CASE OF KIRÁLY AND DÖMÖTÖR v. HUNGARY

1. The case originated in an application (no. 10851/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Mr Alfréd Király and Mr Norbert Dömötör (“the applicants”), on 5 February 2013.
2. The applicants were represented by Mr A. Kádár, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3. The applicants alleged that the authorities had failed in their obligations to protect them from racist threats during an anti-Roma demonstration and to conduct an effective investigation into the incident, in breach of Article 8 of the Convention.
4. On 16 November 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant was born in 1971 and lives in Devecser. The second applicant was born in 1979 and lives in Ajka. The applicants are of Roma origin.
6. Mr G.F., a Member of Parliament from the right-wing Movement for a Better Hungary Party ( Jobbik Magyarországért Mozgalom Párt, hereinafter referred to as Jobbik ), announced that a demonstration would take place on 5 August 2012 in Devecser under the slogan “Live and let live”. The reason for the demonstration was that riots had broken out between Roma and non-Roma families of the municipality on 25 July 2012. Following that incident, seventeen people were questioned by the police, and an enhanced police presence was ordered in the municipality, with the constant surveillance of streets inhabited by the Roma community.
7. In the applicants ’ submission, the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts. The police had been informed through official sources that in addition to the members of Jobbik, nine far-right groups, known for their militant behaviour and anti-Roma and racist stance, would also be present at the demonstration. They had also been informed that the demonstrators would seek conflict with the police and the minority community. According to the far-right organisations ’ websites, the demonstration was aimed “against Roma criminality”, “against the Roma of Devecser beating up Hungarians” and “against the Roma criminals unable to respect the rules of living together”.
8. Devecser was classified as special zone of risk, ( kiemelten veszélyeztetett ) and eight police patrol units were dispatched to the municipality to ensure an increased presence and carry out checks as of 1 August 2012. About 200 police officers were deployed in Devecser to secure the demonstration, including members of the Operational Squad. On the day of the demonstration checks were increased throughout the county, including traffic check points. The Veszprém county police department also asked members of the Ethnic Roma Self-Government of Veszprém county to inform the Roma population about the upcoming demonstration.
9. About 400 to 500 people were present at the demonstration. Mr G.F. announced that the demonstration was about the justified self-protection of Hungarians. Invoking the crimes committed by members of the Roma community, he demanded the reintroduction of the death penalty and threatened the Roma community that if the criminality continued, Jobbik would return to Devecser. He also announced that the Roma were not “normal”.
10. In his speech, Mr L.T., leader of the Sixty - four Counties Youth Movement ( Hatvannégy Vármegye Ifjúsági Mozgalom ), mentioned that Roma criminality was omnipresent in the country and wherever this ethnic group appeared, only destruction, devastation and fear came. In his opinion the Roma population wanted to exterminate Hungarians, which left the latter with the choice of becoming victims or fighting back. Mr A.L., leader of the Civil Guard Association for a Better Future ( Szebb Jövőért Polgárőr Egyesület ) stated that hundreds of Hungarians were killed yearly by the Roma with the approval of the State. In his view there was a destruction of civilians going on in Hungary. He called on the demonstrators to sweep out the “rubbish” from the country, to revolt and to chase out the treasonous criminal group supressing Hungarians. He closed his speech by saying that the Hungarians were entitled to use all means to achieve those goals. Mr Zs.Ty., leader of the Outlaws ’ Army ( Betyársereg ), spoke about the characteristics of a racial war and an ethnic-based conflict. He said that before such conflict escalated, a message should be sent. He mentioned that the Roma minority was genetically encoded to behave in a criminal way and declared that the only way to deal with the Roma was by applying force to “ stamp out this phenomenon that needs to be purged”. Mr I.M., the leader of the New Guard ( Új Gárda ), called on the Government to end Roma criminality and warned that if Hungarians ran out of patience, there would be trouble. Finally, Mr I.O., the vice-president of Jobbik in Veszprém county, told participants that there would be no mercy and that every criminal act and every prank would be revenged; if the State authorities did not live up to their obligations to protect civilians from Roma criminality, this would be done by the population itself.
11. Following the speeches, the demonstrators marched down Vásárhelyi Street, the neighbourhood of Devecser inhabited by the Roma community, chanting “Roma criminality”, “Roma, you will die”, and “We will burn your house down and you will die inside”, “We will come back when the police are gone”, and obscene insults. They also called on the police not to protect the Roma residents from the demonstrators and to let them out from their houses. Sporadically, quasi ‑ military demonstrations of force occurred, involving military-style uniforms, formations, commands and salutes.
12. Certain demonstrators covered their faces, dismantled the cordon and were equipped with sticks and whips. Those leading the demonstration threw pieces of concrete, stones and plastic bottles into the gardens, encouraged by the crowd following them.
13. The Government and the applicants disagreed as to other aspects of the demonstration.
14. During the march through the Roma neighbourhood, which lasted approximately thirty minutes, both applicants stayed in the gardens of houses in Vásárhelyi Street. The first applicant submitted that he had overheard the police stating on their radio that the demonstrators were armed with sticks, stones, whips and metal pipes. Furthermore, one of his acquaintances had been injured by a stone thrown into his garden, but the police officer to whom the applicant had reported the incident had not taken any steps. In the second applicant ’ s submission, two of the demonstrators leading the march had had a list and had pointed out to the crowd the houses that were inhabited by Roma people.
