Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights held that the refusal of a Hungarian police department to authorize a demonstration violated the right to freedom of assembly. After an individual’s request to hold a demonstration in front of the Hungarian Parliament was refused on the grounds that it could impede the operations of Parliament, the individual reviewed the decision in a domestic court. That Court accepted the police explanation for their refusal to authorize the demonstration and he then approached the European Court of Human Rights. The Court found that the government had not provided “relevant and sufficient reasons” for why the demonstration would cause an interference in Parliament’s operations and held that the refusal was not necessary in a democratic society.
On October 13, 2008, Béla Sáska, a Hungarian national, applied for authorization to hold a political demonstration on October 17. The demonstration was to be held in Kossuth Square – an open area traditionally used for demonstrations, in front of the Hungarian Parliament in Budapest. Sáska made the application to the Budapest Police Department. The purposes of the demonstration were “commemoration of the revolution of 1956 and of the tumultuous events in Budapest in 2006 as well as to call attention to the perceived absence of legal certainty in the country” [para. 6]. The number of people expected to attend was between 150 and 200.
On October 14, the police proposed that the demonstration be held in a “secluded part of Kossuth Square” which Sáska rejected [para. 8]. The Assembly Act – which regulates the authorization of demonstrations in Hungary – permits the withholding of authorization if a demonstration would “gravely endanger” Parliament’s functioning under section 8(1). On October 15, the police forbade the demonstration under section 8(1). The police stated that the noise (speeches and music) may disturb the MPs and the participants might “impede the MPs’ driving in and out of Parliament’s car park” which, the police held, would be an infringement of the right to freedom of movement and would inhibit Parliament’s functioning [para. 9].
The activity log of the Hungarian Parliament showed that the only event taking place on October 17 – the day of the demonstration – was a conference and that there were no scheduled parliamentary sessions.
Sáska applied for a judicial review of the police’s refusal. He argued that authorization for a demonstration with an “agenda identical to his” in Kossuth Square had been granted for October 15 – a day on which five parliamentary sessions were scheduled [para. 10]. On October 22, 2008, the Budapest Regional Court dismissed Sáska’s application, accepting the police’s reasoning.
Sáska approached the European Court of Human Rights on the grounds that his right to organize a demonstration under Article 11 of the European Convention of Human Rights had been violated.
Article 11 states: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
Judge Guido Raimondi, the President of the Second Section of the European Court of Human Rights, signed the unanimous decision. The central issue for the Court’s determination was whether the police refusal to authorize Sáska’s application for the demonstration was necessary in a democratic society.
The Hungarian government argued that, although there had been an interference in Sáska’s Article 11 rights, the interference was lawful and “pursued the legitimate aim of securing the unimpeded operation of the representative bodies of the people (that is, public safety and the protection of the rights and freedoms of others)” [para. 15]. They maintained that Sáska had been unreasonable in not accepting the proposal to move the demonstration to a different part of Kossuth Square.
Sáska “contested [the government’s] arguments in general terms” [para. 16].
The Court noted that the parties both accepted that there had been an interference with Sáska’s right to freedom of assembly under Article 11, but stressed that this interference can only be justifiable if “it was prescribed by law, pursued a legitimate aim for the purposes of Article 11 § 2 and was necessary in a democratic society” [para. 17]. It also noted that the parties accepted the interference was prescribed by law and had a legitimate aim.
In examining whether the interference in Sáska’s rights was necessary in a democratic society, the Court referred to its jurisprudence in cases involving the right to freedom of expression under Article 10. The Court is required to exercise “supervisory jurisdiction” and so to “look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ and whether it was ‘proportionate to the legitimate aim pursued’” [para. 19].
The Court referred to the police request that Sáska confine the demonstration to a section of Kossuth Square, and stated that the right to freedom of assembly includes “the right to choose the time, place and modalities of the assembly, within the limits established in paragraph 2 of Article 11” [para. 21]. It held that the Hungarian government had not provided “relevant and sufficient” reasons for why the demonstration needed to be restricted and noted the “absence of proper domestic consideration of the matter”. The Court also referred to the fact that a separate demonstration had been authorized for a different day and described it as “remarkable” that the authorization had been given when there were parliamentary sessions on that day [para. 22].
Accordingly, the Court held that the government’s argument that the demonstration would have impeded Parliament’s functioning was “unconvincing” and so the prohibition of the demonstration “did not respond to a pressing social need” [para. 23]. It held there had been an infringement of Article 11 as the prohibition of the demonstration was not necessary in a democratic society.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In rejecting the lack of reasons given by the Hungarian government for why the infringement of Sáska’s right was necessary, the European Court of Human Rights emphasized that the rights under Article 11 cannot be easily limited without full justification.
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.
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