Key facts of the case:
- The applicant was born in 1978 and lives in Budapest.
- On 8 May 2007 Magyar Gárda Egyesület (Hungarian Guard Association; “the Association”) was founded by ten members of the political party Jobbik Magyarországért Mozgalom (Movement for a Better Hungary), with the stated aim of inter alia preserving Hungarian traditions and culture.
- For its part, on 18 July 2007 the Association founded Magyar Gárda Mozgalom (Hungarian Guard Movement; “the Movement”).The Bureau of the Association stated that it had decided to “bring into life the Hungarian Guard, first operating it as a movement but later attempting to integrate it as a section into the Association.” It was also decided that “in order to integrate the Hungarian Guard into the Association, [the latter’s present] charter needs to be amended ... by 10 October 2007.” The Movement’s objective was defined as “defending Hungary, defenceless physically, spiritually and intellectually”. The tasks undertaken by the Movement, as listed in its deed of foundation, included the physical and mental training of its members, participation in disaster management and in ensuring public safety, as well as the initiation of a social dialogue regarding these issues through public events.
- On 4 October 2007 the Budapest Public Prosecutors’ Office addressed a notice to the Association calling on it to terminate its unlawful activities. It was noted that the Association had carried out activities that were not in accordance with its aims defined in its charter. In particular, it was observed that on 25 August 2007 it had organised the swearing-in of 56 “guardsmen” in Buda Castle. Subsequently the Association had conducted a national campaign popularising the tasks defined for the Movement which were not in accordance with the aims of the Association. It was noted that certain aims of the Movement were not defined amongst those of the Association, nor were they in conformity with the Association’s cultural and tradition-preserving nature. On 9 November 2007 the applicant, as chairman of the Association, notified the Public Prosecutors’ Office that the unlawful activities had been terminated by deleting the impugned part from the Movement’s deed of foundation and that he had initiated the modification of the Association’s charter. Accordingly, on 7 December 2007 the General Assembly of the Association had decided to add the following provision to paragraph 2 of its charter: “(f) In accordance with its name, the Hungarian Guard Association has the aim of engaging in dialogue with society and of holding public events and gatherings for citizens on issues affecting their security, such as disaster management, national defence, life-saving”.
- Purportedly in pursuit of these goals, members of the Movement, dressed in uniforms, subsequently held rallies and demonstrations throughout Hungary, including in villages with large Roma populations, and called for the defence of “ethnic Hungarians” against so-called “Gipsy criminality”. These demonstrations and rallies were not prohibited by the authorities. One of these demonstrations, involving some 200 activists, was organised in Tatárszentgyörgy, a village of some 1,800 inhabitants, on 9 December 2007. The police were present and did not allow the march to pass through a street inhabited by Roma families.
- In reaction to this event, on 17 December 2007 the Budapest Chief Prosecutor’s Office lodged a court action seeking the dissolution of the Association. The action was based on the Association’s alleged abuse of the right to freedom of assembly and its conducting activities that infringed the rights of the Roma through generating fear among them by speeches and appearance, i.e. by the activists wearing uniforms, marching in formations and applying commands with a resemblance to the military. The Prosecutor’s Office was of the view that the Movement constituted a division of the Association, and indeed its activity represented a significant part of that of the latter. It argued that the Movement was no ‘spontaneous community’ in that its members were all registered, stressing that it had been created by the presidency of the Association, that any applications for membership in it were assessed by the Association, and that its uniform could be bought from the Association.
- In the ensuing litigation, the Association claimed, however, that there were no organisational ties between itself and the Movement of a kind which amounted to a unity of the two; accordingly, it argued that it bore no responsibility for the Movement. It also stated that, in any event, the Movement’s activity did not represent any objective danger to anyone. According to the Association, on the one hand, the subjective feeling of fear could not give rise to any limitation on fundamental rights, including the freedom of assembly; on the other hand, the Movement’s conduct had not been intimidating if regarded objectively.
