DISSENTING OPINION OF JUDGE K Ū RIS

1. I voted against declaring the application admissible. Consequently, I could not vote in favour of a finding by the Court that there has been a violation of Article 8 of the Convention. The reasons for my disagreement with the majority as to the admissibility of the application pertain to the ostensible ineffectiveness of a constitutional complaint in the Hungarian legal system and in the applicants ’ case in particular, as alleged by the applicants and upheld by the majority.

I

2. The applicants initiated a set of proceedings challenging the failure of the police to intervene during what was clearly a hate- and violence-inciting demonstration (on this aspect I cannot but agree with the majority) and to initiate a criminal investigation into the offences of incitement to hatred against members of an ethnic group, the Roma community, and of violence against members of that group. The administrative proceedings against the police were to no avail. The ensuing criminal investigation in respect of the participants in the demonstration was subsequently discontinued as regards the charges of incitement against an ethnic group, and one of the perpetrators was convicted of violence against a member of an ethnic group. The applicants complained that the domestic authorities had not observed their positive obligations under Article 8 to intervene during the demonstration (to disperse the event) and to apply criminal measures against the alleged perpetrators (to pursue criminal proceedings into the racially motivated criminal offences).

3. The Government argued that Article 8 was not applicable to the instant case and that the applicants were not victims of the alleged violation of that Article. As to these objections, I concur with the majority that the situation examined in this case can be deemed as falling under Article 8, as interpreted (however broadly) in the Court ’ s case-law, and that, in the circumstances of the case, the applicants may be held to have been victims of interference in their private life.

4. But I do not agree that yet another objection by the Government, namely that the applicants had not exhausted all available domestic remedies , should also be rejected. The Government asserted that the applicants could have lodged a constitutional complaint with the Constitutional Court, in which they could have argued that the Kúria ’ s judgment of 23 September 2015 had to be quashed as infringing their rights enshrined in the Fundamental Law (as Hungary ’ s new Constitution, which came into force on 1 January 2012, is named), either because the Kúria had applied a law which was unconstitutional or because it had interpreted and/or applied a law in an unconstitutional manner. The applicants contested that objection on the ground that the Government had allegedly failed to demonstrate that a constitutional complaint would have been an effective remedy in their situation. They asserted that such a complaint could only have resulted in nothing more than “several remittals” to the lower-level courts and, finally, to the police (see paragraph 46 of the judgment). The majority unreservedly side wit h this criticism (see paragraph 49 of the judgment, also cited in paragraph 12 below). Although the Government indeed did not refer to any case-law of the Constitutional Court dealing with situations identical to that of the applicants, the majority ’ s finding against the Government for having failed to demonstrate the effectiveness of a constitutional complaint in the applicants ’ situation is not sound.

5. I do not see any reason why the Government ’ s objection as to the non-exhaustion of domestic remedies should not have been upheld. The Government had provided pertinent information on the domestic legislative setting. This information, had some of its most meaningful aspects not been gratuitously ignored or distorted, would have been sufficient to hold (contrary to the view of the majority) that the domestic legal system not only guarantees the constitutional right to privacy, but also provides for a constitutional complaint as an effective tool for defending this right. The Government also provided relevant case-law of the Constitutional Court which authoritatively suggests that there were no grounds for holding a priori that, had the Kúria ’ s judgment of 23 September 2015 been referred to the Constitutional Court by means of a constitutional complaint, that complaint would have been rejected or the impugned judgment of the Kúria would not have been quashed. This information is reproduced to a certain extent in the “Relevant domestic law and practice” section of the judgment (paragraphs 32-36; in the next chapter of this opinion, references to these paragraphs of the judgment are not provided). But not all the pertinent information is included.

Let us have a closer look at the domestic legal setting – constitutional, statutory and jurisprudential (doctrinal).

II

6. Article VI of Hungary ’ s Fundamental Law enshrines every person ’ s right to privacy (“the right to respect for his or her private and family life, home, communications and good reputation”). The right to privacy, as worded in the Fundamental Law, does not appear to be narrower, at least manifestly, than its counterpart under Article 8 of the Convention, and this gives rise to an expectation that Article VI of the Fundamental Law is interpreted domestically along the lines of the Court ’ s case-law on Article 8 and includes the element of protection of personal safety. The two rights are related, as emerges from the Court ’ s case-law (referred to in paragraphs 41 ‑ 43 of the judgment). It should be noted in this context that the Fundamental Law also explicitly enshrines, in Article IV, every person ’ s right to personal safety. So far, there are no indications whatsoever that the methodology or tendencies regarding the interpretation of the close relationship between the right to privacy and the right to personal safety in the case-law of the Hungarian Constitutional Court or (any other) domestic judicial practice is in any way at variance with the approach professed by the European Court of Human Rights, as embodied in its case-law (again as referred to in the present judgment, inter alia in paragraphs 41 and 42).

