FOURTH SECTION
CASE OF MÁNDLI AND OTHERS v. HUNGARY
(Application no. 63164/16)
JUDGMENT
Art 10 • Freedom of expression • Lack of adequate safeguards for suspending journalists’ accreditation to enter Parliament on account of interviews and video recordings with MPs outside designated areas • Allegedly disruptive conduct occurring outside plenary sessions or other political discussions within Parliament • Parliaments entitled to some degree of deference in regulating conduct in Parliament • Impugned sanction supported by relevant reasons • Procedural safeguards to be adapted to parliamentary context, in absence of any external control over a sanction imposed by organs of Parliament • Lack of domestic assessment of the potential impact of the sanction or the relevance of the journalistic activity giving reason for it • Lack of possibility to be involved in decision-making procedure or to challenge the sanction • Duration of the sanction not specified either in domestic law or in the impugned decision
STRASBOURG
26 May 2020
FINAL
12/10/2020
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Mándli and Others v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Jon Fridrik Kjølbro, President,
Faris Vehabović,
Iulia Antoanella Motoc,
Carlo Ranzoni,
Georges Ravarani,
Jolien Schukking,
Péter Paczolay, judges,
and Andrea Tamietti, 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 six Hungarian nationals, (“the applicants”) whose names appear in the appendix, on 26 October 2016;
the decision to give notice of the application to the Hungarian Government (“the Government”);
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by Civil Liberties Union for Europe and, jointly, by Media Legal Defence Initiative, Helsinki Foundation for Human Rights, OSSIGENO per l’informazione, Media Development Center and Mass Media Defence Centre, who were granted leave to intervene by the President of the Section;
Having deliberated in private on 5 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the suspension of the applicant journalists’ accreditation to Parliament for having conducted interviews and video recordings with members of Parliament outside the designated areas. The applicants complain about a violation of Articles 6, 10, and 13 of the Convention.
THE FACTS
1. The details of the applicants are set out in the appendix. The applicants were represented by Mr T. Hüttl, a lawyer practising in Budapest.
2. The Government were represented by their Agent at the Ministry of Justice, Mr Z. Tallódi.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the material time the applicants were journalists at different online news outlets, including index.hu, 24.hu, nol.hu and hvg.hu.
5. They received accreditation from the press office of Parliament to report on the plenary session of 25 April 2016. Their registration was confirmed via an email from the press office, which also included a notice of the rules governing the reporting of events within Parliament and a disclaimer stipulating that by entering the Parliament building, the applicants would automatically be deemed to have agreed to respect those rules. The rules were also available on the Parliament website.
6. On 25 April 2016 the applicants intended to conduct and record interviews with members of parliament (hereinafter “MPs”) from the governing coalition, including the Speaker of Parliament (hereinafter “the Speaker”) and the Prime Minister, on a current political issue, namely alleged illicit payments related to the Hungarian National Bank. The applicants addressed their questions to the MPs without prior notification and in the part of the Parliament building not designated for recording, the Cupola Hall and the Southern lounge. Many of the parliamentarians declined to answer. The applicants were warned by the Prime Minister’s press officer and staff members of the Offices of Parliament that they were not filming in a permitted manner or in the designated areas.
7. The recordings were subsequently published on the different online news outlets.
8. On 26 April 2016 the Speaker, pursuant to his powers under section 54(6) of the Parliament Act (see paragraph 12 below), suspended the applicants’ accreditation and informed the editors-in-chief of the relevant media outlets of this decision by letter. The letters stated:
“Despite repeated warnings from the press office [the journalist] continued the recordings and did not leave the Southern lounge and the Cupola Hall. As a result of recording without permission and the open and deliberate breach of the rules, the Speaker suspended the journalist’s right of entry as of 26 April 2016. In order to maintain the accreditation of your media outlet, I request that you respect the parliamentary press regulations.”
9. On 1 May 2016 the applicants requested that the Speaker grant them access to the session of 6 June 2016, when Parliament was due to discuss the sixth amendment of the Fundamental Law of Hungary (“the Fundamental Law”). The applicants did not receive a reply to their request.
10. On 12 September 2016 the Speaker withdrew his decision of 26 April 2016 and informed the applicants that they could enter the Parliament building.
RELEVANT LEGAL FRAMEWORKFundamental Law
11. The relevant provisions of the Fundamental Law read as follows:
Article T)
“(1) Generally binding rules of conduct may be laid down in the Fundamental Law or in laws, adopted by an organ having legislative competence and specified in the Fundamental Law, which are promulgated in the official gazette. A cardinal Act may lay down different rules for the promulgation of local government decrees and of laws adopted during a special legal order.
(2) Laws shall be Acts, government decrees, prime ministerial decrees, ministerial decrees, decrees of the Governor of the Hungarian National Bank, decrees of the heads of independent regulatory organs and local government decrees. In addition, decrees of the National Defence Council adopted during a state of national crisis and decrees of the President of the Republic adopted during a state of emergency shall also be laws.
...”
Freedom and responsibility
Article I
“...
(3) The rules for fundamental rights and obligations shall be laid down in an Act. A fundamental right may only be restricted to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of that fundamental right.
...”The Parliament Act
12. The relevant parts of the Parliament Act no. XXXVI of 2012 (“the Parliament Act”) provided, as in force at the material time, as follows:
Section 54
“(1) Entry to the House of Parliament, the Offices of the National Assembly and the buildings housing the Offices of the National Assembly shall be authorised by the Speaker. The Speaker may delegate this authority to another person.
