CASE OF TATÁR AND FÁBER v. HUNGARY

1. The case originated in two applications (nos. 26005/08 and 26160/08) against the Republic of 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 József Tatár and Mr Károly Fáber (“the applicants”), on 30 May 2008.
2. The applicants were represented by Messrs Sz. Balsai and T. Gyurta, lawyers practising in Budapest. The Hungarian Government (“the Government”) were represented Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
3. The applicants alleged, in particular, that the prosecution conducted against them for having organised a political “performance” constituted an unjustified interference with their right to freedom of expression.
4. On 15 February 2011 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1967 and 1969 respectively and live in Budapest.
6. On 27 February 2007 the applicants exposed, in the course of an event which they considered a “political performance” – necessitated by what they perceived as a general political crisis in the country following the tumultuous events of late 2006 –, several items of dirty clothing on a rope attached to the fence around Parliament in Budapest. They stated that the symbolic meaning of this expression was “to hang out the nation’s dirty laundry”. The applicants spent exactly 13 minutes on the scene, during which time they answered some questions from journalists who appeared on the scene. Afterwards, the applicants left on their own motion.
7. On the same day, the website of the daily paper Magyar Nemzet published a short article covering the incident, in which the applicants explained that the “performance” was meant to be provocative and for that reason had not been notified to the police. It was specified that the event had been prepared clandestinely, that only a few journalist had been invited and that no other protester had participated.
8. Subsequently the Budapest V District Police Department fined each applicant 80,000 Hungarian forints (HUF) (approximately 250 euros) for the regulatory offence of abusing the right to peaceful assembly. It was considered that their act had constituted an “assembly” which should have been declared to the authorities three days in advance.
9. The applicants complained about the decision of the Budapest 5th District Police Department without offering any particular arguments.
10. On 11 July 2007 the Pest Central District Court upheld the police decision, finding that the applicants, in breach of the relevant legal provisions, had failed to notify the police of their ‘demonstration’ and that the sanction imposed was proportionate to the gravity of the offence and adequate to motivate the applicants to abide by the law in the future. The court relied on the report of the police officer involved, the pictures recorded by the street cameras and the contents of the websites covering the incident.
11. On 26 July 2007 the applicants requested that a hearing be held in the case. At the hearing of 7 December 2007 the court heard the second applicant and the police officer. The first applicant did not wish to make a statement. The second applicant first made contradictory statements as to who had been notified of the event in advance, but finally confirmed, in reply to a question put by the judge, that an announcement of the event had been published on the website of the applicants’ organisation. In their closing statements, counsel for the applicants claimed that the applicants had not invited anybody to the event and that they had wrongly assumed that their actions had been lawful.
12. Based on the evidence before it, the District Court was satisfied that the event had been publicly announced and thus it had been an “organised event” falling within the scope of section 6 of the Assembly Act (as opposed to a cultural event as argued by the applicants), that the applicants had been aware that they should have notified the police of their performance and that the fine was necessary to prevent the applicants from further breaches of the law. It therefore upheld the decision of 11 July 2007.
The decision of 7 December 2007 was served on 24 January 2008.
II. RELEVANT DOMESTIC AND INTERNATIONAL TEXTS
13. Act No. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides as follows:
“(1) In the framework of the exercise of the right to assembly, peaceful gatherings, marches and demonstrations ... may be held where the participants may freely express their opinion.
(2) The participants of an assembly are entitled to make their jointly formed position known to all interested parties ...”
“The following shall not be covered by the Act:
a) meetings falling within the ambit of the Act on Election Procedure;
b) religious services, events and processions organised in the premises of legally recognised churches;
d) events related to family occasions. ...”
“The organisation of an assembly to be held in public shall be notified to the police department having jurisdiction over the venue of the assembly – in Budapest to the Budapest Police Department – a minimum of three days prior to the planned date of the assembly. The obligation to notify the police lies with the organiser of the assembly.”
