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SECOND
SECTION
CASE OF
ÉVA MOLNÁR v.
HUNGARY
(Application
no. 10346/05)
JUDGMENT
STRASBOURG
7
October 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Molnár v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Antonella
Mularoni,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
judges,
and
Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10346/05) 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, Ms Éva Molnár
(“the applicant”), on 14 February 2005.
- The
applicant was represented by Mr S. Sz. Molnár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- The
applicant alleged that the dispersal of the demonstration in which
she had participated because of a mere lack of prior notification to
the police had infringed her freedom of peaceful assembly, within the
meaning of Article 11 of the Convention.
- On
27 November 2007 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Engelskirchen, Germany.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
7 (first round) and 21 (second round) April 2002 legislative
elections took place in Hungary. The coalition which had governed the
country from 1998 and, therefore, had been in charge of organising
the elections, lost their majority.
- The
official results of the elections were established by the local and
regional electoral commissions following the second round. After the
courts had ruled on certain complaints concerning the legality and
outcome of the voting procedure, on 4 May 2002 the National Election
Committee made a public statement in the Official Gazette, according
to which the result had become final. As in previous Hungarian
elections, they were virtually identical to the results of the exit
poll carried out on the day of the second round and to the
preliminary results announced by the Committee on the evening of 21
April 2002. Nevertheless, views were subsequently voiced in certain
sections of the media that the elections had been “rigged”.
- 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 parliamentary elections had been
conducted in a manner consistent with international standards and
that the Hungarian election system had provided the basis for a
generally transparent, accountable, free, fair and equal process.
- A
period of two months elapsed during which a new government, in a
coalition of the ex-opposition parties, was formed which took up its
functions
on 27 May 2002. On the morning of Thursday, 4 July
2002 several hundred demonstrators started to protest against the
statutory destruction of the ballots, scheduled for 20 to 22 July.
They blocked the centrally located Erzsébet Bridge in Budapest
with their cars. Their objective was to force a recount of the
election votes. Since they brought the traffic to a complete
standstill and had not given prior notice of their gathering to the
police, as required by Act no. 3 of 1989 on Freedom of Assembly (“the
Assembly Act”), the demonstration was dispersed after several
hours.
- Shortly
afterwards, at around 1 p.m., more demonstrators, again without any
prior notification, assembled at Kossuth Square in front of the
Parliament building demanding a recount of the votes and expressing
their support for the participants in the morning's events at the
Erzsébet Bridge.
- According
to the applicant's submissions of 14 February 2005 and the
Government's observations, these demonstrators had been at the
Erzsébet Bridge and then relocated to Kossuth Square. However,
in her submissions of 23 December 2007, the applicant stated that
they had merely been supporters of those who had blocked the Erzsébet
Bridge.
- Having
learnt of these events from the news, the applicant joined the
demonstration at around 7 p.m. By that time, traffic and public
transport – including the circulation of trams and
trolley-buses – had become seriously disrupted in the area of
Kossuth Square. The estimated number of demonstrators ranged from
several hundred to two or three thousand. The police initially
attempted to allow the circulation of traffic to continue but
eventually had to close some streets nearby. Finally, faced with an
unmanageable situation, they broke up the demonstration at about 9
p.m. without using any force. The applicant participated in the
demonstration until it was dispersed.
- The
Hungarian media reported in detail on the events, and the affair was
the leading news in the country. In an official communiqué,
the President of the Republic condemned the events of 4 July 2002,
declaring them 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.
- The
applicant sought judicial review of the actions of the police before
the Budapest Central District Court. She asserted that the dispersal
of the demonstration had been unlawful.
- On
1 October 2003 the District Court dismissed the applicant's claim. It
established that the duty to inform the police about planned
assemblies was applicable to every type of demonstration, including
spontaneous ones. Since the applicant did not deny that the
demonstration in question had not been notified to the police, as
required by section 14 of the Assembly Act, the latter had not had
any other choice but to break it up.
