FIRST SECTION
CASE OF SZÉL AND OTHERS v. HUNGARY
(Application no. 5078/16)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
2 December 2021
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Szél and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Alena Poláčková, President,
 Péter Paczolay,
 Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 5078/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Hungarian nationals, Ms Bernadett Szél, Ms Erzsébet Schmuck, Mr Róbert Benedek Sallai and Mr András Schiffer (“the applicants”), on 22 January 2016;
the decision to give notice of the application to the Hungarian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 9 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. Relying in particular on Article 10 (freedom of expression) and Article 13 (right to an effective remedy), the applicants complained that the measure taken by the Speaker of banning the first applicant’s parliamentary speech had infringed the applicants’ right to freedom of expression, and that there had been no remedy against that decision. THE FACTS
2. The first applicant, Ms Bernadett Szél, was born in 1977 and lives in Budakeszi. The second applicant, Ms Erzsébet Schmuck, was born in 1954 and lives in Budapest. The third applicant, Mr Róbert Benedek Sallai, was born in 1974 and lives in Túrkeve. The fourth applicant, Mr András Schiffer, was born in 1971 and lives in Budapest. The applicants were represented by Mr D.A. Karsai, a lawyer practising in Budapest. 3. The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. At the material time the applicants were members of parliament belonging to the opposition party Lehet Más a Politika (Politics can be different). 6. At a parliamentary session on 6 July 2015 the first applicant made a speech concerning urgent and topical matters, entitled "Workers are losing out every day with the current Government”. In protest against the Government’s policy on wage settlements, the first applicant also displayed a banner stating that "Hundreds of thousands have been forced to emigrate". The other applicants also displayed banners reading "Start-ups, employees", "Public sector employees, kindergarten, school employees, civil servants", and "Social and health workers, nursery workers, nurses, doctors". 7. The Speaker of Parliament turned off Ms Szél’s microphone and called on the applicants to remove the banners. He announced that he had withdrawn Ms Szél’s right to speak, and asked her to take her seat. The applicants removed the banners and the first applicant tried to carry on with her speech, but her microphone had been turned off. The speaker repeated that her right to speak had been withdrawn and called on her again to take her seat. RELEVANT LEGAL FRAMEWORK
8. The Parliament Act (no. XXXVI of 2012) provided the following at the material time, in so far as relevant:
Section 38/A
“(1) No demonstration by way of showing objects, images or voice recordings (henceforth: “a demonstration”) shall be carried out during the sitting of the National Assembly or a committee, subject to the exceptions specified in subsections (2)-(3). (2) A demonstration during the sitting of the National Assembly shall be permitted by the House Committee. A request for permission to hold a demonstration shall be submitted at the latest one hour before the commencement of the sitting of the House Committee. (3) A demonstration during the sitting of the Parliamentary Committee shall be permitted by that committee. A request for permission to hold a demonstration shall be submitted at the latest one hour before the commencement of the sitting of that committee. (4) Demonstrations permitted under subsections (2) or (3) shall be limited to the extent necessary to explain the speaker’s position.”
8. Maintenance of order and disciplinary powers
Section 45
“The chair of the session shall ensure the orderly conduct of the session. To ensure the orderly conduct of the session he or she – at the request of the chair or the House Committee (Házbizottság) – may take the measures listed in sections 46-51/A.”
Section 46
“(1)  The chair of the session shall order any members who clearly digress from the point without any reason during their speech, or pointlessly repeat their own or other speakers’ speeches during the same debate, to address the point, and shall at the same time warn them of the consequences of non-compliance. (2)  The chair of the session may withdraw the right of members to speak if during their speech they continue to behave in the manner specified in section 46(1) after being warned for the second time.”
Section 47
“The chair of the session may withdraw the right of members to speak, giving reasons, if they have used up the time allotted to them or to their parliamentary group.”
Section 48
“(1)  The chair of the session shall call speakers to order if they use an 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 at the same time warn them of the consequences of repeatedly using the offensive or indecent expression. (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 serious disorder, the chair of the session may propose, without calling the member 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. (4)  Parliament shall decide without a debate on the proposal for the exclusion of the member. If Parliament does not have a quorum, the chair of the session shall decide on the exclusion. The chair of the session shall inform Parliament at its next sitting of the exclusion and the reasons for it. Parliament shall subsequently decide, without a debate, whether the decision of the chair of the session was legal. (5)  The member excluded from the sitting may not speak again during that sitting. A member excluded from the sitting day shall not be entitled to remuneration for the day of the exclusion. (6)  The chair of the session, in the absence of a proposal to apply any penalty referred to in subsection (3), may propose the imposition of a fine on 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.”
