Körtvélyessy v. Hungary No. 7871/10

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(Application no. 7871/10 )



5 April 2016



This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.

In the case of Körtvélyessy v. Hungary ,
The European Court of Human Rights ( Fourth Section ), sitting as a
Chamber composed of:
Vincent A. De Gaetano, President,
András Sajó,
Boštjan M. Zupančič,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Gabriele Kucsko -Stadlmayer, judges,
and Françoise Elens -Passos , Section Registrar ,
Having deliberated in private on 15 March 2016 ,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 7871/10) against Hungary
lodged with the Court under Article 3 4 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Hungarian national, Mr Zoltán Körtvélyessy (“the applicant”), on
3 February 2010 .
2. The applicant was represented by Mr T. Gau di-Nagy, a lawyer
practising in Budapest. The Hungarian Government (“the Government”)
were represented by Mr Z. Tallódi, Agent, Ministry of Justice .
3. The applicant complained under Article 11 and other provisions of the
Convention that the authorities had unjustifiably banned a political
demonstration organised by him.
4. On 30 January 2015 the application was communicated to the
Government .
5. The applicant was born in 1965 and lives in Budapest .
6. The applicant intended to organise a demonstration protesting against
“the persecution of national radicalism”. It was planned to tak e place
between 4 p.m. and 7 p.m. on 15 August 2009. The venue was Venyige
Street in Budapest Xth District, in front of Budapest Penitentiary.

7. Venyige Street is of a width of five metres in the Government ’s
submissions and of eight in the applicant ’s. Parallel to the main driveway,
there is a service lane, of a width equivalent to that of two cars; this area is
normally used as a car park. In the applicant ’s submissions, this latter
section could have accommodated largely all the participants, without them
creating any major traffic incident.
8. The applicant, in the notification addressed to Budapest Police
Department under Act no. III of 1989 on the Right of Assembly, indicated
that a maximum of 200 pa rticipants were to be expected. This notification
was made at 5.40 p.m. on 12 August 2009.
9. On 14 August 2009 Budapest Police Department banned the
demonstration, in pursuit of its prerogatives under section 8(1) of Act no. III
of 1989. It was of the view that there was no alternative route for the traffic
in the neighbourhood, and consequently the demonstration would impede
traffic inordinately. The applicant was reproached with the fact that the
notification did not contain the agenda for the gathering.
10 . Because of this prohibition, the demonstration did not take place.
11 . On 17 August 2009 the applicant requested judicial review of the
police decision. He explained inter alia that he had not specified the agenda
because the meeting had been intended as a rather small one and that
therefore the actual course of events, such as speeches or discussion, was
hard to predict.
12 . On 19 August 2009 the Budape st Regional Court rejected the
applicant ’s complaint. It observed that the question of previous notification
of the agenda was immaterial, since the only valid reason in the case was
the disproportionate difficulties which would be caused to traffic by the
13 . The court relied on the expert opinion provided by the Traffic
Division of Budapest Police Department , in whose view the demonstration
would have significantly impeded the traffic heading to the shops located in
Venyige Street , a dead end, to the local waste disposal site and to the
suppliers ’ entrance of Budapest Prison ; and the disruption caused by the
crowd might hav e extended to Maglódi Road, a major thoroughfare in the
vicinity with lines of city transport involved . Relying on that reasoning, the
court endorsed the police decision.
14 . The applicant complained under Articles 11, 14 and 17 of the
Convention that the authorities ’ overly restrictive interpretation of the