7. Section 26 of the Constitutional Court Act guarantees “person[s] ... affected by a concrete case” the right to submit a constitutional complaint to the Constitutional Court if, owing to the application of a legal regulation contrary to the Fundamental Law in judicial proceedings concerning them, their rights as enshrined in the Fundamental Law have been violated and the possible legal remedies have already been exhausted or none are available. That is not all. Constitutional Court proceedings may also be initiated, by means of a constitutional complaint, by a “person ... affected by a concrete case”, by way of derogation from these (general) conditions if, owing to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, that person ’ s rights have been violated directly, without a judicial decision, and there are no available legal remedies designed to redress the violation of these rights, or the complainant has already exhausted the possible remedies. Also, section 27 of the same Act provides that any individual (as well as any organisation) “involved in a case” may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 (2) d) of the Fundamental Law (which, alas, is not reproduced in the “Relevant domestic law and practice” section – an omission to which I shall turn in due course), if the ruling on the merits or another decision terminating the court proceedings violates the complainant ’ s right as enshrined in the Fundamental Law, and the complainant has already exhausted the available legal remedies or no legal remedy is available. On top of this, section 55 of the Constitutional Court Act allows for the rectification of a constitutional complaint if it was submitted without being duly completed.

8. So much, for now, for the right to privacy and the legal possibility of defending it by means of a constitutional complaint under the Hungarian legislation (constitutional and statutory). Let us now turn to the question of criminal responsibility for an infringement of this right through the incitement of hatred and/or violence against a member of an ethnic group, and the statutory duty of the police to disperse hate- and violence-inciting demonstrations.

The Hungarian Criminal Code establishes criminal responsibility (imprisonment for up to three years) for violence against a member of a national, ethnic, racial or religious group and for the incitement of hatred against, inter alia , “any national, ethnic, racial or other group of the population”. The Supreme Court (the predecessor of the Kúria ), in its Guiding Resolution no. 2215/2010, emphasised that inciting hatred and violence could not go unpunished. The Supreme Court also interpreted incitement to hatred as amounting to “emotional preparation” for violence and as pertaining to such conduct which might “inevitably” turn into extreme activities, such as intolerant, prejudicial, injurious conduct and, ultimately, violent actions. According to the Guiding Resolution, Hungarian criminal law and judicial practice provide means for dealing with situations where a racist statement, because of the circumstances in which it was made, constitutes an “immediate and clear threat of violence and of the infringement of others ’ rights”. There can hardly be any doubt that the wording “others ’ rights” encompasses, inter alia , the right to privacy, as well as to personal safety. Yet earlier, the Constitutional Court – acting under the Constitution in force at that time (which also enshrined, albeit using different wording from that of Article VI of the Fundamental Law currently in force, both everyone ’ s right to privacy, including “privacy of ... [the] home” (Article 59), and the “fundamental duty of the police ... to maintain safety and domestic order” (Article 40/A (2)) – held, in a judgment of 27 May 2008, that the right to peaceful assembly, recognised in Article 62 (1) of the then Constitution, “clearly [did] not includ[e] the committing of crimes, the violation of rights or armed rallies”. The Constitutional Court held that, although the right of assembly “should not be restricted on the grounds that some people might abuse it”, the Freedom of Assembly Act and the Police Act (the relevant provisions of which are still in force) “offer an adequate framework for acting against illegal assemblies that violate or directly endanger the rights of others”, so that any non-peaceful assemblies “are to be disbanded”; the police must disband an assembly if (in so far as relevant to the instant case) the exercise of the right of assembly constitutes a criminal offence or a call to commit such an offence and/or if it violates the rights and freedoms of others, or if the participants in the assembly appear to be armed or in possession of weapons, and are empowered to apply coercive measures against those who resist measures applied by them; if a crowd displays illegal conduct, the police may use tools designed to disperse it. According to the Constitutional Court, these statutory provisos did not restrict the freedom of assembly; they were held to be in compliance with the Constitution as in force at the time when that judgment was adopted.

It is not possible to discern, either in the Hungarian Fundamental Law, or in the statutory legislation, or in the Constitutional Court ’ s case-law formulated under the new Fundamental Law, anything allowing for a non-benevolent (and speculative) inference that the Constitutional Court, when interpreting the privacy- and safety-related provisions of the new Fundamental Law in a relevant case, would not maintain and, if need be, reaffirm the doctrinal principles in question, which were formulated on the basis of the previous Constitution.

III

9. The constitutional and statutory provisions and jurisprudential (doctrinal) principles cited in paragraphs 6-8 above speak for themselves. Most of them are reproduced in the judgment in some detail or even in full. But two important caveats must be borne in mind.

10. Firstly, the material cited in the “Relevant domestic law and practice” section and referred to in the subsequent paragraphs of the judgment does not include everything that should have been cited and referred to . This pertains, first of all, to Article 24 (2) d) of the Fundamental Law, which is referred to in sections 26 and 27 of the Constitutional Court Act (both cited in full in the “Relevant domestic law and practice” section). It is not possible to meaningfully ascertain the content of these two articles without examining, let alone citing, that Article of the Fundamental Law. Moreover, Article 24 (3) b) of the Fundamental Law is also not cited, although it is inextricably related to Article 24 (2) d) in the sense that it directly and explicitly addresses the consequences of the exercise, by the Constitutional Court, of its powers set forth in Article 24 (2) d).

11. Secondly, some of the provisions cited in the “Relevant domestic law and practice” section play no role in the subsequent reasoning on which the conclusion as to the “exhaustion” of domestic remedies is based (as well as the finding of a violation of Article 8, but this is not the essence of my disagreement with the majority); they are not considered or even referred to, or the reference is only formal and therefore superficial (such as, for example, the reference, in paragraph 49 of the judgment, to section 55 of the Constitutional Court Act; see paragraph 12 below). This brings to mind the guidance by Konstantin Stanislavsky: “ If you have a rifle hanging on the wall in the first act, it should fire in the last act.” In this judgment, the citations of national law do not “fire”. The citing is selective . As a result, it misrepresents the national law.