- After holding four hearings, on 16 December 2008 the Budapest Regional Court ruled in favour of the Prosecutor’s Office and disbanded the Association in application of section 16(2) d) of Act no. II of 1989 on the Right to Freedom of Association (see paragraph 18 below). The court did not accept the arguments concerning the distinction between the two entities and held that a “symbiotic relationship” existed between them. It held that the principal activity of the Association had been the foundation, operation, guidance and financing of the Movement, observing inter alia that the Movement received donations through the Association’s bank account. The legal effect of the judgment was nevertheless limited to the dissolution of the Association; since in the court’s view the Movement did not have any legal personality, the judgment did not directly extend to it.
As regards the assembly in Tatárszentgyörgy, the Regional Court held as follows:
“The essence of the event was indeed to shift the category of ‘Gipsy criminality’ into focus. The use of this generalising category, clearly based on racial and ethnic grounds, violated the principle of equal human dignity ... Moreover, this was not a singular occasion ... [The Movement] made a programme out of discrimination between people and expressed it by way of marches in several cases, this amounting to a demonstration of power and to threatening others by the appearance [of the participants of the marches]. ... The court is of the opinion that, from a constitutional point of view, to raise fear, virtually as a mission, cannot be accepted as an aim or role.”
- The court noted that the participants, uniformed, had worn armbands quite similar to those of Arrow Cross officers (responsible for the reign of terror in Hungary in 1944/45), and was of the view that marches with participants dressed in this way were objectively capable of hurting “historical sensitivities”. The court went on to declare that, despite its stated purpose, the actions of the Association had violated Hungary’s law on associations and created an anti-Roma atmosphere. According to the court, the verbal and visual demonstration of power alone amounted to an infringement of the law, in view of historical experience; and thus for the Association to be dissolved, it was not necessary to commit any actual offence; the fact that its programme encompassed discrimination amounted to prejudicing the rights of others, within the meaning of section 2(2) of the Act (see paragraph 18 below).
- On 2 July 2009 the Budapest Court of Appeal upheld the judgment of the Regional Court. It also considered two further similar demonstrations of the Movement, held in the village of Fadd on 21 June 2008 and in the village of Sárbogárd on an unspecified date. The Court of Appeal noted that the speeches given by Movement members in the course of the Fadd rally had contained numerous remarks aimed at the exclusion of the Roma. As to the Sárbogárd event, the Court of Appeal observed that there had been several anti-Semitic utterances.
This court established a closer connection between the two entities, extending the scope of the judgment also to the Movement. The court held that the Association in fact included the Movement as a “unit”; consequently, the judgment concerned both of them. The Association’s dissolution also eliminated the organisational framework of individuals operating within any movements related to the dissolved association.
The court ruled that the selection of demonstration sites, i.e. villages with large Roma populations, could not be seen as social dialogue, but an extreme form of expression within the framework of a semi-military demonstration of force, consisting of the cumulative effects of military-like uniforms, formations, commands and salutes. The court, while it upheld in essence the arguments of the Regional Court, argued that the population of these villages had had to face, as a ‘captive audience’, these extreme and exclusionary views without being able to avoid that communication. In the court’s view, the events organised by the Movement amounted to a danger of violence, generated conflict, attacked public order and peace and violated the right to liberty and security of the inhabitants of the villages, even if each of the demonstrations, strongly controlled by the police, had finished without any acts of actual violence.
The court also considered the applicant’s freedom of expression. It stated, upholding the arguments of the first-instance judgment and citing case-law of the Court, that this freedom did not cover hate speech or incitement to violence.
- On 15 December 2009 the Supreme Court upheld the judgment of the Budapest Court of Appeal. It endorsed the Court of Appeal’s finding that the Movement was in fact an entity within the Association. It moreover agreed with the lower courts as to the necessity of disbanding the Association, pointing out that the Movement’s rallies had caused situations of conflicts, whose protagonists might have potentially had recourse to violence.
This decision was served on 28 January 2010.
Results (sanctions) and key consequences of the case:
The Court unanimously
- Declares the application admissible;
- Holds that there has been no violation of Article 11 of the Convention.