PARTIALLY DISSENTING OPINION OF MM A.S. GÖZÜBÜYÜK,

A. WEITZEL, J.-C. SOYER, MRS J. LIDDY, MM I. CABRAL BARRETO,

I. BÉKÉS, AND C. BÎRSAN

We agree that there has been no violation of Article 11. The interference with freedom of association was, for the reasons stated, "prescribed by law" and constituted a lawful restriction on the exercise of that right by members of the police such as the applicant as envisaged by the last sentence of paragraph 2 of Article 11.

With regard to the issue under Article 10, the restriction on freedom of expression was prescribed by the same law, Section 40/B para. 4 of the Hungarian Constitution. That Constitution also guaranteed freedom of expression in Section 61, subject to the provision applicable to the police relating to political activities. However, it is clear from the later enactment of the Police Act 1994 and the issue of the 1995 Regulation that both sections of the Constitution operated to allow, and must be taken to have always allowed, for statements and publications in newspapers that observed the rules on service and state secrets. There was never a total ban on freedom of expression as a result of Section 40/B para. 4 of the Constitution.

In regard to the aim of the interference, we recall that the defence of democracy is one of the main justifications of restrictions "in the interests of national security" (cf. Eur. Court HR, Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, para. 51; Glasenapp v. Germany, Comm. Report 11.5.84, Eur. Court HR, Series A no. 104, pp. 41-42, paras. 79-84; Kosiek v. Germany, Comm. Report 11.5.84, Eur. Court HR, Series A no. 105, pp. 34-35, paras. 72-77). Also bearing in mind the Hungarian historical experience with a totalitarian State, we consider that the prohibition in question can be regarded as purportedly aiming at preventing the police from political commitment and thus as pursuing the legitimate aim of national security.

The prohibition at issue imposed a duty of discretion on members of police compatible with the duties and responsibilities referred to in Article 10 para. 2 and corresponding in a sense to the last sentence of Article 11 para. 2. In this respect we bear in mind that whenever civil servants' right to freedom of expression is in issue, the "duties and responsibilities" referred to in Article 10 para. 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (cf. Eur. Court HR, Vogt judgment, op. cit., p. 26, para. 53). We consider that the considerations relating to the "duties and responsibilities" assumed, in the context of Article 10 para. 2, by the civil servants of a State can be applied, mutatis mutandis , to members of its armed forces including the police. We recognise the legitimate interest of a democratic State in ensuring that its police properly furthers the purposes enumerated in Article 10 para. 2 of the Convention.

Furthermore, we consider that the prohibition in issue should be examined against the background of Hungary's historical experience with a totalitarian State which for more than forty years could rely on close links between the law enforcement agencies and the ruling party. We had regard also to the fact that Hungary's recent pluralist transformation was essentially launched in the context of the first multi-party parliamentary elections in 1990 and that the impugned prohibition was enacted on 1 January 1994, some months prior to the next parliamentary elections in 1994.

We are, therefore, of the opinion that the prohibition in issue is part of the on-going process of establishing a politically neutral State administration in Hungary. It can be regarded as answering a pressing social need and hence as necessary in a democratic society.

Moreover, since the duties and responsibilities referred to in Article 10 para. 2 may be peculiar to members of armed forces or of the police (see Eur. Court HR, Engel v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 42, para. 103), it cannot be said that there is any arbitrary distinction between the applicant and other citizens.

Accordingly, there has been no violation of Article 10 taken alone or, in so far as it may be necessary to examine the matter, Article 10 in conjunction with Article 14.

(or. English)