12. Thus, it is not surprising that, having cited some of the relevant domestic legal provisions but not others which – as will be shown – are no less important, the majority come to conclude (in paragraph 49):

“The Court notes that under sections 27 and 55 of the Constitutional Court Act, the absence of a constitutional right renders a complaint inadmissible for examination on the merits. The Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life (see, mutatis mutandis , Apostol v. Georgia , no. 40765/02, § 39, ECHR 2006 ‑ XIV). It follows that the application cannot be dismissed for failure to exhaust domestic remedies.”

13. As a matter of principle, I am not able to agree with any superficial, blinkered, arbitrary or far-fetched reading of domestic law. In the present case, there should have been a different reading of the domestic law, even one diametrically opposed to the above conclusion. The majority would surely have reached the opposite interpretation had they endeavoured to read and consider not only sections 27 and 55 of the Constitutional Court Act (by the way, the provisions of section 55 are only indirectly relevant to the issue under examination), but also other parts of national law (doctrinal, statutory and, above all, constitutional) pertaining to the powers of the Constitutional Court to review the conformity with the Fundamental Law of judicial decisions and to annul them. Later in this opinion, I will deal with some of these “other parts” at some length.

14. But before coming to the analysis of procedural (in the broad sense of the word) aspects of the protection of the constitutional right to privacy (and the related right to personal safety) by means of a constitutional complaint, as guaranteed by Hungarian law, I have to express my astonishment that the judgment refers to the “absence of a constitutional right”.

It is a mystery what the majority mean by this mechanical and therefore uncritical import from Apostol v. Georgia (referred to in paragraph 12 above; I shall compare that case an d the instant one in paragraphs 31-35 below). “Absence” of what right? Could it be the right to privacy? But the right to privacy is explicitly enshrined in the Constitution (as is the related right to personal safety). It must be defended, by all available means, against any “immediate and clear threat of violence”, inter alia through the dispersal by the police of hate- and violence-inciting demonstrations and (depending on the gravity of the offences) through the initiation of criminal proceedings against the perpetrators. There are no grounds for believing that these doctrinal tenets do not stand any longer, notwithstanding the fact that the Constitution has been changed. That the right to privacy is explicitly and unequivocally enshrined in Hungarian domestic law (above all, constitutional law) has been mentioned in the “Relevant domestic law and practice” section and explicitly confirmed in paragraph 48 of the judgment by the majority themselves.

Or maybe the majority mean, by the alleged “absence of a constitutional right”, not the substantive right to privacy but the procedural right of a person to initiate Constitutional Court proceedings by lodging a constitutional complaint? But no. That this right cannot be the right to lodge a constitutional complaint against a court decision which is contrary to the Fundamental Law or even “without a judicial decision” ( inter alia , if “there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy”) is clear from the domestic law referred to in the judgment, albeit in a non-exhaustive manner, by the majority themselves, namely from section 27 of the Constitutional Court Act, the relevant provisions of which are cited in the “Relevant domestic law and practice” section. But it is even more clear from Article 24 of the Fundamental Law, the relevant provisions of which are not cited in the judgment.

What, then, is meant by the alleged “absence of a constitutional right”? Nothing. I regret to have to say this, but it is an incantation, no more than a set of words with no content corresponding to any legal reality .

15. The inside-out misreading of the domestic law has become possible in the present case thanks to three resourceful but misleading manoeuvres involving references, or the suppression thereof, to Hungarian law, but also to the Court ’ s case-law. The first manoeuvre lies in the suppression or distortion, in the judgment, of some of the relevant provisions (constitutional and statutory) of domestic law directly pertaining to the powers of the Constitutional Court. The second trick involves not paying heed to the most relevant doctrinal statements by the Supreme Court and the Constitutional Court even while citing them. The third lies in the fact that the majority ’ s conclusion, cited in paragraph 12 above, that “the application cannot be dismissed for failure to exhaust domestic remedies” is based on, inter alia , reference to case-law of the Court which is not relevant to the case under examination. All these manoeuvres in combination reveal that the approach underpinning that conclusion and the dismissal of the Government ’ s objection as to the exhaustion of domestic remedies is tainted by prejudice towards (not only?) the Hungarian Constitutional Court as a judicial institution presumably having not enough power to defend human rights effectively at national level.

I shall deal with this hat-trick of manoeuvres consecutively.

IV

16. The only constitutional provision cited in the judgment is that of Article VI, which enshrines the right to privacy. Other relevant provisions of the Hungarian Fundamental Law are not mentioned. There is a “proxy” reference to one of them in paragraph 33, where section 27 of the Constitutional Court Act is cited. It refers to Article 24 (2) d) of the Fundamental Law, but (as already briefly mentioned in paragraphs 7 and 10 above) this provision is omitted and is not reproduced anywhere in the judgment, as if it did not exist at all . This is a really fatal omission. No less ruinous is the omission of Article 24 (3) b) of the Fundamental Law, which also directly refers to Article 24 (2) d) and is inextricably related to the latter.

17. The provisions of Article 24 of the Fundamental Law should have been given the attention which they deserve. This is what this Article provides (in so far as relevant to this case):

“(1) The Constitutional Court shall be the principal organ for the protection of the Fundamental Law.

