CASE OF SZERDAHELYI v. HUNGARY
(Application no. 30385/07 )
17 January 2012
This judgment has become final under Article 44 § 2 of the Convention. It
may be subject to editorial revision .
SZERDAHELYI v. HUNGARY JUDGMENT 1
In the case of Szerdahelyi 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. 30385/07) 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, D r Szabolcs Szerdahelyi (“the
applicant”), on 4 June 2007 .
2. Th e applicant was represented by D r M. Róth, a lawyer practising in
Budapest. The Hungarian Government (“the Government”) were
represented by Mr L. Höltzl, Agent , Ministry of Public Administration and
3. The applicant complain ed about the frustration of his right to peaceful
4. On 13 July 2009 the applicant died . T he Registry was notified of this
only on 23 August 2011 , when Mr Szabolcs Szerdahelyi, the applicant ’s son
and only heir, stated his intention to replace his father in the proceedings
before the Court.
5. Meanwhile, o n 9 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).
6. On 5 November 2011 the applicant ’s lawyer submitted that
Mr Szerdahelyi had joined the pending domestic proceedings (see
paragraph 12 below).
2 SZERDAHELYI v. HUNGARY JUDGMENT
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1943 and live d in Budapest .
A. Pro ceedings initiated by the applicant
8. On 24 November 2006 the applicant announced, as required by the
Assembly Act 1989, to the Budapest Police Department his intention to
organise a demonstration on 9 December 2006 on Kossuth Squ are in
Budapest, in front of Parliament.
9. On 26 November 2006 the Budapest Police Department refused to
deal with the application. It observed that on 23 October 2006 the area in
question had been declared, by the Police Departme nt itself and for an
indefinite period of time, a “security operational zone” ( biztonsági műveleti
terület ), in view of the tumultuous events in Budapest in September 2006. It
was as such outside the Police Department ’s jurisdiction as regards the
prohibit ion of, or acquiescence in, a demonstration. On 6 December 2006
the Budapest Regional Court dismissed the applicant ’s request for judicial
review, observing in essence that no decision on the merits of the case had
ever been adopted by the administrative authorities – which excluded such a
10 . On 11 December 2006 the Deputy Head of the National Police
Department dismissed the applicant ’s further complaint. On
19 December 2006 the applicant filed an action with the Budapest Regional
Court, challenging the decisions of both 23 October and 11 December 2006.
11 . On 11 January 2007 the Head of Budapest Police dismissed the
applicant ’s renewed complaint. On 12 February 2007 the Deputy Head of
the National Police Department partly reversed this decision and instructed
the Budapest Police Department to substitute the indefinite measure in
question with one of definite duration. On 5 March 2007 the Regional Court
dismissed the applicant ’s ensuing action , essen tially endorsing the police
authorities ’ earlier reasoning. It pointed out that the proceedings only
concerned the police ’s decision on non -competence and did not constitute
review of the police ’s original decision declaring Kossuth Square a
“security oper ational zone” .
12 . Upon a further complaint, on 18 March 2008 the Regional Court
quashed the decisions of 11 January and 12 February 2007 and remitted the
case to the National Police Department. In reaction to the applicant ’s
petit ion for review, on 29 April 2009 the Supreme Court quashed the
decision of 18 March 2008 and remitted the case to the Regional Court. The
latter ’s procedure was then interrupted on 1 October 2009 on account of the
SZERDAHELYI v. HUNGARY JUDGMENT 3
applicant ’s death. The applicant ’s son and heir joined the proceedings as
successor on 25 August 2011.
13 . The Government submitted that the subject matter of the litigation
pending before the Regional Court was the police ’s original decision
declaring Kossuth Square a “se curity operational zone”.
B. Proceedings initiated by Mr K.
14 . 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 the Budapest Police
Commander rejected his 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. O n 19 July 2007 the National Commander upheld this decision.
Mr K. challenged this ruling in court.
15 . 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.
16 . 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.
17 . 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 im pugned decisions did not contain any
concrete elements establishing 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 f encing -off of Parliament ’s immediate vicinity – rather than the global
ban on Kossuth Square – would have been sufficient in the circumstances.
18 . In the resumed first -instance administrative proceedings, on
4 April 2011 the Budap est 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.
4 SZERDAHELYI v. HUNGARY JUDGMENT
I. THE VICTIM STATUS OF THE APPLICANT ’S SUCCESSO R
19 . On 23 August 2011 the applicant ’s lawyer submitted that the
applicant had died on 13 July 2009 and that his son and heir wished to take
his place in the proceedings before the Court.
