CASE OF BUDAHÁZY v. HUNGARY

1. The case originated in an application (no. 41479/10) 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 a Hungarian national, Mr György Budaházy (“the applicant”), on 16 July 2010.
2. The applicant was represented by Mr T. Gaudi-Nagy, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.
3. The applicant alleged in particular that his conviction in 2008-2009 on account of having organised an unauthorised demonstration amounted to an interference with his rights under Articles 10 and 11 of the Convention.
4. On 16 February 2012 the application was communicated to the Government.
A. Particular circumstances of the case
5. The applicant was born in 1969 and lives in Diósd.
6. On 4 July 2002 the applicant organised a demonstration aimed at forcing the authorities to preserve the ballot papers of the 2002 legislative elections with a view to a potential recounting.
The Government submitted that the ballot papers were bound for statutory destruction on 20 July 2002 as per section 5(3) of Decree no. 48/2001. (XII. 29.) BM on the Procedural Time-limits for the Legislative Elections of 7/21 April 2002.
In the applicant ’ s view, the relevant law could be understood – and was by many – to the effect that the ballot papers could be destroyed as early as 7 July 2002.
Previously, on 2 July 2002, Parliament had decided not to put on the agenda a bill for the amendment of the 90-day statutory preservation period of the ballots.
7. The event organised by the applicant – which had not been announced to the police – consisted of completely blocking all six lanes of a centrally situated bridge over the Danube, Erzsébet Bridge, by parking six cars across it, with their doors locked. The demonstration started at about 8.20 a.m. The demonstrators, including the applicant, refused to comply with the police ’ s order to remove the vehicles and leave. Apart from ambulances, no vehicles could pass the blockade.
By 9.00 a.m. a crowd had gathered and the situation evolved into a massive traffic jam all over Budapest. At about 11.00 a.m. the cars were finally towed away by the police, and the traffic flow resumed at about 12 noon.
8. On 5 July 2002 the Pest Central District Court imposed a regulatory fine of 50,000 Hungarian forints (HUF) [1] on the applicant. The court held that the applicant, by not complying with the police ’ s instruction to leave the site of the demonstration, had committed the regulatory offence of disorderly conduct within the meaning of section 142 (1c) of Act no. LXIX on Regulatory Offences.
9. International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the 2002 parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian electoral system had provided the basis for a generally transparent, accountable, free, fair and equal process. [2]
10. The Hungarian media widely covered the events of 4 July 2002 and, in an official communiqué, the President of the Republic condemned the incident, declaring it illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner. [3]
11. On 2 September 2002 the Budapest XI District Police Department fined the applicant for a parking offence which consisted of his parking his car in the middle of Erzsébet Bridge on 4 July 2002, necessitating its being towed away. On appeal, on 15 May 2003 the Buda Central District Court reduced the fine to HUF 5,000 [4].
12. Criminal proceedings were subsequently instituted against the applicant and his accomplices. On 16 June 2008 he was convicted of “disturbance of public works” within the meaning of section 260(1) of the Criminal Code.
13. The Pest Central District Court dismissed the defendants ’ arguments according to which they had been exercising their freedom of assembly. Making reference to the Court ’ s judgment in the case of Bukta and Others v. Hungary (no. 25691/04, ECHR 2007 ‑ III), the court made a distinction, holding that the applicant ’ s action could not be regarded as a spontaneous and prompt response to an event (the court was satisfied that the statutory date for ballot paper destruction was 20 July 2002 as per Decree no. 48/2001 (see above paragraph 6)), nor was it lawful like in Bukta, since it had contravened the Highway Code and disturbed the functioning of “public works”. In the latter regard, the court observed that the demonstration had caused the traffic to become paralysed all over the capital for several hours and disturbed the running of 29 bus lines in respect of 642 scheduled individual bus trips, concerning approximately 23,000 passengers.
The applicant was sentenced to 30 days of community work.
