Information Note on the Court’s case-law 196

May 2016

Karácsony and Others v. Hungary [GC] - 42461/13 and 44357/13

Judgment 17.5.2016 [GC]

Article 10

Article 10-1

Freedom of expression

Fine imposed on opposition MPs for showing billboards and using a megaphone during parliamentary votes: violation

Facts – At the material time, the seven applicants were members of the opposition in the Hungarian Parliament. On a motion introduced by the Speaker, they were fined amounts ranging from EUR 170 to EUR 600 for having gravely disrupted parliamentary proceedings after they displayed billboards and used a megaphone accusing the government of corruption. The fines were imp osed by the Parliament in plenary session without a debate.

In two judgments of 16 September 2014, concerning the cases Karácsony and Others (42461/13, Information Note 177 ) and Szél and Others ( 44357/13 ) respectively, a Chamber of the Court held unanimously that there had been a violation of the applicants’ freedom of expression guaranteed under Article 10 of the Conv ention.

On 16 February 2015 the cases were referred to the Grand Chamber at the Government’s request.

Law – Article 10: The fines imposed on the applicants amounted to an interference with their right to freedom of expression. The expression consisted main ly of non-verbal means of communication through the display of a placard and banners. The impugned measures were imposed on the basis of a provision (section 49(4) of the Parliament Act) which, in common with similar legislation in many European countries, included an element of vagueness and was subject to interpretation through parliamentary practice. However, on account of their professional status, the applicants must have been able to foresee, to a reasonable degree, the consequences their conduct coul d entail, even in the absence of any previous application of the impugned provision. The provision therefore met the required level of precision for the interference to be prescribed by law. The interference pursued two legitimate aims: the prevention of d isorder and the protection of the rights of others.

As to whether the interference was necessary in a democratic society, the Court was called upon for the first time to examine the compliance with Article 10 of the Convention of internal disciplinary measures imposed on MPs for the manner in which they exp ressed themselves in Parliament. The Grand Chamber recalled the general principles, developed in its case-law, governing freedom of expression both in general and in Parliament, which had to be balanced in the present case.

(a) Freedom of expression – The general principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established and were summarised in Animal Defenders International v. the United Kingdom [GC] (48876/08, 22 April 2013, Information Note 162 ) and Delfi AS v. Estonia [GC] (64569/09, 16 June 2015, Information Note 186 ).

(b) Procedural guarantees – T he fairness of the proceedings and the procedural guarantees afforded are factors which in some circumstances may have to be taken into account when assessing the proportionality of an interference with freedom of expression (see Association Ekin v. France , 39288/98 , 17 July 2001; Lombardi Vallauri v. Italy , 39128/05, 20 October 2009, Information Note 123 ; Cumhuriyet Vakfı and Others v. Turkey , 28255/07, 8 October 2013, Information Note 167 ).

(c) Freedom of expression of members of parliament – The Court has consistently underlined the importance of freedom of expression for members of pa rliament, this being political speech par excellence . Accordingly, interference with the freedom of expression of an opposition member of parliament calls for the closest scrutiny on the part of the Court (see Castells v. Spain , 11798/85 , 23 April 1992).

(d) Freedom of expression in Parliament – Speech in Parliament enjoys an elevated level of protection which is reflected by the rule of parliamentary immunity. The guarantees offered by both types o f parliamentary immunity (non-liability and inviolability) serve to ensure the independence of Parliament in the performance of its tasks. The protection afforded to free speech in Parliament serves to protect the interests of Parliament as a whole and sho uld not be understood as protection afforded solely to individual MPs. However, freedom of parliamentary debate is not absolute and States may make it subject to certain restrictions or penalties, whose compatibility with freedom of expression will then be assessed by the Court. In this context, it is important to distinguish between the substance of a parliamentary speech and the time, place and manner in which such speech is conveyed. While States and Parliaments should, in principle, independently regula te the time, place and manner of speech in Parliament, with limited scrutiny on the Court’s part, they have very limited latitude in regulating the content of parliamentary speech. However, some regulation may be considered necessary in order to prevent fo rms of expression such as direct or indirect calls for violence. In verifying that freedom of expression remains secured, the Court’s scrutiny in this context should be stricter. The Convention establishes a close nexus between an effective political democ racy and the effective operation of Parliament. In this regard, the domestic court’s task is to find the right balance between the rights of individual MPs and the guaranteeing of effective parliamentary activity, bearing in mind that the rights of the par liamentary minority should also be taken into account.