(2) The Speaker shall determine and publish on the website of the National Assembly the arrangements for entry and access to the buildings specified in subsection (1), detailed rules concerning the relevant tasks of the Parliamentary Guard Service, and rules governing delegation of the authority to authorise entry to another person. The Speaker shall not issue a Speaker’s Order that would exclude the publicity of sessions of the National Assembly or prevent the conditions for free dissemination of information necessary for the formation of democratic public opinion.
(3) Persons entering and accessing the buildings specified in subsection (1) shall, by entering, acknowledge the Speaker’s Order specified in subsection (2) and comply with it.
...
(6) If persons entering and accessing the buildings specified in subsection (1) fail to comply with their obligations under subsection (3), entry may be denied or they may be escorted out of the buildings. Based on the Speaker’s decision, the entry of such persons to the buildings specified in subsection (1) may be denied.
...
(8) The Speaker may, in the interests of performing his or her duties specified in section 2(2)(a) to (d) or – at the request of the Parliamentary Guard – for reasons of national security, decide on an ad hoc basis to derogate from the provisions governing the arrangements for entry specified in subsection (2).”The Speaker’s Order No. 9/2013
13. The relevant parts of Speaker’s Order No. 9/2013 on entry and access to the House of Parliament, the Offices of Parliament and the buildings housing the Offices of Parliament, and on detailed rules of the tasks of the Parliamentary Guard Service (hereinafter “the Speaker’s Order”) read, as in force at the material time, as follows:
Section 1
The scope of the Speaker’s Order
“The material scope of this Order covers certain rules governing entry, exit, access, movement and conduct in the House of Parliament (Kossuth Square underground garage), the Offices of the National Assembly and the buildings housing the Offices of the National Assembly ... as well as the entry control system. The personal scope covers persons who may enter the House of Parliament (Kossuth Square underground garage), the Offices [of the National Assembly] or the building on Balassi Street in possession of one of the documents specified in section 3 or who may enter under section 5 without a certificate or entry card.”
Section 3
Entry documents
“...
(7) Press pass
a) Permanent press pass
A card granted to special correspondents specified by the press office, regularly reporting on parliamentary events...
b) Daily press pass
A card allowing journalists accredited in Hungary or in a foreign country to enter the building following prior registration with the press office,
...”
Section 4
Requesting and issuing certificates and press passes allowing entry
“...
(7) The press pass specified in section 3(7)(a) may be issued to staff members of news agencies and editorial offices registered (accredited) by the press office. Passes shall be granted by the press office at the Administration Bureau.
(8) Requests for the daily press pass specified in section 3(7)(b) shall be decided by the press officer or a staff member of the press office assigned by [him or her]; requests (entitlements) shall be recorded in an electronic system by a person assigned this task by the press officer.
...”
Section 7
Accessing the Chamber Hall, the corridor surrounding the Chamber Hall, the balcony boxes and gallery, committee meetings, as well as parliamentary publicity
“...
(3) (a) Public service media reporters shall have access to box II of the first floor gallery of the Chamber Hall, whereas persons in possession of a press pass specified in section 3(7) shall have access to box X of the first floor gallery of the Chamber Hall.
...
(4) The Chamber Guard Service is entitled to check the right of access of persons in the boxes and gallery and shall ask persons without such permission to leave the premises. In the event of refusal to leave, the Chamber Guard Service shall notify the Parliamentary Guard Service.
...
(11) During plenary sessions in the corridor surrounding the Chamber Hall, only persons in possession of a certificate or press pass specified in section 3(1)-(7) and (9)-(10) shall have access, or those whose access is justified by the agenda of the session and who have been granted permission by the Speaker or the senior official of the office in charge of preparing the meeting.
(12) Where a closed session is held by the National Assembly, only participants and parliamentary officials attending the session shall have access to the boxes, gallery and corridor surrounding the Chamber Hall. All other persons shall leave the Chamber Hall, surrounding corridor and gallery.
(13) Where secret voting is held, only Members of Parliament and parliamentary officials in attendance shall have access to the Danube-side corridor of the Chamber Hall. The right of access shall be checked by the Chamber Guard Service.
...”
Section 8
Parliamentary reporting
“(1) Parliamentary reporting on National Assembly plenary sessions, related events and committee meetings.
(a) While reporting on plenary sessions:
- filming shall be prohibited in the Chamber Hall and the corridor surrounding the Chamber Hall, unless by an Office staff member assigned to this task;
- during sessions broadcasters may record or broadcast in the Northern lounge;
- recordings of the sessions via the Parliament television system shall be made available to the press in the press room.
(b) In public committee meetings, members of the press may make recordings in an area designated to them for this purpose.
(c) During National Assembly public events, members of the press shall be assisted by the press office.
(d) Recordings about the daily work of Parliament may be made in the following areas of the House of Parliament and Offices:
- the Northern lounge of Parliament;
- the press room;
- the corridor section in front of the press room from the swing doors of the Cupola Hall to the swing doors after lift no. VI of Parliament;
- the premises specified in point (b) and the corridor sections in front of the committee rooms;
- the premises as specified in an instruction by the press officer on a case-by-case basis;
- premises announced by the press office as the venue of an event.
