TrustHLT/LaCour huggingface dataset:
GR1 (Government): They only claim that the prohibition to take and share pictures of ballot papers violated the voters' freedom of expression, which the Courier dismissed with convincing reasoning compatible with Article 10 of the Convention.
GR1 (Government): The applicant did not argue that their freedom of expression covered the right to encourage voters to disregard their obligations under the law.
GR1 (Government): Therefore, the Constitutional Court did not find that the applicant's complaint raised a separate issue other than the restriction of the freedom of expression of the voters dealt with by the Courier.
GR1 (Government): In application of the rule of exhaustion of domestic remedies, the applicant should not be allowed to benefit from their own negligent conduct before the domestic authorities and the application should be declared inadmissible.
GR1 (Government): The application is ill-founded anyway.
GR1 (Government): The applicant party was fined for the breach of the rules of campaigning by a mobile phone application, encouraging voters to disregard their legal obligations while exercising the right to vote and enabling the operation of an uncertified alternative ballot counting mechanism capable of undermining the credibility of the operation of the election organs.
GR1 (Government): The measure complained of had a legal basis in the act of election procedure, which complied with the requirements of accessibility and foreseeability.
GR1 (Government): The restriction at issue had the legitimate aim of protecting public order, the proper functioning, and public trust in democratic institutions, thereby also protecting the rights of others.
GR1 (Government): As regards the necessity of the measure, the diversity of regulation in democratic states shows that the domestic authorities enjoy a wide margin of appreciation, taking into account their historical and legal traditions and social realities.
GR1 (Government): The government repeatedly recalled the principle of subsidiarity and emphasized that assessing the necessity of removing a longstanding institution or of introducing a new institution respectively often require different approaches, as it was made clear by the case of Lausanne versus Italy.
GR1 (Government): The measure complained of was also proportionate to aim pursued both in respect of the voters and the applicant.
GR1 (Government): The voters remained free to express their political opinions in any manner other than publishing the picture of their marked ballots, and the applicant was fined only a small amount of money, about 300 euros, for encouraging thousands of voters to disregard the rules of election law and remind free to encourage voter participation in invalid voting by other methods not involving taking photos of marked ballot papers or pretending to provide reliable alternative ballot counting services to the public.
GR1 (Government): The government considered that having regard to the importance of the fairness of the elections, the potential of undermining the integrity of the voting process was sufficient to justify the interference complained of irrespective of the actually small impact of the applicant's campaign method due to the applicant's comparatively small supporter basis.
GR1 (Government): But the rules of election law must be equally applicable to all parties, even small joke parties cannot be allowed to use campaign methods that would be seen more dangerous if applied by bigger or more serious political forces.
GR1 (Government): Mr. President, that concludes what
GR1 (Government): I wish to say at this stage.
Guido Raimondi (JudgeP): And now I invite my colleagues, the judges of the Grand Chamber, who wish to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): I see Judge Griţco, please.
Valeriu Griţco (Judge): Thank you, Mr. President.
Valeriu Griţco (Judge): I have a question to the applicant.
Valeriu Griţco (Judge): The question is connected to the paragraph one of your memorial before the Grand Chamber.
Valeriu Griţco (Judge): So in paragraph one of your memorial before the Grand Chamber, it's stated that the promotion by the applicant of the respective mobile application, I'm quoting, in itself was an expression of political opinion.
Valeriu Griţco (Judge): So my question is, what are the reasons for such a statement?
Valeriu Griţco (Judge): And in the same context, what do you mean by saying expression of political opinion?
Guido Raimondi (JudgeP): Judge Kjølbro, please.
Jon Fridrik Kjølbro (Judge): I do have one question, which is addressed to both parties.
Jon Fridrik Kjølbro (Judge): The Grand Chamber is called upon to assess two judgments from the Courier, one adopted on the 10th of October, the other one adopted on the 18th of October.
