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 European Court of Human Rights (ECtHR) found that the Hungarian prohibition on members of the police forces to join political parties was not a violation of Articles 10 and 11 of the European Convention on Human Rights (ECHR). Mr. Rekvényi was a police officer and the Secretary General of the Police Independent Trade Union. The Union filed a constitutional complaint against an amendment to the Constitution of Hungary that prohibited members of the armed forces, the police, and security services from joining a political party or engaging in political activities. It claimed that the law was an unjustified interference with his rights to freedom of expression and association. The complaint was dismissed by the Constitutional Court and an application was filed by Mr. Rekvényi to the European Commission of Human Rights and was referred to the ECtHR thereafter. The ECtHR determined that there was no violation of Articles 10 and 11, basing its reasoning on the relatively recent Hungarian experience with a non-democratic regime, in which police forces were in the service of the ruling political party.
The applicant in this case was Mr. László Rekvényi, a Hungarian national. At the material time, he was a police officer and the Secretary General of the Police Independent Trade Union.
On December 24, 1993, Law no. 107 of 1993 on certain amendments to the Constitution was published in the Hungarian Official Gazette. This law amended, inter alia, Article 40/B (4) of the Constitution: from January 1, 1994, members of the armed forces, the police, and security services were prohibited from joining any political party and from engaging in political activities.
On January 28, 1994, the Head of the National Police demanded in a circular letter, with a view to the parliamentary elections that were to take place in May 1994, that police officers should refrain from political activities. He referred to Article 40/B (4) of the Constitution as amended by Law no. 107 of 1993. He further indicated that those who wished to pursue political activities would have to leave the police. In a second circular letter dated February 16, 1994, he declared that no exemption could be given from the prohibition contained in the Article 40/B (4) of the Constitution.
On March 9, 1994, the Police Independent Trade Union filed a constitutional complaint with the Constitutional Court claiming that Article 40/B § 4 of the Constitution, as amended by Law no. 107 of 1993, infringed constitutional rights of career members of the police, was contrary to the generally recognized rules of international law, and had been adopted by Parliament unconstitutionally. On 11 April 1994 the Constitutional Court dismissed the constitutional complaint, holding that it had no competence to annul a provision of the Constitution itself.
The application was lodged with the European Commission of Human Rights by Mr. Rekvényi on April 20, 1994.
Relying on Articles 10, 11, and 14 of the ECHR, the applicant complained that the impugned constitutional provision had amounted to an unjustified interference with his rights to freedom of expression and association.
In its report of July 9, 1998, the Commission opined that there had been a violation of Article 10; that there had been no violation of Article 11; that it was not necessary to examine the applicant’s complaint under Article 14 read in conjunction with Article 10; and that there had been no violation of Article 14 read in conjunction with Article 11.
The case was referred to the ECtHR, by the Commission on September 15, 1998, by the applicant on September 21, 1998, and by the Hungarian Government on October 5, 1998.
The ECtHR first considered that the pursuit of activities of a political nature came within Article 10’s scope. This was the case by virtue of freedom of political debate being a form of freedom of expression, as well as being at the very core of a democratic society. In that sense, the Court found that there had been an interference with the applicant’s right to freedom of expression.
The Court then went on to apply the three-part test to determine whether the interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society, as required under Article 10 (2) of the Convention.
According to the Court’s well-established case-law, one of the requirements flowing from the expression “prescribed by law” was foreseeability. In other words, a norm could not be regarded as a “law” unless it was formulated with a sufficient level of precision that enabled a citizen to properly regulate his/her conduct.
The ECtHR considered that the level of precision required of domestic legislation depended on the content of the instrument in question, the area it aimed to cover, and the number and status of those to whom it was aimed at. Because of the general nature of constitutional provisions, the level of precision required of them could be lower compared to other legislation, namely the 1994 Police Act and 1995 Regulations which constituted an existing legal framework to delineate the types of political activities that were permitted and restricted.
The Court was satisfied that this legal framework overall, including the constitutional prohibition and other legal rules permitting and restricting police officers’ political activities, was comprehensive enough to enable the applicant to regulate his conduct accordingly. In the light of these considerations, the Court found that the interference was “prescribed by law” for the purposes of paragraph 2 of Article 10.
As regards the legitimate aim of the restriction, the Court accepted that it was intended to depoliticize the police force and thereby to contribute to the consolidation and maintenance of pluralistic democracy in Hungary. This objective had special historical significance in Hungary because of that country’s experience with totalitarianism. In view of the police’s past commitment to the ruling political party, the restriction served to protect national security and public safety and prevent disorder.
Accordingly, the Court concluded that the restriction in question pursued legitimate aims within the meaning of paragraph 2 of Article 10.
The Court then considered if the restriction was “necessary in a democratic society” and reiterated that the adjective “necessary”, within the meaning of Article 10 (2), implied the existence of a “pressing social need”. It also noted that it had to look at the interference complained of in the light of the whole case and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” [para. 42].
The Government asserted that, in the decades preceding Hungary’s return to democracy in 1989 to 1990, the police had been a “self-avowed tool of the ruling party and had taken an active part in the implementation of the party policies” [para. 44]. Given Hungary’s peaceful transformation towards pluralism, it was necessary to depoliticize the police and restrict the political activities of its members. Doing so would contribute to the public no longer regarding the police as a supporter of totalitarianism but instead of democracy.
The Court recognized that it was a legitimate aim in any democratic society to have a politically neutral police force. Given the margin of appreciation national authorities had in this area, the ECtHR found that the relevant measures to insulate the police force from the direct influence of party politics could be understood as answering a “pressing social need” [para. 48]. This was particularly true in light of Hungary’s historical context.
As to the extent of the restriction on the applicant’s freedom of expression, an examination of the relevant laws showed that police officers were still free to engage in activities where they could express political viewpoints. While officers were occasionally subject to restrictions in the interest of the service, the Court observed that the law in question did not prohibit political participation absolutely. The Court provided a long list of ways in which a police officer could exercise his or her political will under Hungarian law.
In light these considerations, the Court concluded that the means used to achieve the legitimate aims pursued were not disproportionate and that there was no violation of Article 10.
For the reasons given in relation to Article 10, the ECtHR considered that the interference with the applicant’s freedom of association similarly satisfied those conditions. Thus, the interference could be regarded as justified under paragraph 2 of Article 11 and there had been no violation.
Partial Dissenting Opinion by Judge Fischbach
Judge Fischbach issued a partly dissenting opinion, finding there was a violation of Article 11. He reasoned that such a restriction was not only disproportionate and not necessary, but could ultimately undermine the nascent democratic processes which must be imbued with a “spirit of open mindedness and tolerance.” According to Judge Fischbach, “[b]anning the police from joining a political party amounts to depriving them of a right, if not the democratic duty, which all citizens have to hold opinions and political convictions, to take a close interest in public affairs and to participate in the fashioning of the will of the people and of the State.” [p. 28] In his view, political participation is a freedom which must be “reconciled with an obligation of discretion” required by all public servants. He further noted the contradiction that police officers maintain the right to stand for elections at national, local or municipal level, yet may not join a political party under the same legislation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this judgment, the Court considered that a limitation of the right of members of police forces to join political parties could be permissible in certain circumstances and such a limitation could be beneficial for the “consolidation and maintenance of democracy”.
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