...”
Section 12
Miscellaneous provisions
“(1) It is prohibited to disturb in any manner the order of the National Assembly, the House of Parliament and the Offices. The following activities in the National Assembly and the Offices shall be prohibited:
...
(f) behaving noisily, holding demonstrations or carrying out other activities disrupting the work of the National Assembly;
(h) taking photographs in the Cupola Hall of Parliament;
...
(4) Persons disturbing the order of the National Assembly, the House of Parliament and the Offices shall, unless otherwise provided by law, and with the exception of members of parliament and representatives in Hungary of the European Parliament, be escorted out of the House of Parliament and the Offices by the Parliamentary Guard Service, under section 54(6) and section 135(1) of the National Assembly Act.
...
(12) In the event of non-compliance with the rules of this provision, the Director General shall be entitled to restrict the right of official bodies and external organisations to request entry and the Speaker shall be entitled to restrict entry and the right of entry of such bodies and organisations.
...”The Speaker’s Order No. 5/2017
14. Speaker’s Order No. 5/2017 amended Speaker’s Order No. 9/2013, modifying the rules for suspending the accreditation of journalists. The amendment introduced, inter alia, a time-limit for suspension of accreditation, elements relevant to the assessment of a sanction and the possibility for sanctioned journalists to seek redress in respect of the Speaker’s decision. It entered into force on 30 July 2017. The relevant parts of the new provisions read as follows:
“...
12(a) If a person in possession of a press pass specified in section 3(7) (hereinafter “member of the press”) violates the provisions of sections 7 or 8, the press officer may, for a maximum of six months or until the close of the given parliamentary session, suspend the right of entry of the member of the press; where section 8(1) is repeatedly or knowingly violated by a member of the press, the press chief shall, for a maximum of six months or until the close of the given parliamentary session, suspend the right of entry of the member of the press. Where a violation of the provisions of sections 7 or 8 also entails a simultaneous violation of section 12(1), the press officer may at most suspend the right of entry of the member of the press until the end of the given parliamentary session.
12(b) In deciding whether to suspend entry under section 12(a), the underlying report, recording or conduct, the nature of the breach of the rules (whether it was knowingly or repeatedly committed), and the seriousness of the breach shall be taken into consideration. The press officer shall immediately, electronically, notify the member of the press and the editorial office having delegated [him or her] of the suspension.
12(c) The member of the press may, within fifteen days of receiving notification, file an appeal against the suspension made under section 12(a) addressed to the Speaker. Such an appeal shall be filed electronically with the press officer, who shall immediately forward it to the Speaker, together with all the documents of the case.
12(d) The Speaker shall decide the appeal within fifteen days, taking into consideration the aspects that were assessed when the suspension decision was taken, based on the report or recording and the appeal. The Speaker may terminate or uphold the decision or modify the duration of the suspension within the limits specified in section 12(a). The Speaker shall immediately, electronically, notify the member of the press and the editorial office having delegated the member of the press.”
THE LAWThe scope of the case
15. On 28 May 2018 three of the applicants, Mr T. Fábián, Mr B. Kaufmann and Mr N. Fekete informed the Court that they had been denied entry to Parliament for the parliamentary session of 8 May 2018 on the grounds that they had previously breached the Speaker’s Order. On 4 October 2019 one of the applicants, Mr T. Fábián, informed the Court that he had been banned from entering Parliament for the period 9 July to 31 December 2019 under section 12(a) of the amended Speaker’s Order for approaching and attempting to interview the newly appointed Minister of Justice and her Deputy as they had been leaving the parliamentary session on 4 July 2019.
16. The Government argued that the applicants’ observations of 8 May 2018 were based on new facts and new legal arguments which had not been part of their complaints before the Court.
17. The Court notes that three of the applicants introduced new complaints about two further decisions restricting their entry to Parliament on 8 May 2018 and 9 July 2019, after notice of the case was given to the respondent Government.
18. In the Court’s view, the new complaints are not an elaboration of the applicants’ original complaint to the Court about the suspension of their accreditation issued on 26 April 2016 for having filmed in the restricted areas, and on which the parties have commented. The Court therefore considers that it is not now appropriate to take these matters up separately (see, mutatis mutandis and amongst many other authorities, Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004).alleged violation of article 10 of the convention
19. The applicants complained that the suspension of their accreditation to enter Parliament had violated their rights under Article 10 of the Convention, which 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.”Admissibility
20. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions
(a) The applicants
21. The applicants maintained that there had been an interference with their right to freedom of expression since, owing to the Speaker’s decision, they had been prevented from report on issues of public concern.
22. The applicants argued that the Speaker’s Order could not be regarded as a proper legal basis for restricting the exercise of their right to freedom of expression. In their view, Article (T) of the Fundamental Law (see paragraph 11 above) contained an exhaustive list of public bodies entitled to issue generally binding rules of conduct, and since the Speaker was not one of those public bodies, he could not issue regulations concerning parliamentary reporting. Moreover, under Article (I)3 of the Fundamental Law, the exercise of fundamental rights could only be regulated by Acts of Parliament.
23. The applicants further argued that the Speaker’s Order had not met the criteria of foreseeability, since neither it nor the decision to ban them from entering Parliament had specified the period of restriction. In addition, the legislature had not defined the criteria to be taken into account when the Speaker restricted press freedom, and had thus failed to protect against “arbitrary interferences by a public authority”. Furthermore, the applicants contested the Government’s argument that the relevant provisions had been applied consistently: they had filmed outside the designated areas on a number of occasions without any repercussions.