Jon Fridrik Kjølbro (Judge): In the first one, the Courier upheld a decision of the Election Commission, according to which the applicant was under an obligation to refrain from further unlawful conduct.
Jon Fridrik Kjølbro (Judge): In the second judgment, the Courier upheld a decision according to which a fine was imposed.
Jon Fridrik Kjølbro (Judge): When I'm reading the reasoning in both judgments, the Courier said that the applicant had infringed the principle of proper exercise of rights.
Jon Fridrik Kjølbro (Judge): However, in the second judgment of 18th of October, the Courier added one element.
Jon Fridrik Kjølbro (Judge): It said the actions of the applicant also amount to unlawful campaign activities during the period foreseen in section 139 of the Electoral Procedure Act, likely to influence voters' choice.
Jon Fridrik Kjølbro (Judge): And my question is, how am I to understand that this latter element added only in the second judgment of the Courier?
Jon Fridrik Kjølbro (Judge): Does it imply that they're under Hungarian law is a period during which campaign activities are in general prohibited?
Jon Fridrik Kjølbro (Judge): And if so, is it a general prohibition, or is it limited to the specific circumstances of this case?
Jon Fridrik Kjølbro (Judge): In other words, is it limited in time, the means, the geography, the place?
Jon Fridrik Kjølbro (Judge): So how am I to understand the element added by the Courier in his judgment of 18th of October, 2016?
Paul Lemmens (Judge): I have questions to both parties relating to the, I would say, procedural constraints of our court when dealing with applications or defense arguments by the parties.
Paul Lemmens (Judge): They touch somewhat on the two questions that have already been raised.
Paul Lemmens (Judge): First question to the applicant, when in the written observation of the applicant describes why its freedom of expression has been interfered with, it mentions two elements.
Paul Lemmens (Judge): In the first place, the applicant says that it has provided to the voters a means of dissemination of their opinions, and that is what you argued orally today.
Paul Lemmens (Judge): The second element is, and that is what my colleague Griţco referred to, is that advancing this app was in itself the expression of a political opinion.
Paul Lemmens (Judge): The government has argued that this second aspect was not a matter that was being discussed before the domestic courts.
Paul Lemmens (Judge): My question therefore is, is this also your view?
Paul Lemmens (Judge): And if so, can this second aspect play a role in the proceedings before our court?
Paul Lemmens (Judge): The second question is for the government about the legitimate aim being invoked to justify the restriction that has been imposed on the applicant.
Paul Lemmens (Judge): The government is arguing that the prohibition of publishing photos of ballots, that such a practice can potentially have a huge impact on the integrity of the elections, that the secrecy and the fairness of elections are at stake.
Paul Lemmens (Judge): However, it has also been argued by the applicant that the Courier, the Supreme Court, in its judgment rejected a number of arguments relating to the secrecy and the fairness of the elections, at least in this case, and that the only justification retained by the Courier was that there was an infringement of the principle of the proper exercise of rights, namely a call to the voters to use the ballots, the ballot papers, for another purpose than for expressing the voters' opinion on the question in the referendum.
Paul Lemmens (Judge): My question is, I know that you developed this somewhat early, but I would like to ask you a very specific question.
Paul Lemmens (Judge): In light of the decision of the Courier to reject a number of justifications, can the government come back before our courts and, notwithstanding that decision of the Courier, still rely on a number of these justifications?
Paul Lemmens (Judge): Or what about the procedural difficulties raised here for us?
Guido Raimondi (JudgeP): Judge Schukking, please.
Jolien Schukking (Judge): I would like to thank you for your very informative statements, pleadings.
Jolien Schukking (Judge): My question relates a little bit to the former question as regards the impact and concentrates on the proportionality test.
Jolien Schukking (Judge): The question is addressed to both parties.
Jolien Schukking (Judge): When balancing competing rights and making an assessment of the proportionality, one of the factors to be taken into account is the expected impact of that expressive medium.
