action with regard to the protection of order in parliament, and especially the disciplinary sanctions applied by that parliament. The peculiarities of internal parliamentary proceedings are closely connected to the fact the MPs are (at least partially) released from their criminal and civil liability in judicial proceedings. Any assessment of the adequacy of procedural safeguards within parliament should take into consideration the existence of procedural safeguards which are connected with parliamentary immunities and applicable outside parliament. From the perspective of substantive law, parliamentary immunities are a strong argument against the applicability of the general guarantees of freedom of speech to parliamentary speech. Immunities usually protect the exercise of State power from undue interference by other State organs rather than the exercise of human rights. In the case of MPs, they are granted because of the different nature of parliamentary speech, which is a means of participating in the exercise of State power, in a sphere where general freedom of expression does not apply. From the perspective of procedural law, they are a strong - albeit not a carte blanche - argument, in favour of accepting the peculiarities of internal parliamentary proceedings, which are fundamentally different from judicial proceedings. Legal provisions limit the possibility of enforcing the law against MPs in judicial proceedings because there are simultaneously other provisions which allow the initiation of proceedings based on different principles.
That being said, I fully agree with the view that financial sanctions should not be imposed on MPs in internal parliamentary proceedings without adequately guaranteeing to the interested party the right to be heard.
12. The majority criticises the respondent State on the ground that “the Speaker’s proposal forming the basis for the sanction sustained by the applicant does not offer any transparent description of the impugned conduct, nor a consideration of the circumstances or detailed reasons for the decision” (paragraph 31 of the judgment). This statement gives rise to several remarks.
Firstly, I note a certain contradiction in the majority’s approach. On the one hand, the description of the impugned conduct is considered not to be transparent, while, on the other, the majority has no doubt what the impugned conduct is and describes it, rightly, as grossly inappropriate and vulgar.
Secondly, I do not think that the description of the impugned conduct was insufficient in the circumstances of the case. The judgment refers to the description in the minutes of the sitting of 18 March 2013. Everyone understands the expression for which the applicant was fined and the reasons for which he was fined. Not only did the applicant not complain about the way his behaviour was described in the impugned National Assembly’s resolution, but his submissions show implicitly that this description was sufficiently clear in the circumstances of the case.
Thirdly, I note once again a complete inconsistency in the standards with regard to the provision of reasons for the authorities’ decisions (see my concurring opinion in Schipani and Others v. Italy, no. 38369/09, 21 July 2015). A jury convicting a criminal in a criminal procedure is not obliged to give reasons for the verdict (see Saric v. Denmark (dec.), no 31913/96, 2 February 1999; Taxquet v. Belgium, [GC], no. 926/05, ECHR 2010; and Judge v. the United Kingdom (dec.) no. 35863/10, 8 February 2011) - it suffices that the accused understands the reasons for his or her conviction. Yet the present judgment indicates that a parliament imposing a mere fine in disciplinary proceedings against an MP has to provide detailed reasons. What is the rationale behind placing a higher burden on a parliament in disciplinary proceedings than on a jury in criminal proceedings?
13. In many European States, the internal matters of parliament and especially disputes between parliamentarians and parliamentary organs are considered non-justiciable, as belonging to the constitutionally protected sphere of parliamentary autonomy. This tradition of non-justiciability must be taken seriously, based as it is on very profound reasons. The democratic rules of the game in a parliament are either sufficiently internalized by the political class and judicial review over internal parliamentary business is thus rendered superfluous, or they are not and judicial review is consequently ineffective.
Parliamentary matters which are considered non-justiciable at domestic level are even less justiciable at international level. Multiplying international judicial guarantees is not always the most efficient way of promoting and protecting constitutional democracy. International judicial review of internal decisions taken by national parliaments is a particularly strong interference with the political decision-making process at national level. In any event, it remains beyond the scope of the mandate of the European Court of Human Rights as defined in Article 19 of the Convention.
[1]. Translation by the Registry.
[2]. “Dohány” in the original Hungarian, literally meaning “tobacco’’ but being as well an informal expression for cash.
[3]. The governing party.
[4]. Translation by the Registry.
[5]. The relevant part of Article 7 of the Fundamental Law provides: “(1) Members of the National Assembly may address questions to the Commissioner for Fundamental Rights, the President of the State Audit Office, the Prosecutor General, or the Governor of the National Bank of Hungary about any matter within their functions. (2) Members of the National Assembly may address interpellations or questions to the Government or any of its members about any matter within their functions.”
[6]. Section 90(4) of the Rules of Parliament reads as follows: “The Speaker of Parliament shall refuse an interpellation introduced not in accordance with paragraphs (1) to (3). He shall inform Parliament thereof at its next sitting day.”
[7] See at
[8] See at http://sgis.parlament.hu/archive/playseq.php?date1=20130318&time1=125815&offset1=004216.09&date2=20130318&time2=125815&offset2=005216.09&type=real;