15. According to the applicants, the police were present during the demonstration but remained passive and did not disperse the demonstration; nor did they take any steps to establish the criminal responsibility of the demonstrators. The report of the police ’ s contact officer noted that the organiser of the demonstrations, Mr G.F. had not been able to keep the events under control and had been unwilling to confront the participants.
16. According to the Government, the commander of the security forces immediately took action when the participants started to act violently, managed the crowd appropriately and separated hostile demonstrators from others.
17. On 21 September 2012 the Minister of the Interior, reacting to a letter from civil society organisations, informed the public that the conduct of the police had been adequate and that forty people, including five demonstrators, had been questioned by the police. Following a statement from two injured persons, the police opened criminal proceedings against unknown perpetrators on charges of “disorderly conduct” ( garázdaság ), which was subsequently amended to “violence against a member of a group” ( közösség tagja elleni erőszak). It appears from the case file that a further criminal investigation was opened into charges of “violence against a member of a group” several months after the incident.
18. In November 2012 the Office of the Commissioner for Fundamental Rights published a report on the events. The report concluded that the police had failed to assess whether the event had infringed the rights and freedoms of others. Such assessment would have led to the conclusion that the people living in the neighbourhood were forced as a “captive audience” to listen to the injurious statements that had been made. According to the report, the demonstration had been used to incite ethnic tensions on the basis of the collective guilt of the ethnic group. It went on to state that by not enforcing the limits of freedom of assembly, the police had caused anomalies in respect of the right to peaceful assembly and the Roma population ’ s right to dignity and private life. It also pointed out that certain speeches had been capable of inciting hatred, evidenced by the fact that stones had been thrown at Roma houses following the speeches. The Commissioner found it regretful that the police had failed to identify the perpetrators on the spot, which was inconsistent with their task of preventing and investigating crimes and with the right to dignity, non-discrimination and physical integrity.
19. Both applicants complained to the Veszprém county police department about the failure of the police to take measures against the demonstrators, thereby endangering their life and limb and their human dignity.
20. On 22 November 2012 the police department dismissed the applicants ’ complaint, finding that the conditions for dispersal of the demonstration had not been met, since any illegal or disorderly conduct on the part of the demonstrators had ceased within ten minutes. The police department held that the demonstration had remained peaceful, since, apart from the throwing of stones, no actual conflict had broken out between the police, the demonstrators and members of the Roma minority. It also found that only a small group of demonstrators had been armed with sticks and whips. As regards the failure of the police to carry out identity checks on demonstrators and to hold suspects for questioning ( előállítás ), the police department found that such measures would only have aggravated the situation and strengthened the demonstrators ’ hostility towards the police.
21. On appeal, the National Police Service upheld the first-instance administrative decision. Following a request for judicial review lodged by the applicants, it nonetheless overruled the first-instance decision and remitted the case to the county police department.
22. By its decisions of 29 October 2013 and 25 June 2014 the Veszprém county police department dismissed both applicants ’ complaints again on identical grounds. The police department found that the demonstration had remained essentially peaceful, because the majority of the participants had not aligned themselves with those committing violent acts. The police department observed that there had been grounds to disperse the demonstration, since some participants had been armed and there had been a reasonable suspicion that some of them had committed the criminal offence of violence against a member of a group. Nonetheless, it concluded that dispersing the demonstration would have carried a high risk since, based on previous experience, those participants intent on violence would probably have turned against the police.
23. The National Police Service upheld those decisions on appeal on 19 December 2013 and 5 August 2014, respectively, stating that although under section 14 of Act no. III of 1989 (“the Freedom of Assembly Act”) the police had been under an obligation to disperse the demonstration, they could refrain from such action if it carried a higher risk than allowing the demonstration to continue. Furthermore, the commander of the operation had been right not to apply measures against certain individuals, since that would have led to a clash between the demonstrators and the police, endangering not only the police themselves, but the local residents too. The second-instance authority acknowledged that the unlawful acts of certain demonstrators had infringed the fundamental rights of the applicants, but concluded that seeking to protect those rights would have caused more harm than good.
24. The applicants sought judicial review of those decisions, arguing that under section 14 of the Freedom of Assembly Act the police were under an obligation to disperse non-peaceful demonstrations irrespective of the proportionality of such a measure.
25. In its judgments delivered on 3 December 2014 and 19 March 2015 the Veszprém Administrative and Labour Court dismissed the applicants ’ claims. It found that although the non-peaceful character of a demonstration could serve as grounds for its dispersal, this was only so if the demonstration as a whole had ceased to be peaceful. Sporadic acts of violence, as in the present case, could not serve as legitimate grounds for dispersal. The court also considered that the police had a margin of discretion when deciding on the dispersal of a demonstration. As regards the applicants ’ claim that the police should have taken law-enforcement measures against certain individuals, the court pointed out that such actions would have led to clashes between the demonstrators and the police. The court therefore concluded that even if there had been grounds to terminate the demonstration or to apply law-enforcement measures against certain individuals, the police had been justified in not having done so. It added that, in any event, the potential infringement of the applicants ’ fundamental rights had been caused not by the alleged inactivity of the police, but by the conduct of the demonstrators.
