In the cases of Karácsony and v Hungary and Szél v.Hungary (applications nos. 42461/13 and 44357/13) decided on 16 September 2014 the Second Section of the European Court of Human Rights held that financial sanctions imposed by the Speaker on demonstrating members of the opposition in the Hungarian Parliament were a violation of Article 10.
While recognising the need for Parliaments to regulate their own procedures, the Court emphasised the need to protect the freedom of political of political expression of opposition politicians, even if this involves unauthorised speech.
Background
The applicants in the Karácsony were members of the opposition party Párbeszéd Magyarországért. The applicants in Szél were members of the opposition party LMP.
During a Parliament session in April 2013, two of the applicants in Karácsony presented a billboard with the words “FIDESZ [the governing party]. You steal, you cheat and you lie.”
During the final vote on a law amending certain smoking-related acts in May 2013, two of the applicants showed a billboard stating “Here operates the national tobacco mafia”.
The applicants in Szél protested against a controversial legislative proposal on the transfer of agricultural lands, during the final vote on the bill in June 2013, by placing a small wheelbarrow filled with soil on a table in front of the Prime Minister and by displaying a banner with a slogan critical of the bill.
The applicants were variously fined between €170 and €600 for gravely disturbing Parliament’s work. The fines were proposed by the Speaker of Parliament and adopted by the plenary without a debate.
Judgments
In its judgment in the Karácsony case, the Court noted that the fines were applied for acts committed by Members of Parliament during parliamentary business. It noted the need for parliamentary immunity and “internal autonomy” in the management of Parliament’s affairs [44]
Different forms of parliamentary immunity may indeed serve to protect the effective political democracy that constitutes one of the cornerstones of the Convention system, particularly where they protect the autonomy of the legislature and the parliamentary opposition. In the realm of parliamentary law a wide margin of appreciation is left to member States [45]
There was no doubt that there was an interference with the Article 10 rights of the applicants. This was for a legitimate aim of protection of the rights of others and the prevention of disorder, within the meaning of Article 10(2).
The Court then turned to the issue of “necessity in a democratic society”. It noted that the fairness of the proceedings and the procedural guarantees afforded were factors to be taken into account when assessing the proportionality of an interference [58].
The Court noted that
“When the right to freedom of expression is exercised in the context of political speech through symbolic acts or expressive gestures, utmost care must be observed in applying any restrictions” [60].
It also reiterated that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.
There was a wide margin of appreciation left to member states in the realm of parliamentary law. Nevertheless,
“The speech and expressions of democratically elected parliamentary representatives deserve very high level of protection” [66]
Furthermore, forms of expression at the political level needed to be considered in the light of potential media coverage
“In the determination of the need to protect speech in Parliament, it must be borne in mind that not only authorised speech, which is expressed in the deliberation process, constitutes communication contributing to the public debate of eminently political issues in society. In the Court’s view, other communicative acts in Parliament (including votes, walk-outs and other informal expressions of agreement and disagreement) are also constitutive elements of the broader social communication originating from Parliament” [67].
The expression in this case was on a public matter of the highest political importance. The purpose of the expression was to criticise the Government, not to make personal attacks. The showing of the billboards was part of political expression. It was also important to give leeway to minority members to express their views.
The applicants’ expression did not create a significant disturbance. It did not delay or prevent debate or vote
“the protection of the rights of others and the need to maintain decorum in parliamentary functions fall short of a convincing justification for substantial restrictions on expressive political speech of the highest importance. The offensive accusations directed against the Government’s policies did not challenge the authority of Parliament” [75]
On the issue of process, the Court had to determine whether the Speaker who suggested the sanctioning of the applicants had the required independence and impartiality [78]
In this case the Speaker gave neither a first nor a second warning to the applicants; rather, they were at once sanctioned through the imposition of a fine. The Government admitted that the sanctions were of a political nature.
The Court was of the view that
“shortcomings in the procedure undermine the fairness of the imposition of the sanction and, in the circumstances of the case, do not provide sufficient protection of impartiality against political bias in the decision-making which endangers freedom of expression” [84]
The Speaker did not specify or give reasons why the conduct was said to be “grossly offensive”. The sanctions were not the subject of any debate
In conclusion the Court found that there was a violation of Article 10:
“the interference which concerned political expression was devoid of a compelling reason, since the interests of the authority of Parliament and order in Parliament were not demonstrably seriously affected, nor was it shown that these interests were on balance weightier than the right to freedom of expression of the opposition. The sanctions were imposed without consideration of less intrusive measures, such as warnings or reprimands. Moreover, the interference consisted in the application of sanctions with a chilling effect on the parliamentary opposition, in a process where the procedural guarantees and those of the appearance of non-partisanship were insufficient”. [88]
In addition, there was a violation of Article 13 (right to an effective remedy) because of the lack of a remedy under domestic law for the applicants’ Article 10 grievance.
The Court adopted similar reasoning in the Szel case. Once again, the expression of minority views in parliament merits special protection, the applicants did not generate a significant disturbance in Parliament and the procedure for imposing the sanctions was unfair. The conclusion reached was in similar terms to that in the Karacsony case.
Comment
These judgments show, once again, the high importance given to freedom of political expression under Article 10. Whilst recognising the wide margin of appreciation given to Member States in relation to parliamentary law, the Court was nevertheless prepared to step inside the doors of Parliament to assess the quality of the Speaker’s ruling.
There are two particularly interesting features of this assessment. First, there is the importance accorded to opposition members being able to obtain media coverage by means of contributions including “walk-outs and other informal expressions of agreement and disagreement”. This is a striking reminder that Article 10 does not only protect “authorised” forms of expression.
Secondly, the Court gave particular weight to the procedural aspects of the Speaker’s determination. In the Parliamentary context, the fact that the procedure was arguably partisan was not, of itself, sufficient to constitute a violation of Article 10. However, the fact that there had been no warnings, no debate and no formal vote meant that there were insufficient procedural protections. In general, lack of proper procedures when expression is sanctioned may well mean that the resulting interference is not “necessary in a democratic society”.
In short, this case is a clear affirmation of the importance of freedom of political speech even in the self-regulated sphere of Parliamentary procedure. Even where the opposition in parliament breaks the Parliamentary rules in order to gain political attention, sanctions will only be justified if they are proportionate to the misbehaviour and accompanied by proper procedural guarantees. The Court has reminded us that the protection of Article 10 extends into the Parliamentary chamber itself.
It seems to me that the case is a clear example of the Court sticking its nose into yet another area where, whether the Hungarians have an equivalent of Article 9 of the Bill of Rights 1689 or not, it had no business. “Politicians in robes”, as Lord Hoffman put it.