24. The applicants did not dispute the legitimate purpose of the restrictions on journalists as regards entry to and certain conduct within the Parliament building for the protection of the dignity and authority of the House. Nonetheless, they stressed that, in the present case, the Government had not demonstrated how the video recordings could have interfered with the ordinary work and undisturbed functioning of Parliament, national security, the secrecy of confidential information or the personality rights of MPs. They submitted that the premises where the recordings had been made had not been where parliamentary work that was to be sheltered from the public eye and would have involved any confidential information took place. Rather, Parliament was the venue for the most prominent political debates and its premises were open to the public, including journalists. Likewise, MPs shown in the recordings had had a duty to report on issues of public interest and tolerate questions concerning the main topics of current political debate. The presence of the Prime Minister and other senior politicians could not justify the interference either, since they had to withstand the closest public scrutiny. Accordingly, the applicants contested the Government’s reliance on the need to protect the personality rights of parliamentarians (see paragraph 31 below).
25. In support of their argument that the interference had not been necessary in a democratic society, the applicants referred to the consequences of the measure and pointed to the fact that the ban, which had been the most severe measure possible, had lasted for more than four months and had had the effect of a prior restriction on reporting on matters of public interest. In this connection, they also maintained that the argument that their reporting activities could be carried out by their colleagues (see paragraph 35 below) had no bearing on the severity of the interference, which had concerned them as individual journalists and not as media outlets.
26. The applicants emphasised that Parliament was a public arena and the most important forum for public political debates. It was the duty of the media to serve as a public watchdog in respect of those in positions of power, especially those who were elected to office. It was not only the question they had put to the MPs, but also the MPs’ reaction that had been a matter of public interest. Furthermore, legislative work had to be extensively covered by the media, since it had a direct effect on the lives of citizens and MPs were expected to have to answer questions put by journalists. Media presence and coverage were even more necessary given the difficulties citizens and members of non-governmental organisations faced when applying for entry passes. The applicants argued that the restrictions on making recordings in Parliament were in any case unreasonable obstacles to journalistic work.
27. The applicants also stressed that the rules had both been issued and applied by the Speaker, holding a political position, without impartial external control.
(b) The Government
28. The Government pointed out that the Fundamental Law set forth the aims for which the exercise of the right to freedom of expression could be restricted. In addition, the Parliament Act contained the basic rules governing parliamentary reporting, as well as the Speaker’s powers to impose disciplinary sanctions and thereby limit the exercise of journalists’ right to freedom of expression. The Speaker’s Order provided specific detailed rules on parliamentary reporting and accessing the Parliament building. In the Government’s view, it was neither necessary nor possible to include all technical details regarding press reporting in an Act of Parliament. The Government contested the applicants’ assertion that the Speaker’s Order contained generally binding rules of conduct which could have been imposed only by an Act of Parliament (see paragraph 22 above). The Speaker’s Order merely established the internal rules of Parliament; the fact that the regulation did not specify the period of suspension did not in itself render it unforeseeable in its application. Similarly, the fact that the ban had not been enforced previously did not mean that the applicants could not have foreseen the consequences of their actions.
29. Furthermore, the practice of regulating press access to Parliament through acts issued by the Speaker or through other secondary legislation, by imposing restrictions on entry and recording and applying sanctions, was well-established in member States.
30. The Government were of the opinion that the restriction on access to the Parliament building had served a legitimate aim, namely the protection of national security, public safety and the prevention of disorder or crime. The Government submitted that it was only logical that special security rules should apply to the Parliament building, which served as the office of the highest dignitaries of Hungary, hosted international conferences and where the Holy Crown of Hungary was displayed. In addition, it was essential that certain restrictions on recording in the building be in place to ensure the undisturbed functioning and the dignity of the National Assembly, and in particular to prevent the disclosure of information received in confidence, since the building was the venue for producing, archiving and handling several classified documents. In this connection, the Government relied on decision no. 20/2007. (III.29.) AB of the Constitutional Court, which had held that restrictions on recording were “nevertheless to be regarded as necessary in order to ensure the undisturbed work of the National Assembly as supreme sovereign body and supreme organ of popular representation and to ensure the provision of objective and factual information guaranteeing the development and implementation of democratic public opinion”. The creation of non-recording areas was to ensure that MPs and those working for the legislature could carry out their duties.
31. The restrictions on recording in Parliament could further be regarded as protecting the rights of others, namely the reputation of MPs, since broadcasting MPs refusing to answer journalists gave the impression of incompetence, capable of undermining public confidence in their work.
32. The Government submitted that there was an unlimited right to film in Parliament. They also maintained that responsibilities were attached to the right to report from Parliament. They pointed to decision no. 20/2007 (III.29.)AB of the Constitutional Court (see paragraph 30 above) to argue that restricting broadcasting within the Parliament building did not constitute a disproportionate limitation on the exercise of the right to freedom of expression. In the Government’s view, defining the rules of filming was a matter of parliamentary sovereignty and States enjoyed a wide margin of appreciation in questions pertaining to the functioning of Parliament. In addition, the legislative framework ensured that any restrictions on broadcasting and recording respected the free dissemination of information necessary for the formation of democratic public opinion.
