EHRM, 20-01-2020, nr. 201/17

The case originated in an application (no. 201/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Hungarian political party, Magyar Kétfarkú Kutya Párt (‘the applicant party’ or ‘the MKKP’), on 16 December 2016.

The applicant was represented by Mr Cs. Tordai, a lawyer practising in Budapest. The Hungarian Government (‘the Government’) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 23 January 2018 a Chamber of that Section composed of Ganna Yudkivska, President, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, Faris Vehabović, Carlo Ranzoni, Marko Bošnjak, Péter Paczolay, judges, and also of Marialena Tsirli, Section Registrar, delivered a judgment in which it held unanimously that there had been a violation of Article 10 of the Convention. On 23 April 2018 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 28 May 2018 the panel of the Grand Chamber granted that request.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

The MKKP and the Government each filed further written observations (Rule 59 § 1) on the merits.

A hearing took place in public in the Human Rights Building, Strasbourg, on 21 November 2018.

There appeared before the Court:

The Court heard addresses and replies to the questions put by the judges by Mr Tallódi, Mr Fazekas and Mr Tóth.

The MKKP is a political party active in Hungary. At the 2018 legislative elections it obtained 1.73% of the votes cast on national lists (99,410 votes nationwide) and consequently did not attain the statutory threshold for parliamentary representation; moreover, none of its candidates was elected in the individual constituencies. Its political stance is largely conveyed through satire directed at the political elite and governmental policies, through its website (which includes much humorous content), through purported ‘campaigns’ for clearly absurd causes, and through street art and performances.

In 2006 the party presented its candidature for the national elections, with an election manifesto containing ideas such as eternal life, free beer, lower gravitation and two sunsets a day. In their 2006 campaign for the office of mayor of Budapest their slogans included ‘More of everything, less of nothing!’ ‘Eternal life, free beer and tax deductions!’ and ‘We promise anything!’

In the context of the wave of refugees and migrants crossing Hungarian territory in 2015 and in response to the resultant governmental policies on migration, which received widespread media coverage, the MKKP launched what it called an ‘anti-anti-immigration campaign’. It was financed through micro-donations from private individuals in the amount of some 33,000,000 Hungarian forints (HUF) (approximately 100,000 euros (EUR)). The campaign included the display of billboards caricaturing the government's own media campaign with slogans such as ‘Feel free to come to Hungary, we already work in England!’

On 22 September 2015 the European Union's interior ministers meeting in the Justice and Home Affairs Council approved a plan to relocate 120,000 asylum seekers over two years from the frontline States Italy and Greece to all other EU countries. Under the plan, Hungary was to accept 1,294 persons from other member States.

On 24 February 2016 the Prime Minister of Hungary announced that the Hungarian government would hold a referendum on whether to accept the European Union's proposed mandatory quotas for relocating migrants. On the same day the government submitted for approval before the National Election Commission (NEC) the following question to be put to a referendum: ‘Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament's consent?’

On 29 February 2016 the NEC, by nine votes to three, approved the question. On 5 May 2016, after examining the legal challenges, the Kúria (the Hungarian supreme court) authorised the holding of the referendum.

The National Assembly officially approved the referendum initiated by the government on 10 May 2016. The initiative was approved with 136 votes being cast in favour by the parliamentary majority and the MPs of the opposition party Jobbik, with five votes against; the remaining fifty-three MPs boycotted the session. On 21 June 2016 the Constitutional Court rejected all the appeals against the plan to hold the referendum. It was announced that the referendum would take place on 2 October 2016.

Opposition groups including political parties and civil-society actors considered that the question put to a referendum deliberately misrepresented EU policies, since in their view no project existed involving mandatory quotas for the relocation of migrants. They voiced the opinion that the referendum was merely an instrument of government propaganda and did not provide voters with a real choice between real alternatives, and that its tendentious wording served no other purpose than to exacerbate the controversy over migration.

