HUN-2001-3-008

a) Hungary / b) Constitutional Court / c)  / d) 29-11-2001 / e) 55/2001 / f)  / g) Magyar Közlöny (Official Gazette), 2001/134 / h) .

Keywords of the Systematic Thesaurus:

03.10

General Principles - Certainty of the law.

03.17

General Principles - Weighing of interests.

04.11.02

Institutions - Armed forces, police forces and secret services - Police forces.

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.02.02.04

Fundamental Rights - Equality - Criteria of distinction - Citizenship or nationality.

05.03.06

Fundamental Rights - Civil and political rights - Freedom of movement.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

05.03.28

Fundamental Rights - Civil and political rights - Freedom of assembly.

Keywords of the alphabetical index:

Gathering, peaceful, reporting.

Headnotes:

In spite of being one of the most important civil liberties, the right to freedom of assembly is not unlimited. Indeed, it can be restricted in the interest of others' rights and freedoms.

The provisions of the Act on the Right to Freedom of Assembly covering also peaceful gatherings, providing that the organisers of a meeting can only be Hungarian citizens or those who have a residence or a settlement permit in Hungary, and requiring organisers to report a planned meeting do not violate the constitutionally guaranteed right to freedom of assembly.

Summary:

The petitioners requested the constitutional review of some provisions of the Act on the Right of Assembly.

First, they claimed that as the scope of the act covers even peaceful gatherings, the police might misuse their power to prohibit or to dissolve spontaneous gatherings.

The Constitutional Court held that if the police in an unjustifiable way prohibit or dissolve an assembly, the affected person has the possibility under the act to seek a remedy for abuse of police power.

Second, the petitioners also challenged the constitutionality of the provision of the Act under which the exercise of the right of assembly must not violate other people's rights and freedoms. In the petitioners' view, the provision is too vague to limit such an important fundamental right like the right of peaceful assembly, therefore violating the principle of legal certainty.

The Court considered that there exist several legal provisions the authorities should take into account when deciding about limiting fundamental human rights. One such provision is Article 8.2 of the Constitution, according to which rules pertaining to fundamental rights and duties shall be determined by statute, which, however, may not limit the essential contents of any fundamental right. Furthermore, it was noted that in the present case, the police should adhere to the decisions of the court when considering to prohibit or dissolve an assembly in the interest of other people's rights or freedoms.

Another contested provision of the Act on the Right of Assembly was Article 5, under which the organisers of a meeting could only be Hungarian citizens or those who have a residence or a settlement permit in Hungary. The petitioners found it unjustifiable that the act prohibits foreigners without a residence or settlement permit to organise an assembly in Hungary.

The Court however, did not find the provision in question unconstitutional. It considered that the reason for this differentiation is that the organiser of an assembly should be a person who is aware of the Hungarian legal regulations and customs concerning staging a peaceful demonstration, and someone who can be liable for the damages caused during the meeting.

Last but not least, the petitioners found it unjustifiable that the Act requires participants to report a planned meeting, because this way the statute excludes the possibility of spontaneous meetings. The Court was of opinion that the Act only requires the reporting of planned meetings outdoors, in a public place. The reason for this is that exercising the right of peaceful assembly is connected with another fundamental right, the right to freedom of movement (Article 58 of the Constitution). The most frequent places to exercise the right to freedom of movement are on the streets, in squares etc. Reporting among others the date and place of the planned meeting to the police is necessary in order that the authorities are aware of the fact that someone plans to organise an assembly outdoors in a public place.

Concerning the argument of the petitioners that the prohibition of an unreported assembly is a disproportionate limitation of the right to assembly, the Court emphasised that failing to report a planned gathering could constitute negligence, but could also be the first step towards misusing the right of assembly. Without reporting a planned gathering, the authorities cannot consider whether the planned assembly will unduly disrupt traffic or will severely endanger the operation of the courts or of parliament. If an assembly can be arranged at another time and at another place than was reported, the reporting would be useless. In addition, the Court stressed that from the fact that the police have the power to dissolve an assembly in the case of an unreported event, it does not follow that the police should always use this power.

One of the Justices, with whom three Justices agreed, gave their dissenting opinion. According to the Judges, the right of peaceful assembly is a human right and not only a right of citizens. Therefore Article 5 of the act, which stated that only Hungarian citizens and those with a residence or settlement permit can organise an assembly in Hungary, violates the basic right of assembly. The separate opinion emphasises that the notion of "gathering" used by the Act is too vague, and therefore it makes it possible for the police to use force without sufficient reason.

Justice Kukorelli in the separate opinion stressed that in general there is no conflict between the right of assembly and the right to freedom of movement. The latter does not mean that the participants of a public meeting have the right to use a specific route. The right of assembly is sometimes in conflict with the interest of the undisrupted traffic.

Justice Kukorelli denied that the subsequent legal remedy is a sufficient guarantee against the possibility of police power being used arbitrarily. When considering whether to disperse an assembly, the police should take into account whether the meeting violates the rights and freedoms of others, or whether it constitutes a clear and present danger of violating such rights. The police should not use force without trying to convince the participants to break up the gathering. This is important since the right of assembly is one of the most important human rights of self-expression.

Languages:

Hungarian.