20 . The Government submitte d that the application should be struck out
of the list of cases pursuant to Article 37 § 1 (c), since the applicant ’s son
had shown no interest in continuing the domestic proceedings pending
before the Regional Court.
21 . The Court notes the submission of 5 November 2011 of the
applicant ’s lawyer, according to which the applicant ’s son had joined the
pending domestic proceedings on 25 August 2011. In these circumstances,
the Court is satisfied that Mr Szerdahelyi has not lo st interest in pursuing
the case , either at the domestic level or before it.
22 . The Court consequently considers that the applicant ’s successor has
the requisite locus standi under Article 34 of the Convention in respect of
the ap plicant ’s complaint.
II. THE GOVERNMENT ’S PRELIMINARY OBJECTION
23 . The Government submitted that the applicant ’s motion challenging
in court the original police decision declaring Kossuth Square an
“operational zone” was still pe nding which made the application premature
(see paragraph 13 above and also paragraph 27 below). The applicant
argued that he had exhaust ed domestic remedies by challenging both the
original decision and the police ’s non -competence ruling.
24 . 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 u nder 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 .
25 . 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.
III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
26 . The applicant co mplained that the police measure in question had
prevented him from exercising his right to peaceful asse mbly. He relied on
Articles 11 and 13 of the Convention. The Court considers that the
SZERDAHELYI v. HUNGARY JUDGMENT 5
complaint 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 prescribed by law and are necessary in a democratic society in the in terests 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
27 . 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 resulted
from the original police measure declaring the area in question a “security
operational zone”. Against such a measure, a distinct complaint might be
filed with the police body in charge, and the latter ’s decision could be
appealed before the superior organ. The resulting administrative ruling was
susceptible to judicial review, an effective remedy in the circumstances.
However, the applicant ’s case pursuing this legal avenue was still pending.
In respect of the area closure, successful proceedings, including judicial
review, had already take place (case no. 27.K.31.3 54/2010/9.); and the
applicant sh ould have completed his own similar case , failing which he had
not exhausted domestic remedies.
28 . As to the merits, the Government pointed out that the venue of the
intended assembly had not qualified at the mate rial time as public area
accessible to everyone and therefore the right to freedom of assembly could
not be exercised on it.
29 . The applicant argued that, to exhaust domestic remedies, he could
reasonably be expected to challenge the police ’s non -competence decision
in court , which he had done. The other case, which was still pending,
represented no effective remedy to exhaust, since by the time it would be
adjudicated, the demonstration becomes obsolete. The non -availability of
Ko ssuth Square for the purposes of the intended demonstration had been an
unlawful and disproportionate measure.
30 . 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 27 above) . It is further satisfied that the
applicant exhausted the remedy available in this connection.
31 . The Government can moreover be understood to base their
preliminary objection of non -exhaustion of domestic remedies on the fact
that the applicant did not complete the procedure challenging the original
police decision, but been contented with challenging the one on non –
6 SZERDAHELYI v. HUNGARY JUDGMENT
competence. However, the Court is not convinced that the proceedi ngs
which were pursued by Mr K. but not accomplished 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 nature of a
political demonstration – the impact of which may rapidly diminish with the
lapse of time from the triggering event – a judicial procedure, which in
Mr K. ’s instance included several remittals and decisions maintaining the
ban and which produced at last a decision to the contrary onl y 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 ).
For the Court, the a pplicant ’s omission to exhaust this legal avenue in
addition to the one fully 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 has already
availed himself. The Government ’s preliminary objection must therefore
32 . The Government contended that the interference was justified under
the second paragraph of Article 11. It must therefore be dete rmined 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 “necessary in a
democratic society” to achieve them.
33 . As regards the question wheth er the non -availability of Kossuth
Square for the purposes of the intended demonstration was “prescribed by
law”, the Court notes that the police declared 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
necessity 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 no t been proved (see paragraphs 17 -18
above). For the Court, these court rulings have effectively, if retroactively,
removed the lega l basis of the impugned measure.
34 . It is true that the above two decisions were adopted in a procedure
initiated by Mr K. rather than the applicant. For the Court, however, this is
immaterial when it comes to the notion of lawful ness in the context of
Article 11 § 2.
35 . 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.
