New grounds for banning protests
The most repressive instrument against the freedom of protest and the right to assembly is prior restraint: the prohibition to assemble at a given place and time. Accordingly, the most crucial aspect of any regulation on the right to assembly is the set of conditions under which a given assembly may be prevented by a police ban. The current conditions of such prior restraints would be radically revised by the Bill (Section 13).
current Act III of 1989 on the Right to Assembly | draft Bill (T/707.) on the right to assembly |
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strictly restricts the administrative power of the police to issue prior bans → able to prevent a high amount of arbitrary police decisions | does not specify how the new conditions for a ban would be applied → almost limitlessly extends the power of the police to ban assemblies, opens a slippery slope for banning assemblies on illegitimate grounds[*] |
provides strong constitutional protection for the right to assembly and freedom of speech with low entry threshold conditions | constitutional guarantees of the right to protest would be considerably decreased: even sport events or flea markets would be much more easily to organize than political demonstrations, while this should be the other way round |
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[*] For example, the “dignity of the Hungarian nation” as a special right to be weighed against the right to assembly, would enable the police to discriminate gatherings and expressions upon political grounds.
Lack of toleration for peaceful assembly
Giving up the narrowly tailored definitions of the grounds of prior ban contradicts the jurisprudence of the European Court of Human Rights. The Court is unambiguous that “any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance” (Sergey Kuznetsov v. Russia, 10877/04, 44.). As the new Bill would allow the police to ban any demonstrations based on extremely vague, open-ended reasons, it does exactly what the Court deems unlawful: the Bill deprives freedom of assembly as guaranteed by Article 11 of the European Convention on Human Rights of all its substance. Therefore, the new Bill is unacceptable not only on Hungarian constitutional grounds, but also in light of the international human rights law commitments of Hungary. Criminalization of non-violent protest activities of any sort also clearly contradicts the jurisprudence of the European Court of Human Rights, which prescribes tolerance toward unlawful but peaceful assemblies: “where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance” (Oya Ataman v. Turkey, 74552/01, 42.)
Notification in theory, permission in practice
The exercise of the right to freedom of assembly should not depend on the favor of the law enforcement bodies or officials at all. Examples of threats to the public order or violating others’ rights that the Bill lists seems to assist the police in applying the law. However, the list of examples, instead of being any help in applying the law, only serves to veil that there is a wide and open range of grounds for the police to ban a protest. Consequently, the new Bill would imperil not only marches that take place in the major traffic routes -- such as the avenues or the bridges of the capital --, but also demonstrations that take place anywhere near court buildings or private premises.
With the extremely wide discretion of the police to ban demonstrations, the new Bill would maintain the system of notification in its wording, but in practice, organizing a demonstration would actually depend on the permission of the police. The police is even authorized to make a politically biased assessment, which can only be veiled by the formalistic application of neutral-like categories. Due to the fact that the centralized national police is under the control of the government (Ministry of Internal Affairs), it is very likely that if the Bill is enacted, it will result in politically motivated right-violations.
As a matter of context, it is also noteworthy that the judiciary responsible for the judicial review of police bans on protests is currently subject to radical reorganization in the wake of the recent (7th) amendment to the Fundamental Law of Hungary. The government intends to colonize administrative courts, and hence the judicial review of public administrative decisions in general. The judicial review of protest bans would also fall prey to this process.
Need for reform, but not radical revision
The HCLU acknowledges that Act III of 1989, currently in force, is in need of amendments and reform. The regulation of holding spontaneous and quickly organised assemblies, of ranking simultaneous assemblies, of defining the earliest date of notification, and of clarifying the organizer’s competences is missing from the law currently in force, and the new Bill addresses these issues. At the same time it is to be pointed out that the Bill fails to provide necessary guarantees for the free exercise of the right to assembly even in the light of these more recently emerged needs for regulation.
Since there is no reason for extending the conditions of banning demonstrations, the Bill, especially Section 13, is unacceptable in light of the European human rights standards and the international obligations, as well as the constitutional jurisprudence, of Hungary. The way the Bill was introduced to the national parliament -- without any previous announcement and public debate --, also questions the government's commitment to human rights and democratic values. Committee work within the legislative procedure did not offer, either, any substantive opportunity for deliberation; the Committee on Justice could debate the Bill for no more than 90 minutes, which time was allotted altogether to the bill on the right to assembly and an extremely complex other bill, as well as the oral report of the President of the National Judicial Office. No single motion by any opposition MPs to amend the Bill in any way was accepted. Therefore the Hungarian Civil Liberties Union is of the view that the entire Bill should have been withdrawn and a limited modification of the current act should have been enacted, following a widely inclusive, democratic public discourse involving all relevant stakeholders and political actors.