FIRST SECTION

DECISION

Application no. 1318/15 András SCHIFFER and O thers against Hungary

The European Court of Human Rights (First Section), sitting on 10 December 2020 as a Committee composed of:

Alena Poláčková , President, Péter Paczolay , Gilberto Felici, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 22 December 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants is set out in the appendix.

2 . The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi , Agent, Ministry of Justice. The applicants were represented by Mr D. Karsai , a lawyer practising in Budapest.

The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . At the parliamentary session on 23 June 2014, while she was delivering a pre-agenda speech, the applicant Bernadett Szél , opposition Member of Parliament (“MP”), held up a placard in the session hall reading “Viktor, is that why you effected a regime change?” At the same time, the applicant András Schiffer, MP, displayed a placard with the message “You are betraying your own grandchildren”. The applicant Benedek R. Sallai , MP, held up a placard stating “No for Russian nuclear loan”, while the applicant István Ikotity , MP, displayed a placard reading “No to Paks , no to Putin”.

5 . By their actions, the applicants intended to protest against the Bill on the agreement between the Russian Federation and Hungary on a state loan to be granted to the Government of Hungary with a view to financing the construction of a nuclear power plant in Hungary – which was to be adopted later during the session.

6 . After the pre-agenda speech had been finished, the Speaker indicated to the applicants that their actions amounted to “disorderly conduct violating the Rules of Parliament”. He added that he was going to submit a proposal to the House Committee to sanction the conducts which in his view violated parliamentary disciplinary law. Subsequently, during the Secretary of State ’ s reply to her pre-agenda speech, the applicant Bernadett Szél continued to display her placard.

7 . Under section 38/A (1) and (2) of Act no. XXXVI of 2012 (“the Parliament Act”), except for cases where prior permission has been granted by the House Committee, demonstration in a Parliament session or a Committee meeting by way of displaying an object or by using visual or audio means is not allowed. In the applicants ’ case, no such permission was requested or granted.

8 . Section 49 (4) of the Parliament Act provides that if a MP violates the relevant provisions of the Rules of Parliament, the MP ’ s monthly allowance may be reduced. Section 51/ A (13) provides that where a MP ’ s allowance is reduced accordingly, the reduction may not exceed one third of the MP ’ s monthly allowance.

9 . Under the powers granted in section 49 (4) and section 51/A (1) of the Parliament Act, the House Committee discussed the possible reduction of the applicants ’ monthly allowances, but no consensus was reached on the matter.

10 . Therefore, under the powers granted in section 13 (6) of the Parliament Act, on 3 July 2014 the case was decided by the Speaker who ordered in his respective decisions to deduct HUF 50,000 from the monthly allowance of each applicant. In the reasoning of the decisions, the Speaker stated that in the absence of the requisite permission, the applicants ’ conduct constituted a violation of the relevant provisions of the Parliament Act. The applicants were, in line with section 51/A (3) of the Parliament Act, informed of the Speaker ’ s decisions without delay; and the decisions were served on them.

11 . Under section 51/A (4) of the Parliament Act, the applicants sought remedy against the Speaker ’ s decisions within the statutory time-limit, asking the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials (“the Immunity Committee”) to overrule the decisions. The Immunity Committee is a parliamentary standing Committee operating on a parity basis, composed of equal numbers of ruling and opposition party MPs.

12 . In their requests for relief, the applicants asserted that their conduct, allegedly violating disciplinary law, fell under the freedom of speech of MPs in Parliament and alleged that their conduct did not disturb Parliament ’ s effective and orderly operation since, in their view, the aim of the demonstration of the placards was to support the speech delivered in Parliament and emphasise their position.

13 . On 9 September 2014 the Immunity Committee, acting under its powers specified in section 51/A (6) and (8) of the Parliament Act, heard the applicants but – by three votes to three – decided not to grant their requests to have the Speaker ’ s decisions overruled. In its reasoning the Immunity Committee stated, inter alia , that the provisions of the Rules of Parliament governing demonstration were clear and unambiguous: such activity could only be performed in possession of a prior permission from the House Committee. Moreover, freedom of expression, invoked by the applicants, was not an absolute right and was subject to limitations. The applicant ’ s conduct amounted to a violation of the Rules of Parliament and was not an isolated incident in parliamentary practice; it was rather to be characterised as a process, since in the given parliamentary cycle similar behaviours had been performed several times during plenary sessions.

