Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Chamber of the First Section of the European Court of Human Rights (ECtHR) rendered an unanimous judgment finding no violation of Article 10 of the European Convention on Human Rights (ECHR) in the case of the applicants who were sanctioned for using posters unlawfully during a parliamentary debate. The case concerned the members of an opposition political party in Hungary who requested permission to use posters during an interpellation by their parliamentary group, addressed to the government concerning its development plans for Budapest. Despite the permission being denied, the Applicant used the posters during the debate which led to their sanction by the Speaker of the Hungarian Parliament. The ECtHR found that the procedure on eventual granting the use of posters and the procedure on sanctioning the applicants were not arbitrary. In addition, the court believed that the sanctions were necessary and proportionate since they concerned a manner in which a speech was to be delivered and not the content of the speech. Moreover, states enjoy a wide margin of appreciation in regulating order in parliaments. Thereby, there was no violation of freedom of speech.
The Applicants, Ikotity, Szél, and Sallai, were the Hungarian Parliament members, representing the Opposition Political Party called ‘Lehet Más a Politika’. On March 1, 2017, the Applicants filed a request application before the Speaker of the Hungarian Parliament seeking permission to use posters, illustrating deforestation photographs, during an interpellation by their parliamentary group, addressed to the government concerning its development plans for Budapest under Section 38A of the Act XXXVI of 2012 on the National Assembly. [para. 2, 6-7]
On March 6, 2017, the Speaker rejected the request on the reasoning that the use of illustrations is not necessary for understanding the interpellation or expanding on its meaning. Despite the rejection of their request, the Applicants used three posters during their speech. “The posters, measuring 50 cm by 60 cm, each contained two photographs of different Budapest city landscapes, prior to and after the alleged environmental degradation discussed in the interpellation, accompanied by the following text: ‘Dagály Strand [city bath] before, after’, ‘Orczy Garden before, after’ and ‘Hajógyári Island [on the Danube] before, after’. Photographs of the applicants holding the posters were published in the Hungarian press.” [para. 8].
On March 16, 2017, the Speaker issued a sanction against the Applicant for violating the Parliament procedure and provision of the Parliament Act by using posters despite the rejection of their request. The Speaker as sanction ordered a decrease in the Applicant’s monthly salary by 100,000 Hungarian forints (approximately 280 USD). The Applicants challenged the Sanction Order before the Committee on Immunities, Conflict of Interest, Discipline, and Verification of Credentials (‘Immunity Committee’). The Applicant challenged the constitutionality of sanctions imposed on them and the alignment of relevant regulations with the Constitution. The Applicant contended that displaying posters in Parliament was a manifestation of their freedom of expression, emphasizing that their actions did not disrupt Parliament’s functioning, violate its authority, or exceed the necessary means for expressing their views. The Applicant also asserted that visual expression was essential to their freedom of speech and could have influenced the vote’s outcome. [para. 9-11]
On 28 March 2017, the Immunity Committee, consisting of both the ruling party and opposition members, determined the Applicants’ appeal to overturn the Speaker’s decisions made on 16 March 2017. The Committee determined that the use of visual aids in Parliament was restricted by the Parliament Act, which aimed to maintain order and authority. Despite opposition party members suggesting a more lenient approach, the Committee rejected the request to annul the Speaker’s decision. [para. 12]
Subsequently, on 30 March 2017, the Applicants Appealed to Parliament again, reiterating their previous arguments. On 3 April 2017, Parliament voted, without a debate, to uphold the Speaker’s decisions, leading to a reduction in the Applicants’ remuneration. [para. 13]
The Applicants filed an Application before the ECtHR.
Justice Marko Bošnjak, Justice Alena Poláčková, Justice Krzysztof Wojtyczek, Justice Lətif Hüseynov, Justice Péter Paczolay, Justice Gilberto Felici, and Justice Erik Wennerström delivered the unanimous decision. The primary issue before the Court was to determine whether the Speaker’s Sanction Order violated the Applicant’s freedom of expression under Article 10 of the Convention.
