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MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
applicant party’s freedom of expression does not prevent the Court from
considering the available remedy to have been exhausted.
58. As regards the Government’s submissions concerning the
constitutional complaint under section 26(2) of the CCA, the Court notes
that this type of remedy is applicable solely in cases where the
complainant’s rights have been violated by the application of an allegedly
unconstitutional provision and in the absence of a judicial decision or a legal
remedy to redress the alleged violation. A constitutional complaint under
section 26(2) cannot serve as an effective remedy for situations where the
violation resulted from an allegedly erroneous application or interpretation
of a legal provision which, in terms of its content, is not unconstitutional.
59. The Court observes that at no point in the domestic proceedings or in
the proceedings before the Court did the MKKP assert that its alleged
grievance had flowed from an unconstitutional legal provision. Rather, its
complaint concerned the infringement of its freedom of expression as a
result of the individual decisions of the domestic authorities. This being so,
the issue fell to be considered in the context of proceedings seeking a
remedy against those decisions. Therefore, as noted above, the MKKP
complained of the restriction of its campaigning activities by means of the
appropriate remedies before the Kúria and the Constitutional Court.
60. As the MKKP’s complaint thus relates in essence to the allegedly
erroneous interpretation and application of domestic law, and the
Government have not specified in what manner the remedy based on
section 26(2) of the CCA would be effective in practice for the purposes of
the present complaint, the Court considers that the MKKP was not required
to avail itself of that remedy.
61. Noting that the rule on exhaustion of domestic remedies concerns
only remedies that relate to the breaches alleged (see Ivinović v. Croatia,
no. 13006/13, § 28, 18 September 2014), the Court finds that, by using the
only available domestic remedy relating to its complaint, the applicant
exhausted domestic remedies as required by Article 35 § 1 of the
Convention.
62. The Government’s objection of non-exhaustion of domestic
remedies must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
63. The MKKP complained that the decisions prohibiting and penalising
the operation of a mobile application allowing voters to publish,
anonymously, photographs of their ballot papers had violated its right to
freedom of expression as provided for by Article 10 of the Convention. That
Article reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without