(2) The Constitutional Court

...

c) shall, on the basis of a constitutional complaint, review the conformity with the Fundamental Law of any legal regulation applied in a particular case;

d) shall, on the basis of a constitutional complaint, review the conformity with the Fundamental Law of any judicial decision;

...

f) shall examine any legal regulation for conflict with any international treaties;

...

(3) The Constitutional Court

...

b) shall, within its powers set out in Paragraph (2) d), annul any judicial decision which conflicts with the Fundamental Law;

...

(4) The Constitutional Court may review and/or annul any provision not requested to be reviewed of a legal regulation only if there is a close substantive connection between that provision and the provision requested to be reviewed of the legal regulation.

...”

18. To have any authority, a judgment of this Court must pay due heed to all relevant domestic constitutional and statutory provisions, as well as the doctrinal principles formulated in the case-law of the highest national courts of the State in question. Inattention to some of the provisions concerned, especially when coupled with the emphasis placed on others, may bring about a tremendous distortion of the whole national legal framework and result in the adoption of a judgment that is not based on law .

This is what, most regrettably, has happened in this case. The clauses of Article 24 of the Fundamental Law should under no circumstances have been undeservedly left aside, as if they did not matter at all . Had they been given due regard and interpreted (as the age-old undisputed canons of legal interpretation require in a case like this) in their interrelationship and in relation to section 27 of the Constitutional Court Act (which was meant to serve their purposes, and not vice versa), but also in the context of Article VI of the Fundamental Law, the answer to the question whether the Constitutional Court could have examined a constitutional complaint by the applicants, had one been lodged, would have been in the affirmative . Of course it could. Could the Constitutional Court have annulled the Kúria ’ s judgment of 23 September 2015 (and /or, for that matter, that of 6 January 2016, which is hinted at once in paragraph 26 of the judgment and then not referred to again)? Yes, it could. A constitutional complaint, as established in Hungarian law, should have been considered an effective remedy for the purposes of Article 35 § 1 in the circumstances of this case.

19. The Hungarian constitutional complaint model is not something which the Strasbourg Court has not already dealt with, either in the context of the old Constitution of Hungary (and the old Constitutional Court Act) or the new Fundamental Law (and the new Constitutional Court Act). True, this instrument is not universal. It may not always be an effective remedy for the purposes of Article 35 § 1. But “not always” is not the same as “not”. A constitutional complaint, especially given Hungary ’ s strong tradition of constitutional review, may be considered not to be an effective remedy in some circumstances, but not in all . This depends on the circumstances of the case under examination and on the type of constitutional complaint.

20. To wit, in the recent case against the same respondent State, Karácsony and Others v. Hungary ([GC], nos. 42461/13 and 44357/13, ECHR 2016; by the way, not even hinted at in the present judgment), the Grand Chamber accepted the applicants ’ submission that the new Constitutional Court Act had introduced three types of constitutional complaint : (i) the one under section 26(1); (ii) the one under section 27; and (iii) the one under section 26(2) (ibid., §§ 71 and 77). The Grand Chamber examined each of them from the standpoint of whether they met the requirements of Article 35 § 1 in the particular circumstances of that case. The procedures under sections 26(1) and 27 (“[t]he standard constitutional complaint [to be used] only ... when an unconstitutional provision was applied in court proceedings” and “a complaint against final court decisions”, respectively) were held to be “not available to the applicants” in that case (ibid., § 77). As to the third type of constitutional complaint, namely the one under section 26(2), the Court held that in that particular case , it too could not be considered an effective domestic remedy for the purposes of Article 35 § 1, because it was an “exceptional type of complaint applicable solely in cases where the petitioner ’ s rights have been violated through the application of an unconstitutional provision and in the absence of a judicial decision or a legal remedy to redress the alleged violation” (ibid.), and because “[i]n the event of a successful constitutional complaint lodged under section 26(2), the Constitutional Court will declare a given provision unconstitutional but has no power to invalidate the individual decision based on that unconstitutional provision” (ibid., § 79). In the circumstances of that case , the Court concluded that a constitutional complaint under section 26(2) of the Constitutional Court Act was not capable of redressing the alleged violation and thus not an effective remedy for the purposes of Article 35 § 1 (ibid., § 82). Still, the analysis undertaken in Karácsony and Others , which only deals in passing with constitutional complaints against court decisions, does not at all exclude the possibility that such a complaint may be an effective domestic remedy in other circumstances and that applicants must avail themselves of this remedy before lodging an application with the Court.

The judgment in Karácsony and Others rejected the applicability of a constitutional complaint under sections 26(1) and 27 of the Constitutional Court Act, and held that a constitutional complaint under section 26(2) was not an effective remedy for the purposes of Article 35 § 1 for the applicants in that case . The instant case, however, differs in essence from Karácsony and Others . The violation alleged (and found) in that case resulted not from some Hungarian court ’ s decision, to which Article 24 (2) d) of the Fundamental Law refers, but from decisions of the national parliament, which did not concern “legal regulation[s] applied in a particular case” within the meaning of that Article, but the application of sanctions against MPs. When, as in the present case, a constitutional complaint is explicitly allowed to be brought against a court decision and, moreover, when the Constitutional Court is explicitly obliged to annul that decision if it conflicts with the Fundamental Law (see paragraphs 22 and 23 below), in no way can this remedy be a priori considered not effect ive for the purposes of Article 35 § 1.