Jolien Schukking (Judge): And my question to the government is what was, according to the authorities, the expected impact of the mobile phone application, taken into account that no connection could be made between the voter and the voter, and also the fact that the political party that made available the app is, as you said yourself, a very small one?
Jolien Schukking (Judge): And the same question, but then a bit differently formulated, I would like to pose to the party.
Jolien Schukking (Judge): What was, according to the party, the expected impact?
Jolien Schukking (Judge): And what did the party actually aim at reaching while making this application available?
Guido Raimondi (JudgeP): Judge Bianku, please.
Ledi Bianku (Judge): Thank you, Mr. President.
Ledi Bianku (Judge): My first question is related to the applicants, and I'm referring to the first part of your oral submissions today, where you're referring to the possibility of individuals to upload photos in the social media platforms.
Ledi Bianku (Judge): Is it your case today that by uploading voting ballots in a mobile app enjoys the same level of protection under the convention?
Ledi Bianku (Judge): The second question, again, is directed to the applicants' representative, but the government can comment if they so wish.
Ledi Bianku (Judge): If I understand correctly, what I'm about to ask has not been raised at domestic level.
Ledi Bianku (Judge): However, I'm inclined, for the sake of the argument, to ask the following.
Ledi Bianku (Judge): What has happened with the disputed mobile app and the related photos after the referendum?
Ledi Bianku (Judge): Have they been destroyed?
Ledi Bianku (Judge): When?
Ledi Bianku (Judge): And is it reasonable to require safeguards on what could potentially happen with such data later?
Ledi Bianku (Judge): Thank you.
Guido Raimondi (JudgeP): If there are no more questions, the court will now withdraw for 25 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions and reply to questions from the judges.
Guido Raimondi (JudgeP): And I call Mr. Tóth.
AP2 (Applicant): I try to be as short as possible in answering the questions.
AP2 (Applicant): And the first question I would like to answer is that why does the applicant hold that also his own opinion has been, political opinion has been expressed by creating this application?
AP2 (Applicant): And the answer to this question is that the name of the application was cast an invalid vote.
AP2 (Applicant): So it in its name was calling the voters to cast an invalid vote, which was the political opinion of the applicant as to the correct or right answer in the Hungarian referendum.
AP2 (Applicant): That's why the applicant holds that this mobile application was also part of its political opinion.
AP2 (Applicant): But due to the fact that for this activity, I mean, naming or calling this mobile application cast an invalid vote, the applicant has never been sanctioned or this activity has never been questioned.
AP2 (Applicant): Its lawfulness has never been questioned in the domestic procedures either.
AP2 (Applicant): That's why when the applicant submitted its appeal to the Courier and to the Hungarian Constitutional Court, the sole basis, the sole legal basis of the applicant's position was that its right to freedom of speech was breached because of banning or sanctioning the use of this application.
AP2 (Applicant): As to the question, what is the reason behind the two different decisions or two different reasonings of the decisions of the Courier which are subject to this case, I would like to mention three important things.
AP2 (Applicant): The first one is that both of the decisions have been delivered after the end of the referendum.
AP2 (Applicant): Second, on the day of the referendum, there was no binding ruling as to whether this application was lawfully applied or used or not.
AP2 (Applicant): And the third important thing is that there is no prohibition on campaigning on the day of elections or on the day of the referendum under the Hungarian election rules.
AP2 (Applicant): That's why the applicant was bona fide when using this application also as a campaign tool.
AP2 (Applicant): Now, the question, of course, arises, and it has been posed to both of the parties, that what is the justification or reasoning or rationale between the two different reasonings of the decisions of the Courier?
AP2 (Applicant): And I can only give you a formal answer.
AP2 (Applicant): The reason for the difference between the decisions of the Courier was that the decisions delivered by the national election commissions were different.
AP2 (Applicant): That's why the ruling of the Courier had to be different.
