European Court of Human Rights

FOURTH SECTION

CASE OF UNITED CIVIL AVIATION TRADE UNION AND CSORBA v. HUNGARY

(Application no. 27585/13)

JUDGMENT

STRASBOURG

22 May 2018

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 United Civil Aviation Trade Union and Csorba v. Hungary,

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Georges Ravarani,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. On 12 October 2012 the second applicant applied to the Budapest police department for authorisation to hold a demonstration on the road leading to Budapest Ferenc Liszt International Airport. He stated that the demonstration would be held on the hard shoulder of the road, which was not ordinarily used for traffic. The declared objectives of the demonstration were, inter alia, to draw the public's attention to the precarious financial situation in which the employees of the airport would find themselves if salary cuts envisaged by the company managing the airport were carried out. The event was scheduled to be held between 3 p.m. and 5 p.m. on 17 October 2012. The second applicant also specified that it was expected that about fifty to 100 persons would participate in the event and that it was intended that speeches would be given and that an open letter would be read out.

8. The second applicant and the Vice-President of the United Civil Aviation Trade Union met with the representatives of the Monor police department on the same day. The representative of the police department suggested that the demonstration be held at another location, since the planned venue would endanger traffic. The second applicant assured the police that the demonstrators would respect traffic rules, would only occupy the part of the road not used for traffic and would distribute flyers to car passengers, and that the organisers would call off or halt the demonstration if it was not in compliance with the relevant legal provisions.

9. On 14 October 2012 the Monor police department forbade the demonstration. It was of the view that the planned demonstration would endanger traffic and would render the airport inaccessible, infringing passengers' right to leave the country. In any event, the demonstration would breach the traffic code, since those parts of the road not used for traffic were not supposed to be accessed by pedestrians or be used for parking.

11. By a decision of 19 October 2012 the Budapest Surroundings High Court (Budapest Környéki Törvényszék) dismissed their complaint, endorsing in essence the police department's reasoning (see paragraph 9 above).

II. RELEVANT DOMESTIC LAW

12. The relevant provisions of Act no. III of 1989 on the Right to Assembly ("the Assembly Act") read as follows:

Section 8

"(1) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts, or results in a disproportionate hindrance of the circulation of traffic, the police may ban the holding of the event at the place or time indicated in the notification, within 48 hours from the receipt of the notification by the authority."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

A. Admissibility

B. Merits

1. Arguments of the parties

(a) The applicants

(b) The Government

21. As to its necessity, the Government maintained that the domestic authorities had had to balance the right to assembly and the right to free movement. They stressed that although it had been planned to hold the demonstration on the hard shoulder of the road, it would have necessarily impacted the use of the other lanes of the road and would have hindered or even blocked access to the airport. There were no alternative routes to the terminals of the airport and the demonstration would have also blocked the airport in the event of an emergency. Furthermore, organising an assembly on a road with heavy traffic would have also created a danger to the demonstrators' physical integrity.

2. The Court's assessment

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

"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

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the application admissible;

2. Holds, by four votes to three, that there has been a violation of Article 11 of the Convention;

3. Holds, by five votes to two, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;

4. Holds, by four votes to three,

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses, by five votes to two, the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliGanna Yudkivska
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint partly dissenting opinion of Judges Yudkivska, Ranzoni and Ravarani;

G.Y.
M.T.

JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, RANZONI AND RAVARANI

I.Introduction

1.     We have voted against the finding of a violation of Article 11 of the Convention in the present case because we disagree with the majority's application of the general principles and their assessment of the relevant facts (see paragraphs 27-30).
2.     The present case can be summarised as follows. The applicants requested authorisation to hold a demonstration on the road leading to the Budapest International Airport. The police department scheduled a meeting with the organisers in order to clarify some details. This meeting took place the same day, and the representative of the police department suggested that the demonstration be held at another location, since the planned venue would endanger traffic. It was argued that access to the airport would be hindered or even blocked, and that the demonstrators' physical integrity would be at risk given the intensity and speed of vehicle traffic at the requested location. However, the applicants seemed to insist on the location. Still on the same day, the police department prohibited the demonstration because it would endanger traffic, render the airport inaccessible and breach the traffic code. The High Court approved that decision and its reasoning (see paragraphs 6-11 of the judgment).
3.     We agree with the majority that banning the demonstration constituted interference with the applicants' rights under Article 11 of the Convention, and that this interference was lawful and pursued legitimate aims (see paragraphs 22-23). To our mind, this interference was also necessary for preventing disorder and protecting the rights of others.

II.General principles

4.     The general principles set out in paragraphs 24 and 26 of the judgment are accurate, but insufficient. Therefore, we shall, at the outset, refer to some additional principles established in the Court's case-law.
5.     Any demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic, but this fact in itself does not justify an interference with the right to freedom of assembly. It is important for the public authorities to show a certain degree of tolerance, the degree of which cannot be defined in abstracto. The Court must rather look at the specific circumstances of the case and particularly at the extent of the "disruption" to ordinary life (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 155, ECHR 2015, with further references). In this respect, it has held that restrictions on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic (see Éva Molnár v. Hungary, no. 10346/05, § 34, 7 October 2008). Since overcrowding during a public event is fraught with danger, it is not uncommon for State authorities to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering (see Primov and Others v. Russia, no. 17391/06, § 130, 12 June 2014).
6.     The Contracting States enjoy a certain, albeit not unlimited margin of appreciation when examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered necessary (see Barraco v. France, no. 31684/05, § 42, 5 March 2009). Furthermore, the Court's task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took. This does not mean that it has to confine itself to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine in particular whether the reasons adduced by the national authorities to justify it were "relevant and sufficient" (see Kudrevičius and Others, cited above, § 143).
7.     As regards the establishment of the relevant facts, according to the Court's long-standing case-law it would require cogent elements to lead it to depart from the national authorities' and courts' findings of fact. The Court must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case.