21. Cases are different – even cases against Hungary which involve, in one way or another, the issue of a constitutional complaint as an effective (or sometimes not) remedy for the purposes of Article 35 § 1. For instance (to limit ourselves to just a couple of examples from the recent case-law), in Szabó and Vissy v. Hungary (no. 37138/14, 12 January 2016), where the applicants complained under Article 8, the Court accepted that a constitutional complaint against a law which was allegedly in conflict with the Fundamental Law was an “effective remedy to [be] exhaust[ed] in the circumstances” (§ 40). In Miracle Europe Kft v. Hungary (no. 57774/13, 12 April 2016), where the applicant complained under Article 6 § 1, the Court accepted that “the applicant pursued a constitutional complaint which included ... a question of the constitutional right to a fair hearing” and that “this was an effective remedy in the circumstances” (§ 35). The list of such examples could be extended.

Let it be reiterated once again: whether a constitutional complaint can (or cannot) be considered an effective remedy in the Hungarian system depends on the circumstances of the particular case and on the type of constitutional complaint.

22. In Karácsony and Others (cited above) the Court went on to examine each of the three types of constitutional complaint (though two of them were dealt with only in passing because of their manifest inapplicability to the situation of the applicants in that case) from the standpoint of whether they met the standard of Article 35 § 1 in the circumstances of that case.

In the present judgment, however, the majority are satisfied with the “umbrella” assessment that “[t]he Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life” (see paragraph 49 of the judgment, cited in paragraph 12 above). In reaching that conclusion, the majority rely on sections 27 and 55 of the Constitutional Court Act (as mentioned in paragraph 13 above, the provisions of the latter section are only indirectly relevant to the issue under examination), but ingeniously remain silent about Article 24 (3) b) of the Fundamental Law, pursuant to which the Constitutional Court “shall, within its powers set out in Paragraph (2) d), annul any judicial decision which conflicts with the Fundamental Law”. And the same “Paragraph (2) d)” (that is to say, Article 24 (2) d) of the Fundamental Law), which (as already mentioned more than once) is also not cited anywhere in the present judgment, is the one directly referred to in section 27 of the Constitutional Court Act, which, in the majority ’ s opinion, might have been formally applicable in the applicants ’ case, but would have provided no “prospect of success” and, therefore, is not an effective remedy for the purposes of Article 35 § 1.

What is meant here by “prospect of success”? Could it be the possibility for the Constitutional Court to quash the Kúria ’ s judgment, had it been challenged by the applicants? Such a possibility exists according to domestic law, no matter what this Court says – or omits to say. Of course, there cannot be any “prospect of success”, on the paper on which this judgment is written, if the most pertinent constitutional provision which explicitly provides for such quashing (“annul any judicial decision”) is buried into oblivion.

23. The invocation of Article 24 (3) b) of the Fundamental Law makes the whole “logic” of the conclusion as to the “exhaustion” of domestic remedies, reached in paragraph 49 of the judgment (cited in paragraph 12 above), fall apart like a house of cards in a simple three-step exercise:

Step one. Section 27 of the Constitutional Court Act allows for the lodging (“may lodge”) with the Constitutional Court of a constitutional complaint against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 (2) d) thereof.

Step two. Article 24 (2) d) of the Fundamental Law not only allows but obliges (“shall”) the Constitutional Court to review, on the basis of such a constitutional complaint, the conformity with the Fundamental Law of the judicial decision complained against.

Step three. Article 24 (3) c) of the Fundamental Law not only allows but obliges (“shall”) the Constitutional Court, upon having examined that judicial decision within its powers as set out in Article 24 (2) d) of the Fundamental Law, to annul that decision if it is not in conformity with any of the provisions of the Fundamental Law, including Article VI, which enshrines every person ’ s right to privacy (and/or Article IV, which enshrines the right to personal safety).

Those who have eyes do see – or at least ought to see. It will probably remain a mystery to the readership why and how the majority have declared that a constitutional complaint under section 27 of the Constitutional Court Act has become an ineffective remedy in the applicants ’ case.

24. An international court such as the European Court of Human Rights should not engage in speculation as to what statutory provisions could have been or had to be challenged by the applicants in this case when lodging a constitutional complaint with the Constitutional Court. But the Court should also not reject – let alone following a simulacrum of consideration – the possibility that there could indeed have been such statutory provisions, as applied by the Kúria in the applicants ’ case, which could or even had to be challenged by means of a constitutional complaint, and that a finding that their interpretation and application were in conflict with the Fundamental Law would have led to the quashing (“annul[ment]”) of the Kúria ’ s impugned judgment(s). Most likely, these provisions were not those set forth in the Freedom of Assembly Act or the Police Act, which have been referred to in paragraph 35 of the judgment (especially given that the relevant provisions of those Acts, which pertain to the disbanding of unlawful assemblies, had already been “held” by the Constitutional Court in 2008 “to be constitutional”; see paragraph 7 above). Nevertheless, the Kúria , when adopting its judgment of 2 3 September 2015 (and that of 6 January 2016), applied not only the provisions of these two Acts but also various other legislative provisions, including (because this complexity is inherent in any court procedure) those pertaining to its own competence, the judicial procedure to be followed in the particular case, the rules of interpretation of constitutional and statutory provisions, as well as various provisions pertaining (as in the applicants ’ case) to the powers of the police and administrative proceedings against the latter, and internal security, and the initiation and/or discontinuation of a criminal investigation into the offences of incitement to hatred against the members of an ethnic group and of violence against them. I imagine that this list may be not exhaustive. However, it is not my task (and I do not intend) to make any suggestions on this account. I am satisfied that Hungarian law, as it stood at the material time, guaranteed (and, in my opinion, guarantees today) that persons in the applicants ’ situation (and in situations of all other sorts) have an undisputed right to challenge the Kúria ’ s judgment in the Constitutional Court by means of a constitutional complaint – contrary to what the majority have held, in defiance of the domestic constitutional and statutory provisions.

