I incorrectly predicted that there's no violation of human rights in TÓTH v. HUNGARY.

Judgment

FOURTH SECTION

CASE OF TÓTH v. HUNGARY
(Application no. 20497/13)

JUDGMENT
STRASBOURG
26 May 2020

This judgment is final but it may be subject to editorial revision. In the case of Tóth 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 Balázs Tóth (“the applicant”), on 28 May 2013;
the decision to give notice to the Hungarian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 5 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the ban of a demonstration the applicant intended to hold. The ensuing court scrutiny removed the legal basis of the ban, but only at a time when the reason for the demonstration had already become obsolete. THE FACTS
1. The applicant was born in 1979 and lives in Budapest. He was represented by Mr D.A. Karsai, a lawyer practising in Budapest. 2. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 11 March 2013 Parliament adopted the Fourth Amendment to the Basic Law. The Amendment pertains to numerous, often controversial, issues of fundamental rights. 5. Under the law, the President of Hungary then had five days to assent to the Amendment. 6. The applicant and other individuals intended to hold a demonstration in front of the President’s residence, calling on him not to assent to the Amendment but to refer it to the Constitutional Court. The applicant informed the Budapest Police Department of his intention, in the form of a notification, on 11 March 2013. 7. The same evening, the Police Department dismissed the applicant’s notification without examining it on the merits. It pointed out that the Anti‐Terror Centre had closed down the area in question from 8 to 16 March 2013, for which reason it was no longer a public area available for demonstrations during that period. 8. On 13 March 2013 the President announced that he was to assent to the Amendment. 9. On 14 March 2013 the applicant challenged the Police Department’s decision in court. 10. On 18 March 2013 the Budapest Administrative and Labour Court quashed the Police Department’s decision. It held that the Police Department had failed to provide in its decision the precise reasons why the Anti-Terror Centre had closed down the area in question, and that it had erroneously characterised the applicant’s intended demonstration as one outside the scope of the law on peaceful demonstrations. 11. The applicant submitted that he had subsequently filed an official liability action against the Budapest Police Department. The Government submitted that on 8 April 2013 the applicant had brought a claim for damages against the Police Department, and that the claim had subsequently been dismissed on 14 May 2013. THE LAW
12. The applicant complained that the restriction on his right to freedom of assembly had not been justified, and that he had not had an effective remedy by which to challenge it. He relied on Articles 11 and 13 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that this 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 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.”
13. The Government submitted that the court ruling quashing the impugned police decision had provided adequate redress for the alleged violation of the applicant’s rights. 14. The applicant disagreed, arguing that the court action had provided no remedy for his grievance because by the time the court ruling had been given, the demonstration had become obsolete and no other form of compensation had been made available to him. 15. In so far as the Government’s argument may be understood as a preliminary objection alluding to the loss of the applicant’s victim status, the Court considers that this objection is inextricably linked to the 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 (see, mutatis mutandis, Szerdahelyi v. Hungary, no. 30385/07, § 24, 17 January 2012). 16. Regarding the applicability of Article 11 of the Convention, the Court reiterates that it only protects the right to “peaceful assembly”, a notion which does not cover a demonstration where the organisers and participants have violent intentions. The guarantees of Article 11 therefore apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 92, ECHR 2015). In the present case, there is no indication – nor has it been argued by the Government – that the applicant or other potential participants would have had violent intentions. Consequently, the Court considers that Article 11 is applicable. 17. 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. 18. The Government argued in particular that the impending enactment of the Amendment had been public knowledge for some time; consequently, the applicant could have notified the police of his intention well in advance, in which case the judicial review of the police’s decision would have taken place in good time, and the date and place of the applicant’s intended demonstration could have been adjusted accordingly. At any rate, if, as in the present case, a court decision was delivered at a time when the demonstration was no longer relevant, the decision itself represented sufficient moral satisfaction. 19. The applicant submitted that he had not been in a position to schedule the demonstration at an earlier moment in time, its aim having been precisely to react to the news of the adoption of the Amendment by Parliament and to dissuade – as a matter of urgency, within the five-day time-limit available – the President of Hungary from assenting to it. (a) General principles
