Information Note on the Court’s case-law 6

May 1999

Rekvényi v. Hungary [GC] - 25390/94

Judgment 20.5.1999 [GC]

Article 10

Article 10-1

Freedom of expression

Prohibition on political activity by police officers: no violation

Article 11

Article 11-1

Freedom of association

Prohibition on police officers joining political parties: no violation

(Extract from press release)

Facts : The applicant, Mr László Rekvényi, a Hungarian national, was born in 1953 and lives in Budapest. At the material time, he was a police officer and the Secretary General of the Police Independent Trade Union. On 24 December 1993 Act no. 107 of 1993 on Certa in Amendments to the Constitution was published in the Hungarian Official Gazette. This Act amended, inter alia , Article 40/B § 4 of the Constitution to the effect that, as from 1 January 1994, members of the armed forces, the police and the security servi ces were prohibited from joining any political party and from engaging in political activities. In a circular letter dated 28 January 1994 the Head of the National Police demanded, in view of the upcoming parliamentary elections, that policemen refrain fro m political activities. He referred to Article 40/B § 4 of the Constitution as amended by Act no. 107 of 1993. He further indicated that those who wished to pursue political activities would have to leave the police. In a second circular letter dated 16 Fe bruary 1994, the Head of the National Police declared that no exemption could be given from the prohibition contained in Article 40/B § 4 of the Constitution. On 9 March 1994 the Police Independent Trade Union filed a constitutional complaint with the Cons titutional Court claiming that Article 40/B § 4 of the Constitution, as amended by Act no. 107 of 1993, infringed the constitutional rights of career members of the police, that it was contrary to the generally recognised rules of international law and tha t it had been adopted by Parliament unconstitutionally. On 11 April 1994 the Constitutional Court dismissed the constitutional complaint, holding that it had no competence to annul a provision of the Constitution itself.

Relying on Articles 10, 11 and 14 o f the European Convention of Human Rights, the applicant complained that the impugned constitutional provision had amounted to an unjustified interference with his rights to freedom of expression and association and was of a discriminatory nature.

Law : Art icle 10 of the Convention:

The Court took it for granted that the pursuit of activities of a political nature came within the ambit of Article 10 in so far as freedom of political debate constituted a particular aspect of freedom of expression, being at th e very core of the concept of a democratic society. The guarantees contained in Article 10 extend to military personnel and civil servants and the Court saw no reason to come to a different conclusion in respect of police officers. The Court found that the re had been an interference with the applicant’s right to freedom of expression. Such an interference gives rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in para graph 2 and was “necessary in a democratic society” to attain them.

According to the Court’s well-established case-law, one of the requirements flowing from the expression “prescribed by law” is foreseeability. Nevertheless, many laws are inevitably couche d in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain. However, the leve l of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. Because of the general nature of co nstitutional provisions, the level of precision required of them may be lower than for other legislation.

Against the background of that statement of principles, the Court rejected the applicant’s argument that the general constitutional ban on political activities by police officers failed to meet the requirement of foreseeability and that this was not rectif ied by any subsequent legislation including the 1994 Police Act. The Court was satisfied that the legal framework as a whole, including the contested constitutional prohibition and other legal rules partly permitting - occasionally subject to authorisation - and partly restricting the participation of police officers in certain kinds of political activities, was comprehensive enough to enable the applicant to regulate his conduct accordingly, if necessary after having sought advice beforehand from a superio r or clarification of the law by means of a court judgment. In the light of these considerations, the Court found that the interference was “prescribed by law” for the purposes of paragraph 2 of Article 10.

As regards the legitimate aim of the contested re striction, the Court accepted that it was intended to depoliticise the police force and thereby to contribute to the consolidation and maintenance of pluralistic democracy in Hungary. The Court was convinced that members of the public were entitled to expe ct that in their dealings with the police they would be confronted with politically-neutral officers who are detached from the political fray. In the Court’s view, the desire to ensure that the crucial role of the police in society is not compromised throu gh the corrosion of the political neutrality of its officers is one that is compatible with democratic principles; this objective takes on a special historical significance in Hungary because of that country’s experience of a totalitarian regime which reli ed to a great extent on its police’s direct commitment to the ruling party. Accordingly, the Court concluded that the restriction in question pursued legitimate aims within the meaning of paragraph 2 of Article 10, namely the protection of national securit y and public safety and the prevention of disorder.

Further, having recapitulated its case-law on the basic principles concerning Article 10, the Court went on to conclude that, in view of the particular history of some Contracting States, the national aut horities of these States might, so as to ensure the consolidation and maintenance of democracy, consider it necessary to have constitutional safeguards to achieve the aim of the police force’s political neutrality by restricting the freedom of police offic ers to engage in political activities. Regard being had to the margin of appreciation left to the national authorities in this area, the Court found that the relevant measures taken in Hungary - a country that, between 1949 and 1989, was ruled by one polit ical party and where, within the police force, membership of that party was expected as a manifestation of the individual’s commitment to the regime - could be seen as answering a “pressing social need” in a democratic society. Moreover, an examination of the relevant laws showed that police officers had in fact remained entitled to undertake some activities enabling them to articulate their political opinions and preferences. Therefore, the Court concluded that the means employed in order to achieve the le gitimate aims pursued had not been disproportionate. Accordingly, the impugned interference with the applicant’s freedom of expression was not in violation of Article 10.

Conclusion : no violation (unanimous)

Article 11 of the Convention:

The Court took the view that notwithstanding its autonomous role and particular sphere of application, Article 11 had in the present case also to be considered in the light of Article 10. The last sentence of paragraph 2 of Article 11 – which is undoubtedly applicable in th e present case – entitles States to impose “lawful restrictions” on the exercise of the right to freedom of association by members of the police. The concept of lawfulness in the Convention, apart from positing conformity with domestic law, also implies qu alitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness. In so far as the applicant criticised the basis in domestic law of the impugned restriction, the Court was satisfied that the constitutional proh ibition on membership of a political party by police officers was in fact unambiguous and it would not appear to be arguable that subordinate legislation introduced earlier had been capable of affecting the scope thereof. In the circumstances the Court con cluded that the legal position had been sufficiently clear to enable the applicant to regulate his conduct and that the requirement of foreseeability was accordingly satisfied. Further, the Court found no ground for holding the restriction imposed on the a pplicant’s exercise of his freedom of association to be arbitrary. The contested restriction was consequently “lawful” within the meaning of Article 11 § 2. Moreover, it was not necessary in the present case to settle the disputed issue of the extent to wh ich the interference in question was, by virtue of the second sentence of Article 11 § 2, excluded from being subject to the conditions other than lawfulness enumerated in the first sentence of that paragraph. For the reasons previously given in relation t o Article 10, the Court considered that, in any event, the interference with the applicant’s freedom of association satisfied those conditions. In sum, the interference could be regarded as justified under paragraph 2 of Article 11. Accordingly, there had been no violation of Article 11 either.

Conclusion : no violation (16 votes to 1).

Article 14 of the Convention taken in conjunction with Articles 10 or 11: Although the Court’s conclusions that the interferences with the applicant’s freedoms of expression and association were justified under Articles 10 § 2 and 11 § 2 did not, as such, preclude the finding of a violation of Article 14 of the Convention, the considerations underlying those conclusions had already taken into account the applicant’s special st atus as a police officer. These considerations were equally valid in the context of Article 14 and, even assuming that police officers could be taken to be in a comparable position to ordinary citizens, justified the difference of treatment complained of. There had accordingly been no violation of Article 14 taken in conjunction with Articles 10 or 11.

Conclusion : no violation (unanimous)

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

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