Patyi v. Hungary, Application No. 35127/08

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(Application no. 35127/08 )



17 January 2012



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

In the case of Patyi v. Hungary ,
The European Court of Human Rights ( Second Section ), sitting as a
Chamber composed of:
Françoise Tulkens , President,
Danutė Jočienė ,
Dragoljub Popović ,
András Sajó ,
Işıl Karakaş ,
Guido Raimondi ,
Paulo Pinto de Albuquerque , judges,
and Stanley Naismith , Section Registrar ,
Having deliberated in private on 13 December 2011 ,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 35127/08) against the
Republic of Hungary lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Hungarian national, Mr István Patyi (“the
applicant”), on 24 July 2008 .
2. The applicant was represented by Mr I. Barbalics, a l awyer practising
in Budapest. The Hungarian Government (“the Government”) were
represented by Mr L. Höltzl, Agent, Ministry of Public Administration and
Justice .
3. The applicant complain ed about the frustration of his right to pea ceful
4. On 15 February 2011 the application was communicated to the
Gove rnment. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
5. The applicant was born in 1965 and lives in Budapest .
6. The applicant intended to organise demonstrations in order to call
attention to the situation of those having sustained damage o riginating in a
major bankruptcy case which had attracted considerable media attention in
Hungary. On 5 February 2007 he applied to the Budapest Police

Department for acquiescence in a demonstration on 10 March 2007 and in
another one, of ongoing nature, f rom 10 March until 31 October 2007, both
scheduled in Kossuth Square, in front of Parliament.
7. On 7 February 2007 the Budapest Police Department refused to deal
with either of the applications. It observed that on 23 October 2006 the are a
in question had been declared by the Police Department itself a “security
operational zone” ( biztonsági műveleti terület ) in view of the tumultuous
events in Budapest in September 2006. Consequently, the measure – which
was, aft er a prolongation, in place for an indefinite period of time –
remained as such outside the Police Department ’s competence as regards
the prohibition of, or acquiescence in, a demonstration.
8. On 5 March 2007 the Nation al Police C ommander upheld this
decision .
9. On 14 January 2008 the Budapest Regional Court dismissed the
applicant ’s request for judicial review, endorsing in essence the police
authorities ’ reasoning. This decision was served on 26 January 2008.
10 . In another case concerning the same area , on 29 January 2007 a
Mr K. challenged the police ’s very decision to declare Kossuth Square a
“security operational zone”. On 14 March 2007 t he Budapest Police
Commander rejected h is complaint, but this decision was quashed by the
National Commander on 16 April 2007. In the resumed administrative
proceedings, on 22 June 2007 the Budapest Commander again rejected the
complaint. On 19 July 2007 the National Commander upheld this decis ion.
Mr K. challenged this ruling in court.
11 . Mr K. ’s action was dismissed by the Budapest Regional Court.
However, on appeal the Supreme Court quashed this decision, together with
the one of 19 July 2007.
12 . In the resumed second -instance administrative proceedings, on
23 December 2009 the National Commander again upheld the Budapest
Commander ’s decision. Mr K. requested judicial review.
13 . On 11 November 2010 the Regional Court quashed, in judgment
no. 27.K.31.354/2010/9., both the first – and the second -instance
administrative decisions and remitted the case to the Budapest Commander.
The court pointed out that the impugned decisions did not contain any
concrete elements establi shing the necessity and proportionality of
maintaining the “security operational zone” after the prolongation of
22 November 2006. Nor did they address the plaintiff ’s suggestion that the
mere fencing -off of Parliament ’s immediate vicinity – rather than th e global
ban on Kossuth Square – would have been sufficient in the circumstances.
14 . In the resumed first -instance administr ative proceedings, on
4 Apri l 2011 the Budapest Commander partly sustained Mr K. ’s complaint,
noting that , in the absence of evidence to the contrary, the proportionality of
the impugned measure had successfully been challenged.

15 . The Government submitted that the applicant should ha ve
challenged in court the original pol ice decision declaring Kossuth S quare an
“operational zone” (see also paragraph 19 below). The applicant argued that
he had exhausted domestic remedies by filing a request for the judicial
review of the police ’s non -competence decision.
16 . The Court considers that the Government ’s objection concerning
non -exhaustion of domestic remedies is inextricably linked to examination
of the question whether there has been an interference with the applicant ’s
right to freedom of assembly under Article 11, and therefore to the merits of
the case. Accordingly, the Court joins this question to the merits and will
examine it under Article 11 of the Convention .
17 . The Court notes that the application is not manifestly ill -founded
within the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared admissible.
18 . The applicant complained that the police measure in question had
prevented him from exercising his right to peaceful assembly. He relied on
Articles 6, 9, 10, 11, 13, 14 and 17 of the Convention. The Court considers
that the com plaint falls to be examined under Article 11 of the Convention
alone , which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly …
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescri bed 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 freedoms of
others. …”
19 . The Government contested this view. They noted that , in the
applicant ’s view, it was the police decision on non -competence that violated
his right to freedom of assembly. However, the interference in fact result ed
from the original police measure declaring the area in question a “security
operational zone” . A gainst such a measure , a distinct complaint m ight be
filed w ith the police body in charge , and t he latter ’s decision could be
appeal ed before the superior organ. The res ulting administrative ruling was
susceptible to judicial review, an effective remedy in the circumstances.
However, the applicant had not pursued this avenue; instead, he had filed
appeals against, and sought judicial review of , the police order on

