Communicated on 16 November 2015

FOURTH SECTION

Application no. 10851/13 Alfréd KIRÁLY and Norbert DÖMÖTÖ R against Hungary lodged on 5 February 2013

STATEMENT OF FACTS

The applicants, Mr Alfréd Király (the first applicant) and Mr Norbert Dömötör (the second applicant), are Hungarian nationals, who were born in 1971 and 1979 and live in Devecser and Ajka , respectively. They are represented before the Court by Mr A. K. Kádár , a lawyer practising in Budapest.

The circumstances of the case

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

On 5 August 2012 Mr G.F., a Member of Parliament from the right-wing Movement for a Better Hungary Party ( Jobbik Magyarországért Mozgalom Párt ), announced a demonstration to take place in Devecser , under the slogan “Live and let live”. The reason for the demonstration was the riots that had broken out between Roma and non-Roma families of the municipality on 25 July 2012. Following that incident, seventeen persons were questioned by the police, and enhanced police monitoring was ordered in the territory of the municipality, with the constant surveillance of streets inhabited by the Roma community.

In the applicants ’ submissions, the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts and were informed through official sources that besides the members of Jobbik , about nine far-right groups, known for their militant behaviour and anti-Roma and racist stance, would also be present at the demonstration. They were also informed that the demonstrators were seeking conflict with the police and the minority community.

About 200 police officers were deployed in Devecser to secure the demonstrations, including members of the Operational Squad.

According to the far-right internet portals, the demonstration was aimed “against the Roma criminality”, “against the Roma of Devecser beating up Hungarians” and “against the Roma criminals unable to respect the rules of living-together”.

About 400 to 500 persons were present at the demonstration. Mr G.F. announced that the demonstration was about the justified self-protection of Hungarians. Invoking the crimes committed by members of the Roma community, he demanded the reintroduction of death penalty and threatened the Roma community that if crimes would continue, Jobbik would return to Devecser .

In his speech, Mr L.T., leader of the Sixty - four Counties Youth Movement ( Hatvannégy Vármegye Ifjúsági Mozgalom ) mentioned that Roma criminality was omnipresent in the country and wherever this ethnic group appeared, only destruction and devastation came. In his opinion the Roma population wanted to exterminate Hungarians, leaving these latter with the choice to become victims or to fight back. Mr A.L., leader of the Civil Guard Association for a Better Future ( Szebb Jövőért Polgárőr Egyesület ) called on the demonstrators to sweep out the “rubbish” from the country; and Mr Zs.Ty ., leader of the Outlaws ’ Army ( Betyársereg ) spoke about the characteristics of a racial war and an ethnic-based conflict. He mentioned that the Roma minority was genetically encoded to criminal behaviour and declared that they “will tread out this phenomenon that needs to be purged out”. Following the speeches, the demonstrators marched down Vásárhelyi Street, the neighbourhood of Devecser inhabited by the Roma community, chanting “Roma criminality”, “Roma, you will die”, and “We will burn your house down and you will die inside”.

Some 20 to 40 persons leading the demonstration threw pieces of concrete, stones and plastic bottles in the gardens, encouraged by the crowd following them.

The first applicant submits that he overheard the radio communication of the police stating that the demonstrators were armed with sticks, stones, whips and metal tubes. Furthermore, one of his acquaintances was injured from a stone thrown in his garden, but the police officer to whom the applicant reported the incident did not take any steps.

In the second applicant ’ s submissions, two of the demonstrators leading the march had a list and pointed out to the crowd the houses that were inhabited by Roma people.

During the march in the Roma neighbourhood, which lasted approximately thirty minutes, both applicants stayed in the gardens of houses in Vásárhelyi Street.

The police, present during the demonstration, remained passive, and did not disperse the demonstration; nor did they take any steps to establish the criminal responsibility of the demonstrators.

On 21 September 2012 the Minister of the Interior, reacting to a letter of civil society organisations, informed the public that the conduct of the police was adequate and that forty people, amongst them five demonstrators, had been interrogated by the police. Upon the criminal report of the two injured persons, the police opened criminal proceedings against unknown perpetrators on charges of “disorderly conduct” ( garázdaság ), which was subsequently re-characterised as “violence against a member of a group” ( közösség tagja elleni erőszak ). As it appears from the case-file, further criminal investigations were opened into charges of “violence against a member of a group”, several months following the incident.

The applicants complained to the Veszprém County Police Department about the failure of the police to take measures against the demonstrators, thereby endangering their life and limb and human dignity.

On 22 November 2012 the Police Department dismissed the applicants ’ complaint finding that the conditions to disperse the demonstrations had not been met, since any illegal or disorderly conduct of the demonstrators had ceased within 10 minutes. According to the decision, the demonstration remained peaceful, since, besides the throwing of stones, no actual conflict broke out between the police, the demonstrators and the members of the Roma minority. It also found that only a small group of demonstrators was armed with sticks and whips. As regards the failure of the police to perform the demonstrators ’ identity check and short-term arrest ( előállítás ), the Police Department found that such measures could have only aggravated the situation, and strengthen the demonstrators ’ hostility towards the police.

On appeal, the National Chief Police Department quashed the first-instance administrative decision and remitted the case to the Veszprém County Police Department. As it appears from the case-file, these proceedings were still pending when the application was introduced.

The applicants, together with a third person, also lodged a criminal complaint against unknown perpetrators, for the failure to fulfil military obligations. These proceedings were discontinued by the decision of the Central Investigation Office of the Public Prosecutor on 17 October 2012. The Office established that the police commanders had taken the necessary measures to maintain the peaceful nature of the demonstrations.

COMPLAINTS

The applicants complain that the failure of the police to take steps reasonably available to them – such as taking law-enforcement measures against private individuals, to prevent or mitigate the racially motivated harassment that they suffered – violated their rights under Article 8 of the Convention. They further complain that the police failed in their duty to disperse the demonstration which involved verbal and physical violence motivated by ethnic hatred. Finally, the applicants complain that the police did not institute adequate criminal proceedings following the events to establish the criminal responsibility of the demonstrators.

QUESTIONS TO THE PARTIES

1. Has the application been introduced in compliance with Article 35 § 1 of the Convention? In particular, have the applicants exhausted domestic remedies, given that their complaints concerning the police ’ s failure to take measures and the criminal investigations concerning violence against a member of a group appear to be pending?

2. Allegedly failing to act expeditiously ( i ) in preventing violent manifestations of intolerance against the applicants (see, mutatis mutandis, Hajduová v. Slovakia , no. 2660/03 , §§ 49-50, 30 November 2010) and (ii) in the criminal investigations, have the Hungarian authorities failed to meet their positive obligations, if any, arising out of Article 8 of the Convention, including the appreciation of any racist motives of the insulters?