“If the holding of an assembly subject to prior notification seriously endangers the proper functioning of the representative bodies or the courts, or the circulation of traffic cannot be secured by another route, the police may ban the holding of the assembly at the place or time indicated in the notification, within forty-eight hours of the receipt of the notification.”
14. Act No. LXIX of 1999 on Administrative Offences (as in force at the relevant time) provides as follows:
Abuse of the right of assembly – Section 152(1)
“Anyone who organises or holds a gathering, march or demonstration subject to notification without notification or the provision of prior information of the planned new date, or despite a prohibiting decision of the police, may be punished by a fine of up to HUF 100,000...”
15. According to decision no. 55/2001. (XI.29.)AB of the Constitutional Court:
“[...T]he Constitutional Court holds that the enforcement of the fundamental constitutional right of assembly should be protected not only from undue interferences by the State but also from others, such as persons who dislike a certain demonstration or hold a counterdemonstration, as well as other persons who disturb public order. In other words, the State also has positive obligations in guaranteeing the enforcement of the right of assembly. The judgments of the European Court of Human Rights in cases related to the right of assembly support this view. ...
It follows that the authorities are even allowed to use force, where needed, in order to secure the holding of lawful assemblies, and they shall prevent others from disturbing such assemblies. ...
... The necessity of the obligation of notification to assemblies to be held on public premises is justified by the fact that ... such premises constitute an area, road, street or square with unlimited access for everyone. This means that both the participants of the assembly and everyone else who does not participate should have equal access to the public ground. ... The State’s obligation to respect and protect fundamental rights is not limited to abstaining from violating such rights but includes the obligation of guaranteeing the conditions necessary for their enforcement ...; in order to prevent a potential conflict between two fundamental rights ... the authority should be statutorily empowered to ensure the enforcement of both fundamental rights ... This requirement justifies the obligation of notifying the authority in advance of the assembly to be held on public ground...
... The aim and the agenda of the assembly are pieces of information necessary for the authority partly for the assessment of whether the planned assembly is to be prohibited on the ground of seriously endangering the operation of the representative organs or of the courts, or on the ground of causing disproportionate prejudice to the order of traffic ..., and partly for determining the probability of [any incident occurring during the event warranting police intervention or dispersal]. ...
... The failure to notify the authorities of an assembly – or the holding of an assembly in a manner significantly different from that specified in the notification – cannot be interpreted as an insignificant administrative omission. Such a failure deprives the authority of the opportunity to assess whether the planned assembly would seriously disturb the operation of the representative organs or of the courts, or the order of traffic. To impose no sanction on holding the assembly at a time, location, or route other than that notified would make it useless to require a notification and would allow for abusing the right of assembly...”
16. According to decision no. 4/2007. (II.13.)AB of the Constitutional Court:
“...The aim of assemblies held on the basis of the right to assembly is to enable the citizens exercising their right to assembly to form joint opinion and to share their views with others or jointly express those views.”
17. According to Decision no. 75/2008. (V.29.)AB of the Constitutional Court:
“III. [The term ‘assembly’], as used in the Constitution ..., refers to joint expressions of opinions within fixed time-limits. ... The bodies applying the law must assess whether the notification pertains to a peaceful, joint expression of opinions falling under the scope of [the Assembly Act] or to a different use of the public area.
IV. ... In today’s constitutional democracies, the primary purpose of assemblies held on public ground is the joint representation and demonstration of the opinions and views already formed. The main connection between freedom of expression and freedom of assembly is the joint, public expression of the opinion. The significance of the right of assembly as a communication right is increased by the fact that, in contrast with the press, it ensures for everyone the right to participate directly, without access barriers, in forming the political will. ...
3.1. ... Several types of assemblies on public ground may fall within the category of peaceful spontaneous assemblies. Indeed, spontaneous assemblies are not generated in a previously planned and arranged manner since they are the result of the actions of several persons who act, more or less, independently. ...
