EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25390/94

László REKVÉNYI

against

Hungary

REPORT OF THE COMMISSION

(adopted on 9 July 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) 1

A. The application

(paras. 2-5) 1

B. The proceedings

(paras. 6-13) 1

C. The present Report

(paras. 14-18)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-37)              4

A. The particular circumstances of the case

(paras. 19-23)              4

B. Relevant domestic law

(paras. 24-37)              4

III. OPINION OF THE COMMISSION

(paras. 38-78)              7

A. Complaints declared admissible

(para. 38) 7

B. Points at issue

(para. 39) 7

C. As regards Article 10 of the Convention

(paras. 40-53)              7

CONCLUSION

(para. 54) 10

D. As regards Article 11 of the Convention

(paras. 55-65)              10

CONCLUSION

(para. 66) 12

E. As regards Article 14 read in conjunction with

Article 10 of the Convention

(paras. 67-69)              12

CONCLUSION

(para. 70) 12

F. As regards Article 14 read in conjunction with

Article 11 of the Convention

(paras. 71-74)              12

TABLE OF CONTENTS

CONCLUSION

(para. 75) 13

G. Recapitulation

(paras. 76-79)              13

OPINION PARTIELLEMENT DISSIDENTE DE M. J.-C. GEUS,

A LAQUELLE MME G.H. THUNE, M. M.A. NOWICKI

et M. M. VILA AMIGO DECLARENT SE RALLIER 14

PARTIALLY DISSENTING OPINION OF MM A.S. GÖZÜBÜYÜK,

A. WEITZEL, J.-C. SOYER, MRS J. LIDDY, MM I. CABRAL BARRETO,

I. BÉKÉS, AND C. BÃŽRSAN              16

PARTIALLY DISSENTING OPINION OF MR L. LOUCAIDES 18

PARTIALLY DISSENTING OPINION OF MR G. RESS,

JOINED BY MR S. TRECHSEL AND MR K. HERNDL 20

APPENDIX : DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 22

I. INTRODUCTION

A. The application

2. The applicant is a Hungarian national. He was born in 1953 and lives in Budapest. He was represented before the Commission by Mr. V. Mavi , a lawyer practising in Budapest.

3. The application is directed against Hungary.  The respondent Government were represented by their Agent, Mr. Károly Bárd , then of the Ministry of Justice.

4. The case concerns a prohibition contained in the Hungarian Constitution according to which career members of the police shall not join political parties and shall not engage in political activities.

5. The applicant complains under Article 10 of the Convention that, in the relevant period, the impugned prohibition violated his right to freedom of expression and (complaint brought under Article 11 of the Convention) to freedom of association. He further complains under Article 14 read in conjunction with Articles 10 and 11 of the Convention about the allegedly discriminatory and arbitrary character of the prohibition at issue.

B. The proceedings

6. The application was introduced on 20 April 1994 and registered on 7 October 1994.

7. On 29 November 1995, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the Hungarian Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints based (under Article 10 of the Convention) on the alleged violation of his freedom of expression, (under Article 11 of the Convention) on the alleged violation of his right to freedom of association and, moreover, (under Article 14 read in conjunction with Articles 10 and 11 of the Convention) on the allegedly discriminatory nature of the impugned prohibition.

8. The Government's written observations were submitted on 25 April 1996, after an extension of the time-limit fixed for that purpose. The applicant's representative replied on 14 May 1996.

9. On 24 August 1996 the Government submitted supplementary observations. The applicant's representative replied on 17 September 1996.

10. On 11 April 1997 the Commission declared the application admissible.

11. The text of the Commission's decision on admissibility was sent to the parties on 18 April 1997 and they were invited to submit such further information or observations on the merits as they wished.

12. On 6 June 1997 the Government submitted observations on the merits.

13. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

15. The text of this Report was adopted by the Commission on 9 July 1998 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the respondent Government of their obligations under the Convention.

17. The Commission's decision on the admissibility of the application is appended to this Report.

18. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

19. At the material time, the applicant was a police officer and the Secretary General of the Independent Police Trade Union ( Független Rendőrszakszervezet ).