SZERDAHELYI v. HUNGARY JUDGMENT 7
IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION
36 . 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.”
37 . The applicant claimed 6,000 euros (EUR) in respect of non –
38 . The Government contested this claim.
39 . The Court considers that the applicant must have suffered some non –
pecuniary damage and awards him, on the basis of equity, EUR 2,400 .
B. Costs and expenses
40 . The applicant also claimed EUR 1,100 for the costs and expenses
incurred before the Court. This amount corresponds to 11 hours of legal
work billable by his lawyer at an hourly rate of EUR 100.
41 . The Government contested this claim.
42 . 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 full sum claimed.
C. Default interest
43 . 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.
FOR THESE REASONS, THE COURT
1. Decides by a majority that the applicant ’s son has locus standi in the
2. Joins to the merits the Government ’s objection concerning non –
exhaustion of domestic remedies and dismisses it by a majority;
8 SZERDAHELYI v. HUNGARY JUDGMENT
3. Declares the application admissible by a majority;
4. Holds by 6 votes to 1 that there has been a violation of Article 11 of the
5. Holds by 6 votes to 1
(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 fo llowing amounts, to be converted
into Hungarian forints at the rate applicable at the date of settlement:
(i) EUR 2,400 (two thousand four hundred euros), plus any tax that
may be chargeable, in respect of non -pecuniary damage;
(ii) EUR 1,100 (one thousa nd one 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 amounts at a
rate eq ual to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant ’s claim for just
Done in English, and notified in writing on 17 Ja nuary 2012 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of the Court, the separate opinion of Judge Jočienė is annexed to
SZERDAHELYI v. HUNGARY JUDGMENT 9
DISSENTING OPINION OF JUDGE JOČIENĖ
I voted in this case against the Chamber ’s position that the applicant ’s
son should be recognised as having locus standi in the proceedings before
the European Court of Human Rights, and subsequently, against the finding
of a violation of Article 11.
According to the jurisprudence of the Court, in cases where t he direct
victim died before or after the applica tion was submitted to the Court,
different criteria apply in order to recognise locus standi , which will then
also depend on the nature of the Convention right at issue.
The Chamber in the present case relie d on the fact that the Government
did not dispute that the applicant could rely on the guarantees contained in
Article 11 of the Convention (see paragraph 30 of the judgment) and that
the applicant ’s son had been allowed to join the pending domestic
procee dings (see paragraph 21 of the judgment), which have not yet
For me , such an argument is not in itself sufficient to allow the next -of-
kin or heir of the deceased applicant to continue the proceedings in the
European Court of Human Rights, even though I accept that participation in
the domestic proceedings is an important fact or when resolving the locus
standi issue before the Court (see, for example, Nölkenbockhoff v. Germany ,
25 August 1987, Series A no. 123 ; and Micallef v. Malta [GC],
no. 170 56/06 , 5 October 2009 , § 49 ).
Furthermore, according to the Court ’s case -law, in a number of cases
where an applicant has died in the course of the proceedings, it has taken
into account the statements of the applicant ’s heirs or of close family
members ex pressing the wish to pursue the proceedings before the Court
(see Karner v. Austria , no. 40016/98, 24 July 2003, §§ 22 -23, and all the
case -law cited therein); on the other hand, it has been the Court ’s practice to
strike applications out of its list where no heir or close relative has
expressed the wish to pursue an application (see Malhous v. the Czech
Republic (dec.) [GC], no. 33071/96, ECHR 2000 -XII).
In the case before us, the applicant ’s son clearly expressed his wish to
continue the application, lodg ed by his father, before the European Court of
Human Rights. But such background, whether this element is taken alone or
even together with the fact of permission to participate in the domestic
proceedings, is not in itself sufficient for locus standi to b e granted in every
Where the applicant has died during the proceedings before the Court
(introduced by himself/herself) the next -of-kin or heir may continue with
the application if he or she has sufficient interest in that case (as, for
instance, the widow and children in Raimondo v. Italy , 22 February 1994,
§ 2, Series A no. 281 -A; and the nephew and potential heir in Malhous
v. the Czech Republic (dec.), no. 33071/96 , ECHR 2000 -XII ).
10 SZERDAHELYI v. HUNGARY JUDGMENT – SEPARATE OPINION
The Court stated in the case of Jėčius v. Lithuania (no. 34578/97, § 41,
ECHR 2000 -IX ) as follows:
“The Court reiterates that, where an applicant dies during the exami nation of a case
concerning the unlawfulness of his detention, his heirs or next of kin may in principle
pursue the application on his behalf (see, among other authorities, Krempovskij v.