5.1. In the system of [the Assembly Act], assemblies not requiring notification include, on the one hand, events excluded from the scope of [the Act] (events of electoral, religious, cultural, sport or family nature). On the other hand ... it is not necessary to file a notification of assemblies falling under [the Act]. but not held on public ground... Furthermore, Section 6 of [the Act] does not apply to spontaneous assemblies held without prior organisation. Namely, the provision at issue requires the notification of “organising an assembly” to be held on public ground, and the statutory obligation is imposed on the organiser.
... The notification obligation ... forms a constitutional restriction on the right of assembly. This statutory provision is justified, on the one hand, by the need to have the public order secured by the police ... The notification and its confirmation by the police is a guarantee that the police shall implement the necessary tasks related to the security of the event. ...”
18. The Guidelines on Freedom of Peaceful Assembly Adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010) provide as follows:
“... For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose...
16. An assembly, by definition, requires the presence of at least two persons.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
19. The applicants complained that the prosecution conducted against them on account of the “performance” which they had carried out amounted to an unjustified interference with their right to freedom of expression. They relied on Articles 6 §§ 1 and 3, 10 and 14 of the Convention.
20. The Court considers that this issue falls to be examined under Article 10 of the Convention alone, 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. ...
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, ...”
21. The Government contested the applicants’ argument.
22. 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.
23. The Government argued that the case did not concern the applicants’ freedom of expression as such but a particular form of political expression falling within the scope of Article 11 governing freedom of assembly. They had not been prevented from expressing their political views in public or sanctioned for having done so. Rather, they had been prosecuted for deliberately disregarding the rules governing the exercise of the freedom of assembly. The restriction imposed on the applicants’ freedom of peaceful assembly had been based on section 6 of the Assembly Act and section 152 of the Act on Administrative Offences. Undisputedly, they had expressed a political opinion on public ground (which fell under the jurisdiction of the Assembly Act) although characterising their action as a form of artistic expression which, as a cultural event, would fall outside the scope of the Assembly Act, but would have been subject to an authorisation from the municipality, never obtained. The fact that the applicants had labelled their action as a “performance”, a term foreign to the Assembly Act, was irrelevant since in the domestic jurisprudence it was the aim (i.e. the joint expression of a political opinion), the venue (i.e. public ground) and the organised nature of an event which was decisive to qualify it as an “organised event” falling under section 6. Obviously, the different forms which an assembly might take or the labels attached to them by the organisers could not be enumerated with absolute precision in the law but it was not contrary to the requirement of foreseeability to define an assembly by its purpose and to clarify the scope of the law by judicial interpretation. The interference was therefore prescribed by law.
24. The restrictions on the right of peaceful assembly on public premises prescribed by the Assembly Act, including the requirement of prior notification to the authorities, served the legitimate aims of ensuring public safety, protecting the rights of others and preventing disorder, the latter aspect also covering the police’s positive obligation to remove the risk that those with opposing political views interfere with the ongoing assembly. While it was true that in the instant case the event had involved only two persons and lasted a very short time, the exact number of participants could not be predicted beforehand and the organisers could not know for certain if another event would not coincide with theirs, therefore the legitimacy of the requirement of prior notification prevailed, even if, in retrospect, this assembly had proved to attract little attention from the public. Moreover, the “performance” in question was no spontaneous demonstration which would have been made devoid of any purpose had the requirement of prior notification been complied with (cf., a contrario, Bukta and Others v. Hungary, no. 25691/04, §§ 31 to 39, ECHR 2007 ‑ III).
25. The enforcement of the prior notification rule was necessary to enable the authorities to take measures for the protection of public order at the venue, including the protection of the rights and security of the participants from unlawful interference by third persons as well as the prevention of collision of assemblies.
