TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Third, the National Election Commission, the Courier, and the Constitutional Court failed to examine properly whether the sanction imposed on the applicant was necessary in a democratic society or not.
AP1 (Applicant): The Hungarian authorities did not balance the competing right and interest, and their decision show no sign of taking into account the convention or the practice of this court.
AP1 (Applicant): The Hungarian authorities, moreover, failed to show any hardship or harm caused by the applicant compared to which the sanction would have been proportionate.
AP1 (Applicant): In fact, they couldn't show this since the mobile phone application was not harmful but helpful for Hungarian democracy.
AP1 (Applicant): As a consequence, the Hungarian authorities violated Article 10 of the convention for failing to show why the sanction was necessary in a democratic society.
AP1 (Applicant): Based on all of the arguments previously raised, Hungary has violated the applicant's right under Article 10 of the convention.
AP1 (Applicant): Honorable Court, thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much, Mr. Fazekas.
Guido Raimondi (JudgeP): I call Mr. Tallódi, please.
GR1 (Government): ladies and gentlemen, it's a privilege and a pleasure to have the opportunity to appear before the court to explain the most important issues raised by this case in the light of the latest submissions of the applicant.
GR1 (Government): First, we must clarify the scope of the present case.
GR1 (Government): The National Election Commission stated essentially two grounds for their decision sanctioning the applicant for the operation of the mobile phone application at issue, namely that the taking of pictures of the ballot papers was contrary to the relevant guidelines applicable in election proceedings, including referendums, and the application which published uncertified statistics on the number of voters, having cast valid or invalid ballots, or having decided not to turn out at the referendum with a view to ensuring that the referendum results were not forged by the authorities.
GR1 (Government): It was suitable to undermine voters' trust in the functioning of the electoral organs and the electoral IT systems.
GR1 (Government): In respect of the latter ground, the National Election Commission as a body of experts of election law and practice admittedly failed to explain in more detail what was obvious to them, but less obvious to those who are less familiar with the election process, namely how the collection and publication of uncertified data was capable of undermining public trust in the functioning of the electoral organs, that it was not ensured that only ballots actually cast can be included in the shadow statistics, which were intended to serve as a reference point for allegations of ballot fraud by the authorities.
GR1 (Government): As a result of the laconic reasoning, the Courier accepted the applicant's position that the National Election Commission's conclusion in this respect was wrong.
GR1 (Government): In this respect, the Commission's procedural omission was remedied by a judicial decision in favor of the applicant.
GR1 (Government): However, it should be made clear that the judicial decision based on the insufficient reasoning of the Electoral Commission's decision in a specific case cannot be regarded for general purposes as a ruling on the merits or validity of the reasons which have not been properly stated.
GR1 (Government): In the present case, it means that the court should refrain from making any finding that could be interpreted as prohibiting the Hungarian authorities from banning the use of uncertified shadow ballot counting methods aimed at controlling the official data of election results and potentially discrediting the work of the electoral organs.
GR1 (Government): Perseverant to the applicant's submissions in the domestic judicial proceedings, it was the first ground relied upon by the Election Commission's decision, namely that the taking of pictures of the ballot papers was contrary to the relevant guidelines, which became the focus of the domestic proceedings.
GR1 (Government): As regards the issue of ballot selfies, the applicant consistently relied on the voters' freedom of expression, having been impaired by the prohibition of taking a photograph of the ballot paper.
GR1 (Government): The courier examined the issue from this aspect, finding that the voters' freedom of expression was not unduly restricted because they still had the option of expressing their opinion on the issue, besides casting their actual vote by sharing the content of their vote verbally or in writing or in any manner other than by a picture of the ballot paper.
GR1 (Government): The applicant's constitutional complaint was directed against the courier's decision.
GR1 (Government): Accordingly, the constitutional court examined the scope of the case before the courier in the light of the applicant's submissions and found that the case before the courier concerned the voters' freedom of expression and not that of the applicant.
GR1 (Government): Indeed, the applicant's political party did not argue before the courier that it had been an exercise of their freedom of expression to encourage voters to take photos of their ballot papers in defiance of the rules of the election procedure.
GR1 (Government): Neither did they argue before the constitutional court that their sanctioning for the use of a specific campaign tool, namely a mobile phone application aimed at alternative ballot counting and encouraging voters to breach the rules of election law, was a breach of their freedom of expression as a social watchdog aimed at supervising the fairness of the referendum, as they claimed before this court.
GR1 (Government): Had they raised these points in the domestic proceedings, the constitutional court could have given its opinion on the issue.