The Applicant contended that their provocative expression, protected under Article 10 of the Convention, was essential to convey their colleague’s message about environmental issues. The Applicant asserted that the interference with their freedom of expression lacked a legitimate aim, especially since their party colleague had approved the use of posters, and they hadn’t significantly obstructed Parliament’s work. Additionally, the Applicant maintained that less restrictive measures, such as warnings or reprimands, could have been employed instead of the disproportionately high financial penalty. The Applicants also asserted that due to political constraints and limited media access in Hungary, drawing media attention through unconventional means was their only effective way to express their opinions and engage with voters. The Applicant criticized the biased decision-making process, where the Speaker and ruling party alliance members had significant influence, leading to a lack of procedural fairness and potential abuse of majority power within Parliament. [para. 21-24]
On the other hand, the Hungarian Government acknowledged that the sanctions imposed on the Applicants constituted an interference with their Article 10 right to freedom of expression. However, the Government contended that this interference was lawful, proportionate – as there were more severe sanctions (e.g. exclusion from the session) which were not used – and necessary to maintain the smooth operation of Parliament and protect the rights of other Members of Parliament (MPs). The Government contended that the Applicants’ use of posters was not essential to support their colleague’s speech but was rather a means to attract media attention, violating parliamentary rules. The Government asserted that rules regarding the use of presentation tools “concerned only the manner of exercising the freedom of expression,” applied uniformly to all MPs and were essential for ensuring orderly debates, emphasizing that the topic’s importance did not exempt the applicants from following these rules. [para. 25] Further, states enjoy a wide margin of appreciation regarding parliamentary discipline.
Regarding procedural guarantees, the Government highlighted that sanctions were imposed irrespective of MPs’ political affiliations, following reasoned decisions. The Government emphasized the principle of parliamentary autonomy and separation of powers, stating that the multi-step remedy process met the Court’s effectiveness requirement and exceeded protections in many other European countries and the European Parliament. The Government further contended that the Applicant’s request for presentation tools did not contain information that couldn’t be conveyed without such tools, and milder measures like warnings were not suitable due to the intentional breach. The Government asserted that the imposed sanction had no chilling effect on the Applicants and was an ex post facto measure. Lastly, the Government mentioned the need for disciplinary sanctions to deter the increasing trend of unconventional and attention-seeking forms of expression, leading to amendments in the Parliament Act in 2019 for more efficient deterrence. [para. 26-28]
The Court held that the interference with the MPs’ freedom of expression violated Article 10 of the Convention. It noted that the interference, involving fines imposed on opposition MPs for displaying posters during a speech related to alleged environmental degradation, constituted a violation of their right to freedom of expression. The Court emphasized that any interference with this right must be “prescribed by law,” serve legitimate aims outlined in Article 10, and be “necessary in a democratic society.” The imposed fines were based on specific sections of the Parliament Act, which the Court deemed accessible and precise. [Karácsony and Others v. Hungary, (2016)] [para. 29-32]
Additionally, the interference aimed to prevent disruption in Parliament’s proceedings, aligning with the legitimate aim of the “prevention of disorder.” The Court acknowledged the need to assess the proportionality of the interference, focusing on procedural safeguards and the justification for refusing permission and imposing sanctions on the MPs for displaying the posters. These aspects were essential in determining the balance between the interference’s severity and the importance of freedom of expression in the given context. The Court emphasized the interconnected nature of the interference’s reasons and the necessary procedural safeguards under Article 10, indicating a comprehensive examination of the case’s specifics. [para. 33]
On the aspect of procedural fairness, the Court noted that the applicants, opposition MPs fined for displaying posters, had their request for permission to use the posters examined by the House Committee. Despite the lack of consensus among MPs, the Speaker, tasked with maintaining order in Parliament, ultimately refused permission. The Court emphasized that the refusal concerned the manner of expression, not the content, limiting the Court’s scrutiny. Additionally, the Court highlighted the principle of the autonomy of Parliament and the wide margin of appreciation given to Member States in parliamentary matters, concluding that the procedure for permission, in this case, did not raise an issue under Article 10 of the Convention. [Kart v. Turkey, (2009), Karácsony,(2016) and Szanyi v. Hungary, (2016)]. [para 34-35]
