a) Hungary / b) Constitutional Court / c) / d) 14-02-2013 / e) 3/2013 / f) On the constitutional complaint of the party «Politics can be different» (LMP) / g) Magyar Közlöny (Official Gazette), 2013/23 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - Court decisions.
Fundamental Rights - Civil and political rights - Freedom of assembly.
Keywords of the alphabetical index:
Police decision, non-competence / Assembly, organisation, limitations.
The Constitutional Court for the first time exercised its competence to overturn a court decision which was found contrary to Fundamental Law. The ordinary court had failed to review the merits of a decision declaring lack of competence on the part of the police because of an agreement on the use of public area with the Municipality of Budapest.
I. The party «Politics can be different» (hereinafter, «LMP») intended to organise an event on 15 March 2012 to commemorate the freedom-fight of 1848/49 in Heroes' Square, Budapest. On 6 February 2012 the party applied to the Budapest Police Department for acquiescence in the event, scheduled to take place in Heroes' Square. On the same day the Budapest Police Department refused to deal with the application, observing that on 15 March 2012 the area in question is used by the Municipality of Budapest based upon a public area use agreement. Consequently, the measure (the agreement) – which was in place for 15 March 2012 – remained outside the Police Department's competence as regards the prohibition of or acquiescence in a gathering.
The Budapest Regional Court dismissed the applicant's request for judicial review, endorsing in essence the police authorities' reasoning. In addition, the National Police Commander upheld the decision of the Budapest Police Department. The party asked the court to review the latter decision. On appeal, the Budapest Regional Court quashed the decisions of the police authorities.
The party submitted a constitutional complaint against both the first and the second decisions of the Budapest Regional Court.
II. The Constitutional Court examined the constitutionality of the first court decision; it was this decision which prevented the party from holding its event to commemorate 15 March 1848 in Heroes' Square. The Constitutional Court declared that the decision of the Budapest Regional Court violated the right to peaceful assembly, because the Regional Court did not examine the decision of the Budapest Police Department on the merits. In this case, the Regional Court should have taken into account that the legality and the constitutional justification of the public area use agreement were questionable as well. The Municipality of Budapest did not need a public area permission to hold an official commemoration on public premises. Despite that, the Municipality of Budapest, by concluding such an agreement, reserved all the possible public sites in Budapest where the freedom fight of 1848 could have been properly commemorated with a large number of participants. Therefore an abuse of law occurred when the agreement in question was concluded. Furthermore, if the Regional Court had examined the case on its merits and the statement of the Municipality of Budapest regarding the resignation of the use of Heroes' Square on 15 March 2012 had been taken into consideration, the party would have organised its event, in the absence of any other legal reason to prevent it.
The Constitutional Court, for the first time, annulled a court decision and determined the following constitutional requirement to give guidance to the court in future legal disputes concerning the right to assembly. Based on these requirements, courts are always to review decisions of the police concerning holding gatherings on public premises on their merits, i.e. they are to review the legality and constitutional justification of the police decisions.
III. Justices István Balsai, Mihály Bihari and Béla Pokol attached a concurring opinion and András Bragyova and Mihály Bihari attached a dissenting opinion to the decision.