20. An interference with the rights laid down in Article 11 does not need to amount to an outright ban, legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards (see Kudrevičius and Others, cited above, § 100). 21. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of the aim or aims in question (see, Kudrevičius and Others, cited above, § 102, Vyerentsov v. Ukraine, no. 20372/11, § 51, 11 April 2013). 22. The expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have a legal basis in domestic law, but also refer to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. In particular, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society. In particular, the consequences of a given action need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, while certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The role of adjudication vested in the national courts is precisely to dissipate such interpretational doubts as may remain; the Court’s power to review compliance with domestic law is thus limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kudrevičius and Others, cited above, §§ 108 to 110). 23. Furthermore, the Court reiterates that it falls, firstly, to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a “victim” of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 (extracts)). (b) Application of those principles in the present case
24. The Court notes the decision of 18 March 2013 by which the Budapest Administrative and Labour Court found for the applicant and rejected in essence the legal basis invoked by the Police Department (see paragraph 10 above). However, the Court is not convinced that this judicial remedy was capable of removing the applicant’s victim status in the circumstances. In particular, it observes that the President of Hungary had five days – that is to say, until 16 March 2013 – to assent to the Amendment of 11 March 2013 and that the area in front of the President’s residence was closed down for the entirety of this period (see paragraphs 5 and 7 above). Given the instantaneous nature of a political demonstration – the impact of which may rapidly diminish or disappear with the passage of time from the triggering event – the judicial proceedings which resulted in a decision of 18 March 2013 (that is to say, entirely outside the relevant time frame), albeit expeditious, can hardly be regarded as effective in the circumstances. Indeed, the only option left to the applicant would have been to hold an unauthorised gathering, that is, without a presumption of legality, such a presumption constituting a vital aspect of the effective and unhindered exercise of freedom of assembly and freedom of expression. Inevitably, the state of affairs complained of resulted in a chilling effect on the freedom of assembly (see, a fortiori, Bączkowski and Others v. Poland, no. 1543/06, §§ 67-68, 3 May 2007). The Court further notes that the compensatory remedy pursued by the applicant was unsuccessful (see paragraph 11 above). 25. In these circumstances, the Court is satisfied that the applicant can still claim to be a victim under Article 11 of the Convention, and the Government’s preliminary objection must fail. It considers that the dismissal by the police of the applicant’s notification of his intention to hold a demonstration effectively interfered with the exercise of his rights under Article 11 of the Convention. 26. As regards the fundamental question whether the unavailability of the area in question for the purposes of the intended demonstration was “prescribed by law”, the Court notes that the Police Department in essence argued that the fact that the Anti-Terror Centre had closed that area down for the period in question meant that it was excluded from the scope of the law on peaceful assembly (see paragraph 7 above). 27. However, on 18 March 2013 the Budapest Administrative and Labour Court quashed the impugned police decision, reproaching the Police Department for failing to provide the precise reasons for the underlying measure taken by the Anti-Terror Centre (see paragraph 10 above). 28. In the Court’s view, that court ruling effectively, if retroactively, removed the legal basis of the impugned measure (see Szerdahelyi, cited above, § 33, and Patyi v. Hungary, no. 35127/08, § 25, 17 January 2012). 29. 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 its necessity in a democratic society (see Szerdahelyi, § 35, and Patyi, § 27, both cited above). There has accordingly been a violation of Article 11 of the Convention. 30. 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.”
31. The applicant claimed 5,000 euros (EUR) in respect of non‐pecuniary damage. 32. The Government contested this claim. 33. The Court awards the applicant, on an equitable basis, EUR 2,600. 34. The applicant also claimed EUR 4,000 plus VAT for the costs and expenses incurred before the Court, corresponding to twenty hours of legal work billable at an hourly rate of EUR 200 plus VAT. 35. 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 applicant EUR 2,000 plus VAT. 36. 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,
(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 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand 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 26 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Branko LubardaDeputy RegistrarPresident