Information Note on the Court’s case-law 214

January 2018

Magyar Kétfarkú Kutya Párt v. Hungary - 201/17

Judgment 23.1.2018 [Section IV]

Article 10

Article 10-1

Freedom of expression

Fine imposed on political party for making available to voters a mobile telephone application allowing them to share anonymous photographs of their ballot papers: violation

[This case was referred to the Grand Chamber on 28 May 2018]

Facts – In 2016 a referendum related to the European Union’s migration relocation plan was held in Hungary. Just prior to the referendum, the applicant, a political party, had made available to voters a mobile telephone application which they could use to anonymously upload and share with the public photographs of their ballot papers. Following complaints by a private individual to the National Election Commission, the applicant was fined for infringing the principles of fairness and secrecy of elections.

Before the European Court the applicant complained that the imposition of the fine had breached its right to freedom of expression as provided in Article 10.

Law – Article 10: The mobile phone application had been developed by the applicant precisely for voters to share, by information and communication technologies, opinions through anonymous photographs of invalid ballot papers. The application thus possessed a communicative value and so constituted expression on a matter of public interest, protected by Article 10. Consequently the fine had interfered with the applicant’s right to freedom of expression. The question before the Court was whether that interference had pursued a legitimate aim.

The Government argued that the aim of the measure taken against the applicant was to ensure the orderly conduct of the voting procedure and secure the proper use of ballot papers and so to “protect the rights of others”. The Kúria (Supreme Court) had emphasised that voters’ identities could not be discovered through t he anonymously uploaded photographs and that although posting photographs of the ballot papers on the mobile telephone application had constituted an infringement of the principle of the proper exercise of rights, it had had no repercussion on the fair con duct of the elections. The Court saw no reason to hold otherwise and was satisfied that the applicant’s conduct was not conducive to any prejudice in respect of the secrecy or fairness of the referendum. While it was true that the domestic authorities had established that the use of the ballot papers for any other purpose than casting a vote infringed section 2(1)(e) of the Act on Electoral Procedure, the Government had not convincingly established any link between that principle of domestic law and the aim s exhaustively listed in paragraph 2 of Article 10. The sanction imposed on the applicant therefore did not meet the requirements of Article 10 § 2 of the Convention.

Conclusion : violation (unanimously).

Article 41: no claim made in respect of non-pecuniary damage; EUR 330 in respect of pecuniary damage.

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

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