a) Hungary / b) Constitutional Court / c) / d) 27-02-2007 / e) 6/2007 / f) / g) Magyar Közlöny (Official Gazette), 2007/22 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Proportionality.
Institutions - Elections and instruments of direct democracy - Electoral campaign and campaign material.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.
Fundamental Rights - Civil and political rights - Electoral rights.
Keywords of the alphabetical index:
Election, campaign, media coverage / Election, opinion poll, prohibition to publish.
The Hungarian law on electoral procedure prevents the publication of public opinion polls for an eight day period before the elections. This was held to be a disproportionate restriction on the right to free expression.
The petitioner argued that the provision of the Act on Electoral Procedure, which prevents publication of public opinion polls from the eighth day before the vote to the termination of voting, was an unnecessary restriction on freedom of expression and the freedom of the press, as guaranteed in Article 61 of the Constitution.
The Constitutional Court had already decided upon the constitutionality of this "silence period" in Decision no. 39/2002. The Court observed then that the protection of the right to vote and the requirement of a democratic state under the rule of law sometimes necessitated a period of silence during the campaign, and therefore restrictions on the freedom of expression and the freedom of press. Article 40.2 prohibits any election campaign from midnight on the day before the election to the termination of voting. Election campaigns can sometimes last for eighty four days or more; the campaign silence period only lasts for eighty six hours which is a small proportion of the campaign period. The limitation on fundamental rights was deemed to be proportionate to the aim to be achieved.
However, the Constitutional Judges were of the view that the rule banning publication of opinion polls restricted the freedom of expression. The Court accordingly proceeded to assess whether such restriction passed the necessity and proportionality test. In the Judges' opinion, undisturbed process of elections is a legitimate aim for the necessity of the restriction of a fundamental right; however, the ban was disproportionate. In short, the provision was not an unnecessary restriction on the freedom of expression and the freedom of the press, but it was out of proportion. The Constitutional Court directed its repeal.
Judge Péter Kovács gave a dissenting opinion. He warned that public opinion polls serve political aims. There are even stricter restrictions on their publication in other European countries. He also pointed out that Recommendation no. 15 of the Committee of Ministers of the Council of Europe supported the necessity of tightening up these rules. Judge Kovács did not agree that the restriction under discussion was disproportionate.