33. In the Government’s submissions, a clear distinction had to be made between the different premises of the Parliament building as regards the right of the public to access them. The primary role of parliamentary reporting was to document the functioning of Parliament, that is to say, to provide information about plenary sessions and committee meetings. There were few possible restrictions on such activities and Article 5(1) of the Fundamental Law and the Parliament Act ensured public access to these meetings and ensured their broadcasting. However, further reporting, press conferences and interviews related to parliamentary work did not entail the same level of protection. Moreover, expressive activities unrelated to parliamentary activities and merely conducted in Parliament were even less protected. The Government submitted that the applicants’ interviews had fallen into this latter category and that the question put to the parliamentarians had not related to the work of Parliament. The Government emphasised that the recordings had not been made with a view to presenting the opinion of MPs on a matter of public concern either, but rather with the intention of presenting them in an unfavourable light. The applicants had not therefore been fulfilling their role as public watchdogs providing balanced information, but had been seeking the public’s attention in a sensationalist manner, in line with the latest media trends.
34. The Government also argued that the applicants had had ample possibility to conduct their interviews elsewhere, either within or outside the building; there had been no compelling reason to proceed with the recordings outside the designated area. The applicants had also had the possibility to interview MPs without recording them. In any case, MPs did not have to answer a particular set of questions or maintain contact with members of the press. Given the particular characteristics of the applicants’ interviewing techniques, the MPs had understandably been unwilling to answer their questions. In that connection, the Government emphasised that the applicants’ conduct had verged on abusing the right to freedom of expression. In the Government’s understanding, being aware of and having agreed to the relevant provisions, including the possibility of sanctions, the applicants had knowingly and wilfully broken the rules of reporting when filming outside the designated areas.
35. As regards the consequences and the effects of the impugned measure, the Government took the view that leaving the applicants’ conduct unpunished would encourage media reporters to engage in unlawful means of reporting, placing them at an advantage in news competition. They pointed out that sanctions had only been applied to knowingly unlawful and recurrent recording and after repeated warnings. They also argued that the suspension of the right to entry had had no bearing either on the right of the media to report on issues of public interest or on the right of the public to receive information, since other journalists not concerned by the decision had remained free to access the building and the applicants themselves could continue to follow the plenary sessions through broadcasting, and interview MPs at other locations. Any chilling effect would have only been produced if the journalists had been forbidden from publishing the recordings, intimated or subjected to retaliation or prohibited from reporting on matters related to the National Assembly altogether. In any case, according to the Government, the sanction imposed on the applicants had been the least restrictive one and any other measure (e.g. a fine or warning) would not have provided the same result.
36. The Government also disputed the applicants’ contention that the political nature of the Speaker’s position could not ensure an impartial application of the regulatory framework (see paragraph 27 above).Submissions by the third-party interveners
(a) Civil Liberties Union for Europe
37. The intervening NGO submitted that parliaments were a unique forum for political debate in democratic societies and that it was therefore in the primary interest of the public for the press to have appropriate access to parliamentary premises.
38. It considered that disciplinary measures against journalists should be applied proportionately: warnings and reprimands were less restrictive to the exercise of the right to freedom of expression, whereas the exclusion of journalists from Parliament was a “censorial power of an information monopoly”.
39. It maintained that based on research it had carried out, member States usually required some sort of registration of journalists in order to work in Parliament. The sanctions for breaching the code of conduct of Parliament however varied to a great extent.
40. Lastly, it agreed that disciplinary measures might pursue the legitimate aim of preventing disruption of the work of Parliament, but argued that a permanent and indefinite ban on entering Parliament was unlikely to be tailored to the particular disruption and therefore could not be regarded as proportionate or necessary. It also interfered with the right of the public to access information of public interest in a significant way.
(b) Media Legal Defence Initiative, Helsinki Foundation for Human Rights, OSSIGENO per l’informazione, Media Development Center and Mass Media Defence Centre
41. The interveners jointly relied on the Court’s judgment in the case of Otegi Mondragon v. Spain (no. 2034/07, ECHR 2011) to argue that in the context of restrictions imposed on journalistic activities covering the work of Parliament, particular emphasis had to be attached to the importance of free speech in the political context, where few restrictions were possible and strict scrutiny was applied.
42. In their opinion, where journalists were prevented from reporting from parliamentary buildings, the measure not only interfered with the ability of the media to disseminate information and ideas of public importance, but also hindered the gathering of information on the political affairs of the country. Parliamentary reporting was also the primary means by which the public received information.
43. The interveners also noted that all the media, and not just those authorised by the institution itself, had the right to report on all activities conducted by MPs. Furthermore, measures excluding journalists from accessing parliamentary buildings should be prescribed by law, and required a legal framework that ensured strict control and effective judicial review. Measures that amounted to a ban constituted a prior restriction on freedom of expression and could only be used in the most exceptional circumstances. The fact that a journalist could obtain information about parliamentary activities was of little or no relevance when assessing the necessity of the restriction. In comparison to second-hand reporting, providing direct access to the views of representatives allowed members of the public to assess not only the content of statements, but also the demeanour and apparent character of representatives.