Lithuania (dec.), no. 37193/97, 20 April 1999, unreported). The Court considers, like
the Commission, that the applicant ’s widow has a legitimate interest in pursuing the
application in his ste ad.” (emphasis added)
Therefore, the Court ’s practice shows that in cases where the direct
victim has died after the applicatio n was lodged with the Court, the next -of-
kin or heir can pursue the application before the Court when he or she has a
legitimate or sufficient interest in continuing the proceedings before it ( see
also, for example, Léger v. France (striking out) [GC], no. 19324/02 , § 50 ,
30 March 2009 , as regards the applicant ’s niece).
In cases where the direct victim died before the application was lodged
with the Court, the Court applies stronger criteria for establishing locus
standi . For example, in the case of Fairfi eld v. the United Kingdom ((dec.),
no. 24790/04 , ECHR 2005 -VI ), where a daughter filed a complaint two
years after her father ’s death, claiming a violation of his rights to freedom of
thought, religion and speech (Articles 9 and 10 of the Convention) , even
though the domestic courts had granted her leave to pursue the appeal after
her father ’s death , the Court did not accept the daughter ’s victim status .
In the Hungarian case before us, I cannot see any legitimate or sufficient
interest of the applica nt’s son in continuing the application before the Court
under Article 11 of the Convention. According to the practice of the Court,
the Convention does not allow an actio popularis. Under Article 34 of the
Convention, the applicant as a victim (either dire ct or indirect) must bring
prima facie evidence of being directly affected by the impugned measure
(see, mutatis mutandis , Religionsgemeinschaft der Zeugen Jehovas and
Others v. Austria , no. 40825/98, § 90, 31 July 2008). In the present case, I
cannot see how the deceased applicant ’s son could be affected by the
alleged violation of Article 11 of the Convention, taking into account the
nature of this Article, in so far as the deceased applicant had not received
any answer from the police as regards his requ ested permission to hold a
demonstration back in 2006 on Kossuth Square in Budapest, in front of the
Parliament. In my opinion, in this particular case there is no legitimate or
sufficient interest of the applicant ’s son in defending his late father ’s righ ts
of association under Article 11 of the Convention.
I agree with the jurisprudence of the Court that in cases brought under
Article 2 or 3, which protect the fundamental values of every democratic
society, the Court can more easily justify the continuati on of proceedings
before it after the death of the direct victim, taking into account the
“particular situation governed by the nature of the violation alleged …”
(see, among other authorities, Varnava and Others v. Turkey [GC],
SZERDAHELYI v. HUNGARY JUDGMENT – SEPARATE OPINION 11
nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90,
16071/90, 16072/90 and 16073/90 , § 200 , 18 September 2009 ; see also
Khadzhialiyev and Others v. Russia , no. 3013/04, § 114 , 6 November 2008 ,
as regards Article 3 claims).
I would also note , however, that the Court ’s approach in ordinary
Article 5 cases as regards locus standi has been much more restrictive (see,
for example, Biç and Others v. Turkey (no. 55955/00, 2 February 2006,
§ 24 ), where the wife and children of the deceased victim were not granted
the requisite standing, as they were not directly affected by the length of the
detention on remand or the alleged un fairness of criminal proceedings
brought against the deceased ; contrast Jėčius , cited above). The Court
reiterated in the Biç and Others case that the r ights in Article 5 belonged to
the category of non -transferable rights (see Sanles Sanles v. Spain (dec.),
no. 48335/99 , ECHR 2000 -XI ). Similar decisions had been given in the past
by the Convention organs ( see, for example, Georgia Makri and Others
v. Greece (dec.), no. 5977/03, 24 March 2005; and Nölkenbockhoff and
Bergmann v. the Federal Republic of Germany , no. 10300/89, Commission
decision of 12 December 1984, DR 40, p. 9).
By contrast, Article 5 § 5 of the Convention (the right to compensation
for unlawful detention ) is a pecuniary right and a transferrable one (see
Houtman and Meeus v. Belgium , no. 22945/07, §§ 27 -31, 17 March 2009).