AP2 (Applicant): Now, the question comes, what is the reason, what is the legal reason as to the difference between the two national election commissions' decisions?
AP2 (Applicant): And my answer is I don't know because there is no legal reasoning whatsoever which would explain why the national election committee came to slightly different conclusions in essentially the same matters.
AP2 (Applicant): The third question I would like to answer is what was the expected impact of the mobile application?
AP2 (Applicant): And just a second.
AP2 (Applicant): It must be borne in mind that there was really a lively and vivid public debate about how to react or act in this referendum by people who found the whole question that was posed in this referendum unacceptable, unreasonable, and even immoral.
AP2 (Applicant): And therefore, many argued that people should cast invalid votes, but also many argued that casting an invalid vote, which was also advocated for by the applicant, also in the name of the mobile application, is risky.
AP2 (Applicant): As the governing parties dominate the counting of the votes, it is possible, many people said, that the counters would transform invalid votes into valid ones or simply count invalid votes fraudulently as valid ones.
AP2 (Applicant): So the proponents of this argument consequently called for a boycott where these risks are absent, because if you don't cast a vote, not even an invalid one, then these risks are not present.
AP2 (Applicant): One of the main reasons for developing this mobile phone application was precisely to allow voters to know on a county level in an aggregated statistical form that minimally how many voters claim to have cast an invalid vote without violating voting secrecy.
AP2 (Applicant): This allowed the comparison of the numbers of invalid votes reported through the mobile application with the official number of invalid votes.
AP2 (Applicant): Therefore, essentially the mobile phone application encouraged the voters to freely and honestly cast their votes, which in fact can be proven by the extremely high number of invalid votes which were cast, as it was several times higher than ever before since the political transition in 1989.
AP2 (Applicant): The overall percentage of invalid votes was more than 6% in this referendum.
AP2 (Applicant): The average number of invalid votes is around 1% during the past 30 years in Hungary, and there were certain electoral districts where the proportion of invalid votes was 25%.
AP2 (Applicant): So this was the expected impact of the mobile application.
AP2 (Applicant): As to the fourth question of whether the applicant believes that the legal conclusion would be the same, so the case would be the same if the voters would have uploaded their photos of their ballots to Facebook or any other social media.
AP2 (Applicant): Our answer is clearly no, for at least two reasons.
AP2 (Applicant): One, if one uploads the photos of the ballot paper to the Facebook, then it can be linked to the person easily, there is no other way, actually.
AP2 (Applicant): Therefore, the secrecy of the votes cannot be ensured.
AP2 (Applicant): Second, then these sensitive political data would be or would have been processed by a company about which the applicant would not have control, and we know that there have been serious scandals about the Facebook data procession as well.
AP2 (Applicant): So of course, our answer would be that these two hypothetical cases must be differentiated.
AP2 (Applicant): As to the question what happened to the data, whether the applicant has deleted them or not, as these data are not personal data, because they cannot be linked to any person, the applicant has not deleted them, but has submitted or given it to a university professor, and these data are now subject to an academic research, as this has been a very unique moment or experience in the Hungarian political history, let's say, of referendums, that so many invalid votes have been cast, then therefore one university professor who is an ethnologist found it interesting and useful to analyze all this data.
AP2 (Applicant): And I know that I am close to the end of the ten minutes, so I would only like to react on one of the comments by the government agent, Mr. Talodi, which is that creating and
AP2 (Applicant): advocating a system which is an uncertified ballot-counting system, and so this is unlawful, and it can be prohibited under the standards of the European Convention on Human Rights.
AP2 (Applicant): The applicant's firm conviction is that this perceptional approach runs clearly contrary to the aim of the Article 10 of the European Convention, if there is a clear and wide-ranging mistrust on the side of the voters in the election system, which is proven also by the OSCE, which has made a mission to Hungary in 2018, and it has established that there are some problems about the Hungarian election system as to the transparency and reliability of the whole system.
