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SECOND
SECTION
CASE OF PATYI v. HUNGARY (No. 2)
(Application
no. 35127/08)
JUDGMENT
STRASBOURG
17
January 2012
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 Patyi v. Hungary
(no. 2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi,
Paulo
Pinto de Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35127/08) 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 a Hungarian national, Mr István Patyi
(“the applicant”), on 24 July 2008.
- The
applicant was represented by Mr I. Barbalics, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
- The
applicant complained about the frustration of his right to peaceful
assembly.
- On
15 February 2011 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Budapest.
- The
applicant intended to organise demonstrations in order to call
attention to the situation of those having sustained damage
originating in a major bankruptcy case which had attracted
considerable media attention in Hungary. On 5 February 2007 he
applied to the Budapest Police Department for acquiescence in a
demonstration on 10 March 2007 and in another one, of ongoing nature,
from 10 March until 31 October 2007, both scheduled in Kossuth
Square, in front of Parliament.
- On
7 February 2007 the Budapest Police Department refused to deal with
either of the applications. It observed that on 23 October 2006 the
area in question had been declared by the Police Department itself a
“security operational zone” (biztonsági
műveleti terület) in view of the tumultuous events in
Budapest in September 2006. Consequently, the measure – which
was, after a prolongation, in place for an indefinite period of time
– remained as such outside the Police Department’s
competence as regards the prohibition of, or acquiescence in, a
demonstration.
- On
5 March 2007 the National Police Commander upheld this decision.
- On
14 January 2008 the Budapest Regional Court dismissed the applicant’s
request for judicial review, endorsing in essence the police
authorities’ reasoning. This decision was served on 26 January
2008.
- In
another case concerning the same area, on 29 January 2007 a Mr K.
challenged the police’s very decision to declare Kossuth Square
a “security operational zone”. On 14 March 2007 the
Budapest Police Commander rejected his complaint, but this decision
was quashed by the National Commander on 16 April 2007. In the
resumed administrative proceedings, on 22 June 2007 the Budapest
Commander again rejected the complaint. On 19 July 2007 the National
Commander upheld this decision. Mr K. challenged this ruling in
court.
- Mr
K.’s action was dismissed by the Budapest Regional Court.
However, on appeal the Supreme Court quashed this decision, together
with the one of 19 July 2007.
- In
the resumed second-instance administrative proceedings, on
23 December 2009 the National Commander again upheld the
Budapest Commander’s decision. Mr K. requested judicial review.
- On
11 November 2010 the Regional Court quashed, in judgment
no. 27.K.31.354/2010/9., both the first- and the second-instance
administrative decisions and remitted the case to the Budapest
Commander. The court pointed out that the impugned decisions did not
contain any concrete elements establishing the necessity and
proportionality of maintaining the “security operational zone”
after the prolongation of 22 November 2006. Nor did they address
the plaintiff’s suggestion that the mere fencing-off of
Parliament’s immediate vicinity – rather than the global
ban on Kossuth Square – would have been sufficient in the
circumstances.
- In
the resumed first-instance administrative proceedings, on
4 April 2011 the Budapest Commander partly sustained Mr
K.’s complaint, noting that, in the absence of evidence to the
contrary, the proportionality of the impugned measure had
successfully been challenged.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government submitted that the applicant should have challenged in
court the original police decision declaring Kossuth Square an
“operational zone” (see also paragraph 19 below). The
applicant argued that he had exhausted domestic remedies by filing a
request for the judicial review of the police’s non-competence
decision.
- The
Court considers that the Government’s objection concerning
non-exhaustion of domestic remedies is inextricably linked to
examination of the question whether there has been an interference
with the applicant’s right to freedom of assembly under Article
11, and therefore to the merits of the case. Accordingly, the Court
joins this question to the merits and will examine it under Article
11 of the Convention.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
applicant complained that the police measure in question had
prevented him from exercising his right to peaceful assembly. He
relied on Articles 6, 9, 10, 11, 13, 14 and 17 of the Convention. The
Court considers that the complaint falls to be examined under Article
11 of the Convention alone, which reads as follows:
“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 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. ...”