The MKKP urged its supporters to participate in the referendum but to cast an invalid ballot. Its main reason for advocating an invalid vote was that the referendum constituted in essence an abuse of a democratic legal institution and that, while boycotting was a passive rejection of the referendum, an invalid vote sent a clear message denouncing its lack of legitimacy in an active manner. Furthermore, according to the announcement posted on the MKKP's website calling on voters to cast invalid ballots, such ballots could not be forged and would certainly not be taken into account when the votes were counted.

In the period preceding the referendum the government engaged in a campaign on migration policy, posting billboards with questions such as: ‘Did you know? More than 300 people have been killed in terrorist attacks in Europe since the start of the migrant crisis’, ‘Did you know? The Paris terrorist attacks were carried out by immigrants’, ‘Did you know? 1.5 million illegal immigrants arrived in Europe in 2015’, ‘Did you know? Brussels wants the forced resettling of a city's worth of illegal immigrants in Hungary’, ‘Did you know? Almost one million immigrants want to come to Europe from Libya alone’ and ‘Did you know? Since the start of the immigration crisis, sexual harassment of women has increased in Europe’.

In reaction to this, the MKKP continued its campaign on billboards (‘Did you know there's a war in Syria?’, ‘Did you know one million Hungarians want to emigrate to Europe?’, ‘Did you know? The perpetrators in most corruption cases are politicians’, ‘Did you know? A tree may fall on your head’, ‘Did you know? The average Hungarian is more likely to see a UFO than a refugee in his lifetime’ and ‘Did you know? During the Olympic Games, the biggest danger to Hungarian participants came from foreign competitors'). It was again financed by micro-donations.

On 29 September 2016 the MKKP made available a mobile application called ‘Cast an invalid ballot’ which enabled users to upload and share with other users, anonymously, photographs of their ballots or a photograph of the activity they were engaged in instead of voting. It was not disputed by the parties that the use of the application remained entirely anonymous, both for uploaders and passive users. The launch of the application was reported on in some major online journals (index.hu, hvg.hu).

The iOS version of the application was available from the AppStore, while the Android version could be downloaded from Google Play, without registration and free of charge. The application had access to the status and identifier of the mobile telephone and to its photo gallery. Under the basic settings of the application, the user could take a photograph with the rear camera of his or her telephone. The front camera could not be used, so that voters could not take so-called ‘ballot selfies’, including themselves in the photograph. Besides the photograph, users could also provide a comment, either by choosing a pre-set political message or by adding their own messages. They had the option to indicate in which county they had voted and whether they had participated in the referendum and if so whether they had cast a valid or invalid ballot. These messages appeared together with the photograph. Furthermore, the application generated infographics, broken down by county, about the participation rate and the number of valid and invalid votes. The pictures and messages were accessible to other users of the application. The posting and sharing of photographs were anonymous and each user could publish only one photograph. By using the application, the voters sent the non-recoverable encrypted code (hash value) generated by the mobile device's identifier, and the picture (with a message hardcoded on it), to the operator of the application. Thanks to the hashing technique, neither the MKKP nor the developer of the application could trace the identifier of the mobile telephones.

On 29 September 2016 a private individual lodged a complaint with the NEC about the application.

In a decision of 30 September 2016 the NEC found that the mobile application infringed the principles of fairness of elections, voting secrecy, and the exercise of rights in accordance with their purpose (rendeltetésszerű joggyakorlás), and ordered the MKKP to refrain from further breaches of section 2(1)(a) and (e) of Act no. XXXVI of 2013 on Electoral Procedure, and Article 2(1) of the Fundamental Law. Relying on previous Guidelines issued in 2014, it held that voters could not treat ballot papers as their own [property], and therefore could neither take them out of the polling booths nor take a photograph of them. It held that taking photographs of ballot papers could lead to electoral fraud. Furthermore, although the principle of secrecy did not create any obligation on the voters' side, it nevertheless did not entitle them to abuse their situation, bearing in mind that voting secrecy could be maintained only with their cooperation. The NEC concluded that the mobile application was capable of discrediting the work of the electoral bodies and the tallying systems in the eyes of the public.

