Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25390/94

by László REKVÉNYI

against Hungary

The European Commission of Human Rights sitting in private on

11 April 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to:

- Article 25 of the Convention for the Protection of Human Rights

and Fundamental Freedoms;

- the application introduced on 20 April 1994 by László REKVÉNYI

against Hungary and registered on 7 October 1994 under file

No. 25390/94;

- the applicant's submissions of 20 April 1994 and his further

correspondence;

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 April 1996;

- the observations in reply, submitted by the applicant's

representative on 14 May 1996;

- the supplementary observations of 24 August 1996, submitted by

the respondent Government;

- the supplementary observations in reply of 17 September 1996,

submitted by the applicant's representative.

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1953, is a Hungarian citizen and resident

in Budapest. He is a police officer and the Secretary General of the

Independent Police Trade Union. In the proceedings before the

Commission he is represented by Mr. V. Mavi, a lawyer working at the

Hungarian Human Rights Centre in Budapest.

A. Particular circumstances of the case

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

On 28 January 1994 the Head of the National Police (Országos

Rendorfokapitány), in a circular letter, demanded, with a view to the

parliamentary elections in May 1994, that policemen should refrain from

political activities. He referred to S. 40/B para. 4 of the

Constitution (Alkotmány), as amended by Act No. 107 of 1993 as from

1 January 1994, according to which members of the armed forces, the

police and security services are prohibited from joining political

parties and from engaging in political activities. He further indicated

that those who wished to pursue political activities would have to

leave the police.

On 16 February 1994 the Head of the National Police, in a second

circular letter, declared that no exemption could be given from the

prohibition contained in S. 40/B para. 4 of the Constitution.

On 11 April 1994 the Constitutional Court (Alkotmánybíróság)

dismissed the applicant's constitutional complaint about S. 40/B

para. 4 of the Constitution. The Constitutional Court held that it had

no competence to change a constitutional provision such as S. 40/B

para. 4, which had been incorporated into the Constitution by

constitutional amendment, requiring the votes of two thirds of the

members of the Parliament.

B. Relevant domestic law

As from 1 January 1994, Section 40/B para. 4 of the Constitution

(Act No. 20 of 1949, as amended several times) provides: "Career

members of the armed forces, the police force and the civil national

security services shall not join political parties and shall not engage

in political activities."

Moreover, the Constitution provides that judges in general (S. 50

para. 3) as well as the judges of the Constitutional Court (S. 32/A

para. 5), moreover public prosecutors (S. 53 para. 2) shall not join

political parties and shall not engage in political activities.

According to Section 20 para. 5, a member of the parliament shall

not be, inter alia, a career member of the police.

According to Section 8 of Act No. 55 of 1990 on the Legal Status

of the Members of the Parliament (a képviselok jogállásáról szóló 1990.

évi LV. törvény), a member of the parliament shall eliminate any state

of incompatibility with his mandate within a period of 30 days from the

establishment of his mandate's validity.

In its decision No. 16/1994 (16/1994. /III.25./ AB határozat),

the Hungarian Constitutional Court held that the incompatibility rules

contained in, inter alia, Section 20 para. 5 of the Constitution do not

limit the passive voting right of those concerned in the sense that

they could not stand as a candidate for the parliamentary elections.

Section 2 para. 3 of Act No. 34 of 1994 on the police forces (a

rendorségrol szóló 1994. évi XXXIV. törvény, the "Police Act 1994"),

having entered into force as from 1 October 1994, provides that, while

discharging its duties, the police shall be free from any political

influence.

Section 7 of the Police Act 1994 concerns the framework of

policemen's involvement in local or national elections and their

participation in organisations or associations.

Paragraph 9 provides as follows: "If a member of the police

wishes to stand for election at national or local level or at mayor's

elections, he shall in advance announce his intention to do so to the

Head of the National Police. In such cases his service shall be

suspended from the sixtieth day preceding the election day until the

day when the results of the election are published."