- The
Government contested this view. They noted that, in the applicant’s
view, it was the police decision on non-competence that violated his
right to freedom of assembly. However, the interference in fact
resulted from the original police measure declaring the area in
question a “security operational zone”. Against such a
measure, a distinct complaint might be filed with the police body in
charge, and the latter’s decision could be appealed before the
superior organ. The resulting administrative ruling was susceptible
to judicial review, an effective remedy in the circumstances.
However, the applicant had not pursued this avenue; instead, he had
filed appeals against, and sought judicial review of, the police
order on non competence. In other words, he had been challenging
the wrong decision. In respect of the area closure itself, successful
proceedings, including judicial review, had already been completed
(case no. 27.K.31.354/2010/9.); and the applicant could have
availed himself of the same, failing which he had not exhausted
domestic remedies.
- As
to the merits, the Government pointed out that the venue of the
intended assembly had not qualified at the material time as public
area accessible to everyone and therefore the right to freedom of
assembly could not be exercised on it.
- The
applicant argued that, to exhaust domestic remedies, he could
reasonably be expected to challenge the police’s non-competence
decision in court, but do no more. The non-availability of Kossuth
Square for the purposes of the intended demonstration had been an
unlawful and disproportionate measure.
- The
Court observes that the Government did not dispute that the applicant
could rely on the guarantees contained in Article 11. It considers
that the non-acquiescence by the police in the demonstration
effectively interfered with the exercise of the applicant’s
rights under that provision, as the individualised application of the
original police decision referred to by the Government (see paragraph
19 above). It is further satisfied that the applicant has exhausted
the remedy available in this connection.
- The
Government moreover based their preliminary objection of
non-exhaustion of domestic remedies on the fact that the applicant
had not filed another motion, against the original police decision,
but been contented with challenging the decision on non-competence.
However, the Court is not convinced that the proceedings which were
pursued by Mr K. but not by the applicant can be considered in the
circumstances an effective remedy whose omission falls foul of
Article 35 § 1 of the Convention. Given the instantaneous nature
of a political demonstration – the impact of which may rapidly
diminish with the lapse of time from the triggering event – a
judicial procedure, which included several remittals and decisions
maintaining the ban and which produced at last a decision to the
contrary only after more than four years, can hardly be regarded as
effective or adequate and must be attributed a chilling effect on the
freedom in question (see, a fortiori, Bączkowski and
Others v. Poland, no. 1543/06, §§ 67 to 73, 3 May
2007). For the Court, the applicant’s omission to pursue this
legal avenue in addition to the one utilised cannot be held against
him, all the more so, since there appears to be no obstacle to the
authorities’ assessing proportionality also in those
proceedings, of which the applicant availed himself. The Government’s
preliminary objection must therefore fail.
- The
Government contended that the interference was justified under the
second paragraph of Article 11. 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.
- As
regards the question whether the non-availability of Kossuth Square
for the purposes of the intended demonstration was “prescribed
by law”, the Court notes that the police declared it a
“security operational zone” in 2006, and it remained so
throughout the material period. However, on 11 November 2010 the
Budapest Regional Court quashed the underlying police decisions,
reproaching those authorities for failing to assess the necessity and
proportionality of the measure as maintained subsequent to
22 November 2006. Consequently, on 4 April 2011 the Budapest
Commander carried out the requisite scrutiny and found that the
proportionality of the measure had not been proved (see paragraphs
13-14 above). For the Court, these court rulings have effectively, if
retroactively, removed the legal basis of the impugned measure.
- It
is true that the above two decisions were adopted in a procedure
initiated by Mr K. rather than the applicant. For the Court, however,
this is immaterial when it comes to the notion of lawfulness in the
context of Article 11 § 2.
- The foregoing considerations are sufficient to enable
the Court to conclude that the ban on Kossuth Square at the material
time 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.
There
has accordingly been a violation of Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non pecuniary damage and awards him, on the basis of equity, EUR
2,400.
B. Costs and expenses
- The
applicant also claimed EUR 1,800 plus 25% VAT for the costs and
expenses incurred before the Court. This amount corresponds to
20 hours of legal work billable by his lawyer at an hourly rate
of EUR 90 plus VAT.
- The
Government contested this claim.
- 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
considers it reasonable to award EUR 1,500 under this head.
C. Default interest
- 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
- Joins to the merits the Government’s
objection concerning non exhaustion of domestic remedies and
dismisses it;
- Declares the application admissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
2,400 (two thousand four hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
