Published on 30 September 2024
FIRST SECTION
Applications nos. 28707/22 and 28709/22
Bernadett SZÉL against Hungary
Ákos HADHÁZY against Hungary
both lodged on 1 June 2022
communicated on 9 September 2024
SUBJECT MATTER OF THE CASE
The applications concern the right to demonstrate and to freedom of expression during the Covid-19 pandemic.
On 11 March 2020 the Hungarian Government adopted Governmental Decree no. 40/2020 (III. 10.) introducing a special legal order and declaring a state of danger. On 16 March 2020 Governmental Decree no. 46/2020 was adopted (entering into force on 17 March 2020), setting out the specific measures to be put in place to prevent and fight the spread of the corona virus. Section 4 of the Decree introduced a ban to participate in assemblies. The ban, due to its numerous prolongations, was in effect until 14 June 2021.
The applicants, two opposition politicians, Ms Szél and Mr Hadházy, and an opposition political party, Momentum Mozgalom, announced on Facebook a series of public gatherings to be held at the roundabout in central Budapest on a weekly basis between 20 April and 18 May 2020.
The organisers announced that the assemblies would be contact-free in that the participants would pass through the roundabout in their cars using their car honks to demonstrate solidarity with the healthcare workers, demand widespread testing for the corona virus and support for small enterprises and transparent information. The organisers did not announce the event to the police, as required under Act no. LV of 2018 on the Right to Assembly.
On 11 August 2020 Mr Hadházy was fined 80,000 Hungarian forints (HUF, approximately 205 euros (EUR)) by the Budapest I District Police Department for abuse of the right to assembly. The Police Department considered that by sharing the event of 20 April 2020 on his Facebook page and by calling on people to participate, Mr Hadházy had been the organiser of the event. He was fined another HUF 100,000 (approximately EUR 260) for the abuse of the right to assembly in connection with the event of 25 April 2020. The administrative decisions were upheld by Pest Central District Court, reducing the fines to HUF 40,000 (approximately EUR 100) and HUF 50,000 (EUR 130).
Ms Szél participated at the gathering on 27 April 2020, driving her car and honking.
The Budapest I District Police Department established Ms Szél’s liability for minor violation of traffic rules, for infringement of Government Decree no. 46/2020, and for the minor offence of the abuse of the right to assembly. Following a hearing requested by the applicant, the Police Department issued a new decision on 9 October 2020, finding the applicant liable for the same offences and fining her HUF 250,000 (approximately EUR 640).
On 3 March 2021 the Pest Central District Court overturned the administrative decision in respect of the infringement of Government Decree no. 46/2020 but found Ms Szél liable of violation of traffic rules and the minor offence of abuse of the right to assembly and reduced the fine to HUF 100,000 (approximately EUR 260).
Both applicants lodged a constitutional complaint against the decisions of the Pest Central District Court. The complaints were dismissed on 25 January 2022 and the decisions served on the applicants on 1 February 2022. The Constitutional Court held that Ms Szél’s conduct had not constituted an exercise of her right to freedom of expression, given that she had participated in an unannounced gathering, abusing the right to assembly.
Mr Hadházy complains under Articles 10 and 11 of the Convention that he has been found liable for the minor offence of abuse of the right to assembly.
Ms Szél complains under Articles 10 and 11 of the Convention that she has been found liable for the minor offence of abuse of the right to assembly and for the violation of traffic rules because of having used her car honk at a public assembly.
QUESTIONS TO THE PARTIES
1. Has there been an “interference” with the applicants’ right to freedom of expression under Article 10 of the Convention or a “restriction” of their right to freedom of assembly under Article 11 of the Convention?
2. If so, was that “interference”, respectively “restriction”, “prescribed by law” and “necessary in a democratic society” to attain a legitimate aim, as required by Article 10 § 2 and Article 11 § 2 of the Convention?