Paragraph 10 provides as follows: "Members of the police shall

have the right to join organisations which are related to their duties,

as policemen, aimed at protecting or representing interests and to hold

office therein; in this connection they shall not suffer any

disadvantage. Policemen shall inform their superiors about their

membership as well as about their intention in advance to join social

organisations unrelated to their duties as policemen. The superior

shall have the authority to prohibit membership or the joining of such

organisations, if it is incompatible with their profession as police

officers or with their rank in the service, or if it interferes with

or endangers the interests of the service. The prohibition shall take

the form of a decision which is subject to a complaint to be lodged

with the head of the superior police authority. The decision of the

superior authority can be challenged before court."

Section 106 of the Decree of the Minister of the Interior

No. 3/1995 (III.1.) BM on the police service regulation (Rendorségi

Szolgálati Szabályzat, "Regulation 1995"), taken upon authorisation by

the Police Act 1994 in order to implement its provisions, concerns the

framework of public activities carried out by policemen.

It provides, inter alia, that members of the police, in their

capacity as representatives or experts of the police, shall not appear

in the public media, in the press, in radio and television broadcasting

or in films, unless authorised to do so by the Head of the National

Police or his Deputies. Furthermore, members of the police shall have

the right to make statements and publications in the newspapers of the

police without permission, while observing the rules on service and

state secrets. Moreover, members of the police, in their capacity as

policemen, shall not appear in public unless authorised to do so by

the Head of the National Police. On such occasions they shall refrain

from making political statements and shall show neutrality towards any

social organisation. In their leisure time members of the police shall

have the right to participate in social programmes lawfully organised

under Act No. 3 of 1989 governing the right to freedom of peaceful

assembly. On such occasions they shall refrain from wearing a uniform

and from carrying their service gun or other, lawfully possessed

firearms. In case the gathering is ordered to be dissolved they shall

immediately leave.

Section 5 of Act No. 34 of 1989 on the Parliamentary Elections

(az országgyulési képviselok választásáról szóló 1989. évi XXXIV.

törvény), as amended on 20 January 1994, provides that, in the

individual electors, constituents are entitled to nominate a third

person as a candidate for the elections by submitting their "nomination

coupon" ("ajánlási szelvény"). A candidate's eventual nomination is

subject to the receipt of at least 750 nomination coupons signed by

constituents. Section 6 para. 2 (c) provides that, on the nomination

of a candidate for the elections, the candidate shall declare to the

competent election committee that he does not hold a post that is

incompatible with his potential mandate or that he would resign from

such a post, if elected. According to Section 6 para. 6, the nomination

coupons shall be annihilated, after the nomination has been confirmed

by the election committee. Paragraph 8 requires that the nomination

coupons shall be handled confidentially. Paragraph 10 prohibits that

record be kept of the nomination coupons.

Sections 5 and 6 of Law-Decree No. 10 of 1971 on the Service of

the Career Members of Armed Forces and Armed Bodies (a fegyveres erok

és a fegyveres testületek hivatásos állományának szolgálati viszonyáról

szóló 1971. évi 10. törvényereju rendelet), as in force in the relevant

period, regulated the termination of the service of a career member of

the armed forces/bodies. Section 5 para. 2 (e) requires that the

service shall be terminated if, inter alia, the career member of the

armed forces/bodies resigns. Engagement in political activities is no

ground for the termination of the service.

COMPLAINTS

1. The applicant complains under Article 10 of the Convention that,

in the relevant period, the prohibition contained in S. 40/B para. 4

of the Hungarian Constitution violated his right to freedom of

expression. He also complains under Articles 11 and 18 of the

Convention that S. 40/B para. 4 of the Constitution violated his right

to freedom of association. He submits in particular that the aim of

the legal provision in question is not clear, and that he was

completely prohibited from exercising such rights.

2. He further complains under Article 10 in conjunction with

Article 14 of the Convention about the discriminatory and arbitrary

character of S. 40/B para. 4 in that it does not extend to the whole

civil service but only applies to members of the armed forces, the

police force and the civil national security services.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 April 1994 and registered

on 7 October 1994.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

25 April 1996.

On 14 May 1996 the applicant's representative submitted

observations in reply to the respondent Government's observations.

On 24 August 1996 the Government submitted supplementary

observations. On 17 September 1996 the applicant's lawyer submitted his

observations in reply.

