Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
Closed Mixed Outcome
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The Grand Chamber of the European Court of Human Rights held that while parliamentarians can be required to adhere to parliamentary rules of conduct, imposing a fine for breach of these rules without a hearing violates their rights. The case came about after seven members of the Hungarian parliament showed their opposition to new laws on tobacco and the distribution of agricultural and forestry lands by chanting, waving banners and placards, and placing a wheelbarrow full of soil in the parliamentary chamber. They were each fined without being given a chance to defend their conduct.
The case originated in the imposition of fines on several members of the Hungarian parliament who had chosen to show their opposition to various new laws by ways other than through the traditional parliamentary speeches and submissions.
First, at a plenary session on April 30, 2013, when the Secretary of State for the National Economy was delivering a speech on behalf of the government on the reorganization of the tobacco market, opposition members of parliament Gergely Karácsony and Péter Szilágyi carried a large placard into the center of the parliamentary chamber. The placard named the ruling party and read, “You steal, you cheat, and you lie.” They then placed the placard next the Secretary of State’s seat. According to the minutes of the session, after a brief interruption, the Speaker of the Parliament ordered the placard to be removed from the Chamber. Two weeks later, Parliament adopted a proposal by the Speaker to fine Karácsony 170 Euros and Szilágyi 600 Euros for their conduct, which was considered gravely offensive to parliamentary order under the 2012 Parliament Act.
On May 21, 2013, two other members, Dávid Dorosz and Rebeka Szabó, protested against a bill to amend tobacco laws by carrying a large banner into the Chamber that read, “Here Operates the National Tobacco Mafia.” Similarly to the prior incident, the Speaker of Parliament ordered the banner to be removed and Parliament subsequently adopted the Speaker’s proposal to fine Dorosz and Szabó 240 Euros each for their conduct.
Lastly, on June 21, 2013, when Parliament was in session to vote on a controversial bill on the transfer of agricultural and forestry lands, Bernadett Szél placed a small, golden wheelbarrow filled with soil on the table in front of the Prime Minister, while Ágnes Osztolykán, and Szilvia Lengyel displayed a banner saying “Land Distribution Instead of Land Robbery.” Lengyel also used a megaphone to speak during the interruption. Days later, Parliament adopted a proposal to fine the three members of parliament as the incident took place during the voting process and their actions were gravely offensive to parliamentary order.
The members of parliament submitted two separate applications to the European Court of Human Rights, and a Chamber of the Court issued a judgment in September 2014, holding unanimously that the decisions to fine the members violated their right to freedom of expression and their right to an effective remedy. The Hungarian Government requested that the case be referred to the Grand Chamber.
The applicants submitted that the ruling coalition, which held a two thirds majority at the time, had made several attempts to minimize the participation of opposition parties in Parliament. For example, urgent procedures had been used to enact laws in an extremely short period of time and the rules of parliamentary disciplinary procedure had been tightened, all to the disadvantage of opposition parties. They argued that since they were systematically deprived of the normal means of voicing their views in Parliament, they should be allowed to express their opinion by using symbolic speech, such as displaying placards.
The Hungarian government contended that the rules of parliamentary disciplinary were in line with similar rules in force elsewhere, such as the rules governing the Parliamentary Assembly of the Council of Europe and the European Parliament. The government further argued that the conduct of the members concerned had caused serious disruption, and expressed concern that similar conduct might reoccur and adversely affect the quality of parliamentary debate.
The Czech and UK governments intervened in the case and argued that parliaments should be allowed to regulate their own conduct. The UK government stated that similar conduct in the House of Commons would be considered to be gravely disruptive and inappropriate, and if persisted MPs could be temporarily suspended.
The Grand Chamber of the Court focused on whether the interference was “necessary in a democratic society”, one of the three conditions required for an interference with freedom of expression – which the fines were – to be justified. The Court emphasized the importance of taking into account the fairness of proceedings and the procedural guarantees afforded to the accused in proceedings such as those which led to the imposition of the fines, including whether or not there were proper judicial review proceedings. The Court also underscored the significance of the right to freedom of expression for members of parliaments and that speech in parliament enjoys “an elevated level of protection.” [para. 138] The Court specifically referred to its decision in Castells v. Spain, in which it had held that “interferences with the freedom of expression of an opposition member of parliament . . . call for the closest scrutiny on the part of the Court.” [para. 42]
The Court cautioned that the right to freedom of expression is not absolute in nature, and that States have a wider margin of appreciation in imposing disciplinary rules that governing time, place, and manner of speech in parliament, as opposed to the substance of the speech. At the same time, the Court emphasized that “parliamentary autonomy should not be abused for the purpose of suppressing the freedom of expression of MPs, which lies at the heart of political debate in a democracy.” [para. 147]
In applying these general principles to the present case, the Court focused in on the procedural safeguards in place to prevent abuse of parliamentary proceedings, stating that it saw “no need to rule on whether, bearing in mind the State’s wide margin of appreciation, [the sanctioning of the members of parliament] was “necessary”.“[para. 151] The Court emphasized that the fines had been imposed for the manner in which the members of parliament had chosen to express themselves, and not the substance of what they had said. Their conduct had disrupted parliamentary proceedings and violated parliamentary rules of conduct. The Court held that the imposition of sanctions to regulate parliamentary conduct was within the Hungarian parliament’s margin of appreciation; the placement of placards and banners and the use of a megaphone during the sessions had disrupted parliamentary order.
The Court, however, scrutinized the fairness of the proceedings leading to the imposition of the fines. As opposed to immediate sanctions, such as denial of the right to speak and exclusion from a session, the Court viewed the monetary fines imposed on the members in the present case as ex post facto disciplinary measures. According to the Court, the procedural safeguards available with respect to such ex post facto sanctions “should include, as a minimum, the right for the MP concerned to be heard in a parliamentary procedure before a sanction is imposed.” [para. 156] It further explained that “any ex post facto decision imposing a disciplinary sanction should state basic reasons, thus not only enabling the MP concerned to understand the justification for the measure but also permitting some form of public scrutiny of it.” [para. 158]
The Court noted that the Parliament Act pursuant to which the members had been fined did not provide for any opportunity for the members to be involved in the relevant procedure, notably by being heard. The absence of this key procedural safeguard violated the right to freedom of expression as guaranteed under Article 10 of the European Convention of Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment presents a mixed outcome. On the one hand, the Grand Chamber of the Court expresses strong concern over the fairness of ex post facto sanctions, including the imposition monetary fine for disruptive opposing views expressed in parliaments, and requires that procedural safeguards be in place to prevent the abuse of parliamentary proceedings. At the same time, bearing in mind the very large parliamentary majority held by the ruling coalition, it must be said that it is doubtful whether according the parliamentarians a ‘right to be heard’ would have made any difference in the outcome of the case at the domestic level. By focusing only on procedural safeguards and explicitly refusing to rule on the ‘necessity’ of the fine, the Court can be criticized for not protecting the voice of small parliamentary minorities.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding on the States involved in the case and constitute an authoritative interpretation of the Convention for other States. The formal intervention in this by the Czech and UK illustrates the importance attached to the ruling by other States.
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