DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot share the view expressed by the majority in this case to the effect that there has been no violation of Article 6 § 2 of the Convention (operative point 5 of the judgment).

2. I am no particular fan of the case-law that has spawned around Article 6 § 2 following on from Minelli v. Switzerland (25 March 1983, Series A no. 62), as one can immediately gather from even a cursory examination of my separate opinions in Ashendon and Jones v. the United Kingdom (nos. 35730/07 and 4285/08, 15 December 2011), Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013), and Müller v. Germany (no. 54963/08, 27 March 2014). However, the instant case is one which, to my mind, involves a clear declaration of guilt by legislative act.

3. I find the first two sentences of paragraph 32 of the judgment extraordinarily naive. Of course, neither Mr Béres, nor Ms Bende, nor Mr Stork, nor indeed any one of the applicants was mentioned by name in section 1 of the Amnesty Act. However, that provision clearly referred to an act which amounted to a criminal offence (to leave no room for doubt, the precise Article of the Criminal Code was indicated); it also referred to the precise context in which that act was committed, by giving not only the date and place, but also the manner of execution (“... by several persons chaining themselves to each other and to the gates”). In December 2011 the applicants were charged precisely with that particular offence occurring in those specific circumstances ; in March 2012 the criminal investigation was discontinued only because of the amnesty created by the legislative act (“No criminal procedure can be instituted or continued on account of the crime of violation of personal liberty ... committed on 23 December 2011...”, emphasis added). No amount of hair-splitting, grammatical or otherwise, can alter the obvious: the applicants, who had committed the criminal offence in question (because the Amnesty Act had said so), were being amnestied; and only for that reason (and not, for example, because of lack of evidence, or because the limitation period had run its course) were the criminal proceedings discontinued.

DISSENTING OPINION OF JUDGE K Ū RIS

A. The Article 8 playground for reputation disputes

1. I respectfully disagree with the majority that the complaint under Article 8 of the Convention is inadmissible. What is at stake is the applicants ’ reputation, and this value clearly falls under Article 8 .

2. I find it difficult to comprehend why, say, in Erményi v. Hungary (no. 22254/14, 22 November 2016), which dealt with the premature termination of the applicant ’ s mandate as Vice-President of the Supreme Court (who, by the way, was compensated for the premature termination of his mandate as a judge), Article 8 was invoked and a violation of it was found, whereas in the instant case, where the applicants were found by an Act of Parliament to have committed a “crime”, the Court has held that “it has not been shown that the Act complained of had a bearing on the applicants ’ private life” and that “its negative effects, if any, did not attain the level of seriousness required to bring Article 8 of the Convention into play ” (emphasis added), and has found the complaint “incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a)” (see paragraphs 40-41 of the judgment).

This is inconsistent, to say the least. And callous to the reputation of the applicants.

3. I must correct myself. In Erményi (cited above) I wrote that “Article 8 ... seems to have become all-embracing, because the notion of ‘ private life ’ has itself become all-embracing” (see my dissenting opinion, § 1).

It appears that, in fact, this Article is almost all-embracing, in the sense that it covers almost anything, except certain areas which traditionally are considered to be closely related to private life.

Reputation, for instance.

For the finding in the present case that the complaint under Article 8 is incompatible ratione materiae with the provisions of the Convention and therefore inadmissible is about nothing else but the Court ’ s approach to reputation – or, more precisely, about the denial of the Convention ’ s protection to individuals ’ reputation, because infringements of the right to a reputation do not “attain the level of seriousness required to bring Article 8 of the Convention into play”.

Those defending their reputation have lost the game. Take it easy; it is only “play”.

B. Naming the culprits

4. Another, no less shocking, defect of the present judgment is that no violation of Article 6 § 2 has been found with regard to any of the applicants.

5. The majority point out that “under [the Court ’ s] case-law even the regrettable use of some unfortunate language does not have to be decisive as to the lack of respect for the presumption of innocence given the nature and context of the particular proceedings (see Müller v. Germany , no. 54963/08, § 54, 27 March 2014)” (see paragraph 31 of the judgment).