non -com petence . In other words, he had been challenging the wrong
decision. In respect of the area closure itself, successful proceedings,
including judicial review, had already been completed (case
no. 27.K.31.354/2010/9.); and the applicant could have availed h imself of
the same, failing which he had not exhausted domestic remedies.
20 . As to the merits , the Government pointed out that the venue of the
intended assembly had not qualified at the material time as public area
accessible to everyone and t herefore the right to freedom of assembly could
not be exercised on i t.
21 . The applicant argued that, to exhaust domestic remedies, he could
reasonably be expected to challenge the police ’s non -competence decision
in court, but do no more. The non -availability of Kossuth Square for the
purposes of the intended demonstration had been an unlawful and
disproportionate measure.
22 . The Court observes that the Government did not dispute that the
applicant could rely on the guarantees contained in Article 11 . It considers
that the non -acquiescence by the police in the demonstration effectively
interfered with the exercise of the applicant ’s rights under that provision , as
the individualised application of the original police decision referred to by
the Government (see paragraph 19 above) . It is further satisfied that the
applicant has exhausted the remedy available in this connection.
23 . The Govern ment moreover based their preliminary objection of non –
exhaustion of domestic remedies on the fact that the applicant had not filed
another motion , against the original police decision, but been contented with
challenging the decision on non -competence. Ho wever, the Court is not
convinced that the proceedings which were pursued by Mr K. but not by the
applicant can be considered in the circumstances an effective remedy whose
omission f all s foul of Article 35 § 1 of the Convention. Given the
instantaneous na ture of a political demonstration – the impact of which may
rapidly diminish with the lapse of time from the triggering event – a judicial
procedure, which included several remittals and decisions maintaining the
ban and which produced at last a decision t o the contrary only after more
than four years, can hardly be regarded as effective or adequate and must be
attributed a chilling effect on the freedom in question (see, a fortiori ,
Bączkowski and Others v. Poland , no. 1543/06, § § 67 to 73 , 3 May 2007 ).
Fo r the Court, the applicant ’s omission to pursue this legal avenue in
addition to the one utilised cannot be held against him , all the more so , since
there appears to be no obstacle to the authorities ’ assessing proportionality
also in those proceedings, of which the applicant availed himself. The
Government ’s preliminary objection must therefore fail.
24 . The Government contended that the interference was justified under
the second paragraph of Article 11. It must therefore be determined whether
the measure complained of was “prescribed by law”, prompted by one or

more of the legitimate aims set out in paragraph 2, and was “necess ary in a
democratic society” to achieve them.
25 . As regards the question whether the non -availability of Kossuth
Square for the purposes of the intended demonstration was “prescribed by
law”, the Court notes that the police declar ed it a “security operational
zone” in 2006 , and it remained so throughout the material period. However,
on 11 November 2010 the Budapest Regional Court quashed the underlying
police decisions, reproaching those authorities for failing to assess the
necess ity and proportionality of the measure as maintained subsequent to
22 November 2006 . Consequently, on 4 April 2011 the Budapest
Commander carried out the requisite scrutiny and found that the
proportionality of the measure had not been proved (see paragrap hs 13 -14
above). For the Court, these court rulings have effectively , if retroactively,
removed the legal basis of the impugned measure.
26 . It is true that the above two decisions were adopted in a procedure
initiated by Mr K. rat her than the applicant. For the Court, however, this is
immaterial when it comes to the notion of lawfulness in the context of
Article 11 § 2.
27 . The foregoing considerations are sufficient to enable the Court to
conclude that the ban on Kossuth Square at the material time was devoid of
a basis in domestic law and cannot as such be regarded as “prescribed by
law”. It is therefore not necessary to embark on an examination o f its
legitimate aim or necessity in a democratic society.
There has accordingly been a violation of Article 11 of the Convention.
28 . 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
29 . The applicant claimed 20,000 euros (EUR) in respect of
non -pecuniary damage.
30 . The Government contested this claim .
31 . The Court considers that the applicant must have suffered some
non -pecuniary damage and awards him, on the basis of equity, EUR 2,4 00 .

B. Costs and expenses
32 . The applicant also claimed EUR 1,800 plus 25% VAT for the costs
and expenses incurred before the Court. This amount corresponds to
20 hours of legal work billable by his lawyer at an hourly rate of EUR 90
plus VAT .
33 . The Government contested this claim .
34 . 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
EUR 1,5 00 under this head .
C. Default interest
35 . The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central B ank,
to which should be added three percentage points.
1. Joins to the merits the Government ’s objection concerning
non -exhaustion of domestic remedies and dismisses it;

2. Declares the application admissible;

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

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, the following amounts, to be converted
into Hungarian forints at the rate applicable at the date of settlement:
(i) EUR 2,4 00 (two thousand four hundred euros), plus any tax that
may be chargeable, in respect of non -pecuniary damage;
(ii) EUR 1,5 00 (one thousand five hundred euros), plus any tax that
may be chargeable to the applicant , in respect of costs and
(b) that from the expiry of the above -mentioned three months until
settlement simple interest shall be payable on the above a mounts at a

rate equal to the marginal lending rate of 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 o n 17 January 2012 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President