KERÉKGYÁRTÓ A PÓKA proti Maďarsku

SECOND SECTION

DECISION

Applications nos. 42444/17 and 42526/17
László KERÉKGYÁRTÓ against Hungary and
László PÓKA against Hungary

The European Court of Human Rights (Second Section), sitting on 4 February 2025 as a Committee composed of:

Jovan Ilievski, President,
Péter Paczolay,
Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 June 2017 by the applicants listed in the appended table (“the applicants”), who were represented by Mr T. Gaudi‑Nagy, a lawyer practising in Budapest;

the decision to give notice of the applications to the Hungarian Government (“the Government”) represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applications concern the applicants’ liability and their subsequent punishment for the regulatory offence of abuse of the right of assembly for having unlawfully deviated from the location authorised for a demonstration which took place on 7 May 2015. It raises issues under Article 11 of the Convention.

2. On 21 April 2015 the applicants notified the Budapest Police Department of their intention to hold a demonstration called “Hold your looters accountable 2015”, which was scheduled to take place from 8 a.m. to 8 p.m. on Thursday 7 May 2015 in Széchenyi István Square in Budapest. As part of the demonstration, five demonstrators were to deliver a petition to the Speaker of Parliament, as had been agreed in advance with the Speaker’s Press Division.

3. The Police Department took note of the plans for the demonstration and on the day of the assembly, the police secured the location.

4. Shortly after 11 a.m. five demonstrators left the demonstration to hand over to the Speaker the petition, which urged Parliament to address the situation of debtors of exploitative mortgages. However, parliamentary officials refused to accept the petition.

5. At 4 p.m. the applicants, who were co-organisers of the assembly, expressed their dissatisfaction over the failure to deliver the petition and Mr Póka (the applicant in application no. 42526/17) proposed that the demonstrators move to József Attila Street, which was in the direct vicinity of the initial location of the demonstration, and block road traffic for an hour as part of a sit-down protest.

6. Two police officers informed the applicants of the legal consequences of unlawfully deviating from the authorised location of the demonstration. Despite that warning, at 4.30 p.m. approximately 110 people sat down on a pedestrian crossing and stayed there until Mr Póka announced the end of the event at 5.26 p.m. During that time, police officers present at the scene diverted the traffic.

7. On 28 August 2015 the Budapest 5th District Police Department imposed a fine of 50,000 Hungarian forints (HUF – approximately 160 euros (EUR)) on Mr Kerékgyártó (the applicant in application no. 42444/17) and a fine of HUF 75,000 (approximately EUR 240) on Mr Póka for abuse of the right of assembly.

8. The applicants lodged objections and the Pest Central District Court subsequently reviewed the decisions, after hearing the applicants. On 7 January 2016 the District Court held that the applicants had instructed the demonstrators to assemble at a location other than the one specified in the initial notice of the demonstration. It took the view that the applicants had had the opportunity to express their dissatisfaction with the Speaker’s refusal to receive the petition until 8 p.m. at the authorised venue, and that no circumstances that could have exempted them from administrative liability for changing the location could be established. It also took into consideration Mr Póka’s contradictory statements regarding the organisers’ intention to move the demonstration to József Attila Street. The District Court reduced the fine imposed on Mr Kerékgyártó to HUF 10,000 (approximately EUR 32) but upheld the fine imposed on Mr Póka, a repeat offender, finding that it was necessary and sufficient in order to fulfil the purpose of administrative sanctions.

9. The applicants subsequently lodged constitutional complaints, relying on the constitutional protection afforded to spontaneous demonstrations.

10. On 28 November 2016 the Constitutional Court declared both complaints inadmissible on the grounds that they had challenged only the judicial interpretation and application of the law, a matter within the sole jurisdiction of the ordinary courts. The decision was served on the applicants’ lawyer on 5 December 2016.

11. As Mr Póka did not pay the fine, on 12 May 2016 the Pest Central District Court sentenced him to fifteen days’ administrative detention. He was held in detention from 18 July 2016 to 1 August 2016.

12. Relying on Article 11 of the Convention, the applicants complained that the domestic authorities had failed to recognise the Speaker’s refusal to accept their petition as a special circumstance justifying the spontaneous demonstration on József Attila Street. They complained that the decisions finding them liable for abusing the right of assembly and imposing fines on them had contravened the requirements of Article 11 § 2 of the Convention.

THE COURT’S ASSESSMENT

13. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

14. The Government submitted that the facts of the case did not fall within the category of spontaneous demonstrations as the place, time, duration and nature of the demonstration had been decided by the applicants, who, in any event, had disregarded the authorised limits for the event. Furthermore, the essence of the applicants’ right to freedom of assembly had not been impaired since the police had shown tolerance towards them and towards the other people who had taken part in the sit‑down demonstration. The fines had been imposed solely in order to deter the organisers from future unlawful conduct.

15. The applicants argued that they had participated in a spontaneous protest which had been triggered by an unforeseeable political event, namely the Speaker’s refusal to receive their petition. In their view, their conviction for abuse of the right of assembly had amounted to an unlawful and disproportionate interference with their right to freedom of peaceful assembly.

