Litigation on the right to protest

Two actions were launched by the HCLU regarding the right to peaceful assembly in December, 2013. Both actions concern to the same problem: lockdown of a public area around the Prime Minister's residence. In the first case, the police dispersed an ongoing peaceful demonstration on the grounds of closing off the area, for which the organizer filed a claim against the police with the help of HCLU. In the other case, another demonstration planned by the same organizer at the same venue was banned by the court, which was then challenged before the Constitutional Court. Both decisions are ill-unfounded and misinterpret the constitutional limitations of the right to protest.

The HCLU provides legal representation in a court procedure lodged by the organizer of a demonstration held near to the residence of the Prime Minister. In October 2013 the peaceful protest was dispersed merely because of the discretionary decision of the Counter Terrorism Centre (CTC) issued the previous day to close the streets where the assembly was to take place. The organizer sued the police for doing so. The request, written by HCLU’s attorney claims that the police simply repeated the reasoning of the CTC’s order referencing the necessity to protect the safety of a high level official, and omitted to consider the necessity and proportionality of its action. Thereby the police failed to review any alternative measures suitable for protecting the prime minister and was futile to even attempt to mitigate the limitation of the right to assembly. This happened despite the fact that these constitutional principles were reinforced by the court this year in a case related to the police duties in connection with the prior notification of a demonstration by the organizer, where the court explicitly pointed out that the police has sole authority to decide on consenting to such notice. The HCLU believes therefore that those principles are applicable equally to the dispersing of an assembly and the lack of respecting these guidelines is sufficient to state that the dispersion of the gathering was unlawful.
The motion is available here (in Hungarian) (.pdf) >>
After dispersing the demonstration the organizer notified the authorities of another assembly at the same venue. Despite the provisions of a previous court decision according to which “it is unnecessary in a democratic society to limit a peaceful demonstration on the sole basis that it is held in the proximity of a high level official when it otherwise qualifies as an expression of a political opinion”, the order for closing down the area was still in effect and the Chief Police Officer still refused to consent to the notification of the demonstration. The police accepted and adopted once again without any further deliberation the ruling of the CTC, claiming the risks affiliated with the proximity of the demonstration to the presence of the Prime Minister. Though the organiser challenged the refusal before the Metropolitan Court of Budapest, citing the abovementioned judgment and its arguments settled by the very same court, the court not only refused to overrule the decision but outright banned the assembly. Having no further legal remedy available, the organizer turned to the Constitutional Court with the help of HCLU, requesting the constitutional review of the court ruling. This constitutional complaint is based on two arguments. First, the court concluded that less substantial reasons suffice for banning an assembly in a residential area than in the city centre accommodating various political institutions, and disregarded the fact that the venue of the rally was not just any residential area but the neighbourhood of the Prime Minister's residence as the demonstration would have addressed the Prime Minister, who qualifies as a public figure subject to public criticism to the broadest extent. Second, the court substantiated the ban on the demonstration by the danger of the so called "captured audience". In the HCLU’s view however, the court misinterpreted the notion of a "captured audience" as it is laid down by previous Constitutional Court decisions. In the CC’s view it is the person who is addressed by the demonstration that should be protected from being forcefully subjected to witness the potentially humiliating message of the demonstration. However, in the present case the court applied the above need for protection not in respect of the person addressed by the demonstration but in respect of the other residents of the area, in order to "maintain the calm of everyday life", therefore the required preconditions for applying the notion of a "captured audience" were not met and therefore the measure taken was unlawful.
The complaint is available here (in Hungarian) (.pdf) >>

Share

Related articles

OPERATION STARVE & STRANGLE: How the government uses the law to repress Hungary's civic spirit

On 13 February 2018, the Hungarian government introduced in Parliament the ‘Stop Soros’ package, a legislative proposal of three bills that target civil society organisations working on migration.

● Bill T/1976 on the licensing of organisations supporting migration;

● Bill T/19775 on the immigration financing duty;

● Bill T/19774 on the immigration restraint order.

What Is The Problem With The Hungarian Law On Foreign Funded NGOs?

On 13 June 2017, the Hungarian National Assembly (Parliament) adopted the Act LXXVI of 2017 on the Transparency of Organisations Supported from Abroad (hereinafter: the Law). It obliges associations and foundations that receives at least 7.2 million HUF annually from foreign source to register with the court as an organization receiving foreign funding, to annually report about their foreign funding, and to indicate the label “organization receiving foreign funding” on their website and publications. The list of foreign funded NGOs is also published on a government website. 

The Right to Protest: New online project

OpenDemocracy, CELS and INCLO are launching a new minisite on The Right to Protest, with support from the ACLU.