AP2 (Applicant): So when there is such kind of mistrust or distrust in the whole system, we believe that the citizens must have the possibility to use the available technical equipment to make it possible for them to assure or reassure themselves that the election system works well.
AP2 (Applicant): And my last sentence is that I am also convinced that using this application increased the trust in the election system in the end, because by the numbers stored in this application and comparing them with the official numbers, everyone could see that, in fact, at the end of the day, the national election bodies have done a lawful and great job, because our numbers showed that there were no forged or falsified counting.
AP2 (Applicant): Therefore, we believe that it was a useful and not harmful means developed and advocated for by the applicant.
AP2 (Applicant): Thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much, Mr. Tóth.
Guido Raimondi (JudgeP): I call Mr. Tallódi, please, to have the floor.
GR1 (Government): I would like to answer all the questions and to make some very short comments within 10 minutes.
GR1 (Government): In response to Mr. Kjørbjør's question, I would like to say that the issue of unlawful
GR1 (Government): campaigning activities was raised only in the second Courier decision, because only the second case concerned a fine having been imposed upon the applicant, and the basis for that fine was having carried out unlawful campaign activities by operating the app at issue.
GR1 (Government): It was also a matter of proportionality and graduality that the applicant was first only ordered to refrain from such activities.
GR1 (Government): It is very important.
GR1 (Government): In response to Mr. Lehmann's question on the legitimate aim of the measure, I would like
GR1 (Government): to say that the government didn't bring back arguments that had been rejected by the Courier as regards the breach of the principle of the fairness of the elections.
GR1 (Government): What we argued is that the Courier's decision is to be interpreted that no actual breach of the fairness and secrecy of the elections has occurred, but there remained the potential of that breach by breaching the principle of the proper exercise of rights in accordance with their purpose, which is aimed at protecting the same legitimate aim against the threat of different kind and intensity.
GR1 (Government): We don't argue that the fairness and secrecy of the election were actually breached, and don't even argue that it was the intended or expected impact of the applicant's campaign tool to answer the question to Mrs. Schuching, Judge Schuching, but it had the potential
GR1 (Government): of causing significant damage to the integrity of the election process.
GR1 (Government): It is also important to add concerning the comments of the applicants as well, that in Hungary the ban on ballot selfies is justified by the need to eliminate a possible means of proving how someone has voted, and thereby to prevent possible vote-buying schemes, undermining the integrity of elections.
GR1 (Government): In other states, there may be other reasons for introducing or maintaining the same measure.
GR1 (Government): In some countries, ballot selfies are banned because their publication could breach the ban on campaigning on the day of election.
GR1 (Government): In other countries, concerns have been raised because publication of a ballot selfie on social media could result in lasting effects inasmuch as the data about someone's vote would remain on the Internet for an eternity.
GR1 (Government): The applicant's mobile phone application indeed gave an answer to these concerns, enabling anonymous publication of ballot selfies, but these concerns were not at the core of the Hungarian authorities' measure complained of.
GR1 (Government): Voters and adults, major citizens who are expected to be aware of the consequences of their actions on social media, and they can also avail themselves of the provisions of Hungarian law on data protection, ensuring the right to be forgotten on the Internet.
GR1 (Government): While the applicant explained in detail how their application answered the concerns of anonymity, they didn't argue that their application ensured that no one could use a ballot selfie for the purposes of proving to anyone how they voted.
GR1 (Government): In this context, we must recall that the principle of the secrecy of the ballot is considered in many jurisdictions to cover not only the ballot being made public, but it being made known to even a single third party as a proof of how someone voted.
GR1 (Government): In this sense, the secrecy of the vote must be distinguished from the secrecy of the ballot.
GR1 (Government): The former is not breached by the voters voluntarily sharing information of how they voted, but the ballot itself must be subject to strict secrecy.
GR1 (Government): It's sharing not being at discretion of the voter in order to preserve the integrity of the elections.