FOURTH SECTION
DECISION
Application no. 43873/16
GERILLA PRESS LAPKIADÓ ÉS MÉDIATANÁCSADÓ KFT.
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 22 July 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Gerilla Press Lapkiadó és Médiatanácsadó Kft. is a Hungarian limited liability company, seated in Budapest. It was represented before the Court by Mr I. Balsai, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant company is a publishing house. In 2013 an internet news portal run by it published articles about criminal proceedings conducted against a politician, which were accompanied by photos showing him seated in the courtroom.
5. The domestic courts found that the publishing of the photos had infringed the politician’s right to his image, in particular because he could not be considered a public figure in the course of the criminal proceedings.
6. The applicant company was ultimately condemned to pay 300,000 Hungarian forints (approximately 1,000 euros) in damages by the Kúria on 24 February 2016.
B. Relevant domestic law
7. Article IX of the Fundamental Law reads as follows:
“(1) Everyone shall have the right to freedom of expression.
(2) Hungary shall recognise and protect the freedom and diversity of the press, and shall ensure the conditions for the free dissemination of information necessary for the formation of democratic public opinion.
(3) In the interest of the appropriate provision of information as necessary during the electoral campaign period for the formation of democratic public opinion, political advertisements may only be published in media services free of charge, under the conditions guaranteeing equal opportunities, laid down in a cardinal Act.
(4) The right to freedom of expression may not be exercised with the aim of violating the human dignity of others.
(5) The right to freedom of expression may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial or religious community. Persons belonging to such communities shall be entitled to enforce their claims in court against the expression of an opinion which violates their community, invoking the violation of their human dignity, as provided for by an Act.
(6) The detailed rules relating to the freedom of the press and the organ supervising media services, press products and the communications market shall be laid down in a cardinal Act.”
COMPLAINT
8. The applicant complained under Article 10 of the Convention about the sanction it had sustained on account of the incriminated publication.
THE LAW
9. The applicant company complained that the decision of the domestic courts amounted to an infringement of its rights under Article 10 of the Convention, which provides 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.”
10. The Government submitted that the applicant company should have pursued a constitutional complaint under section 27 of the Constitutional Court Act. The applicant company disagreed, arguing that the constitutional complaint would not have been an effective remedy, since in its view the Constitutional Court had no competence to rule on the assessment of the evidence or any errors of facts or law.
11. The Court has already held that a constitutional complaint under section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted for the purposes of Article 35 § 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary (see Szalontay v. Hungary (dec.), no. 71327/13, 12 March 2019).
12. The present case concerns complaints about an alleged breach of the applicant company’s right to freedom of expression which is enshrined in Article 10 of the Convention and Article IX of the Fundamental Law (see paragraph 7 above). It follows that the constitutional complaint would have been an effective remedy to exhaust in the circumstances.
13. Since the applicant company did not avail itself of this legal avenue, the application must be rejected for non-exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 June 2019.
Andrea TamiettiFaris Vehabović
Deputy RegistrarPresident
Full & Egal Universal Law Academy