GR1 (Government): Since they had complained only about an indirect infringement of their freedom of expression by the infringement of the rights of others, the voters, their indirect victim status was not sufficient to bring their complaint within the competence of the constitutional court, and hence it was rejected.
GR1 (Government): The government did not claim that the present application is inadmissible for the lack of the applicant's victim status for the inapplicability rationa materia of Article 10, because the applicant's claims raised in the present proceedings do fall under Article 10.
GR1 (Government): The government only pleaded and maintained that the application was inadmissible for failure to exhaust effective domestic remedies, since the claims revealing the applicant's direct victim status under Article 10 had not been properly brought before the competent domestic authorities.
GR1 (Government): In spite of the fact that the government is confident that the court will find no violation of Article 10 on account of the prohibition of ballot surface in this case, the government emphasized that the court should not continue to take a lenient approach to applicants in respect of fulfillment of the requirement of exhaustion of domestic remedies, because this approach had generated the tendency for applicants' lawyers to make very negligent use of domestic remedies, which doesn't serve the interest of a better protection of the human rights in Europe, what the court is striving for.
GR1 (Government): as I mentioned above, the restriction complained of by the applicant originally had two equally important grounds, but the case got sidetracked in the domestic proceedings, and now we are focusing solely on the issue of ballot surface.
GR1 (Government): By a ballot surface, we mean any photograph showing and thereby proving how the photographer cast his or her vote, irrespective of whether the person can actually be seen on the picture, besides the marked ballot paper.
GR1 (Government): In an era of increasing use of social media and increasing availability of smartphones, the phenomenon of taking ballot surface is increasingly widespread all over the world.
GR1 (Government): Different societies have reacted to that phenomenon in different ways, depending on their historical experiences and legal and cultural traditions, even within the same country.
GR1 (Government): The most graphic example of that diversity of reactions is the United States of America, where there being no federal law regarding ballot surface, leaving the matter to the individual states, even in federal actions, some states prohibit ballot surface, imposing fines or jail terms for violations, while other states have no prohibition.
GR1 (Government): Opponents of the prohibition rely on the freedom of expression, while proponents see it as an important safeguard against the reemergence of the buying and selling of votes or potential coercion from employers, union bosses, or others.
GR1 (Government): Some states prohibit not only photos of marked ballots, but the use of any electronic devices at the polling stations or even in their vicinity.
GR1 (Government): Others allow the taking of ballot surface and only prohibits sharing them.
GR1 (Government): It is only about half of the US states were taking pictures of the ballot, and sharing is not illegal.
GR1 (Government): However, in many of them, it is discouraged or maybe prohibited at individual polling stations.
GR1 (Government): It was only in two states, New Hampshire and Indiana, where newly enacted prohibitions were found unconstitutional.
GR1 (Government): In this respect, however, we must not lose sight of the fact that the New Hampshire court decision was delivered in a case where three voters actually faced criminal prosecution for disclosing the pictures taken of their ballots, which were evidently not sold, one of the perpetrators having voted for himself.
GR1 (Government): It is not surprising that the law was found to be overkill under those circumstances.
GR1 (Government): It is not surprising either that the defendant's position was supported by Snapchat, a photo and video sharing app.
GR1 (Government): In contrast, however, the prohibition was upheld by a court in Michigan in a case where the sanction for the violation was simply the annulment of the ballot concerned, as well as in New York State in 2017, as it was seen as an important safeguard against gold buying and coercion.
GR1 (Government): In Canada, the voters also prohibited from showing their ballot to others when marked.
GR1 (Government): That means any of seen taking a photo of their ballot at the polling station will be told not to share it online or show it to anyone.
GR1 (Government): If they do, they could face up to a $1,000 Canadian fine or three months in prison.
GR1 (Government): In the United Kingdom, there is no specific legal provision prohibiting ballot selfies, but it is still discouraged or practically prohibited by no photo signs at polling stations as potentially violating a number of provisions aimed at securing secrecy of the ballot, including revealing the ballot's unique identification number.
GR1 (Government): A noteworthy aspect of the regulation is that while it is not illegal to publish someone's own vote, it is illegal to directly or indirectly induce a voter to display his ballot paper after he has marked it.
GR1 (Government): In Germany, ballot selfies were banned in 2017 at federal elections, while the rules applicable at state elections may differ.
GR1 (Government): In France, ballot selfies are not yet regulated.
GR1 (Government): In Belgium, ballot selfies are prohibited, and anyone found taking or posting a photo showing how they voted risks a fine up to 3,000 euros.
GR1 (Government): In the Netherlands, ballot selfies, so-called stamfies, are not prohibited by law, but human rights NGOs raised their concerns in judicial proceedings when a minister of the Dutch government stated that this fact in a tweet during the 2014 municipal elections.