26. The applicants lodged a petition for review with the Kúria. In its judgments of 23 September 2015 and 6 January 2016 the Kúria reiterated that under the Freedom of Assembly Act no. III of 1989 the dispersal of demonstrations was a possibility rather than an obligation for the police and restrictions on the fundamental rights of others did not in themselves justify the restriction of the right of assembly. Furthermore, dispersal could only be used as a last resort, if the demonstration was likely to entail serious consequences. Relying on the report by the Commissioner for Fundamental Rights, the Kúria considered that despite certain violent actions, the demonstration had on the whole remained peaceful. The court went on to find that the police had been under an obligation to respect the principle of proportionality and had been right to conclude that dispersing the march could have caused more serious prejudice to the Roma community than allowing the demonstration to continue in a controlled manner.
As regards the lack of individual measures, the Kúria found that an operational unit of the police ( csapaterő ) had been deployed to maintain order, and that such a measure had not allowed for police officers to single out and act against individual demonstrators.
The Kúria also rejected the applicants ’ argument that the police had done nothing to protect them and other members of the Roma minority. It found it established that the police had used a cordon to contain the demonstrators and had ensured the subsequent prosecution of perpetrators by logging events, and taking video footage and photographs.
27. The applicants, together with the Hungarian Helsinki Committee, lodged a criminal complaint concerning the speeches delivered at the demonstration and the attacks to which the Roma community had been subjected. The case was subsequently joined to a criminal complaint lodged by third persons concerning the same issue. On 22 November 2012 the Veszprém county police department opened an investigation into charges of violence against members of a group under Article 174/B of the Criminal Code. The police department opened a separate investigation, under Article 269 point (b) of the Criminal Code (incitement against a group), into the issue of the speeches delivered during the demonstration.
28. The investigation into incitement against a group was discontinued by the police department on 24 September 2013. The police department considered that although the content of the speeches had been injurious to the Roma minority and was morally reprehensible, it could not be classified as a crime. In particular, the speeches had not been meant to trigger unconsidered, instinctive, harmful and hostile reactions. By the same decision, the police department informed the applicants that it had asked the prosecutor ’ s office to press charges against an individual for violence against member of a group.
29. Following a complaint lodged by the applicants, the Veszprém County Prosecution Office upheld the decision to discontinue the investigation. It held that the legally protected interest in the criminalisation of incitement against a group was public morale. Thus the applicants were not victims of the alleged criminal act and had no standing to lodge a complaint against the decision to discontinue the investigation. However, the county prosecution office re-examined the decision on its own motion. It held that the speeches delivered in Devecser contained abusive, demeaning statements concerning the Roma minority and might have contained statements that evoked hatred, but that they had not provoked active hatred and had not called on the audience to take violent action against the local Roma.
30. As regards the investigation into the offence of violence against a member of a group, the police established that four persons had taken part in violent acts, in particular the throwing of stones. Three of the alleged perpetrators could not be identified, while the Veszprém County Prosecutor ’ s Office pressed charges against the fourth person, Mr T.K. He was found guilty as charged on 2 June 2015 by the Ajka District Court and sentenced to ten months ’ imprisonment, suspended for two years. On appeal the Veszprém High Court upheld Mr T.K. ’ s conviction but amended his sentence to one year and three months ’ imprisonment, suspended for three years.
31. The applicants, together with a third person, also lodged a criminal complaint against unknown perpetrators for breach of discipline in the line of duty, under Article 438 of the Criminal Code. Those proceedings were discontinued on 17 October 2012 by a decision of the Central Investigation Office of the Public Prosecutor, which held that the criminal offence could only be committed by soldiers in military service, but not by police officers.
II. RELEVANT DOMESTIC LAW AND PRACTICE
32. The Fundamental Law of Hungary provides as follows:
“(1) Everyone has the right to respect for his or her private and family life, home, communications and good reputation.”
33. Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”) provides as follows:
“ (1) In accordance with Article 24 (2) c) of the Fundamental Law, person or organisation affected by a concrete case may submit a constitutional complaint to the Constitutional Court if, due to the application of a legal regulation contrary to the Fundamental Law in their judicial proceedings
a) their rights enshrined in the Fundamental Law were violated, and
b) the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available.
(2) By way of derogation from paragraph (1), Constitutional Court proceedings may also be initiated by exception if
a) due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights were violated directly, without a judicial decision, and
b) there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy.
“Any individual or organisation involved in a case may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 (2) d) of the Fundamental Law, if the ruling on the merits or another decision terminating the court proceedings
a) violates the complainant ’ s right enshrined in the Fundamental Law, and
b ) the complainant has already exhausted the available legal remedies or no legal remedy is available .”
(3) If the motion does not meet the requirements on the format and content of such a motion specified in this Act, the Secretary General shall call upon the petitioner to submit a duly completed petition, which the petitioner shall be obliged to do within 30 days. If the petitioner fails to submit a duly completed petition within the time-limit or submits it unduly again, the petition shall not be examined on the merits.
(4) Besides the case specified in paragraph (3), the petition shall not be adjudicated on the merits if
a) the petitioner fails to observe the time-limit of the submission of a petition specified by an Act or, despite the call-up to him or her, fails to justify the omission,
b) the entity was manifestly unauthorised to submit such a petition,
c) the adjudication of the petition manifestly does not fall within the competence of the Constitutional Court,
d) the document submitted does not qualify as a petition, or
e) the petition is manifestly unfounded.
(5) The decision of the Constitutional Court to reject a petition without examining its merits shall be taken – at the proposal of the Secretary General – by a single judge of the Constitutional Court.”
34. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows:
Violence against a member of a national, ethnic, racial or religious group
“(1) Whosoever uses violence against another because that other person belongs to a national, ethnic, racial or religious group, or forces that person by violence or threats to do or not to do something or to tolerate any conduct is guilty of committing an offence punishable by a term of imprisonment of up to three years .”
“Any person who, before the public at large, incites hatred against:
b) any national, ethnic, racial or other group of the population
is guilty of committing an offence punishable by a term of imprisonment not exceeding three years.”
35. Constitutional Court judgment no. 75/2008 (V.29) AB of 27 May 2008 reads, in so far as relevant, as follows:
“ 6. The Constitutional Court has reviewed separately section 14(1) of ARA [ Freedom of Assembly Act ] on the disbanding of assemblies. Under the relevant provision, the police must disband an assembly if the exercise of the right of assembly constitutes a criminal offence or a call to commit such offence, if it violates the rights and freedoms of others, if the participants of the assembly appear to be armed or in possession of weapons, if an assembly under the obligation of prior notification is being held without notification, if an assembly is being held at a time or location, or with a purpose or agenda different from the data in the notification, or if an assembly under the obligation of prior notification is being held despite a decision prohibiting it.
6.1. As held by the Constitutional Court, the first and the second provisos of the list found under section 14(1) (criminal offence or a call to commit such offence, violation of the rights and freedoms of others, and participants appearing in an armed manner or with weapons) do not restrict freedom of assembly. Article 62 para. (1) of the Constitution acknowledges the right to peaceful assembly, clearly not including the committing of crimes, the violation of rights or armed rallies. In such cases, Act XXXIV of 1994 on the Police (hereinafter: PA) empowers the police to apply coercive measures.
7 .... It is part of the police ’ s role of applying the law to interpret ARA in concrete cases and to weigh fundamental rights against aspects of public interest. Each assembly held in a public area requires a concrete decision on the issues of interpreting the law. It is impossible to preclude debates about interpreting and applying the norms. The police have to consider whether the assembly falls under the scope of ARA and of the prior notification obligation, whether it is happening in accordance with the provisions of ARA and the notification, and whether it violates or not the fundamental rights and freedoms of others etc. Similarly, the police have to assess whether the disbanding of the event and the application of coercive measures are justified or not. The court is in charge of reviewing the application of the law by the police. The law as applied by the courts is to be followed by the police, too. Unification of the legal practice reduces the danger of legal uncertainty. When adopting the decision, the Constitutional Court took into consideration the risk of abusing the right of assembly. ARA offers some legal remedies against abuse of the application of the law by the authorities, and the Constitutional Court has already assessed them in CCDec. Similarly, there exists another risk to be taken into account: the initiators, organisers and participants of some assemblies may abuse the right of assembly, i.e. the rights acknowledged in the Constitution and ARA.
However, in the opinion of the Constitutional Court, the right of assembly is a freedom to be enjoyed by all, and it should not be restricted on the grounds that some people might abuse it. ARA and PA offer an adequate framework for acting against illegal assemblies that violate or directly endanger the rights of others. According to section 14(1) of ARA – held to be constitutional – non-peaceful assemblies are to be disbanded. PA provides for the application of coercive measures against those who resist the measures applied by the police, and on the basis of section 59 of PA, if the crowd shows illegal conduct, the police may use tools designed to disperse it. ”
36. The Supreme Court ’ s Guiding Resolution no. 2215/2010 contains the following relevant passages:
“Criminal law – by criminalising incitement against a group – provides means for those situations where a racist statement, because of the circumstances in which it was made, poses an immediate and clear threat of violence and of the infringement of others ’ rights. Inciting [hate] speech and violence cannot go unpunished.
The interpretation, according to which incitement to hatred, based on the above, is the emotional preparation for violence, is clearly established in case-law ... Accordingly ... the judicial practice qualifies as capable of inciting violence only conduct which – even if committed with conditional intent – inevitably involves recognition that the incited hatred might turn into extreme activities (intolerant, prejudicial, injurious conduct and, ultimately, violent actions) .”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
37. The applicants complained that the failure of the domestic authorities adequately to protect them from the demonstrators and properly to investigate the incident amounted to a violation of their rights under Article 8 of the Convention. This provision reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”
1. Compatibility of the complaints with the Convention
38. The Government submitted that Article 8 of the Convention was not applicable to the applicants ’ case and they were not victims of a violation of the Convention right they relied upon. In this connection, they contended that since the applicants had been staying at the scene of the demonstration as visitors, they could not invoke under Article 8 their right to respect for their home. Furthermore, since the applicants had not suffered any physical injury, they could not rely on Article 8 and the State ’ s obligation to protect their physical integrity against attacks by third persons. The Government also maintained that the applicants ’ complaint concerning interference with their psychological integrity was to be considered under Article 3 rather than under Article 8 of the Convention, as in the cases of Karaahmed v. Bulgaria (no. 30587/13, 24 February 2015) and P.F. and E.F. v. the United Kingdom ((dec.), no. 28326/09, 23 November 2010). In this respect the Government also submitted that the impugned treatment had not reached the minimum threshold of severity required for Article 3 to come into play.