44. The interveners also argued that the right of parliamentarians to respect for their private life in Parliament was limited as they had to expect that their images would be broadcast. The interveners acknowledged that the Convention could provide protection against the unauthorised broadcast of private images in certain circumstances, but argued that that protection did not extend to preventing the use of images of public figures engaged in political activity.The Court’s assessment
(a) Existence of an interference
45. The Court notes that the suspension of the applicants’ accreditation to enter the Parliament building for a period of almost five months (from 26 April until 12 September 2016 – see paragraphs 8 and 10 above) had had adverse effects, preventing them from obtaining first-hand and direct knowledge based on their personal experience of the work of Parliament and of any events taking place in the building. Those were important elements in the exercise of the applicants’ journalistic functions. The Court therefore dismisses the Government’s argument that the impugned measures had no bearing on the applicants’ right to impart information (see paragraph 35 above) and accepts that there was an interference with the applicants’ right to freedom of expression (see Selmani and Others v. the former Yugoslav Republic of Macedonia, no. 67259/14, § 61, 9 February 2017; see also, mutatis mutandis, Szurovecz v. Hungary, no. 15428/16, § 54, 8 October 2019).
46. In the light of paragraph 2 of Article 10, such an interference with the applicants’ right to freedom of expression must be “prescribed by law”, have one or more legitimate aims and be “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 141, 27 June 2017).
(b) Whether the interference was prescribed by law
47. In the present case, the parties’ opinion differed as to whether the interference with the applicants’ freedom of expression was “prescribed by law”. The difference in the parties’ opinions as regards the applicable law originates in their diverging views on the issue of whether the Speaker’s Order could be considered a source of law for restricting the exercise of the right to freedom of expression.
48. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015, with further references).
49. The Court accepts that it is difficult to attain absolute certainty in the framing of laws, and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The criterion of foreseeability cannot be interpreted as requiring that all detailed conditions and procedures governing the interference be laid down in the substantive law itself, and the requirements of “lawfulness” can be met if points which cannot be satisfactorily resolved on the basis of substantive law are set out in enactments of lower rank than statutes (see Gorlov and Others v. Russia, nos. 27057/06 and 2 others, § 89, 2 July 2019). A law which confers a discretion is thus not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Gillow v. the United Kingdom, 24 November 1986, § 51, Series A no. 109).
50. The Court has found that persons carrying out a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails, for instance by seeking appropriate legal advice (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007‑IV).
51. In the present case, the legal basis of the interference under consideration was provided by section 54 of Parliament Act and the Speaker’s Order No. 9/2013 (see paragraphs 12 and 13 above).
52. The Court notes that the “accessibility” of the relevant texts is not an issue in the present case. It has not been disputed that the applicants were aware of the relevant provisions of the Speaker’s Order, and that in the case of disorderly conduct it was only to be expected that they would be escorted out of the Parliament building and that their entry would be restricted. As the Government rightly pointed out, the regulations governing parliamentary reporting were sent to the applicants at the time of their registration, in line with usual practice (see paragraph 5 above). Moreover, the applicants were media professionals and, as such, must have been familiar with the regulations intended to ensure orderly conduct within the Parliament building.
53. As to the applicants’ argument, namely that under Article (T) of the Fundamental Law the Speaker was not entitled to issue binding rules governing parliamentary reporting (see paragraphs 11 and 22 above), the Court considers that this amounts to challenging the validity of domestic legislation on the grounds that the provisions in question are unconstitutional as they disregard the constitutional rule of law-making. However, it is not for the Court to examine this argument, which concerns the validity of a form of “secondary legislation”. The interpretation of the Contracting Parties’ domestic law and of its validity is primarily a matter for the national courts (see, mutatis mutandis and among other authorities, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999‑III).
54. In this connection, it must be pointed out that the authority of the Speaker in the sphere of regulating access to Parliament derives from his rule-making power which he enjoys by parliamentary delegation. Section 54 of the Parliament Act provides that certain aspects of entry to the Parliament building must be established by an order of the Speaker without infringing the dissemination of information necessary for the formation of democratic public opinion (see paragraph 12 above). In view of the precise and detailed provisions of Order No. 9/2013, adopted by the Speaker in accordance with the provisions of the Parliament Act (see paragraph 13 above), the Court considers that it allowed media professionals to regulate their conduct.
55. As regards the applicants’ arguments that neither the Speaker’s Order nor the Speaker’s decision issued in their case specified the period of restriction (see paragraph 23 above), the Court considers that this is a material consideration to be taken into account in determining whether the measure complained of was necessary in a democratic society.
56. Accordingly, the Court is prepared to accept that the interference complained of had a legal basis in the relevant provisions of the Parliament Act and the Speaker’s Order and that these provisions satisfied the “lawfulness” requirements established in its case-law.
(c) Whether the interference pursued a legitimate aim
57. The Court is satisfied that the interference pursued two legitimate aims for the purposes of Article 10 § 2 of the Convention. Firstly, it was aimed at preventing disruption to the work of Parliament so as to ensure its effective functioning, and thus pursued the legitimate aim of the “prevention of disorder”. Secondly, it was intended to protect the rights of MPs, and thus pursued the aim of the “protection of the rights of others”.
58. Accordingly, the central issue which remains to be determined is whether the interference complained of was “necessary in a democratic society”.
(d) Whether the interference was necessary in a democratic society
(i) General principles
59. The general principles concerning the necessity of an interference with freedom of expression were summarised in the case of Pentikäinen v. Finland ([GC], no. 11882/10, §§ 87-91, ECHR 2015).