V

25. The doctrinal principles from the case-law of the Supreme Court and the Constitutional Court are cited in the “Relevant domestic law and practice” section. This citation is purely formal , because the findings in question are then disregarded in the Court ’ s reasoning. Had they been taken on board, the Court would have concluded that the Constitutional Court not only had the obligation to examine a duly completed constitutional complaint lodged by the applicants against the Kúria ’ s judgment of 23 September 2015 (and/or that of 6 January 2016), but that most likely it would have found that that judgment was in conflict with the Fundamental Law and would have quashed it, because (as asserted by the Government; see paragraph 2 above) the Kúria had either applied a law which was unconstitutional or had interpreted and/or applied a law in an unconstitutional manner (or, I would add, on both of these grounds). Thus, not only was a constitutional complaint, which the applicants could have lodged under the Hungarian constitutional and statutory law, not a futile tool in that, subject to being duly completed, it had to be examined by the Constitutional Court on the merits, it would also not have been a futile tool in that their right under Article 8 could have been effectively defended .

26. The doctrinal principles from the case-law of the Supreme Court and the Constitutional Court, cited in the “Relevant domestic law and practice” section, authoritatively suggest that the Constitutional Court could have looked at the matter differently from the Kúria . A prima facie inference can be made that the Kúria erred in its assessment of the applicants ’ situation. There clearly was a contradictio in terminis , if not something worse, in the Kúria ’ s reasoning that “despite certain violent actions, the demonstration had on the whole remained peaceful” (see paragraph 26 of the judgment). This contradiction is even more obvious in the light of quite unfavourable observations of international human rights monitoring bodies as regards the increase, in Hungary, of racism and intolerance towards the Roma people (see, for example, Vona v. Hungary , no. 35943/10, §§ 26-28, ECHR 2013; for the latest assessment see the Opinion of 19 September 2016 of the Council of Europe ’ s Advisory Committee on the Framework Convention for the Protection of National Minorities). Had the applicants lodged a constitutional complaint, the Constitutional Court could have looked into whether the Kúria ’ s interpretation of the powers of the police in dispersing the impugned hate- and violence-inciting demonstration was not too lenient in the sense that it may have been understood as permitting the police to disperse the demonstration (or not), whereas the law (if interpreted systemically, that is to say, statutory provisions being interpreted in the light of the case-law) required that the demonstration be dispersed (in other words, whether the police had performed their duty to disband a hate- and violence-inciting assembly, which the Constitutional Court had treated, in its judgment of 27 May 2008, as the police ’ s duty under the Constitution in force at that time and which, as many would suppose, should still be treated as the police ’ s duty under the Fundamental Law currently in force). After all, such chants as “Roma, you will die”, and “We will burn your house down and you will die inside”, and “We will come back when the police are gone” are not just “certain violent actions” that nevertheless do not change the character of the demonstration so that it “on the whole remain[s] peaceful”. Chants like these are no joke and call for the most resolute intervention by the police. They amount to incitement to hatred and violence. Period. Exactly the same applies to the fact that the demonstrators (no matter how many, because, as it appears, these were not limited to isolated instances) were equipped with sticks and whips and threw concrete and stones into the (presumably Roma population-owned) gardens (see paragraphs 11 and 12 of the judgment). The Constitutional Court could – and should – have looked into whether the discontinuation of the administrative proceedings against the police and of the criminal proceedings against the participants in the demonstration had been based on an erroneous – from the standpoint of the Fundamental Law – interpretation and application of statutory provisions. The Constitutional Court could have looked into whether the Kúria ’ s impugned judgment was not arbitrary, and so forth. There could have been many aspects for the Constitutional Court to look into (and again, it is not my task to suggest what they might have been), had the applicants lodged a constitutional complaint with it.

27. What is more, the case-law of the Constitutional Court, in my opinion, allows for a presumption that the Constitutional Court, had a complaint been lodged with it, would have found in favour of the applicants.

This presumption, however, is speculative, because the Constitutional Court was not given a chance to be involved and – to use the phrase most often employed in the Court ’ s case-law (see, among many authorities, a recent one – Avotiņš v. Latvia [GC], no. 17502/07, § 118, ECHR 2016) – the “opportunity to put matters right through their own [i.e. the Hungarian] legal system” before the supervisory jurisdiction of this Court was invoked.

And now the Strasbourg Court sends a message that the Constitutional Court ought not to be given such a chance .

This is not what the principle of subsidiarity calls for.

28. Had the Constitutional Court not quashed the Kúria ’ s judgment after a duly completed constitutional complaint had been lodged with it by the applicants, I would have had no hesitation in joining the majority in finding a violation of Article 8.