20. On 24 December 1993 Act No. 107 of 1993 on Certain Amendments of the Constitution ( az Alkotmány módosításáról szóló 1993. évi CVII. törvény ) was published in the Hungarian Official Gazette (Magyar Közlöny ). This Act amended, inter alia , S. 40/B para. 4 of the Constitution in that, as from 1 January 1994, this paragraph provided that members of the armed forces, the police and security services were prohibited from joining political parties and from engaging in political activities.

21. On 28 January 1994 the Head of the National Police ( Országos Rendőrfőkapitány ), 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. He further indicated that those who wished to pursue political activities would have to leave the police.

23. On 11 April 1994 the Constitutional Court ( Alkotmánybíróság ) dismissed the applicant's constitutional complaint in regard to 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, having required the votes of two thirds of the members of the Parliament.

B. Relevant domestic law

24. As from 1 January 1994, Section 40/B para. 4 of the Constitution (Act No. 20 of 1949, as amended several times) provides as follows:

"A fegyveres erők , a rendőrség és a polgári nemzetbiztonsági szolgálatok hivatásos állományú tagjai nem lehetnek tagjai pártnak és politikai tevékenységet nem folytathatnak ."

"Career members of the armed forces, the police and the civil national security services shall not join political parties and shall not engage in political activities."

25. 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.

27. According to Sections 61-63 of the Constitution, as in force as from 23 October 1989, everyone has the right to freedom to hold and impart opinions, the right to peaceful assembly and to the free exercise of that right and, moreover, the right to freedom to join organisations which have been founded in pursuance of aims not forbidden by law.

28. According to Section 8 of Act No. 55 of 1990 on the Legal Status of the Members of the Parliament (a képviselők 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.

29. 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.

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

31. 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.

32. According to paragraph 9, 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.

33. Paragraph 10 provides that 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 a court.

37. 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 erők és a fegyveres testületek hivatásos állományának szolgálati viszonyáról szóló 1971. évi 10. törvényerejű 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 provides as follows: service shall be terminated when the person concerned has exceeded fifty-five years of age. Service shall, however, be terminated prior to this age-limit, if the person concerned has ( i ) become, for reasons of health, unfit for service; (ii) behaved dishonourably in pursuit of his service; (iii) been sentenced to imprisonment; (iv) been reduced in rank; (v) resigned. Section 6 provides that service may be terminated if the person concerned ( i ) requests so; (ii) has attained pension rights; (iii) cannot, on account of an impairment of his fitness of service, be appropriately employed any longer; (iv) has become, in the context of restructuring, redundant, provided he has not accomplished ten years of service at least; (v) has been subjected to a prolongation of the waiting period within the meaning of S. 12 (4) c/.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

38. The Commission has declared admissible:

- the applicant's complaint that the prohibition of engagement in political activities, prescribed by S. 40/B para. 4 of the Hungarian Constitution, violated his right to freedom of expression;

- the applicant's complaint that the prohibition of party affiliation, prescribed by S. 40/B para. 4 of the Constitution, violated his right to freedom of association;

- the applicant's complaint that the prohibition of engagement in political activities is of a discriminatory and arbitrary character;

- the applicant's complaint that the prohibition of party affiliation is of a discriminatory and arbitrary character.

B. Points at issue

39. The points at issue in the present case are as follows:

- whether there has been a violation of Article 10 of the Convention;

- whether there has been a violation of Article 11 of the Convention;

- whether there has been a violation of Article 14 read in conjunction with Article 10 of the Convention;

- whether there has been a violation of Article 14 read in conjunction with Article 11 of the Convention.

C. As regards Article 10 of the Convention

40. The applicant complains under Article 10 of the Convention that the prohibition of engagement in political activities, prescribed by S. 40/B para. 4 of the Hungarian Constitution, violated his right to freedom of expression.

"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.    ...

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."

44. The Commission considers that political activities may fall under the protection of Article 10, in so far as freedom of political debate constitutes a particular aspect of freedom of expression. The Commission recalls that freedom of political debate is indeed at the very core of the concept of a democratic society (Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, para. 42; as regards political activities, see also the Piermont v. France judgment of 27 April 1995, Series A no. 314, p. 22, paras. 51-53 and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 23, para. 44).