The MKKP sought judicial review of this decision before the Kúria. As a result, the decision of the NEC had not taken effect by the date of the referendum.

On 2 October 2016 the referendum on the European Union's migrant relocation plan was held. The mobile application in question was available throughout polling day and altogether 3,894 photos were shared on it. It appears from the case file that the photographs were not made available anywhere other than on the mobile application.

On 3 October 2016 the same private individual (see paragraph 20 above) lodged a new complaint with the NEC, in the light of the fact that the MKKP had activated the ‘Cast an invalid ballot’ application on the day of the referendum. The complainant maintained that by operating the mobile application and by encouraging voters to make use of it, the MKKP had infringed the principles of the bona fide exercise of rights and the exercise of rights in accordance with their purpose, and also the principles of fairness and secrecy of elections.

In a decision of 7 October 2016 the NEC reiterated its previous finding and fined the political party HUF 832,500 (approximately EUR 2,700). The NEC supplemented its previous reasoning by noting that providing voters with a mobile application and calling on them to upload and publish photographs of ballot papers, and encouraging them to cast an invalid ballot could have influenced voters and had thus constituted unlawful campaigning.

By a decision of 10 October 2016 the Kúria upheld the NEC's decision of 30 September 2016 as to its finding regarding the infringement of the principle of the exercise of rights in accordance with their purpose, but dismissed its conclusions regarding the fairness of the referendum. The decision contained the following passages:

By a decision of 18 October 2016 the Kúria upheld the NEC's decision of 7 October 2016 in part. It reduced the fine to HUF 100,000 (approximately EUR 310). It relied on essentially the same reasoning as above, adding the following:

The MKKP lodged a constitutional complaint under section 27 of the Constitutional Court Act against the Kúria decisions of 10 and 18 October 2016. The complaint contained the following passages:

On 24 October 2016 the Constitutional Court issued two decisions, declaring both the complaint against the Kúria's decision of 10 October 2016 (decision no. 3226/2016 (XI.14) AB) and the complaint against the Kúria's decision of 18 October 2016 (decision no. 3227/216 (XI.14) AB) inadmissible and employing identical reasoning, as follows:

In a dissenting opinion, Judge Czine took the view that the case raised issues of constitutional importance. She commented as follows:

Declares, unanimously, the application admissible;

Holds, by sixteen votes to one, that there has been a violation of Article 10 of the Convention;

Holds, by sixteen votes to one,

Done in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 20 January 2020.

Johan Callewaert

Deputy to the Registrar

Linos-Alexandre Sicilianos

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

LAS

JC

With great respect to the opinion of the majority, I believe that the present case deserves a different approach, based on an assessment of the methods of political campaigning in a democratic society. Obviously, taking photographs of ballot papers, publishing them and sharing them with others does not constitute an offence. Formally speaking it could be considered as an innocent expression of opinion. However, the other matter of encouraging voters to cast an invalid ballot was not innocent, in my view.

The majority of the Court has found it established that the applicant party, the MKKP, intended to influence voters. The majority of judges preferred not to discuss the nature of that influence; however, it constitutes a crucial point of the present case. The MKKP was not satisfied with the whole idea of the referendum, and organised an ‘anti-anti-immigration campaign’ (see paragraphs 12, 19 and 20 of the judgment).

There are, however, no doubts about the legitimacy of the referendum: the question put by the Government was appropriate and necessary for the purpose of administering the public interest through a public vote. The Government expressed concern about the security problems which might be created by the influx of migrants, and those problems deserved a public debate. Moreover, the question was approved by the Supreme Court, the Kúria, and concerned the sovereign powers of the national parliament to decide on the immigration issue.