VI

29. The conclusion that “the application cannot be dismissed for failure to exhaust domestic remedies” (see paragraph 49 of the judgment) refers to the judgment in Apostol v. Georgia , no. 40765/02, § 39, ECHR 2006-XIV). Interestingly enough, this conclusion, on the basis of which the Government ’ s objection as to the exhaustion of domestic remedies has been dismissed, does not refer to any other case of the Court (the references, in paragraph 47, to Akdivar and Others v. Turkey (16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV) and Maktouf and Damjanović v. Bosnia and Herzegovina ([GC ], nos. 2312/08 and 34179/08, § 58, ECHR 2013) and, in paragraph 48, to S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008) and Söderman v. Sweden ([GC], no. 5786/08, § 78, ECHR 2013) pertain to other aspects of the admissibility of the application than the one relating to the constitutional complaint; by the way, the United Kingdom and Sweden, the respondent States in the last two cases, do not have a constitutional complaint system).

30. The paragraph from Apostol (cited above) referred to reads:

“The Court notes that, pursuant to Article 89 § 1 (f) of the Constitution and section 19(1)(e) of the Constitutional Court Act, the absence of a constitutional right renders a complaint incompatible ratione materiae with the provisions of the Constitution and, in accordance with section 18(e) of the Constitutional Proceedings Act, inadmissible for examination on the merits. Consequently, in so far as it is not the Court ’ s task to take the place of the Constitutional Court and interpret the Constitution, the Government ’ s failure to discharge the burden of proof by referring to the national judicial practice revealing the existence of a constitutional right to have binding judgments enforced prevents the Court from concluding that the applicant was able to claim such a right successfully before the Constitutional Court.”

31. The reference to Apostol (cited above) is accompanied by the “ mutatis mutandis ” caveat. However, this caveat should have been worded not as “ mutatis mutandis ” but as “ in toto mutandis ”, or something like that, as the judgment (and the paragraph thereof) referred to can hardly be seen as relevant to the instant case. In my opinion, the Apostol judgment is irrelevant, or – at least – no longer relevant.

32. Apostol (cited above) (i) was a case with a completely different subject matter from that of the instant case: it dealt with the enforcement of a court judgment in a debt-related case and not with hate speech, incitement to violence, assemblies, privacy, safety and so on; (ii) it was examined under a different Article of the Convention (Article 6 § 1) from the instant case (Article 8); (iii) it was brought against another member State (Georgia), which, naturally, had a different legal framework from Hungary; and (iv) by now, it is ten years old.

33. The latter circumstance is of no little importance in this particular case. In fact, it is very important. Time matters. The judgment adopted in Apostol (cited above) deals extensively with comparative law pertaining to constitutional complaints and contains, inter alia , a reference to the constitutional complaint model in the Hungarian legal system. It is asserted that such a complaint (which at the material time, in the opinion of the Court, resembled its Georgian counterpart) was not an effective remedy “for the purposes of Article 35”, because the Constitutional Court of Hungary “was only entitled to review the constitutionality of laws in general terms and could not quash or modify specific measures taken against an individual by the State” (ibid., § 41). This assertion is based on the much earlier decision of the European Commission of Human Rights adopted back in 1993 in Vén v. Hungary (no. 21495/93, 30 June 1993, unreported). Such an assessment might well have been correct in 1993 or even in 2006, when, respectively, Vén and Apostol were decided. Today (that is to say, at the time of delivery of this judgment), however, is 2017. The Fundamental Law of Hungary, which replaced the former Constitution dealt with in Vén and Apostol , came into force on 1 January 2012. By any standard, it is a very new constitutional instrument. Of the same young age is the Constitutional Court Act, which is tailored to the new Fundamental Law and serves its purposes. Despite many controversies surrounding the drafting, adoption and content of the new Fundamental Law (including the narrowing, in certain areas not related to the case under examination, of the powers of the Constitutional Court), it contains provisions which do not lend themselves to such careless labelling as the assertion that they do not allow the Constitutional Court to do anything more than “only ... review the constitutionality of laws in general terms and ... not quash or modify specific measures taken against an individual by the State”. This has been pointed out in paragraphs 17-23 above.

34. Whatever the state of Hungarian law in 2006, let alone in 1993, the uncritical reliance on how it was assessed by the Court at that time cannot have any bearing on how the current Hungarian law has to be assessed by this Court (or any other court) today .

35. And – what a reference! What an import!

The paragraph from Apostol (cited above), referred to in the conclusion reached in paragraph 49 of the present judgment, does not deal with a constitutional complaint in Hungary – it deals with a constitutional complaint in Georgia! And it speaks of the “absence of a constitutional right” in Georgia – not in Hungary! It refers to Article 89 § 1 (f) of the Georgian Constitution, section 19(1)(e) of the Georgian Constitutional Court Act, and section 18(e) of the Georgian Constitutional Proceedings Act. The present judgment has borrowed, from Apostol , the conclusion regarding the “absence of a constitutional right” in Georgia , but has – hocus-pocus! – “inferred” it from sections 27 and 55 of the Hungarian Constitutional Court Act, that is to say, placed the “ready-made” conclusion on the matrix of the provisions of Hungarian law. But in Hungary, as was pointed out in paragraph 14 above, any talk of a mystical “absence of a constitutional right” makes no sense.

36. In order to rebut the explicit provision of Article 24 (3) b) of the Fundamental Law to the effect that the Constitutional Court “shall, within its powers set out in Paragraph (2) d), annul any judicial decision which conflicts with the Fundamental Law” and to interpret it contra legem (which, in my opinion, would be a totally ineffectual effort), very persuasive arguments would have to be put forward. Instead, one finds in the judgment only the abstract and dubious reference to Apostol (cited above), a ten-year-old case which might once have been relevant in a case against Hungary such as the instant one, but no longer is.

