CONCURRING OPINION OF JUDGE BOÅ NJAK

1. I agree with the majority that there has been a violation of Article 8 of the Convention, but in my opinion the judgment should further analyse and explain the reasons as to why this violation has been found.

2. As stated in the judgment, the State ’ s positive obligation under Article 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation. While there is no absolute right to obtain the prosecution or conviction of any particular person, a violation of the above-mentioned positive obligation may be found where there were culpable failures in seeking to hold perpetrators accountable (see the case-law cited in the judgment, paragraph 61). This should be the test in any given case: in finding the violation, the Court ’ s judgment should clearly and convincingly identify the failure of the authorities of the respondent State and provide an explanation as to why that failure may be qualified as culpable.

3. In the present case the applicants lodged a criminal complaint against (a) speeches delivered at the demonstration and (b) attacks to which the Roma community had been subjected. Regarding the physical attacks, the authorities prosecuted and convicted one participant/perpetrator, while three others remained unidentified. There is no evidence in the file supporting a conclusion that the failure of the authorities to identify, prosecute and possibly convict these three perpetrators was culpable. Regarding the speeches delivered, the police and the prosecutor were of the opinion that the content of the speeches did not constitute a crime under the Hungarian Criminal Code. Consequently, the national authorities did not prosecute the persons who had delivered them. Since a violation was found in this part, it is apparent that, in the Court ’ s assessment, this failure must be considered culpable.

4. In my opinion, the conclusion as to whether the speeches constituted a criminal offence under national law is a matter of interpretation of that law. In principle, the Court should primarily assess whether this interpretation was arbitrary. Additionally, the Court is entitled to scrutinise whether, in applying the law, the authorities of the respondent State adopted a view that was in itself incompatible with the Convention. Finally, a culpable deficiency may also be found in the provisions of the criminal law, providing for the impunity of persons who should be convicted. In such a situation, the Court imposes upon the respondent State a positive obligation of a different kind: to properly criminalise acts that must not remain unpunished. One can fairly expect that the Court should pinpoint the particular reason leading to the conclusion that there has been a violation of the Convention.

5. From the facts of the present case, one can discern that the speakers, among other things, threatened the Roma community, announced that the Roma were not “normal” (see paragraph 9 of the judgment), mentioned that wherever this ethnic group appeared, only destruction, devastation and fear came, and called on the demonstrators to sweep out the “rubbish” from the country (see paragraph 10 of the judgment). This is a clear, almost textbook example of hate speech and incitement to violence against a minority group, which cannot be tolerated in a democratic society. The speeches apparently led to an almost immediate outburst of violence, which luckily did not end with tragic consequences that might have resulted in the present case being analysed as an Article 2 or Article 3 case. The speakers were clearly identified and are referred to by their initials in the Court ’ s judgment. It is clear that their actions constituted an imminent danger to basic legal values and therefore merited a reaction from the criminal justice system, which in the present case failed to occur. Therefore, I voted for finding a violation in the present case.

6. I would, however, prefer to see a clear analysis of the reasons for the failure of the national authorities to prosecute the speakers. It is possible that this failure was due to an arbitrary or otherwise seriously deficient application of the national criminal law. On the other hand, the failure may have been due to deficient provisions in the national criminal law preventing the national authorities from prosecuting and convicting those responsible in cases such as the present one. By giving clear reasons, the Court would send a clearer message to the authorities of the respondent State, which in turn would decrease the chances of such untenable situations recurring.

DISSENTING OPINION OF JUDGE WOJTYCZEK

I respectfully disagree with the approach adopted by the majority in the instant case. In my view the case raises serious issues under Article 3 of the Convention. According to the established case-law, the Court has the power to determine the legal characterisation of the facts. Therefore, the grievances formulated by the applicants should have been examined under Article 3 of the Convention.

At the same time, I am unable to adhere to the majority ’ s interpretation of Article 8 of the Convention, for reasons set out in more detail in my dissenting opinion annexed to the judgment in the case of R.B. v. Hungary (no. 64602/12, 12 April 2016). In my view, the lacunae in the Convention system can be remedied only by the masters of the treaty and should not be corrected by an over-extensive interpretation of the Convention which does not sufficiently take into account the applicable rules of treaty interpretation.

In the instant case, the majority formulate the following “implication”:

“The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of a person ’ s physical and social identity.” (paragraph 41 of the judgment, emphasis added)

I agree that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. However, the majority do not explain how they infer from this premise the conclusion that the provision in question can embrace multiple aspects of a person ’ s physical and social identity. In my view, non sequitur .