Voters have the opportunity to agree or disagree when answering the question on the ballot paper. If they decide not to exercise their voting rights they can abstain from voting. There are no other options. The same procedure applies to parliamentary elections, in which the voting procedure does not usually make it possible to vote against all the candidates. A certain number of people are registered as candidates for the elections, some better, some worse, and the voters have to choose between them. There is no presumption that voters are entitled to intentionally invalidate ballot papers because participation in the decision-making process constitutes one of the values of a democratic society.

Within the voting process mistakes happen, and ballot papers may occasionally be spoiled in some way. But the MKKP sought to influence voters to invalidate their ballots intentionally in order to express their disagreement with the whole idea of the referendum. They encouraged voters to draw amusing pictures on ballot papers, showing that those papers could be used for any purpose other than voting. The pictures may not have looked insulting, but they undoubtedly demonstrated disrespect for the referendum. The MKKP's campaign was therefore disrespectful in relation to the democratic institution designed for the purpose of decision-making by society.

The Court's approach in such situations was reiterated in the Taranenko judgment (Taranenko v. Russia, no. 19554/05, 15 May 2014), as follows:

In the Sinkova judgment (Sinkova v. Ukraine, no. 39496/11, 27 February 2018) the Court found that the form of expression used by the applicant was not appropriate, and stressed the following:

I cannot find anything other than a rejection of democratic principles by the MKKP in the present case, although there were many other suitable opportunities for MKKP members, and for those voters who invalidated their ballots, to express their views. Such a conclusion would suffice in order to vote for no violation, to uphold the explanation given by the national authorities relating to the abuse of voting rights and to find that the interference was legitimate and proportionate. The authorities applied sections 2(1)(a) and (e) of the Electoral Procedure Act, which protects the fairness of elections and the exercise of rights in accordance with their purpose and in good faith. In paragraph 9 of its judgment the Kúria explained that ‘[a] ballot paper clearly serves the purpose of allowing voters to express their opinion on a question put to the vote; any use of ballot papers contrary to this purpose infringes the principle of the exercise of rights in accordance with their purpose’.

The majority of judges preferred not to assess the fact that the ballot papers had been invalidated intentionally and the way in which the opinion had been expressed. Their analysis was very narrow. They seized upon the contradicting approaches of the NEC and the Kúria (see paragraph 112 of the judgment). At the same time the Court preferred to close its eyes to the position of the Constitutional Court, which applied the principles of the prohibition of abuse of rights and the exercise of rights in accordance with their purpose. The fact that the Constitutional Court relied on the NEC and the Kúria in applying the principles in individual cases (see paragraph 109 of the judgment) does not, in my view, have a decisive effect — contrary to the approach taken by the majority. The Constitutional Court and the Kúria made reference to general principles including the abuse of rights and applied them in the MKKP's case.

Actually, the MKKP sought to influence voters to invalidate their ballot papers. This is not a case about punishment for taking ballot photographs, as it was presented by the applicant (see paragraph 102 of the judgment), an approach then followed by the majority. It is a case about showing disrespect for the democratic decision-making process. I therefore believe that the authorities' reaction was foreseeable by the applicant.

The case originated in an application (no. 201/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by Magyar Kétfarkú Kutya Párt, a political party registered in Hungary (‘the applicant political party’), on 16 December 2016.

The applicant was represented by Mr Cs. Tordai, a lawyer practising in Budapest. The Hungarian Government (‘the Government’) were represented by Mr Z. Tallódi, Agent at the Ministry of Justice.

The applicant political party alleged that its freedom of expression had been violated, in breach of Article 10 of the Convention, by the fact that it had been fined for having developed a mobile telephone application via which voters could post anonymous photographs of invalid ballot papers.

On 13 January 2017 the application was communicated to the Government.

Declares the application admissible;

Holds that there has been a violation of Article 10 of the Convention;

Holds

Done in English, and notified in writing on 23 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli

Registrar

Ganna Yudkivska

President