Last Updated on December 6, 2020 by LawEuro
. The applicant complained under Article 11 of the Convention that his right to freedom of assembly had been unjustifiably restricted.
FOURTH SECTION
CASE OF PÓKA v. HUNGARY
(Application no. 31573/14)
JUDGMENT
STRASBOURG
6 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Póka v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Branko Lubarda, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application against 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 László Póka (“the applicant”), on 14 April 2014;
the decision to give notice to the Hungarian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 15 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The applicant complained under Article 11 of the Convention that his right to freedom of assembly had been unjustifiably restricted.
THE FACTS
2. The applicant was born in 1969 and lives in Tököl. He was represented by Mr T. Hüttl, a lawyer practising in Budapest and acting on behalf of the Hungarian Civil Liberties Union.
3. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant planned a demonstration in order to draw attention to the plight of borrowers of foreign-currency loans.
6. On 8 October 2013 he applied to the Budapest Police Department for acquiescence in a demonstration lasting from 17 October until 1 November 2013, scheduled to be held in District II of Budapest, in the neighbourhood of the embassy of Israel, and in District XII, in the neighbourhood of the permanent residence of the Prime Minister.
7. On 10 October 2013 the Budapest Police Department dismissed the application. It observed that on 2 October 2013, closure of the District XII venue had been ordered by the Counter-Terrorism Centre in view of the impending visit of the ambassador of Israel and other protected persons. The measure was in place from 3 October until 31 December 2013. The Police Department examined the application as covering a single demonstration to be held in two locations, which was why the District II location was not examined separately. In dismissing the applicant’s case, the Police Department drew his attention to a venue adjacent to the District XII location where an assembly would have been permissible.
8. The applicant sought judicial review.
9. On 14 October 2013 the Budapest Administrative and Labour Court reviewed the entire case.
10. The court noted that the locations selected by the applicant had no symbolic significance and were part of residential zones with narrow streets. A demonstration lasting for the period intended would potentially involve crowds – meaning that tents, food stands, loudspeakers and portable toilets would need to be set up – and generate much noise. This would create a situation capable of affecting the private life of residents and would result in their inevitable “entrapment”. At this juncture, the court noted the Constitutional Court’s case-law, according to which the presence of a “captive audience” was one aspect for consideration when assessing a restriction on freedom of assembly. In the case before it, the court found – while conceding that some limited inconvenience for others could be a permissible consequence of an assembly – that the narrow streets, the density of residential buildings and the absence of an “escape route” would expose the residents to a situation prejudicial to their right to respect for private life, for a considerable period of time (sixteen days).
11. The court further stated that the applicant’s case was to be tested in relation to the necessity and the proportionality of the restriction complained of. It observed that there were a number of competing rights at stake: the applicant’s right to freedom of assembly, on the one hand; and the rights of others to respect for their private life and free movement, and an official dignitary’s right to statutory protection, on the other. In the court’s view, the latter considerations outweighed the applicant’s interest in having the demonstration at the desired locations and the event therefore had to be prohibited.
12. The applicant lodged a constitutional complaint against the decision of the Budapest Administrative and Labour Court.
13. On 9 June 2015 the Constitutional Court declared the complaint admissible.
14. The Constitutional Court gave its decision (no. 354/2019 (XII.16.) AB) on 16 December 2019. It observed that the Budapest Administrative and Labour Court had construed the rights to respect for private life and free movement, as well as an official dignitary’s right to statutory protection, as grounds for restricting the right to freedom of assembly. For the Constitutional Court, that reasoning amounted to an unlawful broadening of the scope of exhaustive reasons for the prohibition of a demonstration as contemplated in section 8(1) of the Assembly Act (see paragraph 15 below). However, because new regulations had meanwhile been enacted extending the scope of potential reasons in question, the Constitutional Court was satisfied that the applicant’s complaint had no further purpose and discontinued the case.
RELEVANT LEGAL FRAMEWORK
15. Section 8 of the Assembly Act (Act no. III of 1989) provides as follows:
“(1) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts, or the circulation of traffic cannot be secured by another route, the police may ban the holding of the event at the place or time indicated in the notification, within forty-eight hours of receipt of the notification by the authority.
(2) The decision of the police shall be communicated to the organiser in writing within 24 hours.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
16. The applicant complained that the ban on the demonstration that he had intended to hold amounted to a violation of Article 11 of the Convention, which 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.”
17. The Government submitted that the restriction had been lawful, had pursued the legitimate aims of protecting the private life and free movement of others and the statutory right of official dignitaries to protection, and had been necessary and proportionate.
18. The applicant argued that the demonstration could have been lawfully prohibited only in accordance with section 8(1) of the Assembly Act, which, however, had not been relied on by the authorities. He further argued that the “captive audience” doctrine had been irrelevant in the circumstances and that no legitimate aim had been pursued by the interference. Lastly, he disagreed with the Government’s position on necessity and proportionality.
A. Admissibility
19. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
20. The Court notes at the outset that it was not in dispute between the parties that there had been an interference with the applicant’s right to freedom of peaceful assembly – and it has no reason to hold otherwise. It remains to be ascertained whether this interference was justified under the second paragraph of Article 11. It must therefore be determined whether the measure complained of was “prescribed by law”, was prompted by one or more of the legitimate aims set out in paragraph 2, and was “necessary in a democratic society” to achieve them (see Patyi v. Hungary, no. 35127/08, § 24, 17 January 2012).
21. As regards the meaning of the expression “prescribed by law”, the Court refers to its established case-law (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 108-110, ECHR 2015). Turning to the legal basis of the interference in the present case, the Court notes that section 8(1) of the Assembly Act provides for two reasons for banning a planned demonstration: where the planned event “seriously endangers the proper functioning of the representative bodies or courts”, or where “the circulation of traffic cannot be secured by another route”.
22. However, the authorities dealing with the applicant’s case did not rely on any of these reasons. In particular, the court hearing the applicant’s complaint based its decision on the residents’ right to respect for their private life and free movement, as well as the right of official dignitaries to statutory protection.
23. The Court notes that these considerations do not figure in the exhaustive list contained in section 8(1) of the Assembly Act, for which reason the Constitutional Court reached the conclusion that the lower court had unlawfully expanded the grounds for banning a demonstration.
24. For the Court, this ruling has effectively, if retroactively, removed the legal basis of the impugned measure (see Szerdahelyi v. Hungary, no. 30385/07, § 33, 17 January 2012, and Patyi, cited above, § 25).
25. This consideration is sufficient to enable the Court to conclude that the interference was devoid of a basis in domestic law and cannot as such be regarded as “prescribed by law”. It is therefore not necessary to embark on an examination of its legitimate aim or necessity in a democratic society (see Szerdahelyi, cited above, § 35, and Patyi, § 27).
There has accordingly been a violation of Article 11 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. 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.”
A. Damage
27. The applicant claimed 2,000 euros (EUR) in respect of non-pecuniary damage.
28. The Government contested this claim.
29. The Court considers that the applicant suffered some non-pecuniary damage and awards him the full sum claimed.
B. Costs and expenses
30. The applicant also claimed EUR 302 for the costs and expenses incurred before the Court, which corresponds to his lawyer’s fees.
31. The Government did not comment on this claim.
32. 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 were 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 considers it reasonable to award the full sum claimed.
C. Default interest
33. 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 11 of the Convention;
3. Holds,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 302 (three hundred and two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Branko Lubarda
Deputy Registrar President
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