39. The applicants submitted that contrary to the Government ’ s assertion, in order for Article 8 of the Convention to apply, it was irrelevant that they had not suffered actual injuries, since their physical integrity had been exposed to a clear and imminent danger. The first applicant, Mr Király, was a resident of Devecser and although he had not stayed in his own house during the demonstration but had been at his brother ’ s house, his ties to the place and to the persons living there were close enough that it could be considered his “home” for the purposes of Article 8. They further argued that even threats that had not actually materialised into concrete acts or physical violence could affect a person ’ s psychological integrity as protected under Article 8. This was particularly the case if the threat of violence was made with reference to a person ’ s Roma origin. In their view, the threats uttered against the Roma community in an openly racist rally and accompanied by acts of violence had caused such a degree of fear and distress, as well as a feeling of menace and inferiority, that they had affected their psychological integrity, rendering Article 8 applicable in the present case. This was particularly the case, since the applicants had been subjected to intentional harassment as members of a captive audience, unable to avoid the message conveyed by the speakers and demonstrators.
40. The applicants also referred to the general context of the demonstration and the widespread discrimination suffered by the Roma minority, including repeated instances of hate speech and a series of hate-motivated killings. Lastly, they relied on the judgment of Bensaid v. the United Kingdom to point out that the Court ’ s case-law did not exclude that treatment which did not reach the severity required to bring it within the ambit of Article 3 might nonetheless breach Article 8 in its private-life aspect where there were sufficiently adverse effects on physical and moral integrity ( Bensaid v. the United Kingdom, no. 44599/98, § 46, ECHR 2001 ‑ I).
41. The notion of “private life” within the meaning of Article 8 of the Convention is a broad term that is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of a person ’ s physical and social identity. The Court has accepted in the past that an individual ’ s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008 -V, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group ’ s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group (see Perinçek v. Switzerland [GC], no. 27510/08, § 200, ECHR 2015 (extracts). On this basis, the Court found in Aksu that proceedings in which a person of Roma origin who had felt offended by passages in a book and dictionary entries about Roma in Turkey had sought redress had engaged Article 8 (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 60, ECHR 2012).
42. The Court ’ s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C and R.B. v. Hungary, no. 64602/12, § 79, 12 April 2016 ).
43. Turning to the circumstances of the present case, the Court observes that the threats uttered against the Roma minority, which constitute the basis of the applicants ’ complaint under Article 8 of the Convention, did not actually materialise into concrete acts of physical violence against the applicants themselves. Nonetheless, it considers that the fact that certain acts of violence were carried out by at least some of the demonstrators, and that following the speeches the demonstrators marched down Vásárhelyi Street in the Roma neighbourhood (see paragraph 11 above) where the police requested the inhabitants not to leave their houses and the demonstrators shouted that they would come back later, any threats made during the demonstration would have aroused in the applicants a well-founded fear of violence and humiliation. Furthermore, the demonstration of an openly anti-Roma stance took place in a municipality where there had already been tension between Roma and non-Roma inhabitants (see paragraph 6 above). Lastly, the threats were directed against the inhabitants of Devecser on account of their belonging to an ethnic minority, necessarily affecting the feelings of self-worth and self-confidence of members of the group, including the applicants. More generally, as the Court has held before in the context of Article 11, the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of an ethnic minority, especially when they are in their homes and as such constitute a captive audience (see Vona v. Hungary, no. 35943/10, § 66, ECHR 2013). These elements, in the Court ’ s estimation, would be enough to affect the applicants ’ psychological integrity and ethnic identity, within the meaning of Article 8 of the Convention.
44. The application is therefore not incompatible ratione materiae with the provisions of the Convention. The Court accordingly dismisses the Government ’ s first objection to the admissibility of the complaint.
2. Alleged failure to exhaust domestic remedies
45. The Government contended that the applicants had not exhausted available domestic remedies. They could have brought a constitutional complaint seeking the quashing of the judgment of the Kúria of 23 September 2015. In such proceedings they could have argued that the Kúria ’ s judgment had infringed their rights enshrined in the Fundamental Law, either because the Kúria had applied a law which was unconstitutional or because it had interpreted or applied a law in an unconstitutional manner.
46. The applicants contested the Government ’ s objection. They emphasised that a Government claiming non-exhaustion bore the burden of proving to the Court that an effective remedy had been available in theory and in practice at the relevant time. They argued that the Government had failed to demonstrate that a constitutional complaint would have been an effective remedy in their situation. In any case, in their view, the constitutional complaint could only have resulted in “several remittals” to the lower-level courts and finally to the police. The proceedings before the police, however, did not constitute an effective remedy on account of their lengthy nature and the general political context. They further submitted that the police complaints procedure whereby a complaint passed to a higher - level authority within the police could not lead to an independent examination of the case, since there was a hierarchical and institutional connection between the lower-level police instances responsible for the alleged omissions and those carrying out the inquiries into the events. In this context, they also referred to the Court ’ s judgment in Szerdahelyi v. Hungary (no. 30385/07, § 31, 17 January 2012), where the Court had stated that it had not been “convinced” that the police complaints procedure could be considered an effective remedy.
47. The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be used are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts) ).
48. In the present case, the applicants ’ complaint concerns the domestic authorities ’ failure to fulfill their positive obligation to protect their right to private life. The Government have not referred to any decisions or judgments of the Constitutional Court which, like this Court ’ s case-law, inferred from the right to private life ( protected by the Fundamental Law under Article VI ( 1 ) ) the protection of an individual ’ s ethnic identity (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008) and the positive obligation to adopt measures designed to secure respect for private life even in the sphere of individuals ’ relationships with each other (see Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).