notion of “no alternative traffic route” had resulted in a disproportionate
interference with his right to freedom of assembly.
15 . The Court considers that this complaint falls to be examined under
Article 11 of the Convention alone, which provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other th an such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freed oms of
others. This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.”
16 . The Government contested the applicant ’s argument.
A. Admissibility
17 . The Court notes that the application is not manifestly ill -founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any othe r grounds. It must therefore be
declared admissible.
B. Merits
18 . The applicant argued that, while having been prescribed by law, the
interference complained of had not pursued a legitimate aim. As regards its
necessity, he argue d that had the demonstration been authorised it would not
have caused any disproportionate obstacle to the traffic. Venyige Street ,
with the service lane included, was wide enough to accommodate the
expected number of participants, some 200; and the police could have
secured access to the prison notwithstanding the on -going event. In sum, the
applicant found abusive the Government ’s reliance on the traffic hindrance
19 . The Government submitted that the interference was pr escribed by
law, namely by the relevant provisions of Act no. III of 1989 on the Right of
Assembly. Furthermore, it pursued the legitimate aim of securing the rights
of others, that is, those of traffic users . As to its necessity, the Government
referred t o the expert opinion given by the Traffic Division of the Budapest
Police Department and stressed that t he police had had to balance between
the right to assembly and the right to free movement . Since in the present
case the event was likely to congest inordinately the traffic of both Venyige
Street and perhaps that of Maglódi Road, the neighbouring major
thoroughfare, as well, it was the police ’s call to restrict the applicant ’s

Article 11 righ ts: the measure was thus a necessary and proportionate
restriction on the right to assembly.
20 . The Court notes that the Government did not dispute that the
applicant could rely on the guarantees contained in Article 11; nor did t hey
deny that the ban on the demonstration had interfered with the exercise of
his rights under that provision. The Court sees no reason to hold otherwise.
The Government contended, however, that the interference was justified
under the second paragraph of Article 11.
21 . It must therefore be determined whether the measure complained of
was “prescribed by law”, was prompted by one or more of the legitimate
aims set out in paragraph 2, and was “necessary in a democratic society” to
achieve them.
22 . There was no dispute between the parties that the restriction imposed
on the applicant ’s freedom of peaceful assembly was based on the pertinent
provisions of Act no. III of 1989 on the Right of Assembly; and, agai n, the
Court sees no reason to hold otherwise. Therefore, the requirement of
lawfulness was satisfied.
23 . The Government submitted that the restriction on the right of
peaceful assembly in public areas served to protect the rights of others, for
example the right to freedom of movement or the orderly circulation of
traffic. They applicant disagreed.
The Court is satisfied that the measure complained of pursued the
legitimate aims of preventing disorder and protecting the rights of others.
24 . As regards the question as to whether the interference was necessary
in a democratic society, the Court reiterates that , notwithstanding its
autonomous role and particular sphere of application, Article 11 must also
be considered in the light of Article 10, where the aim of the exercise of
freedom of assembly is the expression of personal opinions, as well as the
need to secure a forum for public debate and the open expression of protest
(see, most recently, Kudrevičius and Others v. Lithuania [GC],
no. 37553/05, § 86, ECHR 2015).
25 . The expression “necessary in a democratic society” implies that the
interference corresponds to a “pressing social need” and, in particular, that it
is proportionate to the legitimate aim pursued. The Contracting States have
a certain margin of apprecia tion in assessing whether such a need exists, but
it goes hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final rul ing
on whether a “restriction” is reconcilable with the rights protected by the
Convention (see Stankov and the United Mac edonian Organisation Ilinden
v. Bulgaria , nos. 29221/95 and 29225/95, § 87, ECHR 2001 ‑IX).
26 . When the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to review
under Article 11 the decisions they took. This does not mean that it has to