In Article 6 cases, in addition to participation in the domestic
proceedings, the Court has also taken account of ot her alternative criteria in
order to recognise the standing of relatives before it : the transferability of
the right, the legitimate interest and the direct effect on patrimonial rights
(see, for example , the above -mentioned case of Sanles Sanles , where the
Court considered that the rights claimed under Articles 2, 3, 5, 8, 9 and 14
belonged to the category of non -transferable rights, declaring this part of the
application incompatible ratione personae ).
In the Karner case (cited above, §§ 25 -26) the Cour t analysed whether
the Convention right at issue (in its nature) could be regarded as
“transferable”. The Court stated as follows:
“… as a rule, and in particular in cases which primarily involve pecuniary , and, for
this reason, transferable claims , the existence of other persons to whom that claim is
transferred is an important criterion, but cannot be the only one. As the Court pointed
out …, human rights cases before the Court generally also have a moral dimension ,
which must be taken into account wh en considering whether the examination of an
application after the applicant ’s death should be continued …”
This means that in cases where the Court is obliged to resolve the locus
standi aspect, it must take into account such factors as: the clearly exp ressed
wish by the next -of-kin or heirs to continue the application before the court,
their participation in the domestic proceedings, a legitimate and/or sufficient
personal interest in pursuing the individual application in the deceased
applicant ’s stead , the Convention right at issue (its nature) and its
12 SZERDAHELYI v. HUNGARY JUDGMENT – SEPARATE OPINION
transferability; and, lastly, it must answer the question whether there are any
common or public interests in terms of human rights protection or some
moral dimension requiring it to continue the examina tion of the case.
The Court has also applied a more flexible approach when recognising
locus standi in cases where the complaint was related to the reputation of
the deceased person under Article 8, thus also potentially affecting the
reputation of the fam ily (see, for example, Armonienė v. Lithuania ,
no. 36919/02, § 29 , 25 November 2008 ).
I would emphasise that the Court has always declared inadmissible
applications from relatives raising complaints under Articles 9, 10 and 11 ,
in relation to proceedings and facts concerning the deceased victim . In
doing so, it has distinguished this type of complaints from those brought
under Article 2 concerning the death of a relative (see , for Articles 9 and 10 ,
Fairfield , cited above; as regards Article 11, see Direkç i and Direkçi v.
Turkey (dec.), no. 47826/99, 3 October 2006, where the Court observed that
there was no general interest in the case for the proceedings under Articles 6
and 11 to be continued , as those Articles d id not fall within the fundamental
provisi ons of the Convention).
As regards the exception based on the general interest , the Court noted in
Karner (cited above) that, even in the absence of heirs wishing to continue
the application, it could continue the examination of a case relying on an
import ant question of public interest .
Therefore, taking into account the Court ’s case -law on the locus standi
issue, I cannot see in this particular case that the applicant ’s son has any
legitimate o r sufficient personal interest in pursuing the application under
Article 11 of the Convention. Furthermore, Article 11 rights can not be
regarded as “transferable rights” under t he Court ’s jurisprudence.
Furthermore, no general or moral interest s in protecting human rights
can be found in this case. Thus, the continued examination of the present
application would not contribute to elucidating, safeguarding or developing
the standards of protection of Article 11 rights under the Convention
(contrast Karner , cited above).
In my o pinion there must be some strong sufficient and/or justified
personal interest of the heir in continuing the proceeding before the Court
after the applicant ’s death and that interest must depend on a reasonable
relationship between the original actions und ertaken by the applicant and his
or her heir ’s wish to continue the proceedings. Such a relationship cannot be
established with regard to the nature of Article 11 rights , which are not
transferable. Logically, the question arises how the son in this partic ular
case could have know n what the applicant had wanted to express during the
planned demonstration in 2006, permission for which he had ne ver received
from the police (in the Court ’s case -law , Article s 10 and 11 are very much
interrelated, see Women On W aves and Others v. Portugal , no. 31276/05,
§ 28 , 3 February 2009 ). For me , the requested continuation of the case
SZERDAHELYI v. HUNGARY JUDGMENT – SEPARATE OPINION 13
before the Court was based more on the pecuniary interests of the heir, but
not on a legitimate interest in protect ing the deceased applicant ’s rights of
association under Article 11. For this reason I also voted against granting
any just satisfaction in the case under Article 41 of the Convention.
In my opinion, the heir (the applicant ’s son) has no locus standi before
the Court in the present case; therefore the case should have been struck out
of the list of cases under Article 37 § 1 in fine of the Convention.