37. One might wonder why, in the present case, Apostol (cited above) has been “rediscovered”, whereas the recent and much more relevant case of Karácsony and Others (cited above) has not even been hinted at anywhere in the judgment.

I have no answer.

VII

38. In their conclusion as to the “exhaustion” of domestic legal remedies, the majority assert that the Government have failed to prove that a constitutional complaint was (and is) an effective remedy of which the applicants had to avail themselves.

In the Court ’ s practice, as a rule, where the respondent Government claim that the application has to be rejected for non-exhaustion of domestic remedies, it is for them to prove that such remedies were available and that they have not been exhausted. What proof should the Government have provided in this case? My answer would be: the national legislation (constitutional and statutory), the practice of the criminal courts (the Supreme Court and/or the Kúria ) and, most importantly, the Constitutional Court ’ s case-law – assuming that any examples of the latter two exist.

Let us see what of all this material the Court had at its disposal.

39. The majority reproach the Government for “hav[ing] failed to prove” that there is a “constitutional right ... to seek, with any prospect of success, the intervention of the police for the protection of private life”.

As has been shown, such a right is there. The myth of the “absence of a constitutional right” in Hungary (again, what right?) comes from the inappropriate reference to Apostol (cited above). The relevant legislation is cited in the judgment, albeit with an essential omission. The Chamber has interpreted the domestic law in a manner contrary to what that law says. But this is not the Government ’ s fault. Nevertheless, it may (also) become their problem (see paragraph 41 below).

40. The majority also reproach the Government for “hav[ing] failed to prove that that there is ... a domestic judicial practice allowing an individual to seek [such] intervention”.

This is really capricious. Here, I have to repeat myself. The new Fundamental Law came into force on 1 January 2012. The new Constitutional Court Act also became effective on that day. The hate- and violence-inciting demonstration dealt with in th e instant case took place on 25 July 2012. The impugned judgment was adopted by the Kúria on 23 September 2015 (and a further one on 6 January 2016). It would be a truism and a banality to say that hate- and violence-inciting demonstrations are not a frequent occurrence either in other member States or in Hungary, even bearing in mind the air of intolerance against the Roma population in that country, as referred to in paragraph 26 above. Even assuming that since 2012 there might have been other (not anti-Roma) hate- and violence-inciting demonstrations which had to be dispersed by the police under to the Hungarian law, it is not likely that since 1 January 2012 in Hunga ry, (i) there have been many (if any) instances when such demonstrations were not dispersed by the police; (ii) if they were not dispersed, those affected were not able to find justice in the Hungarian courts (other than the Constitutional Court) as regards their right to expect appropriate intervention by the police for the protection of, inter alia , their private life; (iii-a) in the event that the court proceedings initiated by them were to no avail, those persons were not able to refer the matter, by means of a constitutional complaint, to the Constitutional Court ; or (iii-b) the Constitutional Court, having received their constitutional complaints, did not examine them; or (iii-c) the Constitutional Court, having examined such constitutional complaints submitted by the respective applicants, did not decide in their favour . The requirement for the Government to provide examples of such “domestic judicial practice”, when there had been no such cases (or cases that were more or less “identical”), is whimsical. It does not observe the principle lex non cogit ad impossibilia . It also disregards the very clear common-sense statement by the Grand Chamber – which is also a truism, but this is not a reason to disregard it – that “there must come a day when a given legal norm is applied for the first time” (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 115, ECHR 2015).

That day – with regard to the powers of the police vis-à-vis hate- and violence-inciting demonstrations, as well as to the non-investigation of racially motivated crimes – could have come with the applicants ’ case, had the latter been referred to the Constitutional Court. This Court could have helped that day to come.

It missed the opportunity.

41. It is disappointing that the majority demand from the Hungarian Government something that most likely is not available. But it is even more disappointing that the majority, at the same time, undermine the availability of such a thing for the future, because of the broader implications which this judgment may entail. What this judgment does is encourage other potential applicants not to apply to the Constitutional Court in other hypothetical similar and dissimilar cases, even if Hungarian law (and the Convention) requires this remedy to be used before an application is lodged with the Strasbourg Court. The message has been sent: a constitutional complaint, as available in Hungary, is not an effective remedy for the purposes of Article 35 § 1, because the Court is not persuaded that it is – notwithstanding what the Hungarian Fundamental Law explicitly says. And it says that (let it be reiterated once more) the Constitutional Court has an obligation to review, on the basis of a constitutional complaint lodged with it, the conformity with the Fundamental Law of any judicial decision and to annul the decision in question if it conflicts with the Fundamental Law.

To sum up, this judgment abruptly rejects the recognition of one important part of the Hungarian constitutional order and thus attempts to effectively invalidate it .

42. In Apostol (cited above, § 39), the Court pledged that “it is not [its] task to take the place of the Constitutional Court and interpret the Constitution”. This principled stance has been taken by the Court in many cases. I want to hope that it will continue to be taken in future cases, too. It is the only stance which is compatible with the principle of subsidiarity and with respect for national constitutions.

In the instant case, however, the Court undertook the above-mentioned “task” and interpreted the Hungarian Constitution contra legem – against its spirit, but also against its letter, and without even referring to its most relevant provisions. This judgment demonstrates distrust of national constitutional instruments (and not only Hungarian ones), both those pertaining to constitutional complaints as a means of settling constitutional disputes, and also those pertaining to the canons of constitutional interpretation.