JOINT CONCURRING OPINION OF JUDGES RAIMONDI, SPANO AND KJØLBRO

I.

1. We agree with our colleagues that there has been a violation of Article 10 and Article 13 of the Convention. However, we are unable to subscribe to parts of the reasoning.

2. In our view, the Court adopts an overly abstract approach to the resolution of the case in the light of the facts as set out in the application.

3. The reasoning of the Court may be understood as finding that Article 10 forbids, in general, the imposition of a sanction on a member of Parliament who deems it necessary to express his or her disagreement on an important issue by disrupting parliamentary sessions and acting contrary to the internal disciplinary rules of Parliament. In our view, the case presents an issue which is more limited in scope. The problem raised is rather to what extent Article 10 of the Convention protects members of Parliament who have recourse to such methods of expressing their views.

4. It follows that we consider several issues raised in the judgment to be of limited or no legal significance for the resolution of the case. We refer here, in particular, to paragraphs 44-45 (concerning the relevance of case-law on parliamentary immunity), paragraphs 63-65 (concerning the level of protection in cases involving a breach of a parliament ’ s internal rules), paragraphs 67-72 (concerning the importance of the nature of the expression in cases involving a breach of a parliament ’ s internal rules), paragraphs 73-74 (concerning the significance of the disturbance of the parliament ’ s work), and paragraphs 76-85 (on misgivings as to the procedure followed in this case). We stress that in our view the reasoning in these paragraphs should be considered obiter dicta with limited or no value as precedent for future cases decided by the Court.

II.

5. We fully agree with our colleagues that there has been an interference with the applicants ’ freedom of expression (see paragraph 46 of the judgment).

6. However, unlike our colleagues, we have no hesitation in reaching the conclusion that the interference was prescribed by law (see paragraph 48). Sanctions were imposed on the applicants on the basis of section 49(4) of the Act on Parliament. Taking into account the fact that this provision concerns the work of Parliament, is addressed to members of Parliament and regulates their conduct, the interference was adequately prescribed by law, even though the provision uses vague terms such as “gravely offensive”, whose interpretation is a question of practice (see, inter alia , Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV).

7. Furthermore, the interference clearly pursued a legitimate aim (see paragraphs 51-53 of the judgment), as it had the aim of protecting the rights of other members of Parliament and thus the rights of others. Furthermore, the interference was aimed at preventing disruption of the work of Parliament and thus preventing disorder.

8. The only material question to be decided in this case is whether the interference was necessary in a democratic society and was thus proportionate to the aim pursued, as required by paragraph 2 of Article 10 of the Convention.

9. As a general rule, it falls within the margin of appreciation of member States, and in particular national parliaments, to decide upon their internal working methods, including how members can participate in their work and in debates during sessions. Thus, for example, parliaments may decide how members may address them, when and how often members may take the floor, the order of speeches during debates, the time allocated for such speeches, whether there should be equal representation of different parties and views, whether interruptions and comments are permitted during a speech by another member, and whether the use of non-verbal expressions or signs is allowed.

10. Furthermore, as a general rule, parliaments are entitled under paragraph 2 of Article 10 to react and interfere when their elected members fail to comply with disciplinary rules governing the work of Parliament during sessions. Such interferences may take a variety of forms, including a call for order, a formal warning, a temporary denial of the right to speak, exclusion from a session, suspension of a session and, in exceptional situations, the use of pecuniary sanctions.

11. The enforcement of rules on the internal work of Parliament, and the use of certain measures in response to a failure to comply with such rules, should, however, respect the principle of proportionality, as has also been recognised by the Hungarian Constitutional Court (see paragraph 16 of the judgment). Thus, disciplinary sanctions should be applied on a gradual basis.

12. We fully agree that freedom of expression is of particular importance to members of Parliament (see, inter alia , Castells v. Spain , 23 April 1992, § 42, Series A no. 236, and Jerusalem v. Austria , no. 26958/95, § 36, ECHR 2001-II). Indeed, freedom of elected members of Parliament to express their views during parliamentary sessions lies at the core of the democratic process.

13. In the present case, the applicants did not receive sanctions for expressing their views on issues debated in Parliament, nor for criticising the Government or expressing disagreement with the parliamentary majority. In fact, as members of Parliament, the applicants were free to participate in parliamentary debate and voting and thus to express their views. Thus, the applicants were not given sanctions for expressing their views as such, but rather for the time and the manner in which they did so.

14. It is clear from the facts of the case that the applicants did not receive immediate sanctions for their behaviour using traditional measures such as those described in paragraph 10 above. Therefore, the only question to be decided in this case is whether the use of a pecuniary sanction was proportionate in the specific circumstances of the case.

15. The applicants were fined for gravely disrupting the plenary proceedings, in application of section 49(4) of the Act on Parliament concerning “gravely offensive” conduct. The sanctions were imposed without prior warning and without giving consideration to or having recourse to other less serious sanctions. Furthermore, even though the sanctions were imposed days after the incidents in question, the applicants were not given a chance to explain themselves before the sanctions were imposed. On this basis, and having regard to the applicants ’ conduct, the close nexus between their status as elected parliamentarians and the core of Article 10, and the severity of the sanctions, the Government have not demonstrated that the interference with the applicants ’ freedom of expression constituted a proportionate measure, based on relevant and sufficient grounds, that conformed to the requirements of paragraph 2 of Article 10 of the Convention.

16. As regards the lack of effective remedies, we agree with the reasoning of the Court, apart from paragraphs 97 and 98, which should not have been included in the judgment in our view.