Name of the act/s*

Judgment of the European Court of Human Rights [GC] of 20 January 2020 in the case of Magyar Kétfarkú Kutya Párt v Hungary, Appl. no. 201/17

Subject area

freedom of expression, elections, referendum

Brief description of the contents of the act

The Court held that the insufficiently foreseeable legal basis for a fine imposed on a Hungarian political party for making available a mobile application allowing voters to share anonymous photographs of their ballot papers constituted a violation of Article 10.

Comment

In 2016, the Hungarian government initiated a referendum related to the European Union’s migration relocation plan. The National Election Commission (NEC) validated the following question: “Do you want to allow the European Union to mandate the resettlement of non-Hungarian citizens to Hungary without the approval of the National Assembly?” The NEC’s decision was upheld by the Kúria (Supreme Court). While the Hungarian government was actively campaigning to convince voters to say no to this question, the opposition parties encouraged people to boycott the referendum or cast an invalid vote.

The Hungarian opposition party, Magyar Kétfarkú Kutya Párt (Hungarian Two-tailed Dog Party, MKKP), made available to voters a mobile application which they could use to anonymously upload and share with the public photographs of their ballot papers. The NEC fined the party for infringing the principles of fairness and secrecy of elections and of the exercise of rights in accordance with their purpose. The Kúria (Supreme Court) upheld the decision regarding the infringement of the principle of the exercise of rights in accordance with their purpose but dismissed its conclusions regarding the voting secrecy and fairness of the referendum. The party’s constitutional complaint lodged against the court decision was found inadmissible by the Constitutional Court.

In its judgment of 23 January 2018, a Chamber of the European Court of Human Rights, unanimously, held that there had been a violation of the MKKP’s rights under Article 10 of the Convention. The case was referred to the Grand Chamber at the Hungarian government’s request.

The Grand Chamber noted that the case had two aspects. On the one hand, the MKKP provided a forum for third-party content since the party had not been the author of the photographs, it had only participated in their dissemination. On the other, the MKKP also imparted information and its own ideas because it encouraged the voters to cast an invalid ballot. The Court was of the opinion that these two aspects were inseparably intertwined and fell under the protection of Article 10. The justices concluded that the Hungarian authorities’ reaction to the MKKP’s exercise of its rights under Article 10 had amounted to an interference with its freedom of expression.

The central issue of the case was whether the MKKP – in the absence of a binding provision of domestic legislation explicitly regulating the taking of ballot photographs and the uploading of those photographs in an anonymous manner to a mobile application for dissemination while voting had been ongoing – knew or ought to have known that its conduct would breach the existing electoral procedure law.

The NEC fined the party for infringing the principle of the “exercise of rights in accordance with their purpose”, enshrined in the Electoral Procedure Act (EPA). The Grand Chamber noted that this case had been the first in which the domestic authorities had applied this principle to the use of a mobile application for posting ballot photographs in an anonymous manner. Having regard to the particular importance of the foreseeability of the law when it came to restricting the freedom of expression of a political party in the context of an election or a referendum, the Court took the view that the considerable uncertainty about the potential effects of the impugned legal provisions applied by the domestic authorities had exceeded what was acceptable under Article 10 § 2 of the Convention.

Consequently, the insufficiently foreseeable legal basis for the fine imposed on the MKKP for making available a mobile application allowing voters to share anonymous photographs of their ballot papers constituted a violation of Article 10.

Secondary sources/ doctrinal works (if any)

Renáta Uitz: The Rule of Law in the EU: The January 2020 Edition, Bridge Network Blog, 22 January 2020, available at: https://bridgenetwork.eu/2020/01/22/the-rule-of-law-in-the-eu-the-january-2020-edition/

*Act citation /year and number

Judgment of the European Court of Human Rights [GC] of 20 January 2020 in the case of Magyar Kétfarkú Kutya Párt v Hungary, Appl. no. 201/17

Enacted by

European Court of Human Rights

Official link to the text of the act

http://hudoc.echr.coe.int/eng?i=001-200657