14 . Following the Immunity Committee ’ s proceedings, the applicants could, under section 51/A (9) of the Parliament Act, have asked Parliament to overrule the impugned decisions. They had been informed of this possibility in the Speaker ’ s decisions. However, they did not avail themselves of this legal avenue.

COMPLAINTS

15 . The applicants complained under Article 10 of the Convention that the sanction imposed on them amounted to a breach of their right to freedom of expression. They further contended that there was no effective remedy available to them to challenge the sanction sustained, in breach of Article 13 read in conjunction with Article 10 of the Convention.

THE LAW

16 . The applicants submitted that the sanction applied to them represented an unjustified interference with their rights under Article 10 of the Convention. They further complained under Article 13 of the absence of an effective remedy in this respect.

Article 10 provides:

“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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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.”

Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

17 . The Government argued that, since 4 March 2014, the system of remedies available in situations such as the applicants ’ one was of a two-tier character. Affected MPs could first complain in writing to the Immunity Committee and then attend in person the Committee ’ s meeting. Indeed, the applicants in the present case availed themselves of this possibility. Should the Committee decide not to sustain their complaints, they could have further applied to Parliament to have the impugned decisions overruled. However, in the present case, the applicants did not use this second level of the remedial system available to them. While it was true that an oral procedure was available only before the Committee and not in Parliament, the two-tier system altogether provided an adequate remedy, whose efficiency could not be called into question merely on the ground that the last available forum was Parliament where the ruling parties had, by definition, majority.

18 . The applicants replied that they had not filed a request with Parliament to have the decisions overruled, because parliamentary majority would always endorse the Speaker ’ s position in politically sensitive matters such as the present one.

19 . Concerning the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies, the Court gave a summary of the relevant principles in Mendrei v. Hungary (( dec. ), no. 54927/15, §§ 23 ‑ 26, 19 June 2018).

20 . The Court further observes that in Karácsony and Others v. Hungary ([GC], nos. 42461/13 and 44357/13 , 17 May 2016) it dealt with the problem of sanctioning, in 2013, of MPs for their actions in parliamentary sessions. However, the facts of the present case occurred subsequently to the changes in the relevant domestic law enacted as of 4 March 2014. These changes entailed the creation of a two-tier remedial system including an examination of the case by the Immunity Committee, with the personal attendance of the MPs concerned, followed by a complaint to Parliament itself. Indeed, the Court noted the intervening institution of this system in Karácsony and Others (cited above, § 160) in the following terms:

“It should be noted that an amendment to the Parliament Act introducing the possibility for a fined MP to seek a remedy and to make representations before a parliamentary committee entered into force on 4 March 2014 and that the minimum procedural safeguards required in the present situation thus appear to have been put in place ....”

21 . The Court notes that, in the instant case, the applicants did not avail themselves of the new remedial system in its entirety. Notably, after the Immunity Committee had refused to reverse the Speaker ’ s decision (see paragraph 13 above), they decided not to bring their cases before Parliament (see paragraph 14 above).

22 . The Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey , 16 September 1996, § 71, Reports of Judgments and Decisions 1996 ‑ IV; Brusco v. Italy ( dec. ), no. 69789/01, ECHR 2001-IX; Grzinčič v. Slovenia , no. 26867/02, § 84, 3 May 2007; Muratović v. Serbia ( dec. ), no. 41698/06, § 15, 21 March 2017; and Domján v. Hungary ( dec. ), no. 5433/17, § 33, 14 November 2017).

23 . In the present case, the Court considers that the applicants ’ doubts, raised in terms of political realities, as to the prospects of success of a complaint to Parliament (see paragraph 18 above), cannot exempt them from having used a remedy available to them and capable of redressing the grievance complained of.

24 . It follows that the applicants ’ complaint under Article 10 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies; whil e their complaint under Article 13 is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must likewise be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2020 .

Renata Degener Alena Poláčková Deputy Registrar President

APPENDIX

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1 .

András SCHIFFER

1971Hungarian

Budapest

2 .

István IKOTITY

1977Hungarian

Baja

3 .

Róbert Benedek SALLAI

1974Hungarian

Túrkeve

4 .

Bernadett SZÉL

1977Hungarian

Budakeszi