45. The Commission notes that on 28 January 1994 the Head of the National Police, referring to S. 40/B para. 4 of the Constitution, demanded in a circular letter that policemen should refrain from political activities. He indicated that those who wished to pursue political activities would have to leave the police. Moreover, 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. Furthermore, on 11 April 1994 the Constitutional Court dismissed the applicant's constitutional complaint in this respect, holding that it had no competence to change a provision of the Constitution itself. In these circumstances, the Commission is of the opinion that the prohibition of involvement in political activities constituted an "interference" with the applicant's exercise of his freedom of expression as guaranteed by Article 10 para. 1 of the Convention.

47. As to the question of lawfulness, the Commission recalls that firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law', unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (Eur. Court HR, the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31, para. 49; Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, para. 40).

48. As regards the requirement of the accessibility of the law, the Commission notes at the outset that this issue has not been in dispute between the parties. The Commission also notes that the impugned prohibition was published on 24 December 1993 and entered into force on 1 January 1994, whereas the circular letters, in which reference was made to S. 40/B para. 4 of the Constitution, were issued by the Head of the National Police on 28 January and 16 February 1994, respectively. In these circumstances, the law in question was adequately accessible at the material time.

49. The Commission has next examined the requirement of sufficient precision. The Commission notes the applicant's submissions according to which the phrase "political activities" is prone to arbitrary interpretations and, moreover, the Government's argument according to which the further relevant legislation, namely the Police Act 1994 and the 1995 Regulation, provides for a specific legal framework detailed enough to specify the restrictions imposed on policemen, as to their right to freedom of expression, in a manner which is in conformity with Article 10 para. 2 of the Convention.

51. Having considered the wording of S. 40/B para. 4 of the Hungarian Constitution, the Commission considers that the notion "political activities" is indeed vague and sweeping. It was, therefore, not precise and specific enough to enable the applicant to regulate his conduct in the matter. The Government have not drawn the Commission's attention to the existence, at the material time, of any case-law interpreting these terms. The requirement of foreseeability having thus not been met, the interference with the applicant's right to freedom of expression was not "prescribed by law".

52. Consequently, the Commission finds that the interference with the applicant's freedom of expression cannot be regarded as justified under Article 10 para. 2 of the Convention.

53. It follows that there has been a violation of Article 10 of the Convention.

CONCLUSION

54. The Commission concludes, by 21 votes to 9, that there has been a violation of Article 10 of the Convention.

D. As regards Article 11 of the Convention

"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."

57. The applicant submits 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. Although the second sentence of Article 11 para. 2 does not refer to the notion of necessity, he considers that in order to be justified, the restriction in question should nevertheless be necessary in a democratic society, a condition not met in the present case.

60. The Commission has next examined whether such interference was justified under Article 11 para. 2 of the Convention. The Commission observes that the second sentence of that paragraph specifically envisages restrictions on the exercise of the rights defined in paragraph 1 by various categories of persons employed by the State. The Commission finds that the restriction at issue falls to be examined under this sentence, since it concerns career members of the police.

61. As regards the question of lawfulness, the Commission recalls that, within the meaning of the second sentence of Article 11 para. 2 of the Convention, "lawful"  means in the first place that the measures at issue must at least have been in accordance with national law (No. 11603/85, Dec. 20.1.87, D.R. 50, p. 228). The Commission notes that the restriction complained of is prescribed by Section 40/B para. 4 of the Hungarian Constitution, according to which "career members of ... the police ... shall not join political parties ...", and is, therefore, in accordance with national law.

63. The Commission notes the Government's explanation as to the need to depoliticise the police. In this respect the Commission had regard to the role in Hungary's recent history and the repercussions of a politically committed police relied upon by a totalitarian regime for decades.

64. Against this background and having regard to the wide discretion left to the States in these matters, the Commission considers that the prohibition in question cannot be regarded as arbitrary. The Commission finds, therefore, that this restriction is also "lawful" within the wider meaning of that term in the second sentence of Article 11 para. 2 of the Convention.