GR1 (Government): They argued that stamfies violate the voting secrecy because voters can thereby show what they have voted for, and third parties can controllably influence the vote to be cast.
GR1 (Government): These are only a few examples showing the diversity of regulation in some states committed to ensuring freedom of expression, as well as the fairness of the elections and secrecy of the ballot.
GR1 (Government): There is one conclusion which follows for the purposes of this case, there being no general consensus on this issue.
GR1 (Government): The high contracting parties have a wide margin of appreciation in this field, taking into account their historical and legal traditions and social realities.
GR1 (Government): The government also recall in this respect the principle of subsidiarity, according to which the domestic authorities are in a better position to determine certain issues, in the present case, the needs of the society and the existence of a pressing social need than an international tribunal.
GR1 (Government): please let me now make some comments on the applicant's written submissions, starting with the alleged societal need of the electorate to share their votes in the form of a photograph.
GR1 (Government): The societal need was demonstrated by about 3,900 photos having been shared via the mobile phone application provided by the applicant, while the number of invalid votes at the referendum was 224,000, and a total of 3.6 million
GR1 (Government): electors voted.
GR1 (Government): It is 44% of the eligible voters.
GR1 (Government): Therefore, it seems that the applicant party confused their own need to create an effective campaign tool with the society's need to have ballot surface published.
GR1 (Government): The society's demand for ballot surface was not demonstrated during the campaign of the 2018 parliamentary elections either.
GR1 (Government): However, the pressing social need to maintain the prohibition of taking the ballot papers outside the polling station, either in the physical or in its virtual form, has proven to be still persisting.
GR1 (Government): The applicant party themselves voiced their distrust and the society's distrust towards the government.
GR1 (Government): We can also add that the distrust of the political parties towards one another and that of the society towards political parties.
GR1 (Government): In such political atmosphere, it is the society's utmost interest to keep in place every rule necessary to preserve the integrity of the elections, to prevent any possible abuses or at least the use of those methods of fraud that we are already familiar with.
GR1 (Government): It was a widely suspected method of vote buying, a so-called method of chain voting, when voters were allegedly paid for smuggling in pre-filled ballot papers and smuggling out blank ballot papers in exchange, which made it necessary in 2006 to issue a guideline on the prohibition of the removal of the ballot paper from the polling station.
GR1 (Government): This interpretation of the proper exercise of the right to cast a vote was later, in 2014, maintained by the National Election Commission, an independent body of experts of election law composed in accordance with the law, with the participation of members delegated by the major political parties as main actors in the election process.
GR1 (Government): Having regard to new technical developments, it was clarified that voters cannot take the ballot paper outside the polling station, even in their virtual form, and thus they cannot make any recording of it with any telecommunication, digital, or other IT devices, in order to show to it a third party for any purpose.
GR1 (Government): It was generally agreed that this rule was necessary to prevent vote buying and to maintain the integrity, fairness, secrecy of the election process.
GR1 (Government): In this context, where public confidence in the democratic institutions is at stake, it is irrelevant whether there have been actual proven cases of election fraud of this type in any event.
GR1 (Government): They would generally be very difficult to prove with the certainty required by incriminating law.
GR1 (Government): In order to establish a pressing social need to take measures for the protection of democratic institutions, public order, it is sufficient that suspicions attain an intensity that can undermine the trust of the voters.
GR1 (Government): This is the case in Hungary.
GR1 (Government): Let us imagine what would happen in the political climate full of distrust, as described above, if the government or any of the distrusted parties suggested that ballot surface were to be allowed so that people can prove to others how they voted.
GR1 (Government): There would be a loud public outcry of suspicions of intended election fraud.
GR1 (Government): Mindful of the court's preferential approach to individual rights and its reluctance to afford equal protection to abstract notions such as public order, I emphasize that the protection of the proper functioning of the democratic institutions ultimately always serves the protection of the rights of others, which these democratic institutions are meant to protect and ensure.
GR1 (Government): In the present case, the applicable law set out various principles of election law serving the same ultimate purpose of ensuring free and democratic elections, namely fairness of the elections, secrecy of the ballot, and requirements of exercise of the rights provided for by the election law in accordance with their intended purpose.
GR1 (Government): These principles do not represent separate aims, but are the means to achieving the same goal.
GR1 (Government): They protect against threats of different kind of intensity to the same democratic institutions.
GR1 (Government): Therefore, the applicant wrongly argue that the principle of the proper exercise of rights is not a legitimate ground for interference under Article 10 when there is no actual violation of the fairness of the elections or the secrecy of the vote.
GR1 (Government): The latter two, the protection of which the applicant accept to be legitimate aims, are not specifically mentioned in the convention either.
