Communicated on 13 January 2015

SECOND SECTION

Application no. 81097/12 György GŐBL against Hungary lodged on 14 December 2012

STATEMENT OF FACTS

The applicant, Mr György Gőbl , is a Hungarian national, who was born in 1964 and lives in Sopron . He is represented before the Court by Mr T. Gaudi-Nagy , a lawyer practising in Budapest .

The circumstances of the case

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

On 27 November 2006 the applicant appeared at the main entrance of Erzsébet Hospital in Sopron, for the purpose of demonstrating against Prime Minister Mr Gyurcsány and his government. He held a 100x40 cm chart saying “ Gyurcsány to resign! Voluntary contribution pay-desk; minimum 200 Hungarian forints” , and he distributed flyers to the passers ‑ by. The applicant had his two children, respectively two and three years old, with him.

Upon a citizen ’ s notice the police appeared to check the applicant ’ s identity. He explained that he had been demonstrating on his own and that was the reason why he had failed to noti fy the authorities about the demonstration in advance. However, the police officers said he had been committing an infringement and obliged him to terminate the demonstration. The applicant obeyed, put all his belongings into his car and drove to Sopron Municipal Police Department, escorted by two police cars on his way. At the Police Department the police seized the objects used for the demonstration and initiated regulatory offence proceedings against the applicant, who was released from the Police Department only two hours later. Although the applicant requested the police officers to take minutes in which he could indicated his comments and objections concerning the proceedings, the officers refused his request. Later he asked for paper and pen in order to write down his complaints, but to no avail.

On the same day, shortly after his release, the applicant filed a complaint with the Police Department, complaining about the offensive style of communication of the police officers dealing with the incident, and about not taking minutes and not giving him the chance to indicate his objections. The chief officer of the Police Department dismissed the applicant ’ s complaint on 9 December 2006. Upon the applicant ’ s appeal, the GyÅ‘r ‑ Moson -Sopron County Police Department upheld the decision. The applicant challenged the decision before the GyÅ‘r - Moson -Sopron County Regional Court but his claim was dismissed.

On 18 December 2006 the Sopron Municipal Police Department, acting as administrative authority, imposed a fine of 50,000 Hungarian forints (approximately 200 e uros) on the applicant for the offence of misusing the right to assembly.

Upon the appeal of the applicant – in which he argued that he had not exercised his right to assembly as he was on his own – the Sopron District Court terminated the regulatory offence proceedings against the applicant on 8 January 2007. The court emphasised that the applicant had been exercising his right to freedom of expression but , as he was demonstrating on his own , he could not possibly commit the offence of misuse of the right to assembly.

In November 2009 the applicant lodged an action in damages against the Győr - Moson -Sopron County Police Department, stating that the police had violated his rights to freedom of expression, to liberty and to human dignity, and claiming non-pecuniary damages in the amount of 500,000 Hungaria n forints (approximately 1,700 e uros). The applicant argued that by escorting him to the Police Department and retaining him for two hours, the police officers had violated his right to liberty. Moreover, by their offensive style of communication, they had violated his right to dignity. He also asserted that the officers – by virtue of their intervention as such – had infringed h is right to freedom of expression. Moreover, the police officers had acted wrongfully when not taking minutes or allowing the applicant to make objections.

On 12 April 2010 the Győr - Moson -Sopron County Court found that the applicant ’ s act was to be considered as expression of political opinion. The Győr - Moson -Sopron County Police Department had violated his right to freedom of expression by seizing the objects used for the purposes of the demonstration. Apart from this, the court dismissed the applicant ’ s claims. Although, as a finding of fact, it was established that the applicant had been called upon to follow the officers to the Police Department, the court found that he had been neither forced to go to the Police Department nor arrested. There had not been any evidence proving that the police officers ’ action was a coercive measure. The court was satisfied that the applicant had voluntarily driven to the Police Department. It had not been proved either that the applicant ’ s right to dignity had been violated. Moreover, his right to a remedy was not infringed by not providing him with a pen and paper on site, as he was able to file a complaint later on. The court dismissed the applicant ’ s claim f o r non-pecuniary damages since the violation of right to freedom of expression – even if it was well-founded – did not, in the court ’ s view, justify the awarding of non-pecuniary damages in the case.

The applicant appealed against the judgment. The Győr Court of Appeal upheld the first-instance court ’ s judgment in essence.

The applicant challenged this judgment before the Supreme Court. In his petition for review he reiterated that the police officers had violated his right to liberty since he had dr i ve n to the Police Department because of the express instruction given by the officers and he had not been able to leave the police Department until his ID cards had been restored to him .

On 2 May 2012 the Supreme Court upheld the judgment finding that there had not been any evidence proving that the police officers had pursued any coercive measure against the applicant. On the contrary, the police officers had escorted him to the Police Department because he had requested more information about the legal qualification of his act and that information could only have been provided there. The applicant had driven to the Police Department voluntarily and had not been deprived of his liberty. Neither could the applicant prove a violation of his right to dignity. Finally, the Supreme Court agreed with the first and second instance courts on the consideration that a violation of the right to freedom of expression – even if it was well-founded – did not justify the awarding of damages in the applicant ’ s case.

COMPLAINT S

The applicant complains under Article 5 § 1 of the Convention about being depriv ed of his right to liberty and security when he was instructed by the police officers to drive the Police Department and forced to stay there for approximately two hours. He further complains under Article 10 of the Convention about the perceived interference with his right to freedom of expression.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty within the meaning of Article 5 of the Convention? If so, was this measure lawful and justified under Article 5 § 1 of the Convention?

2. Given that the applicant had a violation of his rights established by the domestic courts, can he still be regarded as a victim of a violation of his rights under Article 10, for the purposes of Article 34 of the Convention? If so, was the interference with the applicant ’ s rights under Article 10 “prescribed by law” and justified under Article 10 § 2?