65. The Commission is thus satisfied that the interference with the applicant's right under Article 11 para. 1 was justified under the second sentence of Article 11 para. 2.

CONCLUSION

66. The Commission concludes, by 21 votes to 9, that there has been no violation of Article 11 of the Convention.

E. As regards Article 14 read in conjunction with Article 10 of the Convention

68. Article 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."

69. Having regard to its above findings under Article 10 of the Convention (see above para. 0), the Commission considers that it is not necessary to examine the applicant's complaint under Article 14 read in conjunction with Article 10 of the Convention.

CONCLUSION

70. The Commission concludes, by 25 votes to 5, that it is not necessary to examine the applicant's complaint under Article 14 read in conjunction with Article 10 of the Convention.

F. As regards Article 14 read in conjunction with Article 11 of the Convention

71. The applicant complains that the prohibition of party affiliation is of a discriminatory and arbitrary character. He argues that there is no objective and reasonable justification for such a prohibition - either in respect of policemen or of other groups of civil servants.

72. 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. They maintain that any distinction made between policemen and other groups of citizens as to the exercise of the right to freedom of expression - and, mutatis mutandis , freedom of association - 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 (cf. Eur. Court HR, Engel and others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 42, para. 103).

73. Observing that the second sentence of paragraph 2 of Article 11 of the Convention specifically envisages restrictions on the exercise of the rights defined in paragraph 1 by various categories of persons employed by the State (see above paragraph 0), the Commission has concluded that the prohibition of policemen's party affiliation does not amount to a violation of Article 11 of the Convention (see above paragraph 0). However, this does not preclude the finding of a violation of Article 14 of the Convention. In this respect the Commission recalls that, while it is true that the guarantee laid down in Article 14 has no independent existence in the sense that under the terms of that Article it relates solely to "rights and freedoms set forth in the Convention", a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature (Eur. Court HR, Case "relating to certain aspects of the laws on the use of languages in education in Belgium" (merits), judgment of 23 July 1968, Series A no. 6, p. 33, para. 9).

74. When examining the justification for the prohibition in question under Article 11 para. 2 of the Convention, the Commission has already taken into account the specific status of the applicant. These considerations are equally valid in the context of Article 14. It follows that there is no appearance of any discrimination in breach of Article 14 read in conjunction with Article 11 of the Convention.

CONCLUSION

75. The Commission concludes, by 22 votes to 8, that there has been no violation of Article 14 read in conjunction with Article 11 of the Convention.

G. Recapitulation

76. The Commission concludes, by 21 votes to 9, that there has been a violation of Article 10 of the Convention (see above para. 0).

77. The Commission concludes, by 21 votes to 9, that there has been no violation of Article 11 of the Convention (see above para. 0).

78. The Commission concludes, by 25 votes to 5, that it is not necessary to examine the applicant's complaint under Article 14 read in conjunction with Article 10 of the Convention (see above para. 0).

79. The Commission concludes, by 22 votes to 8, that there has been no violation of Article 14 read in conjunction with Article 11 of the Convention  (see above para. 0).

       M. de SALVIA                                                      S. TRECHSEL

        Secretary                                                           President

     to the Commission                               of the Commission

(or. French)

OPINION PARTIELLEMENT DISSIDENTE DE M. J.-C. GEUS,

A LAQUELLE MME G.H. THUNE, M. M.A. NOWICKI

et M. M. VILA AMIGO DECLARENT SE RALLIER

A mon grand regret, je ne peux me rallier à l'avis de la majorité de la Commission quant à l'absence de violation de l'article 11 de la Convention.

La seconde phrase du paragraphe 2 de cette disposition permet certes d'imposer aux policiers des restrictions à l'exercice de leur droit d'association pouvant aller jusqu'à l'interdiction de celui-ci. Encore faut-il que ces restrictions soient légitimes, c'est-à-dire conformes à la loi nationale et exemptes d'arbitraire (Commission européenne des Droits de l'Homme, req . no. 11603/85, déc. 20.01.1987, D.R. 50, p. 228). Ceci implique, en premier lieu, d'examiner si la loi est suffisament précise.