6. The above citation is not correct. It is a phraseological fusion of two parts of a much longer sentence, which have been mingled together. The full citation from Müller should be:

“In the light of the above considerations, and bearing in mind that, under the Court ’ s case-law, even the regrettable use of some unfortunate language does not have to be decisive given the nature and context of the particular proceedings (compare paragraph 46, above, in fine ), the Court is satisfied that the execution of sentence chamber, when deciding on the applicant ’ s request for probationary release, did not demonstrate a lack of respect for the presumption of innocence which the applicant enjoys in respect of the criminal charge of which he has been acquitted.”

But it is not only the text of the citation which is not correct. The reference itself is inappropriate .

In Müller the applicant was someone who had been acquitted, and not found to have committed a “crime”. But this is not the greatest difference.

In Müller the applicant complained that the presumption of innocence had not been respected by the decisions given by two courts.

Courts, not a parliament!

It appears that the Court does not see the difference between courts and political institutions. This is off-limits.

7. Anyway, why was this reference to “unfortunate language” included? My guess is because of the language of the impugned Amnesty Act, which is indeed “regrettable”, and its use “unfortunate”.

Very regrettable and very unfortunate.

8. The language of a statute is not “only” language. The language of a statute is the text of the law . It is an expression of that law.

The language of the impugned Act is an expression of the law which labelled the applicants as guilty of a “crime”. This law is no less unfortunate than the language in which, regrettably, it is expressed.

9. The situation under examination in the instant case is one involving conviction by legislation . Not by a court. I cannot see how the provisions of the Amnesty Act could be interpreted in any other way than as incriminating the applicants without a court procedure.

10. The majority say that “there was nothing in the wording of the Amnesty Act that has linked the applicants themselves by name to the crime described therein” and that “no other circumstances allowed doubt to be cast on the applicants ’ innocence” (see paragraph 32).

Does anyone believe this?

The language of this reasoning is not just “unfortunate”. It is not true .

The “link” is there – an obvious one. And there are plenty of “circumstances”.

11 . The Act refers to the precise place and date of the applicants ’ actions, and describes those actions as clearly as one can. These actions of individuals are explicitly called a “crime” in the Act, and the legal characterisation of that “crime” is provided with the reference to the relevant Article of the Criminal Code. Upon enactment of the Act, the criminal investigation in respect of the applicants (and other suspects) was discontinued. It was discontinued because the Act obliged the police to discontinue it.

To sum up, the Act was passed because the investigation into the applicants ’ actions was ongoing, and the investigation was terminated because the Act, tailored to the applicants ’ situation, came into force.

The twenty-nine persons to whom the Act was applied were recognised as (that is, became) criminals on the day the Act was passed. They became criminals who, at the very same moment, were “exempted from punishment” by the parliamentary act of amnesty.

12. What else could be needed for a conclusion by the Court that the applicants are “linked” to the “crime described therein”?

Why do they have to be “linked” to the “crime” by name? Where does that “criterion” come from?

And why only by name? Why do the words “several persons” not suffice?

What if the Act said “twenty-nine persons”, but indicated no names? Would that have been enough for the finding of a violation?

The Act would have looked truly bizarre had it included the twenty-nine names of the “criminals”, and maybe also their dates of birth, gender, addresses and other personal data, to ensure that they could not be mistaken for their namesakes. That would have been some “link”.

13. Amnesties are not applied to those who are not convicted. They are not applied to those who are deemed innocent. By definition.

Amnesty is a category of criminal law.

To whom else, if not to the applicants (and their “accomplices” in the “crime” identified in the Act) was the amnesty in question applied?

If it was applied to no one else (at least the Government had not named anyone), then how can the Court say that there is no “link” between these applicants and the “crime”?

14. We do not know whether Parliament opted not to include this information in the text of the Act and thus anonymised the victims after considering that this was a better approach just to be on the safe side. But this anonymisation helped the respondent Government. Otherwise they would have lost this case. Now they have won the game being “played”.

15. Let us not hide our heads in the sand. The artificial reasoning of this judgment can hardly convince anyone.

C. The judicial aegis for political justice

16. The majority state that they do not want the Court to “substitute its own view for that of the [Hungarian] Constitutional Court”. True, in some other cases against the same respondent State, Hungary, the Court has been less scrupulous and has even foreseen a priori that the Constitutional Court would have examined a hypothetical application in some unsatisfactory way, and has therefore exempted applicants from the need to apply to that court (see my dissenting opinion in Király and Dömötör v. Hungary , no 10851 /13, 17 January 2017).