26. The Government also pointed out that to regulate a gathering of at least two persons in a public place for a common expressive purpose as an assembly is not contrary to European standards (cf. paragraph 16 of the Explanatory Notes to the Guidelines on Freedom of Peaceful Assembly adopted by the Venice Commission on 4 June 2010). In the instant case, the event had been publicly announced, thus the number of prospective participants had not been restricted to the applicants. In any case, regulations making the requirement of prior notification dependent on the expected number of participants would be impractical and lend themselves to abuse.
27. Lastly, in the Government’s view, the above legitimate aims could not be achieved by a measure less restrictive than enforcing the rule of prior notification – which could not be said to have placed a disproportionate burden on the organisers. Furthermore, the police had showed the requisite tolerance towards the demonstration at issue, and the applicants’ expression of political views had been unhindered. The subsequent administrative sanction did not concern the exercise of their freedom of expression but their failure to respect the notification rule. With reference to the Court’s ruling in the case of Ziliberberg v. Moldova ((dec.), no. 61821/00, 4 May 2004), the Government pointed out that the requirement of prior notification would be rendered “illusory” if Article 11 were to prohibit sanctions for a failure to comply with that requirement. The sanctions imposed on the applicants could not be attributed any chilling effect either, since those sanctions were mild and corresponded solely to the applicants’ deliberate disregard of the notification rule.
28. The applicants argued that their “performance” was an action of expression, not subject to any notification rule, especially in view of the fact that it had involved only two persons and lasted a very short time. To hold the contrary would render participation in social life virtually impossible. The argument pointing to the aim of protecting public order was beside the point, since there was no disturbance whatsoever to the public order, nor any danger of such, given the artistic character of the event.
29. The Court notes that the Government’s arguments largely focus on the assertion that the impugned event constituted an assembly attracting the application of the rules of the Assembly Act and a scrutiny under Article 11 of the Convention. However, it is satisfied that the event, irrespective of the characterisation attributed to it by the applicants, constituted predominantly an expression (cf. Açık and Others v. Turkey, no. 31451/03, § 40, 13 January 2009), all the more so since it involved only two persons and lasted a very short time. For the Court, it is difficult to conceive that such an event could have generated the gathering of a significant crowd warranting specific measure on the side of the authorities. As regards the Government’s suggestion concerning the Guidelines on Freedom of Peaceful Assembly adopted by the Venice Commission, the Court would take the view that the Explanatory Notes to those Guidelines specify the minimum number of participants required for the constitution of an assembly; however, those Guidelines can by no means be interpreted as stipulating that any common expressive action of two individuals necessarily amounts to an assembly, especially in the absence of intentional presence of further participants, as in the present case.
The Court would further note that the Assembly Act does not contain any rule on the number of participants in an event, for it to fall within the scope of the Act.
It follows that the Court will examine whether there has been a justified interference with the applicants’ freedom of expression.
a. Whether there has been an interference
30. The Court observes that the applicants were subjected to an administrative fine as a sanction for the expression which they had made. It follows that there has been an interference with their right to freedom of expression.
Such an interference will lead to the finding of a violation of Article 10 of the Convention, unless it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society to achieve that aim.
31. The Government adduced that the measure had been based on section 6 of the Assembly Act and section 152 of the Act on Administrative Offences. The applicants did not dispute this.
Having regard to its conclusions about the necessity of the interference (see paragraphs 36 to 42 below), and in view of the fact that the foreseeability of the application of the law in question is closely linked to the nature of the interference and of the right considered in the context of the necessity of the interference, the Court finds it unnecessary to examine this question in the circumstances (see, mutatis mutandis, Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 116, 14 September 2010).
32. The Government argued that the interference pursued the legitimate aims of ensuring public safety, protecting the rights of others and preventing disorder. The applicants did not address this issue.
The Court accepts that the measure pursued the legitimate aims cited by the Government.
d. Necessary in a democratic society
33. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). Although freedom of expression may be subject to exceptions, they must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). In particular, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Feldek v. Slovakia, no. 29032/95, ECHR 2001-VIII § 74; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).
34. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their margin of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; the Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I).
35. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII). Article 10 is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204).
ii. Application of those principles to the present case
36. The Court observes that the applicants were fined for having publicly displayed for a short while, at a location adjacent to Parliament, several items of clothing representing the “dirty laundry of the nation”. For the Court, this action – which the applicants described as a “performance” – amounts to a form of political expression.
37. While it appears that the applicants had in advance publicised on their website their intention to carry out the “performance”, the Court nevertheless cannot share the Government’s view that it was tantamount to an assembly for the following reasons.
38. The Court has consistently held that the rights enshrined in Article 11 are specific in relation to those in Article 10 of the Convention (see, e.g., Rai and Evans v. the United Kingdom (dec.), nos. 26258/07 and 26255/07, 17 November 2009), in particular because the gathering of people on public ground may raise specific issues of public order. However, it would point out that the mere fact that an expression occurs in the public space does not necessarily turn such an event into an assembly. The Court notes at this juncture that various definitions of assembly may exist in the national legal systems. It reiterates that its role is to supervise that the application of the domestic law be in conformity with the Convention, and would take the view that the term “assembly” possesses – just like the term “association” (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100 in fine, ECHR 1999 III) – an autonomous meaning; the classification in national law has only relative value and constitutes no more than a starting-point. Such an autonomous meaning serves the interests of the protection of the right against improper classifications in national law. The Court considers that, in qualifying a gathering of several people as an assembly, regard must be had to the fact that an assembly constitutes a specific form of communication of ideas, where the gathering of an indeterminate number of persons with the identifiable intention of being part of the communicative process can be in itself an intensive expression of an idea. The support for the idea in question is being expressed through the very presence of a group of people, particularly – as in the present case – at a place accessible to the general public. Furthermore, an assembly may serve the exchange of ideas between the speakers and the participants, intentionally present, even if they disagree with the speakers.
39. The Court notes however that these elements are absent in the present application where there was no intentional gathering of participants, notwithstanding the fact that the event had been advertised on the Internet; however, there is no appearance that this advertisement had been aimed to recruit participants other than some journalists. In these circumstances, the Court is satisfied that the “political performance” in question was intended to send a message through the media rather than the direct gathering of people – the latter in any case being virtually unachievable in thirteen minutes which was the duration of the performance. The Court recalls in this connection that a press communiqué made in public, even where there was a gathering of twenty-five people, was examined under Article 10, rather than Article 11, of the Convention (see Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, § 26, ECHR 2005 ‑ I).
40. By qualifying the expressive interaction of the two applicants as an assembly, the authorities brought the Assembly Act into play, which imposes a duty of notification on the organisers of an assembly, failing which they commit a regulatory offence. The Court acknowledges that such a notification might be justified in certain cases, since it enables the authorities effectively to coordinate and facilitate the assembly. However, in the Court’s view, there was no need for such coordination in the present circumstances (cf. Balçık and Others v. Turkey, no. 25/02, § 49, 29 November 2007), since nothing indicates that either the public order or the rights of others were affected. The national authorities’ approach to the concept of assembly does not correspond to the rationale of the notification rule. Indeed, the application of that rule to expressions – rather than only to assemblies – would create a prior restraint which is incompatible with the free communication of ideas and might undermine freedom of expression.
41. Consequently, the Court is not convinced that the domestic courts’ and the Government’s arguments focusing on the necessity to sanction the applicants’ non-compliance with the prior notification rule were “relevant and sufficient” for the purposes of Article 10 § 2 of the Convention. The Court would add that the imposition of an administrative sanction, however mild, on the authors of such expressions which qualify as artistic and political at the same time can have an undesirable chilling effect on public speech.
42. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. 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.”
44. Each of the applicants claimed 2,000 euros (EUR) in respect of non-pecuniary damage.
45. The Government contested this claim.
46. The Court considers that the applicants must have suffered some non-pecuniary damage and awards each of them EUR 1,500 under this head.