16. It was common ground between the parties that there was an interference with Article 11 in the present case because the applicants had been given administrative sanctions on account of the manner in which they had exercised their right to freedom of peaceful assembly. Nor was it disputed by the parties that the impugned measure was “prescribed by law”. The Court sees no reason to depart from the parties’ view.

17. As to whether the impugned interference pursued legitimate aims, the Government submitted that the applicants’ sit-down protest had caused disturbance to the traffic and had interfered with the rights of others. The applicants disagreed. For its part, the Court accepts that the sanctions imposed for disregarding the limits set by the permit for the demonstration and for deliberately causing disturbance to traffic pursued the legitimate aims of “prevention of disorder” and “protection of the rights and freedoms of others” (compare also Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 140, ECHR 2015, with further references).

18. The issue is therefore whether the interference was “necessary in a democratic society”.

19. The general principles regarding the necessity for restrictions on the right to freedom of assembly, notably regarding demonstrations in a public place causing a certain level of disruption to ordinary life, including disruption of traffic, have been summarised, for instance, in Kudrevičius and Others (cited above, §§ 142-57). The Court reiterates, in particular, that the requirement of prior notification for holding a public event is not contrary to the spirit of Article 11. Organisers of public gatherings should abide by the rules governing that process by complying with the regulations in force. States must be able to impose sanctions on those who participate in demonstrations that do not comply with such a requirement (ibid., §§ 147 and 149).

20. The Court notes in this connection that the non-observance by the organisers of the rules and limits set out in the original permit for the demonstration was apparently based on the idea that their conduct would enjoy the protection afforded to spontaneous demonstrations (see Bukta and Others v. Hungary, no. 25691/04, §§ 35-36, ECHR 2007-III). The Court reiterates that the right to hold spontaneous demonstrations may override the obligation to give prior notification of public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration. Such a derogation from the general rule may be justified if a delay would have rendered that response obsolete (see Éva Molnár v. Hungary, no. 10346/05, §§ 37-38, 7 October 2008, and Skiba v. Poland (dec.), no. 10659/03, 7 July 2009).

21. It remains to be determined whether the domestic authorities, acting within the wide margin of appreciation they enjoyed in restricting intentional conduct by the organisers that was likely to cause disruption to ordinary life to a degree exceeding that which was inevitable in the circumstances (see Kudrevičius, cited above, § 156), gave relevant and sufficient reasons for holding the applicants liable and sanctioning them for abuse of the right of assembly.

22. The Court notes that the domestic authorities took the view that the Speaker’s decision, even if regarded as a current event, did not warrant an immediate response in the form of a separate demonstration at a different venue. In doing so, the courts gave weight to the applicants’ choice of the new location and of the form of the gathering, their control over the expected starting time and the length of the new gathering as evidence of prior organisation. The Court further notes that the sit-down demonstration did not take place in the vicinity of the House of Parliament, nor was it held at a place which had symbolic significance in relation to the message intended to be conveyed by the organisers (contrast Vincze v. Hungary [Committee], no. 44390/16, § 34, 21 October 2021); instead, the applicants chose a centrally located street near the location of the initial demonstration. Moreover, several hours passed between the triggering event and the start of the sit-down demonstration, a circumstance which in itself indicates that the immediacy requirement inherent in spontaneous demonstrations may not have been satisfied (see Éva Molnár, cited above, §§ 38-39). Having regard to those considerations, the Court is satisfied that the domestic authorities’ finding that the assembly in question was not a spontaneous demonstration was based on an acceptable assessment of the relevant facts. For their part, the applicants did not advance any convincing arguments either justifying the holding of an unannounced assembly removed in space from the originally authorised event or demonstrating the immediacy of the situation.

23. Moreover, Mr Póka gave contradictory statements regarding his intentions when deciding to deviate from the authorised itinerary and location (see paragraph 8 above). Even against this background, the authorities showed tolerance, secured the location, gave the participants sufficient opportunity to manifest their views (see Frumkin v. Russia, no. 74568/12, § 97, 5 January 2016, and Budaházy v. Hungary, no. 41479/10, § 41, 15 December 2015), and held only the applicants liable for their unlawful conduct as organisers of the separate gathering.

24. Having regard to the domestic authorities’ reasoning, the Court considers that holding a sit-down demonstration on a major thoroughfare of the capital at rush hour went beyond what could be considered inevitable in the circumstances. Moreover, the sanctions imposed, fines ranging from EUR 32 to EUR 240, cannot be regarded as disproportionate in the circumstances. Mr Póka not only refused to pay the fine, even in instalments or at a deferred date, but also declined to do community service whereas any of these alternative penalties would have prevented the conversion of his fine into regulatory detention.

25. The Court is therefore satisfied that the domestic authorities adduced relevant and sufficient reasons for the interference complained of and struck a fair balance between the legitimate aims of preventing disorder and protecting the rights and freedoms of others and the requirements of freedom of assembly.

26. In the light of the above, the Court considers that the interference with the right of either of the applicants to freedom of peaceful assembly was necessary in a democratic society. It follows that the applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 6 March 2025.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President

Appendix

List of cases: