HUN-2008-2-004
a) Hungary / b) Constitutional Court / c)   / d) 29-05-2008 / e) 75/2008 / f)   / g) Magyar Közlöny (Official Gazette), 2008/80 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
Sources - Categories - Case-law - International case-law - European Court of Human Rights.
General Principles - Certainty of the law.
Fundamental Rights - Civil and political rights - Freedom of opinion.
Fundamental Rights - Civil and political rights - Freedom of assembly.
 
Keywords of the alphabetical index:
 
Assembly, freedom / Demonstration, legal, prior authorisation, peaceful conduct.
 
Headnotes:
 
The right of assembly is enshrined within the Hungarian Constitution. It includes the right to hold assemblies organised in advance, and peaceful demonstrations organised for valid reasons at short notice. It also includes the right to hold spontaneous gatherings.
 
Summary:
 
I. Several petitioners asked the Constitutional Court to assess the constitutionality of the whole and of certain provisions of Act III of 1989 on the Right of Assembly. Under Article 62.1 of the Constitution, the Republic of Hungary recognises the right to peaceful assembly and shall ensure its free exercise. The petitioners suggested that Article 14.1 of the Act ran counter to the above constitutional provision. It allowed police to disperse an assembly that had been convened without notification, where notification was necessary, or in a manner that differed from the specifications in Article 7.a and 7.b.
 
Article 6 of the Act requires that police be notified of the organisation of an assembly to be held in a public place three days before the planned date of the assembly. Article 7 requires written notification to include the scheduled starting and finishing times, the location or route of the assembly, and its aims and agenda.
 
The petitioners referred to the judgment of the European Court of Human Rights in the case of Bukta and Others v. Hungary. The European Court of Human Rights held that there had been a breach of Article 11 ECHR in that case, as the police had dispersed the applicants' peaceful assembly.
 
II. In its Decision no. 55/2001, the Constitutional Court had already reviewed the Act as a whole, together with some of its provisions. However, the petitioners in these particular proceedings had raised different constitutional issues, which had become a hot issue after the delivery of Decision no. 55/2001. Besides, the Court itself decided differently on the constitutionality of dispersing the assemblies in its current judgment. This was due to changes in the case law on the right of assembly and the judgment of the European Court of Human Rights in Bukta.
 
The Constitutional Court in the tenor of the judgment held that the right of assembly guaranteed by Article 62.1 of the Constitution includes the right to hold assemblies arranged in advance, and peaceful demonstrations organised for valid reasons in accordance with relevant legislation at short notice. It also includes the right to hold spontaneous gatherings.
 
The Court also held that Article 6 should be interpreted in accordance with Article 62.1 of the Constitution, so that the obligation to notify applies only to an organised assembly held in a public place. The police should not prohibit the holding of a peaceful demonstration if the circumstances giving rise to it have made it impossible for the organisers to give the police three days notice.
 
The Court directed the repeal of Article 14.1 of the Act. Under this clause, police had a duty to break a demonstration up if it took place without notification or if the time, place, aims and agenda differed from those specified in the notification.
 
In its reasoning, the Court emphasised that the rationale behind the guarantee of the right to peaceful assembly is to ensure free collective expression of ideas and opinions. Occasions where a crowd occupies a public place for an indefinite time, or when the aim of the gathering is not the expression of commonly shared opinions do not count as assemblies.
 
As a general rule, organisers must give notification when the assembly is to take place on public ground. The statutory obligation of notification limits the right to a peaceful assembly in a constitutional manner. It is clearly impossible to demand notification in the case of spontaneous gatherings. Nonetheless, organisers should give notification in cases of speedily arranged gatherings (Eilversammlungen). The police may prevent this kind of gathering from going ahead if the assembly would seriously endanger the undisturbed operation of the organs of popular representation or of the courts, or if it would prove impossible for them to divert the traffic (Article 8.1 of the Act). If the organisers only notify the police shortly before the assembly starts, the police may not be able to maintain an orderly flow of traffic.
 
The Constitutional Court took into account the danger of an unlawful exercise of the right of assembly. There are several legal remedies for this situation within the Act. It is within the competence of the court to review the way the police applied the legislation. The legal interpretation of the court is binding on the police. Integrating the case law on assemblies could reduce the possibility of legal uncertainty.
 
It is also an important factor, that the organisers and participants of a given assembly could exercise their right of assembly in an unlawful way. However, the Court stressed that the fundamental right of assembly should not be restricted simply because somebody might exercise their right unlawfully. The Act contains enough legal remedies to deal with unlawful assemblies and with those that violate the rights and freedoms of others or which have strong potential to do so. Under Article 14 of the Act, the police should disperse assemblies that are in breach of the peace. The Act of Police allows the application of certain means of coercion if a crowd has gathered unlawfully and it is not possible to disperse it by deploying less draconian measures. Besides, if people disregard the Highway Code and occupy a public place without police agreement, this is a traffic violation. The Court saw no need for further limitations on the right of assembly by amendments to the legislation.
 
Justice András Bragyova attached a dissenting opinion to the decision. Justice László Kiss concurred with the dissenting opinion. Justice Bragyova emphasised that the Court should have declared unconstitutionality manifested in omission. There are several loopholes and gaps in the Act. For example, the Act does not list those public places where it is unlawful to gather, or behaviour that is prohibited during a lawful demonstration. Therefore, the constitutional rights could not be exercised in a proper way.
 
Justice András Holló also attached a separate opinion to the decision, to which Chief Justice Mihály Bihari joined. According to Justice Holló, the Court should have declared unconstitutionality manifested in omission, but should not have annulled that part of Article 14.1 of the Act under which the police were obliged to disperse a demonstration that was taking place at a different time or place to that specified in the notification, or which had different aims and agendas. Rather than repealing the provision, a better solution to the problem of dispersal of assemblies would have been detailed regulations, clearly explaining the means the police were entitled to use in different situations.
 
Cross-references:
 
- Decision 57/2001, Bulletin 2001/3 [HUN-2001-3-008].
 
Languages:
 
Hungarian.