(e) Autonomy of Parliament – The rules concerning the internal operation of Parliament stem from the constitutional principle of the autonomy of Parliament, according to which Parliament is entitled t o regulate its own internal affairs. The autonomy of Parliament extends to its power to enforce rules aimed at ensuring the orderly conduct of parliamentary business. In principle, the rules concerning the internal functioning of national parliaments fall within the margin of appreciation of the Contracting States, the breadth of which depends on a number of factors. In particular, it is defined by the type of expression in issue. Bearing this in mind, there is an overriding public interest in ensuring that Parliament, while respecting the demands of free debate, is able to function effectively and pursue its mission in a democratic society. Therefore, the margin of appreciation to be afforded in this area should be a wide one. However, the national discreti on, albeit very important, is not unfettered and should be compatible with the concepts of effective political democracy and the rule of law. In particular, a balance must be achieved which ensures the fair and proper treatment of people from minorities an d avoids abuse of a dominant position. Accordingly, parliamentary autonomy should not be abused for the purpose of suppressing the freedom of expression of MPs. It would be incompatible with the purpose and object of the Convention if the Contracting State s, by adopting a particular system of parliamentary autonomy, were thereby absolved from their responsibility under the Convention in relation to the exercise of free speech in Parliament. Similarly, the rules concerning the internal operation of Parliamen t should not serve as a basis for the majority abusing its dominant position vis-à-vis the opposition. The Court attaches importance to protection of the parliamentary minority from abuse by the majority. It will therefore examine with particular care any measure which appears to operate solely, or principally, to the disadvantage of the opposition.

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Turning to the present case, the Court accepted that, by displaying a placard and using a megaphone, the applicants had disrupted order in Parliament s o making it necessary to react to their conduct. Moreover, they were not sanctioned for expressing their views on issues debated in Parliament, but rather for the time, place and manner in which they had done so.

As to whether the restriction on the applic ants’ right to freedom of expression was accompanied by effective and adequate safeguards against abuse, the Court distinguished two different situations. The first would obtain in the event of Parliament acting clearly in excess of its powers, arbitrarily , or indeed mala fide by imposing a sanction not prescribed in the rules or that was blatantly disproportionate to the alleged disciplinary breach. In such event, Parliament could not rely on its own autonomy to justify the sanction, which would therefore be subjected to the Court’s full scrutiny. The second situation – relevant in the present case – would obtain when a sanctioned MP did not dispose of basic procedural safeguards under parliamentary procedure to contest the disciplinary measures imposed. Th e Court acknowledged the difference between immediate sanctions which instantaneously prevented MPs from expressing their opinion, and ex post facto sanctions such as the fine in the instant case. The procedural safeguards available in such circumstances h ad to include, as a minimum, the right for the MP concerned to be heard in a parliamentary procedure before a sanction was imposed. This right increasingly appeared as a basic procedural rule in democratic States, over and beyond judicial procedures, as de monstrated, inter alia , by Article 41 § 2 (a) of the Charter of Fundamental Rights of the European Union. The manner and mode of implementation of this right had to be adapted to the parliamentary context, bearing in mind that a balance had to be achieved to ensure the fair and proper treatment of the parliamentary minority and preclude abuse of a dominant position by the majority. In addition, while an MP who was disciplinarily sanctioned could not be considered entitled to a remedy to contest his sanction outside Parliament, the argument for procedural safeguards in this context was nonetheless particularly compelling given the lapse of time between the conduct in issue and the actual imposition of the sanction. Furthermore, any ex post facto decision impo sing a disciplinary sanction had to state basic reasons to enable the MP concerned to understand the justification for the measure and permit some form of public scrutiny of it.

At the material time, the domestic legislation did not provide any possibility for the MPs concerned to be involved in the relevant procedure, notably by being heard. Nor did the decisions to fine the applicants contain any relevant reasons. Moreover, none of the remedies suggested by the Government to challenge the impugned measure s, namely, addressing the plenary Parliament, the House Committee or the Committee responsible for the interpretation of the Rules of Parliament, offered the applicants an effective means of challenging the Speaker’s proposal. Although in 2014 the possibil ity for a fined MP to seek a remedy and to make representations before a parliamentary committee was introduced, this amendment had not affected the applicants’ situation. It followed that the impugned interference with their right to freedom of expression was not proportionate to the legitimate aims pursued because it was not accompanied by adequate procedural safeguards. Therefore, the interference with the applicants’ right to freedom of expression had not been necessary in a democratic society.

Conclusi on : violation (unanimously).

Article 41: Awards ranging from EUR 170 to EUR 600 in respect of pecuniary damage; finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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