La notion de "parti politique" n'est guère plus précise que celle d'"activités politiques". Bon nombre d'associations ont pour objet principal la promotion de valeurs essentielles dans la vie en société, et, par là, ont pour objectif d'influencer les choix politiques. Certaines d'entre elles ont des relais plus ou moins directs au parlement, d'autres se sont transformées petit à petit pour se présenter aux élections afin de défendre elles-mêmes leurs idées dans le forum politique. Enfin, un mouvement ayant pour unique objet social la lutte contre le racisme et la xénophobie est à l'évidence l'adversaire idéologique d'un "parti" faisant de la préférence nationale son cheval de bataille. Dans ces conditions, il m'apparaît que la frontière entre ce qui est politique et ce qui ne l'est pas est particulièrement incertaine.

Par ailleurs, pour être considérée comme un parti, une association doit-elle être représentée au Parlement? Certainement pas, comme le prouvent les récentes élections en République Tchèque, où le parti républicain, d'extrême droite, n'a plus d'élus faute d'avoir franchi le seuil de 5% des voix nécessaire pour entrer au Parlement, mais poursuivra ses activités et se présentera aux prochaines élections. Faut-il se présenter aux suffrages des électeurs? Pas plus. Ainsi, la section belge de la quatrième Internationale, le parti ouvrier socialiste, avec les deux cents militants qu'il avoue, serait bien en peine de le faire. En outre, il convient de ne pas perdre de vue qu'il existe des mouvements politiques qui entendent accéder au pouvoir sans passer par les voies démocratiques.

Sur ce point, la loi ne me paraît pas avoir la précision requise.

De toute manière, s'il est compréhensible que soit interdit aux policiers, notamment, d'exprimer sans retenue des opinions relatives aux activités des organes de l'Etat , de participer à des manifestations publiques ayant un tel objet, ou d'exercer leurs fonctions de manière partisane, je n'aperçois pas en quoi la simple affiliation de l'un d'eux à un parti démocratique, fait qu'ignorera le grand public, pourrait affecter la confiance des citoyens dans les forces de l'ordre.

La référence faite au paragraphe 63 du rapport à l'histoire récente de la Hongrie n'est pas de nature à me convaincre. Si les membres actuels de la police étaient liés au régime communiste, l'interdiction qui leur est faite de s'affilier à quelque parti que ce soit n'a certainement pas pour conséquence de les "dépolitiser", c'est-à-dire de modifier leurs convictions. Quant aux policiers recrutés depuis le retour à la démocratie, je ne voie pas en quoi il se justifie de leur interdire d'être membres d'un parti démocratique. La restriction apportée à l'exercice de droit d'association est donc arbitraire.

(Or. English)

PARTIALLY DISSENTING OPINION OF MM A.S. GÖZÜBÜYÜK,

A. WEITZEL, J.-C. SOYER, MRS J. LIDDY, MM I. CABRAL BARRETO,

I. BÉKÉS, AND C. BÎRSAN

We agree that there has been no violation of Article 11. The interference with freedom of association was, for the reasons stated, "prescribed by law" and constituted a lawful restriction on the exercise of that right by members of the police such as the applicant as envisaged by the last sentence of paragraph 2 of Article 11.

With regard to the issue under Article 10, the restriction on freedom of expression was prescribed by the same law, Section 40/B para. 4 of the Hungarian Constitution. That Constitution also guaranteed freedom of expression in Section 61, subject to the provision applicable to the police relating to political activities. However, it is clear from the later enactment of the Police Act 1994 and the issue of the 1995 Regulation that both sections of the Constitution operated to allow, and must be taken to have always allowed, for statements and publications in newspapers that observed the rules on service and state secrets. There was never a total ban on freedom of expression as a result of Section 40/B para. 4 of the Constitution.