60. In that judgment the Court reiterated that the protection afforded by Article 10 of the Convention to journalists was subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (ibid., § 90; see also, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Kasabova v. Bulgaria, no. 22385/03, §§ 61 and 63-68, 19 April 2011; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009).
61. Furthermore, the concept of responsible journalism is not confined to the contents of information which is collected and/or disseminated by journalistic means. It also embraces, inter alia, the lawfulness of journalists’ conduct, including their public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (see Pentikäinen, cited above, § 90).
62. Furthermore, all persons, including journalists, who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see, for example, Handyside v. the United Kingdom, 7 December 1976, § 49 in fine, Series A no. 24).
63. Apart from the above factors, the fairness of proceedings and the procedural guarantees afforded are factors which in some circumstances may have to be taken into account when assessing the proportionality of an interference with freedom of expression (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 133, 17 May 2016, with further references).
(ii) Application of these principles in the present case
64. In the present case, while seeking to obtain information from parliamentarians, the applicants acted in a manner contrary to the rules of conduct in Parliament, which prohibited filming in certain areas (see paragraph 6 above). On the facts of the case, the Court is satisfied that the applicants did not receive a sanction for imparting information on issues of political relevance, but rather for the place and manner in which they had done so. The present case does not therefore concern a prohibition on publishing material but the taking of a measure against the applicant journalists, notably the suspension of their accreditation with the Parliament, for actions that were in breach of the Speaker’s Order on entry and access to the Parliament building. However, the impugned sanction still had the consequence of restricting the applicants’ subsequent journalistic activities, namely direct reporting on parliamentary work (see paragraphs 8‑9 above).
65. Accordingly, when assessing in the instant case whether the measure taken by the Speaker was necessary, regard must be had both to the applicants’ interest in making the impugned recordings and to their interest in reporting on topical issues of Parliament.
66. On that point, the Court does not agree with the Government’s argument that the recordings in question were not meant to address a matter of public concern but to present MPs in a sensationalist manner and thus did not entail the same level of protection as parliamentary reporting otherwise would have (see paragraph 33 above). The Court observes that the recordings intended to document the reaction of MPs on alleged illicit payments linked to the National Bank (see paragraph 6 above), a matter of considerable public interest which attracted significant media attention. In this context, the Court has already held that freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (see Castells v. Spain, 23 April 1992, § 43, Series A no. 236). Furthermore, it is not for the Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what techniques of reporting should be adopted by journalists (see Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007‑V). The Court thus accepts that the subject matter of the applicants’ recordings was journalistic coverage of an issue of public interest. As regards the applicants’ interest in being allowed entry to Parliament for further reporting, the Court has no difficulty in considering that this was related to matters of which the public had a legitimate interest in being informed.
67. At the same time, the Court will bear in mind that the interest to be weighed against the interest of imparting information on an issue of general concern was also public in nature: protecting the orderly conduct of parliamentary business as well as the rights of MPs (see paragraph 57 above).
68. In this connection, the Court notes the applicants’ submission that the Government had failed to demonstrate how the video recording could have interfered with the ordinary work and undisrupted functioning of Parliament (see paragraph 24 above). It also takes note of the Government’s argument about the wider margin of appreciation of States to put in place regulations pertaining to the functioning of Parliament (see paragraph 32 above).
69. As the Court has already held in the context of free speech of parliamentarians, the national authorities, most notably parliaments (or comparable bodies composed of elected representatives of the people), are indeed better placed than the international judge to assess the need to restrict conduct by a member causing disruption to the orderly conduct of parliamentary debates and which may be harmful to the fundamental interest of ensuring the effective functioning of Parliament in a democracy (see Karácsony and Others, cited above, § 143, with further references). On the other hand, having regard to the circumstances of the present case, namely that the allegedly disruptive conduct occurred outside plenary sessions or any other political discussion within Parliament, the present case is to be distinguished from situations where measures have been taken in response to speech or conduct interfering with the orderly conduct of parliamentary debate (see Karácsony and Others, and Selmani and Others, both cited above). The Court however accepts that parliaments are entitled to some degree of deference in regulating conduct in Parliament – by designating areas for recording – to avoid disruption in parliamentary work without such disruption being manifest, and that the Court’s scrutiny of such regulations should be limited. In any case, in the present circumstances, the prohibition on recording was limited to clearly defined areas in Parliament that appeared to be directly relevant to the functioning of the legislature. Furthermore, the Court cannot but agree with the Government that by not respecting the regulations on recording, the applicants knowingly risked being sanctioned for breaching the Speaker’s Order (see paragraph 34 above).
70. The Court therefore finds no reason to call into question that the impugned sanction imposed on the applicants for breaching the rules of conduct in Parliament was supported by reasons that were relevant for the legitimate aims pursued, namely the prevention of disorder and the protection of the rights of MPs.
71. As regards the question whether those reasons as such were also sufficient to show that the disputed interference was “necessary”, the Court does not find it necessary to rule on the issue, but considers it more appropriate to focus its review on whether the restriction on the applicants’ right to freedom of expression was accompanied by effective and adequate safeguards against abuse (see the case-law cited in paragraph 63 above, and, mutatis mutandis, Karácsony and Others, cited above, § 151).
