MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
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26 October 2004; and Schwarzenberger v. Germany, no. 75737/01, § 31,
10 August 2006). In other cases domestic remedies were considered not to
have been exhausted, for instance when an appeal had not been admitted
because of a procedural mistake by the applicant (see Jalloh v. Germany
(dec.), no. 54810/00, 26 October 2004).
54. As regards the Government’s reliance on the legal avenue under
section 27 of the CCA, the Court notes that it has not been disputed by the
parties that this constitutional complaint represented an effective remedy in
the circumstances of the present case. Rather, the Government contended
that the MKKP had failed to submit its complaint in compliance with
domestic law. In particular, the MKKP had not sufficiently substantiated in
its constitutional complaint its direct interest in the case as required by
section 27(a) of the CCA.
55. The Court observes that the MKKP complained before it that its
right to freedom of expression had been violated owing to the domestic
authorities’ prohibition of the mobile application it had put at voters’
disposal during the national referendum, and the resulting sanction. It raised
this issue specifically before the Kúria, maintaining that calling on voters to
use the application was an exercise of its right to freedom of expression and
in addition encouraged voters to use the application for the exercise of their
freedom of expression (see paragraphs 26 and 27 above).
56. The Court further notes that in the Constitutional Court proceedings
the MKKP gave a complete account of the proceedings before the NEC and
the Kúria and alleged a violation of its right to freedom of expression as
guaranteed by the Hungarian Fundamental Law as well as by Article 10 of
the Convention. Notably, in addition to the explanation in its constitutional
complaint that the mobile application had been developed with the aim of
providing a possibility for voters to exercise their freedom of expression in
the course of the referendum on a matter of public interest, it further argued
that its own conduct in calling on voters to exercise their freedom of
expression fell within the ambit of Article IX (1) of the Fundamental Law,
dealing with freedom of expression. The MKKP thus specifically contended
in the constitutional complaint that its own right to freedom of expression
had been infringed, supplementing this assertion with arguments pointing to
the disproportionality of the impugned measure (see paragraph 28 above).
Under these circumstances, the Court finds that the applicant in substance
raised the complaint about the infringement of its right to freedom of
expression before the Constitutional Court and thus provided the domestic
courts with the opportunity to put right the alleged violation.
57. Nonetheless, the Constitutional Court declared the complaint
inadmissible, concluding that the case concerned voters’ right to freedom of
expression, for which the MKKP had merely provided a platform without
itself expressing an opinion. The fact that, in the Constitutional Court’s
interpretation, the rights invoked by the MKKP did not concern the