THE LAW

1. The applicant complains that, in the relevant period, he was

prohibited from joining political parties and from engaging in

political activities, as a consequence of the amendment of the

Hungarian Constitution, effective as from 1 January 1994.

2. The Government submit that the applicant has failed to specify

the political activities, the pursuance of which he feels prevented

from. In their view, the applicant has thus failed to substantiate his

complaint for the purposes of admissibility. In these circumstances,

the Government raise the question whether the applicant can claim to

be a victim of any breach of his Convention rights, on account of

S. 40/B of the Constitution, within the meaning of Article 25 (Art. 25)

of the Convention.

The applicant contests the Government's position. He submits that

he was a victim of a continuous violation of his rights. In particular,

he was prevented from, inter alia, founding and participating in

associations, accepting appointment as a candidate for elections,

supporting election candidates and joining political parties.

Article 25 (Art. 25) of the Convention, so far as it is relevant,

provides as follows:

"1. The Commission may receive petitions ... from any person,

... claiming to be the victim of a violation by one of the High

Contracting Parties of the rights set forth in this Convention

..."

The Commission recalls that, in specific circumstances, an

applicant is entitled to "claim to be the victim of a violation" of the

Convention, even though he is not able to allege in support of his

application that he has been subject to a concrete State measure. The

question whether the applicant was actually the victim of any violation

of the Convention may exceptionally involve determining whether the

contested legislation is in itself compatible with the Convention's

provisions (cf. Eur. Court HR, Klass and others v. Germany judgment of

6 September 1978, Series A no. 28, p. 20, para. 38; Dudgeon v. the

United Kingdom judgment of 22 October 1981, Series A no. 45, p. 18,

para. 41).

The Commission notes that, subsequent to the impugned amendment

of the Hungarian Constitution, the Head of the National Police, on

28 January 1994, demanded in a circular letter that policemen should

refrain from political activities and indicated that those who wished

to pursue political activities would have to leave the police.

Moreover, in another circular letter of 16 February 1994, the Head of

the National Police declared that no exemption could be given from the

prohibition contained in S. 40/B para. 4 of the Constitution.

It is true that, notwithstanding the impugned provision of the

Constitution, in the relevant period the applicant was not completely

prevented from engaging in political activities. There is no indication

that he could not nominate a third person as a candidate for the

elections by submitting his nomination coupon. Moreover, he was free

to accept a nomination as a candidate for the elections on condition

that, if elected, he should resign from any position incompatible with

his mandate. Furthermore, neither the impugned constitutional

prohibition nor the other relevant laws entailed any formal sanction

for illegitimate political activities potentially assumed by the

applicant.

However, the Commission, having regard to the limited nature of

these possibilities to articulate political preferences and, in

particular, to the circular letters issued by the Head of the National

Police, considers that the applicant could be reasonably concerned by

the consequences of his expression of political views.

In these circumstances, the Commission finds that the applicant

can claim to be a victim within the meaning of Article 25 (Art. 25) of

the Convention.

3. The Government reiterate that the applicant has failed to

specify, in what manner he was actually prevented from the pursuance

of political activities, and, as a consequence, they raise the question

whether or not the application is in compliance with the requirements

of Article 26 (Art. 26) of the Convention.

The applicant argues that, although it is disputable that a

complaint to the Constitutional Court can be deemed as an effective

remedy in the case, he nevertheless brought a constitutional complaint

and thus undoubtedly exhausted the available domestic remedies.

Moreover, he lodged his application within the six months' time-limit

as from both the date of amendment of the Constitution and the decision

of the Constitutional Court.

Article 26 (Art. 26) of the Convention provides as follows:

"The Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken."

The Commission notes that the applicant challenged S. 40/B

para. 4 of the Constitution before the Constitutional Court, which on

11 April 1994 rejected his constitutional complaint, holding that it

had no competence to quash a provision of the Constitution itself.

In these circumstances, the Commission finds that the application

cannot be rejected for non-exhaustion of domestic remedies under

Article 27 para. 3 (Art. 27-3) of the Convention.

