MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
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82. In the Government’s view, where public confidence in the
democratic institutions was at stake, it was irrelevant whether there had
been actual, proven cases of electoral fraud; the suspicion of such was
enough to undermine the public’s trust in the democratic process.
83. On the other hand, the Government questioned the relevance of the
MKKP’s conduct, pointing out that there had been no “societal need” for
the electorate to share their votes in the form of photographs. This had been
demonstrated by the fact that only 3,894 photos had been shared via the
mobile application, while the number of invalid votes had been 224,668 out
of a total of 3,643,055 ballots cast.
84. In any event, in the Government’s assessment, the measure in
question had been proportionate to the aim pursued. They argued that the
MKKP had been penalised not for taking a ballot photograph but for
applying a campaign material encouraging thousands of voters to disregard
the electoral rules. In addition, voters remained free to express their political
opinions in any manner other than publishing a picture of their ballot
papers. The MKKP itself was not restricted in campaigning for voters to
cast invalid ballots by other means than calling on them to publish
photographs of ballot papers. Furthermore, it had only been fined a small
amount of money.
C. The Court’s assessment
1. Existence of an interference
85. It is uncontested between the parties that the domestic authorities’
decisions interfered with the MKKP’s freedom of expression under
Article 10 of the Convention. For the following reasons, the Court sees no
grounds to hold otherwise.
86. The Court has held that the use of photographs in general serves
important communication functions, as they impart information directly,
and has on many occasions recognised that the right to freedom of
expression includes the publication of photographs (see Von Hannover
v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 103, ECHR 2012;
see also Ashby Donald and Others v. France, no. 36769/08, § 34,
10 January 2013). For the Court, the posting of ballot photographs is a form
of conduct that qualifies as the exercise of freedom of expression.
87. It is true that the MKKP was not the author of the photographs in
issue; rather, it participated in their dissemination by providing a mobile
application for their publication. In its case-law the Court has established
that Article 10 applies not only to the content of information but also to the
means of dissemination, since any restriction imposed on the latter
necessarily interferes with the right to receive and impart information (see,
inter alia, Ahmet Yıldırım v. Turkey, no. 3111/10, § 50, ECHR 2012). In
respect of the printed media, the Court has found that publishers, who do