- Moreover,
the court found that the duty to inform the police in advance about
assemblies held in public served the protection of the public
interest and the rights of others, namely the prevention of disorder
and the undisturbed circulation of traffic. Therefore, it concluded
that the measures taken by the police had been in compliance with the
law.
- The
applicant appealed. On 13 July 2004 the Budapest Regional Court
upheld the first-instance decision. Its judgment was served on the
applicant's lawyer on 31 August 2004.
B. Relevant domestic law
1. The Constitution of the Republic of Hungary
- The
Constitution of the Republic of Hungary (Act no. 20 of 1949 as
amended) provides, in so far as relevant, as follows:
Article 62
“The Republic of Hungary acknowledges the right to
peaceful assembly and secures its free exercise.”
2. Act no. 3 of 1989 on Freedom of Assembly
- The
relevant provisions of Act no. 3 of 1989 on Freedom of Assembly (“the
Assembly Act”) read as follows:
Section 2
“(3) The exercise of freedom of assembly shall not
constitute a crime or an incitement to crime; moreover, it should not
result in the infringement of the rights and freedoms of others.”
Section 6
“The organisation of an event held in the public
domain shall be notified to the competent police headquarters
according to the place of the event, and in Budapest to the Budapest
Police Headquarters, three days prior to the planned date of the
event. The obligation to notify the police lies with the organiser of
the event.”
Section 8 (as in force at the relevant time)
“(1) If the holding of an event subject to prior
notification seriously endangers the proper functioning of the
representative bodies or courts, or results in a disproportionate
hindrance of the circulation of traffic, the police may ban the
holding of the event at the place or time indicated in the
notification, within 48 hours from the receipt of the notification by
the authority.”
Section 9
“(1) No appeal shall lie against the decision of
the police, but the organiser may seek judicial review of the
administrative decision within three days of its notification.”
Section 14 (as in force at the relevant time)
“(1) The police shall disperse the event if the
exercise of the right to freedom of assembly contravenes subparagraph
3 of section 2 or if the participants appear at the event ... in
possession of arms, or if an event subject to prior notification is
held without notification, ... or despite a decision banning the
event. ...
(3) If an event is dispersed, the participants may seek
judicial review within fifteen days with a view to the establishment
of the illegality of the dispersal.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicant complained that the police had dispersed the peaceful
demonstration in which she had participated because of the mere
absence of prior notification, in breach of Article 11 of the
Convention, which reads, in so far as relevant:
“1. Everyone has the right to freedom
of peaceful assembly ...
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 ... for the prevention of
disorder or crime ... or for the protection of the rights and
freedoms of others. ...”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there was an interference with the exercise of freedom
of peaceful assembly
- The
Government did not dispute that the applicant could rely on the
guarantees contained in Article 11; nor did they deny that the
dispersal of the demonstration had interfered with the exercise of
the applicant's rights under that provision. The Court sees no reason
to hold otherwise. The Government contended, however, that the
interference was justified under the second paragraph of Article 11.
2. Whether the interference was justified
- It
must therefore be determined whether the measure complained of was
“prescribed by law”, prompted by one or more of the
legitimate aims set out in paragraph 2, and was “necessary in a
democratic society” to achieve them.
a. Prescribed by law
- There
was no dispute between the parties that the restriction imposed on
the applicant's freedom of peaceful assembly was based on section 14
of the Assembly Act, the wording of which is clear. Therefore, the
requirement of lawfulness was satisfied.
b. Legitimate aim
- The
Government submitted that the restrictions on the right of peaceful
assembly on public premises served to protect the rights of others,
for example the right to freedom of movement or the orderly
circulation of traffic.
- They
further submitted that freedom of peaceful assembly could not be
reduced to a mere duty on the part of the State not to interfere. On
certain occasions, positive measures had to be taken in order to
ensure that an assembly was peaceful. The three-day time-limit was
therefore necessary to enable the police, inter alia, to
co-ordinate with other authorities, to redeploy police forces, to
organise the fire brigades and to clear vehicles. They drew attention
to the fact that, if more than one organisation notified the
authorities of their intention to hold a demonstration at the same
place and time, additional negotiations might be necessary.