72. With regard to the manner in which the sanction was imposed on the applicants, the Court is mindful that the procedural safeguards should be adapted to the parliamentary context, bearing in mind the generally recognised principles of parliamentary autonomy and the separation of powers (see, mutatis mutandis, (see Karácsony and Others, cited above, §§ 143, 147 and 157). At the same time, the Court also notes that precisely because of these principles, the applicants could not be considered entitled to a remedy to challenge outside Parliament a sanction imposed by organs of Parliament. The lack of any external control makes the argument for procedural safeguards particularly relevant in the present case.
73. The Court observes that, at the material time, domestic law, namely the Speaker’s Order No. 9/2013 (see paragraph 13 above), contained a restriction on entry in the event of a breach of the relevant provisions, without requiring any assessment of the potential impact of the sanction or the relevance of the journalistic activity giving reason for the restriction. Furthermore, it did not provide for the possibility for persons sanctioned to be involved in the relevant decision-making procedure. The procedure in the applicants’ case consisted of a letter addressed to the relevant editors‑in‑chief informing them of the suspension of the applicants’ accreditation (see paragraph 8 above).
74. Furthermore, neither the Speaker’s order nor the impugned decision to ban the applicants from entering Parliament specified the period of restriction and the applicants’ subsequent requests for authorisation to enter Parliament were left unanswered (see paragraph 9 above).
75. Lastly, the Speaker’s Order No. 9/2013 did not offer any effective means of challenging the Speaker’s decision where the applicants could have presented their arguments.
76. It should be noted that the amendments to the Speaker’s Order, which introduced a time-limit for suspension of accreditation, elements relevant for the assessment of sanctioning and a possibility for sanctioned journalists to seek redress in respect of the Speaker’s decision, entered into force on 30 July 2017 (see paragraph 14 above) and thus put in place procedural safeguards. However, this amendment has not affected the applicants’ situation in the present case.
77. Having regard to the foregoing, the Court considers that in the circumstances of the case the impugned interference with the applicants’ right to freedom of expression was not proportionate to the legitimate aims pursued because it was not accompanied by adequate procedural safeguards.
78. In the light of the above considerations, the Court concludes that the interference with the applicants’ right to freedom of expression was not “necessary in a democratic society” within the meaning of Article 10 of the Convention and that, accordingly, there has been a violation of this provision.other alleged violations of the convention
79. The applicants further complained that they had no remedy under domestic law to contest the sanction imposed on them; in particular, they could not challenge the Speaker’s decision before the domestic courts.
80. They invoked in this respect Articles 6 and 13 of the Convention, which, in so far as relevant, read as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
81. The Government averred that the applicants’ alleged grievance under Article 10 did not constitute a breach of that provision and that therefore it was not necessary to provide the applicants with a remedy in domestic law. Furthermore, the right invoked by the applicants, namely the right to enter and report from certain areas, such as Parliament, was not a “civil right” for the purposes of Article 6 § 1 of the Convention.
82. In any case, in the Government’s view, the decision of the Speaker was neither judicial nor administrative. In line with parliamentary autonomy, no extra-parliamentary remedy could be required for such sui generis decisions.
83. The Civil Liberties Union, relying on the Venice Commission’s “Report on the Rule of Law”, argued that everyone should be able to challenge governmental actions and decisions contrary to their rights, and that individuals had to be protected from the arbitrary use of power by the State. It further pointed out that in the case of Karácsony and Others (cited above), the Court had found that imposing a fine for the breach of the parliamentary rules of conduct without hearing the MPs concerned constituted a violation of Article 13 of the Convention. Likewise, journalists should have an opportunity to dispute alleged breaches of the rules of Parliament.
84. In the light of the Court’s finding that there has been a violation of Article 10 of the Convention, and having regard to the reasons underlying this finding (see paragraphs 64-78 above), the Court concludes that it is not necessary to examine separately the admissibility and merits of the applicants’ complaints under Articles 6 and 13 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION
85. 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.”Damage
86. The applicants claimed 5,000 euros (EUR) each in respect of non‑pecuniary damage.
87. The Government contested this claim.
88. The Court considers that in the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants (see, mutatis mutandis, Karácsony and Others, cited above, § 181).Costs and expenses
89. The applicants also claimed EUR 4,575 plus VAT for the costs and expenses incurred before the Court. This sum corresponds to 183 hours of legal work billed by their lawyer at an hourly rate of EUR 25.
90. The Government contested this claim.
91. 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 the full sum claimed.Default interest
92. 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,Declares the applicants’ complaint under Article 10 of the Convention admissible;Holds that there has been a violation of Article 10 of the Convention;Holds that there is no need to examine the admissibility and merits of the applicants’ complaints under Articles 6 and 13 of the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,575 (four thousand five hundred and seventy-five euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 26 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.ture_p_2}
Andrea Tamietti Jon Fridrik Kjølbro
RegistrarPresident
Appendix
List of applicants
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Iván Szabolcs MÁNDLI
1975
Hungarian
Dunaharaszti
2.
Ferenc BAKRO-NAGY
1967
Hungarian
Budapest
3.
Tamás FABIÁN
1987
Hungarian
Nyíregyháza
4.
Norbert FEKETE
1976
Hungarian
Budapest
5.
Balázs KAUFMANN
1987
Hungarian
Budapest
6.
Klára Anikó KOVACS
1978
Hungarian
Budapest
Full & Egal Universal Law Academy