49. The Court notes that under sections 27 and 55 of the Constitutional Court Act, the absence of a constitutional right renders a complaint inadmissible for examination on the merits. The Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life (see, mutatis mutandis, Apostol v. Georgia, no. 40765/02, § 39, ECHR 2006 ‑ XIV ). It follows that the application cannot be dismissed for failure to exhaust domestic remedies.
3. Conclusion as to admissibility
50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
51. The applicants emphasised that the police had been clearly aware that the demonstration constituted a danger to the Roma minority, following previous experience of the behaviour of extreme right-wing groups during rallies and the fact that the demonstration had explicitly been planned in the Roma neighbourhood. This had clearly been indicated by the extensive preparations carried out by the police prior to the events. Furthermore, there had been reported incidents of violence and aggressive behaviour throughout the demonstrations. Notwithstanding, the police had failed to discharge their obligations under Article 8 to protect the applicants from violent attacks by individuals.
52. First, the demonstration fell to be regulated by the authorities. In this regard, the applicants emphasised that the legislative framework provided insufficient protection against racist rallies, in that there were no legal grounds for the police to ban a demonstration, even if it had been knowingly targeting the Roma minority its participants were prone to violence. The police could have used their powers to divert the demonstration to another place or to deny the demonstrators access to the Roma neighbourhood. Moreover, they should have intervened by calling the demonstrators to cease their unlawful conduct.
53. Secondly, the police had not even considered using their powers under section 14 of the Freedom of Assembly Act to disperse the demonstration on the grounds that it constituted a criminal offence, its character was no longer peaceful, it infringed the rights and freedoms of others, and its participants were armed. In their view, the police had failed to understand that not only the sporadic acts of violence, but also any threatening behaviour constituted a criminal offence, in particular violence against members of a group. They also submitted that none of the authorities had properly assessed that an anti-Roma demonstration of that kind, by its very nature, infringed the rights and freedoms of others. Furthermore, the applicants found it contradictory that the domestic authorities had insisted on the generally peaceful nature of the demonstration, whereas the police had admitted having decided not to take individual measures against certain demonstrators for fear of violence. The applicants also emphasised that although a small number of the demonstrators had engaged in acts of violence, they had been largely supported by the crowd.
As regards the domestic authorities ’ obligation to balance the applicants ’ rights under Article 8 of Convention with that of the demonstrators, the applicants maintained that the perpetrators of vehement verbal attacks on ethnic minorities, aimed at inciting hatred, could not rely on the protection of their Convention rights.
54. Thirdly, the police had failed to take the necessary measures to single out and identify individual perpetrators in order to restore the peaceful nature of the demonstration but also for the purposes of subsequent criminal investigations.
55. Lastly, the applicants submitted that the investigations into the incident had been defective. Despite several of the participants being involved in intimidating the Roma community out of racial hatred by chanting anti-Roma slogans, conduct punishable under Article 174/B of the Criminal Code, the investigating authorities had limited the scope of their enquiries to those who had committed acts of violence. Furthermore, in the applicants ’ submission, the domestic authorities had erred in discontinuing the investigation against certain speakers on account of hate speech, since their utterances inciting people to start an ethnic war could clearly have triggered violence among the audience, given the threatening nature of the event.
56. The Government submitted that even if the Court found Article 8 applicable in this case, the domestic authorities had complied with their positive obligations under that Article by properly policing the demonstration. Contrary to the applicants ’ allegations, this was not a case in which the police had stood by and done nothing: they had taken a wide range of preventive measures prior to the demonstration, including vehicle checks, identity checks and consultations with the representatives of the Roma minority. They had also considered that the most effective method to secure the demonstration had been for the force to act as a team and not to take measures against certain individuals. This operational decision fell within the ambit of legitimate police discretion, as confirmed by the domestic courts ’ decisions.
57. The Government also submitted that the case concerned on the one hand, the right of a political group to freedom of expression and assembly, guaranteed by Articles 10 and 11 of the Convention and, on the other, the right of the local residents to their private life, guaranteed by Article 8. The alleged failure of the police to ban or disperse the demonstration had corresponded to their obligation to strike a fair balance between those two competing interests. In the Government ’ s opinion, the interference with the applicants ’ right to private life had been negligible, since, contrary to their submissions, they had not been members of a captive audience, but had been visiting Devecser to confront the demonstrators. On the other hand, the domestic authorities had a very narrow margin of discretion in restricting the exercise of the freedoms protected under Articles 10 and 11.
58. The Government further emphasised that the demonstration, a one-off event, had lasted only two hours and the sporadic acts of violence only a couple of minutes. Thus the event could not be characterised as violent, justifying possible dispersal.
59. Finally, the criminal investigation undertaken after the demonstration had complied with the State ’ s positive obligations under Article 8. In particular, as regards the punishment of the alleged hate speech, the Government submitted that domestic authorities, having a better knowledge of a particular society, were better placed to decide where the limits of free speech and hate speech should be set, and an open debate would allow for mitigating racist tensions within the society.
60. The Court reiterates that while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations between individuals (see Söderman, cited above, § 78). To that end, States are required to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009, and A v. Croatia, no. 55164/08, § 60, 14 October 2010).