- The
applicant did not address this issue.
- In
the light of these considerations, the Court is satisfied that the
measure complained of pursued the legitimate aims of preventing
disorder and protecting the rights of others.
c. Necessary in a democratic society
(i) The arguments of the parties
- The
Government submitted that the present application was distinguishable
from the case of Bukta and Others v. Hungary (no. 25691/04,
ECHR 2007–...). In the present circumstances, the demonstration
could not be considered to have been spontaneous, irrespective of
what the participants' real aim was, whether to demand a recount of
the votes or to express solidarity with the participants in the
morning's events at Erzsébet Bridge. Since those aims could
have been fulfilled through a properly notified demonstration, the
afternoon demonstration at Kossuth Square – which in their view
was the continuation of the Erzsébet Bridge demonstration –
could not be classified as an immediate response to a political
event.
- The
Government also submitted that the doctrine of “immediate
response” was not unconditionally applicable to all spontaneous
demonstrations. In the circumstances of the present case, the
dispersal of an unlawful event – the demonstration at the
Erzsébet Bridge – had been followed by an unnotified
demonstration, which was claimed by those participating in it to have
been “spontaneous”. The Government argued that the
acceptance of this argument would lead to the unacceptable result of
simply circumventing the statutory requirement of prior notification.
They also pointed out that the impugned events had resulted in
serious disturbance to the city's traffic.
- Lastly,
the Government underlined that the prior notification scheme was not
an instrument for arbitrary use by the public authorities but a tool
for the fulfilment of the positive obligations of the State, namely
the protection of the rights of others, in particular the right to
free movement.
- The
applicant contested these views and underlined that the only reason
why the spontaneous demonstration had been dispersed had been the
lack of prior notification. Moreover, she submitted that the
demonstration had caused only minor disturbance to the traffic,
especially by the time of its dispersal.
(ii) The Court's assessment
- The
Court observes that paragraph 2 of Article 11 entitles States to
impose “lawful restrictions” on the exercise of the right
to freedom of assembly. The Court notes that restrictions on freedom
of peaceful assembly in public places may serve the protection of the
rights of others with a view to preventing disorder and maintaining
the orderly circulation of traffic.
- The
Court reiterates that a prior notification requirement would not
normally encroach upon the essence of that right. It is not contrary
to the spirit of Article 11 if, for reasons of public order and
national security, a priori, a High Contracting Party requires
that the holding of meetings be subject to authorisation (see
Nurettin Aldemir and Others v. Turkey, nos. 32124/02,
32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02
(joined), § 42, 18 December 2007).
- However,
in special circumstances when an immediate response might be
justified, for example in relation to a political event, in the form
of a spontaneous demonstration, to disperse the ensuing demonstration
solely because of the absence of the requisite prior notice, without
any illegal conduct by the participants, may amount to a
disproportionate restriction on freedom of peaceful assembly (see
Bukta and Others, cited above, §§ 35 and 36). 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 Nurettin Aldemir and Others, cited above, §
46).
- Nevertheless,
in the Court's view, the principle established in the case of Bukta
and Others cannot be extended to the point that the absence of
prior notification can never be a legitimate basis for crowd
dispersal. Prior notification serves not only the aim of reconciling,
on the one hand, the right to assembly and, on the other hand, the
rights and lawful interests (including the right of movement) of
others, but also the prevention of disorder or crime. In order to
balance these conflicting interests, the institution of preliminary
administrative procedures is common practice in Member States when a
public demonstration is to be organised. In the Court's view, such
requirements do not, as such, run counter to the principles embodied
in Article 11 of the Convention, as long as they do not represent a
hidden obstacle to the freedom of peaceful assembly protected by the
Convention (see Balçık and Others v. Turkey,
no. 25/02, § 49, 29 November 2007).