confine itself to ascertaining whether the State exercised its discretion
reasonably, carefully and in good faith; it must look at the interference
complained of in the light of the case as a whole and determine, after having
established that it pursued a “legitimate aim”, whether it answered a
“pr essing social need” and, in particular, whether it was proportionate to
that aim and whether the reasons adduced by the national authorities to
justify it were “relevant and sufficient. In so doing, the Court has to satisfy
itself that the national authori ties applied standards which were in
conformity with the principles embodied in Article 11 and, moreover, that
they based their decisions on an acceptable assessment of the relevant facts
(see Kudrevičius and Others , cited above, § 143).
27 . Moreover, it is not, in principle, contrary to the spirit of Article 11 if,
for reasons of public order and national security, a High Contracting Party
requires that the holding of meetings be subject to authorisation. Indeed, the
Court has prev iously considered that notification, and even authorisation
procedures, for a public event do not normally encroach upon the essence of
the right under Article 11 of the Convention as long as the purpose of the
procedure is to allow the authorities to take reasonable and appropriate
measures in order to guarantee the smooth conduct of any assembly,
meeting or other gathering. However, regulations of this nature should not
represent a hidden obstacle to freedom of peaceful assembly as protected by
the Conven tion (see Kudrevičius and Others , cited above , §§ 147 et seq .).
28 . The Court observes that, in the domestic court decision dealing with
the case , the basis for upholding the ban on the assembly related exclusively
to traffic issues . It also observes that the Government ’s submissions have
been , in essence, confined to the affirmation that the demonstration would
have seriously hampered free traffic in the area . In this connection, the
Court reiterates that a demonstration in a public place may cause a certain
level of disruption to ordinary life (see Nurettin Aldemir and Others
v. Turkey , nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02,
32137/02 and 32138/02, § 43, 18 December 2007 ; Budaházy v. Hungary ,
no. 41479/10 , § 34, 15 December 2015 ).
29. Examining the materials submitted by the parties, the Court finds
that the Government have not demonstrated that the national authorities
based their decisions on an acceptable assessment of the relevant facts. It
notes in particular that the applicant planned to organise a demonstration
with an anticipated 200 participants. Even assuming that the eventual
number of those present would have exceeded the volume initially
envisaged, the Court is not convinced by the Government ’s explanation to
the effect that Venyige Street, a road of five or eight metres in width, with a
broad service lane adjacent, could not have helped to accommodate the
demonstration without serious traffic disruption. Indeed, their arguments
appear not to take into account that the street is a dead end; and the through
traffic is thus of limited importance. For the Court, however, this fact cannot

be overlooked. Moreover, the Government ’s contention that the situation
could have developed into blocking the major thoroughfare nearby is largely
a matter of speculation.
29 . Consequently, the Court concludes that the authorities, when issuing
the prohibition on the demonstration and relying on traffic consideration s
alone , failed to stri ke a fair balance between the rights of those wishing to
exercise their freedom of assembly and those others whose freedom of
movement may have been fr ustrated temporarily, if at all (see Patyi and
Others v. Hungary , no. 5529/05, § 42, 7 October 2008).
30 . Moreover, the Court notes that there is no evidence in the case file to
suggest that the demonstration would have been violent or represented a
danger to public order. The Court reiterates that, “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” (see Oya Ataman v. Turkey , no. 74552/01,
§§ 41 ‑42, 5 December 2006). Such tolerance has not been shown in the
present case (see Patyi and Others , cited above, § 43 ).
31 . Having regard to the above considerations, the Court finds that the
basis for the ban on the planned pe aceful assembly was, if at all relevant,
not sufficient to meet any pressing social need. The ban has therefore not
been shown to have been necessary in a democratic society in order to
achieve the aim s pursued.
32 . Accordingly, there has been a violation of Article 11 of the
33 . Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
34 . The applicant claimed 10,000 euros (EUR) in respect of non –
pecuniary damage.
35 . The Government contested this claim.
36 . The Court considers that the finding of a violation constitutes
sufficient just satisfaction for any non -pecuniary damage the applicant may
have suffered (see Patyi and Others , cited above , § 53).

B. Costs and expenses
37 . The applicant als o claimed the global sum of EUR 3,500 for the
costs and expenses incurred before the domestic courts and the Court ,
combined .
38 . The Government contested this claim.
39 . According to the Court ’s case -law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria , the Court considers it reasonable to award
the sum of EUR 3,000 covering costs under all heads.
C. Default interest
40 . The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
1. Declares the application admissible;

2. Holds that there has been a violation of Article 11 of the Convention;

3. Holds that the finding of a violation constitutes in itself sufficient just
satisfaction for any non -pecuniary damage sustained by the applicant;

4. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros),
plus any tax that may be chargeable to the applicant, in respect of costs
and expenses, to be converted into the curre ncy of the respondent State
at the rate applicable at the date of settlement;
(b) that from the expiry of the above -mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate o f the European Central Bank during
the default period plus three percentage points;

5. Dismisses the remainder of the applicant ’s claim for just satisfaction.
Done in English, and notified in writing on 5 April 2016 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens -Passos Vincent A. De Gaetano
Registrar President