GR1 (Government): The applicant also wrongly argued that it was only the ballot paper which was protected.
GR1 (Government): The ballot paper serves the purpose of expressing the opinion of the voter in the election process and to do so without any coercion jeopardizing the freedom of the vote.
GR1 (Government): A rule that serves to ensure that the ballot paper can only be used for its intended purpose does not protect the object, but the purpose, which is in this case.
GR1 (Government): I repeat, the purpose of expressing the opinion of the voter without any coercion jeopardizing the freedom of the vote.
GR1 (Government): It's quite generally agreed that taking pictures of marked ballot papers and showing it to others as proof of how someone voted can undermine the freedom of the vote, or at least can raise doubts about the freedom of the vote.
GR1 (Government): We must also bear in mind that the applicant party was not sanctioned for taking a ballot selfie, but for applying a campaign tool encouraging thousands of voters to disregard the rules of election law.
GR1 (Government): Of course, individually each voter would know whether his ballot selfie served as a proof for a vote, vote by air, or as a means of expressing an opinion.
GR1 (Government): But if caught and asked, all would say it was for the latter purpose.
GR1 (Government): How would the authorities at the polling station know the difference?
GR1 (Government): How would the public know the difference if rumors or parallel vote buying schemes started to spread?
GR1 (Government): What if rumors started to spread that the applicant party was paying for invalid votes?
GR1 (Government): Would the applicant be still comfortable with the idea of ballot selfies if other parties started to use the same campaign method?
GR1 (Government): In this respect, the applicant acted irresponsibly, if not illegally, and it is exactly what the principle of the proper exercise of rights is aimed at preventing.
GR1 (Government): In this context, we should also recall the long forgotten phrase in Article 10, paragraph 2 of the convention that the freedom of expression carries with its duties and responsibilities, which is of special importance in the case of political parties.
GR1 (Government): Article 10 not only affords special protection to political expression, but also imposes special responsibilities on those who strive to influence the public.
GR1 (Government): Finally, let me briefly react to the applicant's latest submissions challenging the legal ground for the measure complained of, which has not been disputed before the chamber.
GR1 (Government): Contrary to the applicant's submissions, the legal ground for the fine imposed upon him was not the guidelines of the National Election Commission, per se, section 2, paragraph 1A of the Act on the Rules of Election Procedure, providing for the requirement of exercise of a right in accordance with its purpose.
GR1 (Government): Moreover, for the purpose of the convention, the notion of law covers not only legislative acts with an ergaumness legally binding effect, but also instruments of authoritative interpretations of legal provisions, such as judicial or administrative decisions or guidelines, as long as they are accessible to the public and comply with the requirements of foreseeability.
GR1 (Government): In this case, the guidelines themselves stated that they were to provide an interpretation of the law, and they concluded that the only electoral conduct that complies with the requirements of protection of the fairness of election and of good face and exercise of a right in accordance with its purpose, when the voter does not remove the ballot paper from the polling station, either in the physical form or virtually, by making any recording of it with any telecommunication, digital, or other device, IT device.
GR1 (Government): This interpretation of law was accessible and made it foreseeable for the applicant that encouraging voters to exercise their right in the election procedure, not in accordance with their purpose, was not in accordance with the purpose of their right to make part in the referendum campaign either.
GR1 (Government): This interpretation was later enforced by a judicial decision in the applicant's case.
GR1 (Government): Contrary to the case before the Budapest Court of Appeal, referred to by the applicant claiming that the breach of the principle of proper exercise of the rights could not be established under domestic law, in this case, the applicant's campaign activity did not simply strive to influence the opinion or will of the potential voters, as the very essence of campaigning, but invited them to breach their own obligation to exercise the right in accordance with its purpose, which does provide the additional element of negative consequences of the activity.
GR1 (Government): It is only in respect of the issue of proportionality of the sanctions that the gravity of those negative consequences matters, whether it remained a threat to the integrity of the voting process, or it had actually undermined the results of the referendum in breach also of other principles of election law.
GR1 (Government): In this context, we must also bear in mind that the small effect of the applicant's conduct was not as much due to its nature, that it would not have been capable of causing more damage if applied by a party with a larger supporter base, but the applicant's comparatively small actual political weight.
GR1 (Government): But the rules of election law must be equally applicable to all parties, large or small, serious or frivolous joke parties.
GR1 (Government): Mr. President, honorable members of the court, in conclusion,
GR1 (Government): let me briefly summarize the government's position on the admissibility and merits of the application.
GR1 (Government): The applicant didn't bring his complaints before the domestic authorities in accordance with the law as required by Article 35, Paragraph 1 of the Convention.