17. In the instant case the Constitutional Court declared the applicants ’ complaint inadmissible, because, in its opinion, the complaint did not raise any constitutional-law issues of “fundamental importance”. Also, the complaint was time-barred (see paragraph 11 of the judgment).

Why did the Constitutional Court go on to reason that “the complaint ... was based on an erroneous interpretation of the law” and that “the language employed by the Act could not be interpreted as establishing that the applicants had indeed committed the offence”? These arguments were supposed to substantiate its assessment of the issues raised by the applicants as having no “fundamental importance”.

Did they succeed in that?

Isn ’ t the waterline between law and politics (however blurred at times) something of “fundamental importance”?

Again, some (but perhaps many) would find this reasoning of the Constitutional Court to be (to use the same words as in Müller (cited above), of which the majority remind the readership in paragraph 31; see paragraphs 5 and 6 above) “unfortunate”, and its employment “regrettable” – which would be not surprising from the point of view of the rule of law, which, for its part, sees a fundamental difference between law and politics.

18. The fact that the complaint was time-barred sufficed, in itself, for its dismissal. From this perspective, the Constitutional Court ’ s reasoning as to the “erroneous interpretation of the law” comes close to dicta : please use the Wambaugh ’ s Inversion Test. The majority accord these dicta much greater force than dicta usually deserve. But as well as relying on the reasoning of the Hungarian Constitutional Court, they add their own reasoning as to the absence of a “link” between the applicants and the “crime described” in the Amnesty Act.

19. It may very well be that, on the basis of the Hungarian Fundamental Law, the interpretation of which is the task of the Constitutional Court of that State, the language used in the Act really does not amount to an infringement of the applicants ’ right to their reputation and to the presumption of innocence.

It may also very well be that the Hungarian Fundamental Law, as interpreted by the Constitutional Court, may sometimes (as in the applicants ’ case) be blind to the merger of political decision-making and criminal law. Some would say that the Constitutional Court erred. It happens: courts do err, and not only constitutional ones.

20. With a constitutional court this may happen, for example, when it finds itself in the midst of constitutional change and/or experiences pressure from the political branches of power attempting to narrow the constitutional court ’ s powers.

It also may happen when a constitutional court is acting under a new Constitution, but has to examine actions committed and laws (pertaining to those actions) passed at the time when the old Constitution was in place.

21. The applicants committed their “crime” (as Parliament has called their actions) in late 2011. The new Fundamental Law of Hungary (which has effectively narrowed the Constitutional Court ’ s powers and could, by means of constitutional amendments, narrow them even more) came into force on 1 January 2012. The applicants ’ case was examined by the Constitutional Court in 2012. I mention this only in passing, as part of the background to the case, and draw no conclusions from it.

22. I agree with the majority that this Court should not “substitute its own view” on this issue “for that of the Constitutional Court”.

But the Court should have “its own view” as to whether such standards of interpretation of law and facts can be applied under the Convention .

If this judgment comes into force, then they can.

The Court should have “its own view” as to whether incrimination without a court procedure, by a political act alone, is normal under the Convention .

If this judgment comes into force, then it is.

And this would indeed be regrettable.

23. Does this standard have a name?

Yes, it does. Political justice.

This is what the Hungarian Parliament has meted out in the applicants ’ case and what – ­ I regret to note ­ – the Hungarian Constitutional Court and the Strasbourg Court have overlooked.

APPENDIX

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by

59588/12

10/09/2012

András BÉRES

01/06/1969

Budapest

Ambrus GERŐ

24/03/1986

Göd

Balázs POLÁKOVICS

04/12/1983

Budapest

Ágnes SEREGÉLY

04/01/1982

Budapest

Levente STORK

23/05/1988

Budapest

Dániel András KARSAI

59632/12

10/09/2012

Anna BENDE

01/09/1981

Dunakeszi

Kinga Regina KALOCSAI

01/12/1986

Budapest

László MOLDOVÁN

09/05/1959

Budapest

Tamás FAZEKAS

59865/12

10/09/2012

Katalin ÁMON

22/01/1987

Budapest

Áron GAJÁRSZKI

12/01/1976

Budapest

Judit SZÉKELYNÉ RÁKOSI

Budapest

05/07/1956

Budapest

András Kristóf KÁDÁR