- The
Court therefore considers that the right to hold spontaneous
demonstrations may override the obligation to give prior notification
to public assemblies only in special circumstances, namely if an
immediate response to a current event is warranted in the form of a
demonstration. In particular, such derogation from the general rule
may be justified if a delay would have rendered that response
obsolete.
- However,
in the Court's view, the facts of the instant case do not disclose
such special circumstances to which the only adequate response was an
immediate demonstration. It is to be observed in this connection that
the official results of the elections had been made public on 4 May
2002, two months before the impugned demonstration, and that the
outcome of those elections had been objectively established.
To the extent that the demonstrators' aim was to express solidarity
with the protestors at the Erzsébet Bridge, the Court is not
persuaded that this matter would have become obsolete had the
demonstrators respected the notification rule.
- Moreover,
the Court observes that, at the material time, no authorisation was
required in Hungary for the holding of public demonstrations;
however, the notification of the police was required seventy-two
hours prior to the event. If the police decided to ban a
demonstration, the organisers could seek judicial review within three
days. Therefore, the Court is satisfied that there were procedural
safeguards in place preventing unreasonable restrictions on freedom
of assembly.
- Furthermore,
the Court observes that the impugned events originated in an illegal
demonstration (see paragraphs 10 and 14 above) blocking a main bridge
in central Budapest. Irrespective of whether the subsequent
demonstration at Kossuth Square included partly or entirely the same
participants, the declared objective of this latter gathering, in
which the applicant participated, was to support those who had
illegally demonstrated at the Erzsébet Bridge. The essentially
disorderly character of this combination of events is therefore so
manifest that the decision of the police to disband the gathering
cannot be said to be at variance with the object and purpose of
Article 11 of the Convention. The Court reiterates that those
organising and participating in demonstrations, as actors in the
democratic process, should respect the rules governing that process
by complying with the regulations in force (see Balçık
and Others, cited above, § 49).
- The
Court also emphasises that one of the aims of freedom of assembly is
to secure a forum for public debate and the open expression of
protest. The protection of the expression of personal opinions,
secured by Article 10, is one of the objectives of the freedom of
peaceful assembly enshrined in Article 11 (see Ezelin v. France,
26 April 1991, § 37, Series A no. 202). It
observes in this connection that the demonstrators gathered at
Kossuth Square at about 1 p.m. and the applicant joined them at about
7 p.m. However, the police did not break up the demonstration
until about 9 p.m., with the result that the demonstrators had
had several hours at their disposal to manifest their views.
- In
these circumstances, the Court considers that the applicant had a
sufficiently long time to show solidarity with her co-demonstrators.
Thus it finds that the ultimate interference with the applicant's
freedom of assembly does not appear to have been unreasonable (see,
mutatis mutandis,
Cisse v. France, no. 51346/99, § 52, ECHR
2002 III). It is satisfied that the police showed the necessary
tolerance towards the demonstration, although they had had no prior
knowledge of the event (see, by contrast, Balçık and
Others, cited above, § 51), which, in the Court's view,
inevitably disrupted the circulation of the traffic and caused a
certain disturbance to public order (see Çiloğlu and
Others v. Turkey, no. 73333/01, § 51, 6 March 2007). In this
respect, the instant case is different from others where the
dispersal was quite prompt (see Bukta and Others, cited above,
§ 10; Oya Ataman v. Turkey, no. 74552/01, §§ 41-42,
ECHR 2006 XIV; Balçık and Others, cited
above, § 51).
- As
regards the potential chilling effect on the organisation of
spontaneous demonstrations, the Court is satisfied that the
demonstrators were able to exercise, for several hours, their right
to peaceful assembly as guaranteed by the Convention (see
Bączkowski and Others v. Poland, no. 1543/06,
§ 67, ECHR 2007 ...).
- Having
regard to the foregoing considerations, the Court finds that the
dispersal of the applicant's demonstration was necessary in a
democratic society and cannot be regarded as having been a
disproportionate measure in order to achieve the legitimate aims
pursued.
- Accordingly,
there has been no violation of Article 11 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 11 of the Convention.
Done in English, and notified in writing on 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