61. The State ’ s positive obligation under Article 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports 1998 ‑ VIII, and C.A.S. and C.S. v. Romania, no. 26692/05, § 72, 20 March 2012 ) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, A, B and C v. Latvia, no. 30808/11, § 149, 31 March 2016 ), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007 ). More generally, however, in respect of less serious acts between individuals which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection ( see Söderman, cited above, § 85 ).
62. The Court also reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods for protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Hungary, in handling the applicants ’ case, has been in breach of its positive obligation under Article 8 of the Convention (see mutatis mutandis, Sandra Janković, cited above, § 46).
(b) Application of the above principles in the instant case
63. The Court notes that the applicants ’ complaints concern the alleged inadequacy of the Hungarian authorities ’ response to the intimidating anti-Roma demonstration that had taken place in their neighbourhood. In particular, they pointed out the failure of the police to take preventive measures and react promptly, either by dispersing the demonstration or by applying measures against certain individuals, as well as the shortcomings in the subsequent criminal prosecutions.
64. As regards the decision of the police, subsequently reviewed by the Administrative and Labour Court and the Kúria, not to disperse the demonstration, this Court has previously accepted that in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration in order to protect an individual ’ s private life under Article 8 (see R.B. v. Hungary, cited above, § 99). Examining the domestic approach to dispersal of demonstrations, it appears that the police have a similar obligation to disband an assembly if the exercise of the right of assembly constitutes a criminal offence or a call to commit such an offence, or if it violates the rights and freedoms of others, as demonstrated by the judgment of the Constitutional Court (see paragraph 3 5 above).
65. When assessing whether such an obligation had arisen in the present case, the domestic courts gave consideration to the applicants ’ arguments concerning the unlawful nature of the demonstration. They nonetheless concluded that in the light of previous case-law, there had been no legal basis to disperse the demonstration, since it had maintained its generally peaceful nature, despite some unruly incidents. The Kúria also attached weight to respect for the principle of proportionality when having recourse to force, and the risk of violence to the Roma community the measure could have had implied.
66. The Court notes in this respect that in cases where the applicants were able to raise their arguments before the domestic courts, which gave them careful consideration, it is not for this Court to substitute its own assessment for that of the national courts; indeed, it cannot question that assessment, unless it is manifestly unreasonable or there is clear evidence of arbitrariness (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 89, ECHR 2007 ‑ I). In the present circumstances, the Court is satisfied that there was no appearance of arbitrariness or a manifest lack of judgment on the part of the authorities as regards the decision of the police not to disperse the demonstration.
67. In a similar vein, the absence of individual measures ( for example, identity checks and questioning) was fully considered, first by the investigating authorities and, secondly, by the domestic courts (see paragraphs 25-26 above). In particular, the national courts engaged in an assessment of whether the action taken by the police had been professionally justified and whether they had been sufficient to protect the applicants and the Roma community in general. The courts emphasised that the police had taken a number of preparative steps, had changed the classification of the demonstration and had placed themselves between the protesters and the local residents.
68. In this regard, the Court reiterates its previous finding that the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 41, 23 November 2010).
69. Consequently, the Court does not consider it appropriate to call into question the findings of the domestic courts concerning the adequacy of the police reaction to the demonstration.
70. Nonetheless, the fact remains that the applicants were unable to avert a demonstration advocating racially motivated policies and intimidating them on account of their belonging to an ethnic group.
71. As regards the ensuing criminal proceedings against the speakers and the participants of the demonstration, the Court notes that the criminal investigation into the crime of incitement against a group was discontinued because the domestic authorities found that the speakers ’ statements during the march were not covered by the said offence (see paragraph 29 above). It also notes that an investigation was opened into the criminal offence of violence against a member of a group, in the course of which four demonstrators were found to have thrown stones at a house inhabited by a Roma family. The ensuing criminal proceedings led to the conviction of one of the demonstrators, the other three remaining unidentifiable (see paragraph 30 above).
72. The Court has already dealt with cases of harassment motivated by racism which involved no physical violence, but rather verbal assault and physical threats. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicant ’ s rights had been defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 8 of the Convention (see R.B. v. Hungary, cited above, §§ 84-85 ).
73. In considering the present case, the Court will draw inspiration from the principles formulated in its previous case-law under Article 10 of the Convention concerning statements alleged to have stirred up violence, hatred and intolerance. The key factors in the Court ’ s assessment were whether the statements had been made against a tense political or social background (see Zana v. Turkey, 25 November 1997, §§ 57-60, Reports 1997-VII; Sürek v. Turkey (no. 1) [GC], no. 26682/95, §§ 52 and 62, ECHR 1999-IV; Soulas and Others v. France, no. 15948/03, § 33, 10 July 2008, and Féret v. Belgium, no. 15615/07, §§ 66 and 76, 16 July 2009 ), whether the statements, fairly construed and seen in their immediate or wider context, could have been seen as a direct or indirect call for violence or as a justification for violence, hatred or intolerance (see, among other authorities, Özgür Gündem v. Turkey, no. 23144/93, § 64, ECHR 2000-III and Fáber v. Hungary, no. 40721/08, §§ 52 and 56-58), and the manner in which the statements had been made, and their capacity – direct or indirect – to lead to harmful consequences (see Karataş v. Turkey ([GC], no. 23168/94, §§ 51-52, ECHR 1999 ‑ IV).
74. In all of those cases, it was the interplay between the various factors, rather than any one of them taken in isolation, that determined the outcome of the case. The Court ’ s approach to that type of case can thus be described as highly context-specific (see Perinçek, cited above, § 208).
