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

Judgment

FOURTH SECTION

CASE OF SCHEIRING AND SZABÓ v. HUNGARY
(Application no. 609/14)

JUDGMENT
STRASBOURG
3 December 2019

This judgment is final but it may be subject to editorial revision. In the case of Scheiring and Szabó 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 Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 12 November 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 609/14) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Mr Gábor Scheiring and Ms Rebeka Katalin Szabó (“the applicants”), on 20 December 2013. 2. The applicants were represented by Mr D.A. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. On 4 January 2018 notice of the complaint under Article 10 of the Convention, concerning the decision to fine the applicants for their conduct in Parliament, was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
4. The applicants, Mr Gábor Scheiring and Ms Rebeka Katalin Szabó, were born in 1981 and 1977 respectively and live in Budapest. 5. At the material time the applicants were independent members of parliament. 6. At a plenary session of 9 December 2013, during the adoption of a decision on the agenda of the parliamentary session, the applicants carried a large banner into the centre of the Chamber and exhibited it there, displaying the words: “Who do you protect? Stop lying about the NAV case [a whistleblowing scandal concerning a large-scale tax fraud and corruption in government circles].”
7. The Speaker warned the applicants to terminate their conduct by repeatedly ringing the bell and calling for order. Several members of parliament were shouting out comments about the applicants’ conduct. 8. Since the applicants continued to display the banner, the Speaker informed them that he would propose, under section 49(4) of the Parliament Act (see paragraph 11 below), to impose similar sanctions on them to ones imposed in previous cases for comparable disruptions. 9. The applicants then moved the banner to the gallery of the Chamber and displayed it above the seats of the officers of the House, while a member of an opposition party was in the process of making an interpellation. The banner remained displayed in the gallery until it was removed by the ushers. 10. On 12 December 2013 the Speaker submitted a proposal to fine Mr Scheiring 50,000 Hungarian forints ((HUF) – equivalent to 170 euros (EUR)) and Ms Szabó HUF 131,000 (equivalent to EUR 440) for their conduct, which had been recorded in the minutes and was considered to be seriously offensive to parliamentary order, in application of section 49(4) of the Parliament Act. The proposal stated that Ms Szabó had to be subjected to an increased fine as she had previously been sanctioned for similar seriously disruptive conduct. The plenary adopted the proposal on 16 December 2013 without debate. 11. A detailed account of the domestic law provisions and practice is contained in Karácsony and Others v. Hungary ([GC], nos. 42461/13 and 44357/13, §§ 24-41, 17 May 2016). THE LAW
12. The applicants complained, under Articles 10 and 13 of the Convention, about the decision to fine them for displaying their banners during the parliamentary session. The Court, master of the characterisation to be given in law to the facts of the case (see, among many authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine these complaints from the standpoint of Article 10 of the Convention alone (see Karácsony and Others, cited above, § 174). This provision reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
13. 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. (a) The applicants
14. The applicants agreed that the interference had formally been based on the Parliament Act, but considered the definition of the disciplinary offence set out in section 49(4) of the Act to be vague and its application in practice unforeseeable. 15. The applicants submitted that the use of symbolic speech (in the form of displayed banners) had been the only way in which they could express their disagreement with the Government’s actions in a visible manner. They maintained that the decision to fine them had not served a legitimate aim and had, in any event, failed to meet the requirement of necessity in a democratic society. Moreover, they argued that the disciplinary proceedings had been controlled by the governing coalition and had not been accompanied by procedural safeguards. (b) The Government
16. Relying on the Grand Chamber findings in the case of Karácsony and Others (cited above, §§ 122-129), the Government submitted that the interference had been “prescribed by law” and had pursued legitimate aims. 17. The Government argued that the sanctions imposed on the applicants had not been disproportionate. In the Government’s opinion, the applicants had knowingly used a certain form of expression in violation of the Rules of Parliament which had amounted to an abuse of the right of freedom of expression. As regards the procedural guarantees, the Government submitted that the decision to impose the fines had been sufficiently reasoned and had been adopted by the parliamentary plenum. Moreover, the applicants could have challenged the measures proposed by the Speaker before several forums, such as the plenary Parliament, the House Committee or the committee responsible for the interpretation of the Rules of Parliament. 18. The Court notes that the applicants were subjected to a fine as a sanction for disrupting order in Parliament by displaying a large banner in the course both of Parliament adopting a proposal on its agenda and of an ongoing interpellation (see paragraphs 6-9 above). It further notes that at the material time the domestic legislation did not provide for any possibility in which members of parliament affected by an ex post facto disciplinary sanction could be involved in the relevant procedure, notably by being heard. The procedure in the applicants’ case consisted of a written proposal of the Speaker to impose fines and its subsequent adoption by the plenary without debate (see paragraph 10 above). Moreover, the Court notes that the decision of 16 December 2013 (ibid.) did not contain any reasons explaining why the applicants’ conduct had been considered seriously offensive to parliamentary order. 19. The Court observes that virtually identical circumstances gave rise to a violation of Article 10 of the Convention in the case of Karácsony and Others (cited above, §§ 120-162). Having examined the parties’ arguments and the materials submitted in the present case, the Court sees no reason to hold otherwise. It concludes that the impugned interference with the applicants’ right of freedom of expression was not “necessary in a democratic society” because it was not accompanied by adequate procedural safeguards. There has therefore been a violation of Article 10 of the Convention on this account. 20. 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.”
21. The applicants claimed EUR 5,000 each in respect of non-pecuniary damage. 22. The Government contested the claims. 23. Having regard to the particular circumstances of the present case, the Court considers that the finding of a violation of Article 10 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see Karácsony and Others, cited above, § 181). 24. As the applicants did not make a claim in respect of pecuniary damage, the Court is not called upon to make any award under that head. 25. The applicants claimed, jointly, reimbursement of the legal fees incurred before the Court in the amount of EUR 4,318, representing seventeen hours of legal work at an hourly rate of EUR 200 plus 27% value added tax, comprising four hours to study the file, three hours to study the Court’s case-law and ten hours spent on preparing the application and drafting submissions. They indicated that they would only be billed if the case was decided in their favour. 26. Having regard to all materials in the case file, the Court considers it reasonable to jointly award the applicants EUR 2,000 for the costs and expenses incurred before the Court, plus any tax that may be chargeable to them. 27. 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 applicants jointly, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, 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 amount 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 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea Tamietti Branko LubardaDeputy RegistrarPresident