Section 49
“(1)  The chair of the session may withdraw, without a warning, the right of members to speak, if they object to any decision by the chair of the session or to his or her chairing of the session, except for procedural motions. A speaker whose right to speak has been withdrawn by the chair of the session without warning may request an individual resolution of the case by the committee responsible for the interpretation of the Rules of the House. (2)  Other than in the circumstances described in subsection (1), a member’s right to speak shall not be withdrawn if the chair of the session has not warned him or her of the consequences of the call to order. (3)  Anyone whose right to speak has been withdrawn pursuant to subsection (1), section 46(2) or section 48(2) may not speak again during the same sitting day on the same matter. (4)  If a member’s conduct is gravely offensive to the authority or order of Parliament, or violates the provisions of the Rules of Parliament concerning the order of debate, voting or displaying demonstration materials, the chair of the session may propose the exclusion of the member for the remainder of the sitting day without calling him or her to order or issuing a warning, and may propose the imposition of a fine on him or her. The proposal shall contain the reason for the measure and ... the provision of the Rules of Parliament that has been violated. (5)  Parliament shall decide without a debate on the proposal for the exclusion of the member. If Parliament does not have a quorum, the chair of the session shall decide on the exclusion. The chair of the session shall inform Parliament at its next sitting of the exclusion and the reasons for it. Parliament shall subsequently decide without a debate whether the decision of the chair of the session was legal. (6)  The member excluded from the sitting day may not speak again during that sitting. A member excluded from the sitting day shall not be entitled to remuneration for the day of the exclusion. (7)  The chair of the session, in the absence of a proposal to apply any penalty referred to in subsection (4), may propose the imposition of a fine on the member within five days of his or her engaging in the conduct specified in subsection (4). (8)  Parliament shall decide on the proposal for the imposition of a fine referred to in subsections (4) and (7) 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.”
Section 51/A
“(1)  Based on a proposal of any of its members, the House Committee [Házbizottság] – in the absence of any other legal consequences – may order the reduction of a member’s allowance within fifteen days of the conduct specified in sections 48(3), 49(4) and 50(1). The decision shall contain the reasons for the measure and, if the conduct violated the rules on debating, voting or ..., the provision of the Rules of Parliament that was violated.
... (3)  The Speaker shall immediately inform the member concerned of the decision taken pursuant to subsection (1). (4)  Should the member disagree with the decision taken pursuant to subsection (1), he or she may request within five days of the notification specified in subsection (3) the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials to overrule the decision taken pursuant to subsection (1). Should the member not request the overruling of the decision within the specified time-limit, his allowance shall be reduced by the amount specified in the decision.
... (6)  The Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials shall decide on the request submitted pursuant to subsection (4) ... within fifteen days. Should the member request a hearing, the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials shall hear the member in person. (7)  Should the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials uphold the member’s request, his allowance shall not be reduced and the proceedings specified in subsection (1) shall be discontinued. (8)  Should the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials dismiss the member’s request or not render a decision within the time-limit specified in subsection (6), the member’s allowance shall be reduced by the amount specified in the decision taken pursuant to subsection (1). (9)  Should the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials dismiss the member’s request submitted pursuant to subsection (4) or not decide within the time-limit specified in subsection (6), the member may request Parliament to overrule the decision taken pursuant to subsection (1).
... (11)  The President of the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials shall immediately inform the member concerned and the House Committee of its decision taken pursuant to subsection (8) ... or of the expiry of the time-limit. (12)  A request under subsection (9) shall be submitted within five working days of the notice given by the President of the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials pursuant to subsection (11). (13)  Parliament shall rule on the decision taken pursuant to subsection (1) during the session following a request under subsection (9), without a debate. The amount of the fine may not exceed
(a)  one-third of the member’s monthly remuneration if the reduction was due to conduct specified in section 48(3) or 49(4),
(b)  the member’s monthly remuneration if the reduction was due to conduct specified in section 50(1).”
THE LAW
strike out of the application in respect of the fourth applicant
9. By a letter of 20 December 2019, Mr Schiffer’s representative informed the Court that his client wished to withdraw his application to the Court. 10. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention and the Protocols thereto, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the part of the application lodged by Mr Schiffer. 11. In view of the above, it is appropriate to strike the part of the application lodged by Mr Schiffer out of the list.
alleged violation of article 10 of the convention
12. The remaining applicants complained that the measure of banning the first applicant’s speech infringed their rights under Article 10 of the Convention, which reads as follows:
 
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 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.”
