Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
Closed Expands Expression
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The European Court of Human Rights (ECtHR) found that a Hungarian statute imposing fines on “illegal assembly” was not necessary in a democratic society and, accordingly, constituted a breach of the applicants’ right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights (ECHR).
József Tatár and Károly Fáber were prosecuted and fined in Hungary under a domestic statute prohibiting “illegal assembly” after they hung dirty laundry on a fence surrounding Hungary’s parliamentary building. They had intended the action to represent an airing of the government’s “dirty laundry.” Tatár and Fáber were the only two protestors involved in the incident, which lasted for approximately thirteen minutes.
After pursuing the appropriate domestic remedies, Tatár and Fáber lodged the present complaint with ECtHR, claiming that, by imposing a fine of 200 Euros, the Hungarian government had infringed upon the their right to freedom of expression as enshrined in Article 10 of the ECHR.
The ECtHR first determined that the incident in question (two people hanging dirty laundry on a government fence for thirteen minutes) primarily constituted an “association,” which is protected under the freedom of association provision of Article 10 of the ECHR. The ECtHR then noted that, like an “association,” an “assembly” has an autonomous meaning for ECHR purposes, namely, a specific form for the communication of ideas. Thus, an assembly is afforded the same protections as an association under the ECHR.
Turning to Hungary’s “illegal assembly” statute, as with any state regulation of an Article 10 right, the ECtHR considered whether (1) the statute pursued a legitimate government aim, (2) the statute is necessary in a democratic society, and (3) the action in question was prescribed by law.
Here, the ECtHR found that the statute pursued a legitimate aim (preserving public order), but that it was not necessary in a democratic society because a democratic society could not put a blanket ban on such a form of political communication. The ECtHR therefore found it unnecessary to consider whether the action was prescribed by law.
For the reasons above, the ECtHR found that the Hungarian government had breached Tatár and Fáber’s Article 10 right to freedom of expression by imposing a fine on them for their communication.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR’s holding here expands expression by putting States Parties on notice that domestic statutes barring “illegal assembly” will be considered statutes barring “illegal associations” for ECHR purposes. Accordingly, actions prohibited by such statutes will be evaluated in light of the rights enshrined in Article 10 of the ECHR and, therefore, are unlikely to be considered “necessary in a democratic society.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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