75. Aware of its subsidiary role, the Court is mindful that it is prevented from substituting its own assessment of the facts for that of the national authorities. Nonetheless, based on the above, it cannot but consider that the domestic authorities should have paid particular attention to the specific context in which the impugned statements were uttered.
76. In particular, the rally in general quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, with the intention of intimidating this vulnerable group. Besides the adherents of a right-wing political party, it was attended by members of nine far-right groups, known for their militant behaviour and acting as a paramilitary group, dressed in uniforms, marching in formation and obeying commands. The speakers called on participants to “fight back” and “sweep out the rubbish from the country”. Their statements referred to an ongoing ethnic conflict and the use of all necessary means of self-protection. It was following the speeches that the demonstrators marched down Vásárhelyi Street between the houses inhabited by the Roma, uttered obscenities against the inhabitants and engaged in acts of violence. Throughout the event, the police placed themselves between the demonstrators and the Roma residents to ensure the protection of the latter, while the participants themselves threatened the Roma that they would come back once the police had gone and demanded the police not to protect the Roma minority.
77. Moreover, the event was organised in a period when marches involving large groups and targeting the Roma minority had taken place on a scale that could qualify as “large-scale, coordinated intimidation” (see Vona, cited above, § 69).
78. For the Court, these were relevant factors that should have been taken into consideration when assessing the nature of the speeches. This is all the more so that according to the domestic courts ’ case-law, racist statements together with the context in which they were expressed could constitute a clear and imminent risk of violence and violation of the rights of others (see paragraph 3 6 above). However, it appears that the investigating authorities paid no heed to those elements when concluding that the statements had been hateful and abusive but that they had not incited violence. Thus, the domestic authorities inexplicably narrowed down the scope of their investigations.
79. As regards the criminal investigations into the offence of violence against a member of a group, the Court recalls that for an “investigation to be regarded as ‘ effective ’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means” (see, albeit in the context of Article 3, Identoba and Others v. Georgia, no. 73235/12, § 66, 12 May 2015). In the present case, these proceedings lasted almost three years; and their scope was statutorily bound to be limited to the actual acts of violence. The authorities eventually identified one incident liable to prosecution; the perpetrator was prosecuted for, and charged with, violence against a member of a group and convicted of that offence. Although the police had had sufficient time to prepare themselves for the event and should have been able to interrogate numerous persons after the incident (see paragraph 17 above), only five demonstrators were questioned; and three of the alleged perpetrators could not be identified. For the lack of any other elements possibly falling within the hypothesis of the offence in question, the police were not in a position to extend the scope of the prosecution to any other protagonists. In these circumstances, the Court finds that this course of action in itself was not “capable of leading to the establishment of the facts of the case” and did not constitute a sufficient response to the true and complex nature of the situation complained of.
80. The cumulative effect of those shortcomings in the investigations, especially the lack of a comprehensive law enforcement approach into the events, was that an openly racist demonstration, with sporadic acts of violence (see paragraphs 11-12 and 25-26 above) remained virtually without legal consequences and the applicants were not provided with the required protection of their right to psychological integrity. They could not benefit of the implementation of a legal framework affording effective protection against an openly anti-Roma demonstration, the aim of which was no less than the organised intimidation of the Roma community, including the applicants, by means of a paramilitary parade, verbal threats and speeches advocating a policy of racial segregation. The Court is concerned that the general public might have perceived such practice as legitimisation and/or tolerance of such events by the State.
81. In the light of these findings the Court does not consider it necessary to address separately the applicants ’ argument that the demonstration should have been banned.
82. Having regard to the above -mentioned considerations, the Court is not satisfied that the domestic laws and practice ensured protection of the applicants ’ right to respect for their private life. Notwithstanding the respondent State ’ s margin of appreciation in this field, the Court concludes that the State did not comply with its positive obligations under Article 8 of the Convention.
There has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
83. 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.”
84. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage.
85. The Government contested those claims.
86. The Court considers that the applicants must have suffered non-pecuniary damage on account of the violations found, and awards them, on an equitable basis, EUR 7,500 each in respect of non-pecuniary damage.
87. Mr Király also claimed EUR 450 in respect of the court fees and legal costs he had had to pay in the domestic proceedings. He also claimed EUR 2,755 plus value-added tax (VAT) for the costs and expenses incurred before the Court. That amount corresponds to EUR 2,560 in legal costs charged by his lawyer for 23.5 hours of legal work at an hourly rate of EUR 102 plus VAT, and EUR 195 in clerical costs. In total Mr Király claimed EUR 3,205 plus VAT.
88. Mr Dömötör claimed EUR 480 in respect of the court fees and legal costs he had had to pay in the domestic proceedings. He also claimed EUR 2,755 plus VAT for the costs and expenses incurred before the Court. That amount corresponds to EUR 2,560 in legal costs charged by his lawyer for 23.5 hours of legal work at an hourly rate of EUR 102, plus VAT, and EUR 195 in clerical costs. In total Mr Dömötör claimed EUR 3,235 plus VAT.
89. The Government contested those claims.
90. 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 finds it reasonable to award the sums claimed in their entirety, that is EUR 3,205 plus VAT to Mr Király and EUR 3,235 plus VAT to Mr Dömötör.
91. 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.
1. Declares, by a majority, the application admissible;