DISSENTING OPINION OF JUDGE DEDOV

1. With great respect to the opinion of the majority, I believe that the present case deserves a different approach, based on an assessment of the methods of political campaigning in a democratic society. Obviously, taking photographs of ballot papers, publishing them and sharing them with others does not constitute an offence. Formally speaking it could be considered as an innocent expression of opinion. However, the other matter of encouraging voters to cast an invalid ballot was not innocent, in my view.

2. The majority of the Court has found it established that the applicant party, the MKKP, intended to influence voters. The majority of judges preferred not to discuss the nature of that influence; however, it constitutes a crucial point of the present case. The MKKP was not satisfied with the whole idea of the referendum, and organised an “anti-anti-immigration campaign” (see paragraphs 12, 19 and 20 of the judgment).

3. There are, however, no doubts about the legitimacy of the referendum: the question put by the Government was appropriate and necessary for the purpose of administering the public interest through a public vote. The Government expressed concern about the security problems which might be created by the influx of migrants, and those problems deserved a public debate. Moreover, the question was approved by the Supreme Court, the Kúria , and concerned the sovereign powers of the national parliament to decide on the immigration issue.

4. Voters have the opportunity to agree or disagree when answering the question on the ballot paper. If they decide not to exercise their voting rights they can abstain from voting. There are no other options. The same procedure applies to parliamentary elections, in which the voting procedure does not usually make it possible to vote against all the candidates. A certain number of people are registered as candidates for the elections, some better, some worse, and the voters have to choose between them. There is no presumption that voters are entitled to intentionally invalidate ballot papers because participation in the decision-making process constitutes one of the values of a democratic society.

5. Within the voting process mistakes happen, and ballot papers may occasionally be spoiled in some way. But the MKKP sought to influence voters to invalidate their ballots intentionally in order to express their disagreement with the whole idea of the referendum. They encouraged voters to draw amusing pictures on ballot papers, showing that those papers could be used for any purpose other than voting. The pictures may not have looked insulting, but they undoubtedly demonstrated disrespect for the referendum. The MKKP’s campaign was therefore disrespectful in relation to the democratic institution designed for the purpose of decision-making by society.

6. The Court’s approach in such situations was reiterated in the Taranenko judgment ( Taranenko v. Russia , no. 19554/05, 15 May 2014), as follows:

“67. To sum up, the Court reiterates that any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles do a disservice to democracy and often even endanger it (see Fáber v. Hungary , no. 40721/08, § 37, 24 July 2012)”.

7. In the Sinkova judgment ( Sinkova v. Ukraine , no. 39496/11, 27 February 2018) the Court found that the form of expression used by the applicant was not appropriate, and stressed the following:

“110... There were many suitable opportunities for the applicant to express her views or participate in genuine protests in respect of the State’s policy on the use of natural gas or responding to the needs of war veterans, without breaking the criminal law and without insulting the memory of soldiers who perished and the feelings of veterans, whose rights she had ostensibly meant to defend.”

8. I cannot find anything other than a rejection of democratic principles by the MKKP in the present case, although there were many other suitable opportunities for MKKP members, and for those voters who invalidated their ballots, to express their views. Such a conclusion would suffice in order to vote for no violation, to uphold the explanation given by the national authorities relating to the abuse of voting rights and to find that the interference was legitimate and proportionate. The authorities applied sections 2(1)(a) and (e) of the Electoral Procedure Act, which protects the fairness of elections and the exercise of rights in accordance with their purpose and in good faith. In paragraph 9 of its judgment the Kúria explained that “[a] ballot paper clearly serves the purpose of allowing voters to express their opinion on a question put to the vote; any use of ballot papers contrary to this purpose infringes the principle of the exercise of rights in accordance with their purpose”.

9. The majority of judges preferred not to assess the fact that the ballot papers had been invalidated intentionally and the way in which the opinion had been expressed. Their analysis was very narrow. They seized upon the contradicting approaches of the NEC and the Kúria (see paragraph 112 of the judgment). At the same time the Court preferred to close its eyes to the position of the Constitutional Court, which applied the principles of the prohibition of abuse of rights and the exercise of rights in accordance with their purpose. The fact that the Constitutional Court relied on the NEC and the Kúria in applying the principles in individual cases (see paragraph 109 of the judgment) does not, in my view, have a decisive effect – contrary to the approach taken by the majority. The Constitutional Court and the Kúria made reference to general principles including the abuse of rights and applied them in the MKKP’s case.

10. Actually, the MKKP sought to influence voters to invalidate their ballot papers. This is not a case about punishment for taking ballot photographs, as it was presented by the applicant (see paragraph 102 of the judgment), an approach then followed by the majority. It is a case about showing disrespect for the democratic decision-making process. I therefore believe that the authorities’ reaction was foreseeable by the applicant.