14. On 26 November 2008 the Budapest Regional Court upheld this judgment. In response to the arguments of the accused on appeal, the court noted that “the message of the judgment is not that non-notified assemblies cannot be peaceful; the message is that an assembly, notified or non-notified, is not peaceful where, by its very manner, it constitutes unlawful conduct.” The court referred to section 2(3) of Act no. III of 1989 on the Right of Assembly, according to which “the exercise of the right of assembly may not constitute an offence, or instigation thereto, or violate the rights and freedoms of others”. Quoting the Court ’ s judgment in the case of Ezelin v. France (26 April 1991, Series A no. 202), the Regional Court established that “in peaceful assemblies the protection provided under Article 11 shall be ensured for the participants as long as they do not commit any reprehensible act on such an occasion”.
In sum, the court held that “it directly follows from the case law of the Constitutional Court and the European Court of Human Rights that the peaceful or non-peaceful nature of an assembly does not depend on whether a participant broke or smashed an asset or applied violence against a property. An assembly may be rendered non-peaceful by passive conduct as well. In its outward appearance the accused parties ’ conduct seemed to be peaceful; it is the causal result of their conduct, the major disturbance of road traffic, which rendered their conduct non-peaceful and thereby not protected under the law.”
15. On 3 December 2009 the Supreme Court dismissed the defendants ’ petition for review. It added to the reasoning of the lower courts that “criminal law rules cannot be excluded or restricted by invoking the right of assembly; the exercise of the right of assembly shall not be exempt from compliance with criminal law restrictions.”
This decision was served on the applicant on 18 January 2010.
16. Section 260 of the Criminal Code, as in force at the relevant time, provided:
“(1) Any person who interferes with the functioning of public works to a considerable extent by damaging their equipment, cables or interfering with them in any other way, is guilty of a felony punishable by imprisonment of up to five years.
(4) For the purposes of this section, ‘ public works ’ shall mean public utilities, public transportation operations, telecommunications networks, as well as plants producing war materials, energy or basic materials designed for industrial use.”
17. Section 1 of Act no. V of 1991 on Certain Amnesty Measures provided (see paragraph 30 below):
“In connection with the road blockades paralysing the country ’ s life from 25 to 28 October 1990, no criminal proceedings shall be instituted or conducted for ...
d) the disturbance of public works (section 260 of the Criminal Code).”
18. The relevant domestic law on freedom of assembly, in particular Article 62 of the Constitution and Act no. III of 1989, is outlined in paragraphs 19 and 20 of the judgment Éva Molnár v. Hungary (no. 10346/05, 7 October 2008).
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
19. The applicant complained that his criminal conviction in 2008-2009 amounted to an infringement of his right to freedom of expression and assembly, as provided in Articles 10 and 11 of the Convention.
The Government contested that argument.
20. The Court considers that the case falls to be examined under Article 11 alone (see Barraco v. France, no. 31684/05, § 26, 5 March 2009). This provision provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
21. The Court notes that this complaint 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.
1. Whether there was an interference with the exercise of the freedom of peaceful assembly
22. The applicant argued that his 2008-2009 conviction in relation to the demonstration on 4 July 2002 had amounted to an interference with his right to organise a peaceful demonstration and to take part in it.
23. The Government submitted that there had not been any interference with the applicant ’ s freedom of assembly, since the criminal sanction imposed on him originated in his having interfered with the operation of a critical public utility, rather than in his having exercised the right to assembly or failed to comply with the prior notification requirement. Moreover, the police had shown a considerable degree of tolerance when allowing the demonstration to continue for hours.
24. For the Court, the fact that the applicant was convicted on account of his actions during the demonstration is sufficient to conclude that there was an interference with his right to freedom of peaceful assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 101, 15 October 2015; Barraco, cited above, § 39).
2. Whether the interference was justified
25. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 of that provision and is “necessary in a democratic society” for the achievement of those aims.