Admissibility As regards the second and third applicants

13. The Government raised an objection of inadmissibility on the grounds that the second and third applicants had suffered no interference with the exercise of their rights at all. Therefore, their complaints were manifestly ill‑founded and amounted to an abuse of the right of individual application. 14. The applicants maintained that the banners displayed by the second and third applicants had constituted symbolic speech and were closely related to the topic of the first applicant’s expression. The banners were only capable of conveying a message during the speech itself. The silencing of the first applicant had thus also had an impact on the second and third applicants’ exercise of their right to freedom of expression in that their banners and the symbolic speech had become meaningless as a result. 15. The Court reiterates its case-law, according to which certain circumstances which have a chilling effect on freedom of expression do in fact confer on those concerned, that is persons who have not been finally convicted, the status of victim of an interference in the exercise of their right to that freedom (see, Dilipak v. Turkey, no. 29680/05, § 44, 15 September 2015, compare also its §§ 45-47). 16. The Court observes, however, that the facts referred to in the present case by the second and third applicants cannot be compared to those cases in which the existence of an interference has been found in the past. 17. The Court notes that both the second and the third applicants did indeed display their banners, but neither of them was subject of any disciplinary measure or penalty by the Speaker of Parliament; in fact, they were simply called upon to put away the banners that they had held up during the first applicant’s speech. On account of these elements, the Court cannot discern objective grounds to hold that the second and third applicants suffered adverse consequences. Nor can it be said that either their having been called to put away their banners or the withdrawal of the first applicant’s right to speak had an impact on the second or third applicant which would have prevented them from expressing their opinion or conveying the same message through, for example, parliamentary speech. 18. It follows that neither the measure taken by the Speaker withdrawing the first applicant’s right to speak, nor his calling on the second and third applicants to put away their banners, constituted an “interference” with the exercise by the second and third applicants of their right to freedom of expression as guaranteed by Article 10 of the Convention. In the absence of the second and third applicants’ victim status, the complaints under Article 10 of the Convention are manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. As regards the first applicant
19. The Court notes that the first applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The first applicant
20. The first applicant submitted that the measure in question had constituted a very severe and direct interference with her right to express political opinions as an elected member of parliament. The measure did not have a legal basis, since the Parliament Act did not provide for the penalty imposed on her. Nor did the measure serve a legitimate aim since displaying the banners had not caused any disruption to parliamentary work. 21. The first applicant contended that the interference at issue had failed to meet the requirement of necessity in a democratic society. She emphasised that the symbolic speech had expressed the MPs’ protest against the Government’s policies and had been related to affairs of high public importance concerning the labour market. It was not only addressed to other MPs but also to voters. She argued that the opposition MPs had needed to use special means of communication to express their opinions effectively, since the governing coalition had made efforts to minimise their opportunities to participate in the parliamentary decision-making process. 22. The first applicant also pointed out that the penalty had been imposed on her without any procedural safeguards. (b)   The Government
23. The Government maintained that parliamentary immunity was a guarantee to ensure MPs’ freedom of expression. The Speaker’s power to impose disciplinary penalties on MPs ensured that abuses of that right were prevented. The Government argued that the first applicant had not been hindered in expressing her opinion, and the manner she had chosen to convey her message had clearly exceeded a permissible exercise of her free speech rights. In any event, the banners had added nothing to her speech. In the Government’s opinion the sole purpose of the MPs’ action had been to attract media attention and to disturb parliamentary order rather than to communicate any content or additional information. Nonetheless, the Government accepted that the contested measure interfered with the first applicant’s right to freedom of expression. 24. The Government submitted that the measure had been prescribed by law, namely section 38/A(1) of the Parliament Act, which required prior authorisation for any display of demonstration materials, and section 49(4) which provided for penalties for any conduct infringing the reputation or order of Parliament or breaching the rules of debating, voting or displaying demonstration materials. The MPs had been aware of the rules and could have assessed in advance the consequences of their conduct. The measure in question had also served the legitimate aim of protecting the rights of others and ensuring the undisturbed functioning of the National Assembly. In the Government’s understanding, the very fact that the MPs had broken the rules concerning the display of demonstration material amounted to a disturbance of parliamentary order. They pointed out that a prohibition on displaying banners is a common tradition of a number of Member States. 25. As to the necessity of the interference, the Government emphasised that the Speaker had had a discretion to decide which disciplinary penalty to impose, and in the first applicant’s case he had chosen the most lenient one. It had also been justified in the circumstances of the present case since an immediate measure had been necessary to prevent further and greater disturbance to order. Furthermore, the disciplinary penalty had not been imposed for the content of the first applicant’s speech but for intentionally violating the rules regulating the manner in which political opinions could be expressed. The first applicant had had every opportunity to convey the same message in her parliamentary speech. 26. The Government pointed out that the first applicant could have raised the issue via her political party with the committee responsible for the interpretation of rules of Parliament under section 61(3) of the Parliament Act, seeking the interpretation of the relevant rules, and should she have been dissatisfied with the position taken by the committee, she could have asked for a decision to be made by the plenary Parliament. In the Government’s understanding, that procedure could have ensured respect for procedural guarantees.

Outcome for Article 10: violation