4. The applicant complains under Article 10 (Art. 10) of the

Convention that, in the relevant period, S. 40/B para. 4 of the

Hungarian Constitution violated his right to freedom of expression.

Article 10 (Art. 10) of the Convention, so far as relevant,

provides as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority. ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Government submit that, in addition to the general

prohibition of policemen's involvement in political activities

contained in S. 40/B of the Constitution, the further relevant

legislation, namely the Police Act 1994 and the Regulation 1995,

provides for a specific legal framework. The provisions of this legal

framework are, in their view, detailed enough to specify the

restrictions imposed on policemen, as to their right to freedom of

expression, in a manner in conformity with Article 10 para. 2

(Art. 10-2).

The applicant maintains that the prohibition at issue is of an

unacceptably general character and is largely prone to arbitrary

interpretation. He argues that the legal norms of a lower level,

referred to by the Government, allowing for certain types of political

activities to be carried out by police members, in fact contradict the

overall constitutional ban. He submits that there are no clear criteria

as to the question whether or not a particular activity falls under the

notion of political activity.

The Commission finds that this aspect of the application involves

serious issues of fact and law under the Convention, the determination

of which must be reserved to an examination on the merits. This part

of the application cannot, therefore, be declared manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, no other ground for declaring it inadmissible having been

established.

5. The applicant further complains under Article 11 (Art. 11) - also

invoking Article 18 (Art. 18) - that S. 40/B para. 4 of the

Constitution violated his right to freedom of association.

Article 11 (Art. 11) of the Convention provides as follows:

"1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to

form and to join trade unions for the protection of his

interests.

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary

in a democratic society in the interests of national security or

public safety, for the prevention of disorder or crime, for the

protection of health or morals or for the protection of the

rights and freedoms of others. This Article shall not prevent

the imposition of lawful restrictions on the exercise of these

rights by members of the armed forces, of the police or of the

administration of the State."

The Government submit that the restriction of policemen's party

affiliation has been a necessary safeguard to ensure the disconnection

of the institutional links, which, during the totalitarian era, existed

between the armed forces and political circles and to prevent the

members of armed forces from political commitment or from being

involved in political manipulations. In this respect they refer to

para. 89 of the opinion of the Commission in the Kosiek v. Germany case

(Series A no. 105, p. 38) and to para. 96 of the opinion of the

Commission in the Glasenapp v. Germany case (Series A no. 104, p. 45).

The applicant argues that the restriction in question is not

necessary in a democratic society and is in fact of a political nature.

He submits in particular that the aim of the impugned constitutional

provision is unclear and that he was completely prohibited from

exercising his right to freedom of association.

The Commission finds that this aspect of the application is so

closely linked to the complaint under Article 10 (Art. 10) of the

Convention that it must likewise be reserved to an examination on the

merits. This part of the application cannot, therefore, be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, no other ground for declaring it

inadmissible having been established.

6. The applicant further complains under Article 10 in conjunction

with Article 14 (Art. 10+14) of the Convention about the discriminatory

and arbitrary character of S. 40/B para. 4 in that it prevented

policemen as such from any involvement in political activities.

Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government submit that the prohibition at issue is imposed

not only upon policemen but also upon members of the armed forces,

judges, Constitutional Court judges and prosecutors. The Government,

referring to the Engel case (Eur. Court HR, Engel and others v. the

Netherlands judgment of 8 June 1976, Series A no. 22, p. 42, para. 103)

further maintain that any distinction made between policemen and other

groups of citizens, as to the exercise of the right to freedom of

association and expression, can be justified on the ground of

differences between the conditions of military and of civil life and,

more specifically, by the "duties" and "responsibilities" peculiar to

members of the armed forces.

The applicant argues that there is no objective and reasonable

justification for prohibiting a party affiliation - neither in respect

of policemen nor of the other groups of civil servants, referred to by

the Government.

The Commission finds that the applicant's complaint under

Article 14 (Art. 14) is so closely linked to the above issues under

Articles 10 and 11 (Art. 10, 11) that it cannot be declared

manifestly ill-founded, either, within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention, no other ground for declaring it

inadmissible having been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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REKVÉNYI v. HUNGARY

REKVÉNYI v. HUNGARY

LEXI