III.Assessment of the present case

8.     The domestic authorities banned the demonstration essentially for safety reasons, since the applicants intended to hold their demonstration on the hard shoulder of the road leading to the airport and this venue would have endangered traffic. We note that the applicant had chosen the venue, which they believed was necessary to convey their message - employees of the airport face serious financial problems. It seems therefore that their targeted audience was not only the general public, but also the airport's management. It does not appear, however, nor was it claimed, that the requested location was the only or the most appropriate place to reach their audience, or that the authorities were unable to propose suitable alternatives.
9.     First of all, as regards the desired location, as the Government have explained without contradiction from the applicants, this part of the road was closed to regular traffic and was reserved for vehicles saving lives and properties in an airport emergency situation. The relevant road section, the so-called "security reserve route", was built for the specific purpose of ensuring access in the event of such an emergency situation at the international airport. However, the majority were not convinced by this argument and simply held that the Government's contention that the demonstration could have endangered a rescue operation in the event of an emergency was "largely a matter of speculation" (see paragraph 28).

10. Secondly, the total of up to 100 demonstrators would have parked their cars and buses on the closed area and proceeded to distribute flyers to car passengers. In our view, this obviously would have entailed a safety risk not only for the car passengers, but also for the demonstrators themselves. The Government pointed out that all three locations designated, where a speed limit of 50 km/h was in force, posed a risk of accident on account of the dense vehicle flow and the short distance between the demonstrators and the vehicles passing on the road; safe and accident-free traffic would have been endangered to a significant extent. However, the majority did not even assess this aspect. In fact, they simply noted that the organisers of the demonstration "had undertaken" not to provoke a "major" disruption to traffic or "significant" inconvenience for road-users (see paragraph 27). Is that an acceptable approach? Does the organisers' good will, which is not in doubt, suffice to eliminate the safety risk? We do not think so.

11. Against this background, we are of the opinion that in justifying the ban on the demonstration at the specific area on the road leading to the international airport the domestic police authorities and courts and the Government, put forward weighty arguments relating, in particular, to safety risks, which were not, or at least not sufficiently, addressed by the applicants. The assessment conducted at national level seems reasonable in the circumstances of the case, and the decisions were based on proper grounds (see, a contrario, Güneri and Others v. Turkey, nos. 42853/98, 43609/98 and 44291/98, § 79, 12 July 2005). In this respect, the respondent State has not overstepped its margin of appreciation (see Berladir and Others v. Russia, no. 34202/06, § 58, 10 July 2012).
12. Finally, the majority considered that it was the authorities' duty to reflect on possible alternative solutions and propose other arrangements to the organisers, but that they did not embark on such an assessment (see paragraph 29). This raises, firstly, the question whether such a positive obligation actually exists in the Court's case-law under Article 11 of the Convention. The majority refer in this regard to Primov and Others (cited above, § 131). However, in that case the Court applied such a requirement in the circumstances of "the present case", meaning that the positive obligation depends on the factual situation of each specific case. Furthermore, the Primov judgment refers to Barankevich v. Russia (no. 10519/03, § 33, 26 July 2007). This case, however, concerned Articles 11 and 9, and the Court therefore particularly emphasised the specific religious aspect of the banned assembly.

13. The majority seem to have based their assessment of the case on the assumption that the national authorities acted in bad faith and that their decision to ban this specific demonstration had an ulterior purpose. We would, of course, agree that the prior notification of a demonstration and the institution of preliminary administrative procedures in this respect should not represent hidden obstacles to the freedom of peaceful assembly protected by the Convention (see Kudrevičius and Others, cited above, § 148, and Balçık and Others v. Turkey, no. 25/02, § 49, 29 November 2007). However, in situations like the present one, prior notification proceedings were essential to enable the authorities to diminish any anticipated disturbance of the rights of others, for example by redirecting the traffic, or to propose alternatives if such disturbance proved significant. In the present case there was no objective elements evidence to assume any bad faith on the authorities' part. On the contrary, the police department registered the request and, on the same day, invited and met with the organisers in order to clarify details regarding the demonstration and discuss possible other locations (see paragraphs 7 and 8 of the judgment). The applicants rejected such alternative solutions out of hand. Moreover, before the Court they failed to show that in their case the domestic procedures had set up hidden obstacles to their freedom of assembly or that the decisions taken had had any ulterior motive.
14. In sum, it is widely recognised that in a democratic society roads and streets are designed not only for walking and driving, but also for meetings, processions, and other events; in other words they are not only a sphere of circulation, but a space for communication as well. As mentioned above, a prior notification system allows the authorities to achieve peaceful coexistence of both aims. In the present case, however, a proper balance between the different interests at stake could not have been achieved by less intrusive measures than prohibiting the demonstration in question, since the location requested by the applicants ruled out the adoption of preventive measures sufficient to guarantee the safety of the participants and the occupants of passing cars, and because the applicants did not cooperate with the authorities in choosing an alternative location.

IV.Conclusion

15. We consider that in the circumstances of the present case the national authorities acted within their margin of appreciation and provided relevant and sufficient reasons, referring to a legitimate aim, for opposing the event in the planned location. To our mind, therefore, there has been no violation of Article 11 of the Convention.

JOINT PARTLY DISSENTING OPINION OF JUDGES VEHABOVIĆ AND KŪRIS