26. The applicant contested that the traffic jam, undisputedly caused by the demonstration, had ipso facto deprived the demonstration of its peaceful character and rendered it unlawful. He acknowledged that the demonstration had entailed considerable inconvenience but, in his opinion, the Court ’ s case-law required tolerance in this regard, provided that the objective pursued was essentially the public and lawful manifestation of an opinion – which, in the applicant ’ s view, had been exactly the situation in the case at hand.
27. In respect of the alleged unlawfulness of this action under the domestic law, he also contended that the disruption of public transport had not been significant (an element required by the Criminal Code for the offence of “disturbance of public works”); it had lasted only for a few hours, and a major paralysis of traffic had been efficiently averted by the Budapest Public Transport Company, which had found possibilities to circumvent the blockade. In any event, the somewhat delayed reaction of the police had also contributed to the disturbance, for which he could not bear responsibility.
28. As regards the demonstration ’ s spontaneity, the applicant argued that he had reasonably inferred from the relevant law and the circulating news that the destruction of the ballot papers was to take place on 7 July 2002. Parliament ’ s decision of 2 July 2002 – refusing to put on the agenda a bill for the amendment of the 90-day statutory preservation period for the ballot papers – had prompted him to act immediately and organise the demonstration within one day ’ s time, for 4 July 2002. In his view, this constituted a spontaneous, immediate response to a political event which justified such a reaction.
In the applicant ’ s view, a spontaneous and peaceful demonstration which did not cause any significant disturbance should have been tolerated by the authorities in order to respect the freedom of assembly guaranteed by Article 11. Therefore, his criminal conviction on account of the events constituted a breach of Article 11 of the Convention.
29. The Government were of the opinion that, even assuming an interference, it had been prescribed by law, pursued a legitimate aim (namely, the protection of the rights and freedoms of others) and been necessary in a democratic society. The interference, if any, had not constituted a hidden obstacle to a peaceful, spontaneous assembly. They referred to the case of Éva Molnár (cited above, § 39), in which the Court had established that those events – which were direct consequences of the incident discussed in the present case – had not disclosed special circumstances of the kind to which the only adequate response had been an immediate demonstration. In any event, the applicant could have exercised his right to assembly in a manner which would not have violated the criminal law. However, the applicant had opted to engage in criminal conduct, the sanction for which was nevertheless very mild, by no means disproportionate.
30. The Court notes at the outset that the interference had a legal basis in national law, namely section 260(1) of the Criminal Code (this provision having already been held relevant in a similar situation, which occurred in October 1990 (see paragraphs 16 and 17 above)), and was thus “prescribed by law” with sufficient foreseeability within the meaning of Article 11 § 2 of the Convention.
31. The Court is also satisfied that the measure complained of pursued the legitimate aim of the protection of the rights and freedoms of others, with a view to preventing disorder and maintaining the orderly circulation of traffic (see Éva Molnár, cited above, § 34; Bukta, cited above, § 30; and Kudrevičius, cited above, § 140).
32. It remains thus to be determined whether the interference was “necessary in a democratic society”.
33. The right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively. As such this right covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions; in addition, it can be exercised by individuals and those organising the assembly. States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right (see Djavit An v. Turkey, no. 20652/92, §§ 56-57, ECHR 2003 ‑ III; and Kudrevičius, cited above, § 91).
34. A demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic. Nevertheless, where demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Bukta, cited above, § 37; Balçık and Others v. Turkey, no. 25/02, § 52, 29 November 2007; and Kudrevičius, cited above, § 150). In special circumstances when an immediate response to a current political event is warranted in the form of a demonstration and a delay would render that response obsolete, the right to hold spontaneous demonstrations may override the obligation to give prior notification to public assemblies and a decision to disband the ensuing, peaceful assembly without any illegal conduct by the participants may amount to a disproportionate restriction on freedom of peaceful assembly (see Bukta, cited above, § 36; Éva Molnár, cited above, §§ 36-38).