Regarding disciplinary sanctions, the Court compared the present case with a previous judgment (Karácsony), emphasizing the need for procedural safeguards. In this instance, the Parliament Act provided a remedy before the Immunity Committee, where the applicants were heard and received reasoned decisions. Despite the applicants’ argument about potential bias, the Court found no evidence of unequal treatment or suppression of the opposition. Considering the principle of the autonomy of Parliament and its discretion in setting internal rules, the Court concluded that the procedural safeguards available to the applicants were sufficient. [para. 36-38]
On the aspect of the necessity of the interference, the Court emphasized the fundamental importance of freedom of parliamentary debate within a democratic society. While acknowledging its significance, the Court reiterated that this freedom, as enshrined in Article 10 of the Convention, is not absolute. [Castells v. Spain, (1992)] It can be subject to certain restrictions or penalties, but it is the Court’s responsibility to determine the compatibility of such measures with the freedom of expression. The Court emphasized that parliaments are entitled to impose restrictions on speech to ensure the orderly conduct of parliamentary business. In this context, the Court made a crucial distinction between the substance of a parliamentary speech and the time, place, and manner in which it is expressed. The regulation under consideration involved the latter—specifically, the use of posters during an interpellation speech. [para. 39-40]
Examining the context of the Applicant’s complaint, the Court acknowledged the special protection required for minority rights within parliamentary activities, such as the interpellation procedure. [Manole and Others v. Moldova, (2009)] However, the restriction at hand pertained solely to the use of posters, not the content of the speech itself. The Parliament Act provided guidelines, stating that presentation tools could be used if necessary to elucidate the Speaker’s position. The Court noted that the Speaker and the Immunity Committee had applied this regulation restrictively, interpreting it as allowing presentation tools only when indispensable. The Court considered this interpretation reasonable, especially since the Applicants did not provide specific reasons indicating the absolute necessity of using posters during the speech. [para. 41-42]
Furthermore, the Court addressed the Applicants’ argument that they intended to attract media attention due to limited access to audiovisual media in Hungary. While acknowledging the importance of media pluralism and independence, the Court found that the Applicants had not substantiated their claim that the posters were the only means to inform the public. It stressed the significance of preserving the authority and effective functioning of Parliament, asserting that unconventional means of communication, even if effective in garnering media attention, could risk obstructing parliamentary proceedings. [para. 43]
Concerning the severity of the imposed sanction and reduction in remuneration, the Court considered the nature of the breach. The Court observed that the Applicants knowingly acted in breach of the applicable rules, aggravating the disciplinary breach. The Court, recognizing the margin of appreciation afforded to national bodies, concluded that the sanctions imposed were dissuasive in nature and aimed at maintaining an appropriate standard of political debate within Parliament. Lastly, the Court found that the reasons supporting the decisions were relevant to the legitimate aim pursued, demonstrating that the interference was “necessary” in a democratic society to ensure the effective operation of Parliament and the democratic process. [para. 44]
In conclusion, the Court held that there has been no violation of Article 10 of the Convention. [para. 46]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Ruling contradicts the essence of freedom of expression by imposing constraints on opposition MPs’ use of posters during an interpellation speech, restricting their ability to effectively communicate their message and engage with the public. Despite the Applicants’ aim to address environmental concerns, the ECtHR’s decision upholds sanctions, including a reduction in remuneration, solely based on the use of visual aids. This verdict establishes a precedent that restricts the expressive tools available to parliamentarians, hindering their capacity to exercise their right to free speech within the parliamentary setting. This limitation undermines the fundamental principles of democratic discourse and political expression
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