In regard to the aim of the interference, we recall that the defence of democracy is one of the main justifications of restrictions "in the interests of national security" (cf. Eur. Court HR, Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, para. 51; Glasenapp v. Germany, Comm. Report 11.5.84, Eur. Court HR, Series A no. 104, pp. 41-42, paras. 79-84; Kosiek v. Germany, Comm. Report 11.5.84, Eur. Court HR, Series A no. 105, pp. 34-35, paras. 72-77). Also bearing in mind the Hungarian historical experience with a totalitarian State, we consider that the prohibition in question can be regarded as purportedly aiming at preventing the police from political commitment and thus as pursuing the legitimate aim of national security.

The prohibition at issue imposed a duty of discretion on members of police compatible with the duties and responsibilities referred to in Article 10 para. 2 and corresponding in a sense to the last sentence of Article 11 para. 2. In this respect we bear in mind that whenever civil servants' right to freedom of expression is in issue, the "duties and responsibilities" referred to in Article 10 para. 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (cf. Eur. Court HR, Vogt judgment, op. cit., p. 26, para. 53). We consider that the considerations relating to the "duties and responsibilities" assumed, in the context of Article 10 para. 2, by the civil servants of a State can be applied, mutatis mutandis , to members of its armed forces including the police. We recognise the legitimate interest of a democratic State in ensuring that its police properly furthers the purposes enumerated in Article 10 para. 2 of the Convention.

Furthermore, we consider that the prohibition in issue should be examined against the background of Hungary's historical experience with a totalitarian State which for more than forty years could rely on close links between the law enforcement agencies and the ruling party. We had regard also to the fact that Hungary's recent pluralist transformation was essentially launched in the context of the first multi-party parliamentary elections in 1990 and that the impugned prohibition was enacted on 1 January 1994, some months prior to the next parliamentary elections in 1994.

We are, therefore, of the opinion that the prohibition in issue is part of the on-going process of establishing a politically neutral State administration in Hungary. It can be regarded as answering a pressing social need and hence as necessary in a democratic society.

Moreover, since the duties and responsibilities referred to in Article 10 para. 2 may be peculiar to members of armed forces or of the police (see Eur. Court HR, Engel v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 42, para. 103), it cannot be said that there is any arbitrary distinction between the applicant and other citizens.

Accordingly, there has been no violation of Article 10 taken alone or, in so far as it may be necessary to examine the matter, Article 10 in conjunction with Article 14.

(or. English)

PARTIALLY DISSENTING OPINION OF MR L. LOUCAIDES

I am unable to agree with the decision of the majority of the Commission as regards the applicant's complaint under Article 11 of the Convention. In my opinion the prohibition in this case on joining political parties by members of the police force is incompatible with protection of the right to freedom of association safeguarded by Article 11 of the Convention.

Any restrictions of the rights safeguarded by the Convention should be interpreted narrowly. This should apply a fortiori and even more strictly to exceptional restrictions applicable to certain classes of persons by virtue of specific provisions, like the one in issue in paragraph 2 of Article 11 of the Convention, which is expressed as follows:

"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."

It is true that members of the State services referred to in the proviso in question have traditionally been kept away from politics by States out of fear that their impartiality in the execution of their duties, which is essential for the proper functioning of the State, might be impaired. And this was a consideration when the Convention was drafted leading to the above-mentioned authorisation for the imposition of restrictions on the rights of members of the services in question. However, one should not lose sight of the fact that the traditional restrictive approach to freedom of members of the security forces and civil servants, to participate in political life and public life in general, developed under the influence of certain regimes in which the elements of democracy were far behind present day standards. On political matters civil servants were expected to express only the views of the government and not their own.

However, times have changed. In the meantime, democracy has developed and its concepts and requirements are not compatible with a complete cutting off of the members of the above services from the political life of a country. The persons in question have political views and political preferences which they are entitled to express freely. The role and responsibilities of every individual, including civil servants, for the bringing about of political and social changes desired by people, and generally of sustaining the values and principles of democracy, is nowadays more important than ever.

Therefore, the proviso for special restrictions in respect of the members of the services in question with reference to the present standards of democracy, should at least be applied in as liberal a way as possible and the resulting restrictions should be confined to the minimum. This proposition, in my view, should be valid for every member State of the Council of Europe whatever its past history. In applying the Convention, there should not be different standards depending on the history of democracy of each particular State. From the moment that a State becomes a member of the Council of Europe, it is presumed that it has reached, and it is expected to maintain, the standard of democracy which is required as a qualification for membership of the Council.