35. Nevertheless, paragraph 2 of Article 11 entitles States to impose “lawful restrictions” on the exercise of the right to freedom of assembly (see Éva Molnár, cited above, § 34). In the Court ’ s view, States are, in principle, permitted to require that associations and others organising demonstrations, as actors in the democratic process, respect the rules governing that process by complying with the regulations in force (see Oya Ataman v. Turkey, no. 74552/01, § 38, ECHR 2006 ‑ XIII). The freedom to take part in a peaceful assembly does not encompass a person ’ s choice to commit reprehensible acts on such an occasion (see, mutatis mutandis, Ezelin, cited above, § 53; and Barraco, cited above, § 44).
36. The proportionality principle thus demands that a balance be struck between the requirements of the purposes listed in paragraph 2 of Article 11 and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin, cited above, § 52; and Barraco, cited above, § 42).
(ii) Application of these principles to the present case
37. The Court recalls at the outset its findings in the case of Éva Molnár (cited above) about certain events which were closely connected to the facts of the present case. Indeed, it appears that the incident discussed in Éva Molnár was the direct continuation of the demonstration at issue in the present application.
According to those findings, the impugned situation did not disclose special circumstances of the kind to which the only adequate response was an immediate demonstration (see Éva Molnár, cited above, §§ 39-41).
38. The ballot papers were, under statute, bound for destruction on 20 July 2002 pursuant to the relevant ministerial decree. The Court notes the applicant ’ s submission about the perceived uncertainty regarding the destruction date (see paragraph 28 above); however, it finds little force in these assertions in the face of the domestic court ’ s conclusion that the law did not leave any doubt about the relevant date (see paragraph 13 above).
39. In these circumstances, the Court finds no reason to depart from its conclusion in Éva Molnár (cited above, § 39), according to which the element of spontaneity, required for dispensing with prior notification, was not present on the facts of this case. Furthermore, the interference complained of consists in the applicant ’ s conviction in relation to the events, rather than the dispersion of the assembly.
40. The domestic courts conducted a thorough examination of the consequences of the blockade erected by the applicant. They held that the assembly had developed into a massive traffic jam all over Budapest and that the magnitude of the traffic paralysis had been sufficient for them to justify the applicant ’ s conviction of the offence of disturbance of public works. It is not the function of the 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.
41. Moreover, the applicant and other protesters failed to give evidence of flexibility and readiness to cooperate with the other road users (see Barraco, cited above, § 47), in particular in that the blockade of a central thoroughfare of the Hungarian capital was complete for several hours (see paragraph 7 above). Indeed, it was rather the authorities who showed a certain degree of tolerance in the situation, in that they allowed the demonstration to continue for several hours, before dispersing it (compare and contrast, Oya Ataman, cited above, § 41).
42. Furthermore, the national courts ’ assessment was not confined to a mere, formal application of the criminal law. They also engaged in an assessment of the conviction ’ s proportionality in the light of the Court ’ s and the Constitutional Court ’ s case-law concerning freedom of assembly.
43. Consequently, the Court finds no reason to call into question the essence of the domestic courts ’ assessment of the case, according to which the applicant had caused more obstruction with the blockade than would normally arise from the exercise of the right of peaceful assembly (see Barraco, cited above, § 46; and G. v. Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989, Decisions and Reports 60, p. 256). Compared to his intention to express, by way of a demonstration, a political concern, the conduct which the applicant availed himself of was out of proportion and caused significant inconvenience to road-users. The fact that this conduct was assessed by the domestic authorities as a breach of criminal law does not reveal an unjustified interference with the applicant ’ s rights under Article 11 of the Convention, all the more so, since he was convicted not for the participation in, or organisation of, the demonstration but for the obstruction of traffic (see Barraco, cited above, § 46).
In light of the above, and balancing the public interest in the prevention of disorder against the interest of the applicant in choosing a particular form of assembly, the applicant ’ s conviction and rather lenient sentence for the criminal offence does not appear disproportionate to the aims pursued.