On the basis of the above approach, I find that the prohibition in question is an unjustifiable interference with the right of association of persons like the applicant, because it is of an unacceptably general character. The prohibition is expressed in absolute terms. No account is taken of the possibility of allowing party affiliation with only limited restrictions, such as the non-holding of certain positions in the party and/or the non-participation in activities or manifestations that may be incompatible with the official duties of persons like the applicant.

In these circumstances, I find that the prohibition in question is arbitrary and, therefore, the condition of "lawfulness" within the wider meaning of that term in the second sentence of Article 11 para. 2 of the Convention was not met, with the result that there has been, in my opinion, a violation of that Article in this case.

(or. English)

PARTIALLY DISSENTING OPINION OF MR G. RESS,

JOINED BY MR S. TRECHSEL AND MR K. HERNDL

1. To a large extent I join the dissenting opinion of my colleague Mr Geus . However, I have doubts whether the notion of "political party", which has to be defined in the context of the Hungarian domestic law, is really so imprecise as to conclude that the requirements of foreseeability are not met.

Modern constitutions often use the notion of "political parties" (cf. Article  21 of the German Basic Law). There even exist specific statutes in many countries on "political parties". The German " Parteiengesetz " for example gives a more detailed description of the notion of "political party". This notion normally implies an association of citizens pursuing more or less general political goals, laid down in a programme . A "political party" aims at participating in general or regional elections of legislative bodies and has a certain minimum number of members.  Even if in a given case it might be doubtful whether an association may be regarded as a political party,  these legal problems nevertheless prevail in all democratic systems based on party pluralism. They cannot lead to the conclusion that the notion of "political party", as such, is vague and not sufficiently specific to enable the applicant to regulate his conduct.

2. Article 11 para. 2 provides for two grounds of justification for restrictions on the exercise of the rights guaranteed in its paragraph 1. The first sentence lists those grounds which could be said to be necessary in a democratic society for specific public interests. The second sentence envisages grounds specifically allowing  restrictions for members of the police.

Turning to the first sentence, restrictions on party affiliation by members of the police can neither be justified in the interests of national security nor on any of the other grounds, i.e. public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others.  The amendment to the Hungarian Constitution and the relevant legislation do not pursue any of these public interests. Their aim is rather to ensure that the armed forces, the police and the security services are politically neutral entities in order to avoid institutional links which, during the totalitarian period, existed with the ruling party.  In a politically pluralistic democracy, political parties are independent of the State. This is even a prerequisite for admission to the Council of Europe and the European Convention of Human Rights. In these circumstances, there is no pressing social need for such prohibitions on the membership in political parties.  On the contrary, it would seem to be one of the basic conditions of a modern pluralistic democracy that, regardless of profession or status, every citizen can freely express his political convictions, in particular through elections, but also by adhering to political parties.  Political parties are the major instrument for the citizen to participate in the political life of a nation.

The separation between political parties and the administration of the State as a whole was part of the constitutional monarchy where the army, the police and the civil service owed loyalty to the monarch. This element does not provide sufficient justification within a modern pluralistic democracy.

3. The second sentence of Article 11 para. 2 may justify restrictions on specific categories of State officials, such as the police, even if none of the public interests mentioned in the first sentence can be invoked. This is, in my view, the very sense of this second sentence. Nevertheless, any interference has to stand the test of necessity in a democratic society.  There is no convincing argument to justify a complete prohibition of party membership.  This goes beyond a restriction,  amounting to a denial, for the members of the police, of the right to join specific categories of associations.

Mr Geus has indicated that there may be legitimate reasons to impose on the police restrictions regarding the exercise of the right to associate. For instance, they may be prohibited from having leading posts in a political party or from participating in public demonstrations of that political party or from declaring in public their party affiliation during an election campaign.  However, to impose a complete prohibition on party membership is disproportionate in a democratic society where every citizen should have, as far as possible, the chance to participate in the formation of the political will of the people and the State.