MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
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§ 31, Series A no. 298, and Bédat v. Switzerland [GC], no. 56925/08, § 58,
29 March 2016). The MKKP’s conduct falls into this category.
91. In the Court’s view, in the circumstances of this case, the two
aspects – providing a forum for third-party content and imparting
information and ideas itself – are inseparably intertwined. The Court accepts
that providing voters with a mobile application and calling on them to
upload and publish photographs of ballot papers, and encouraging them to
cast an invalid ballot, thus involved the exercise of the MKKP’s right to
freedom of expression in relation to both aspects.
92. The authorities’ reaction to the MKKP’s exercise of its rights under
Article 10 of the Convention amounted to interference with those rights.
2. Whether the interference was prescribed by law
(a) General principles
93. The Court reiterates that the expression “prescribed by law” in the
second paragraph of Article 10 not only requires that the impugned measure
should have a legal basis in domestic law, but also refers to the quality of
the law in question, which should be accessible to the person concerned and
foreseeable as to its effects (see, amongst many other authorities, Delfi AS
v. Estonia [GC], no. 64569/09, § 120, ECHR 2015, with further references).
The notion of “quality of the law” requires, as a corollary of the
foreseeability test, that the law be compatible with the rule of law; it thus
implies that there must be adequate safeguards in domestic law against
arbitrary interferences by public authorities (see Malone v. the United
Kingdom, 2 August 1984, § 67, Series A no. 82, and Olsson v. Sweden
(no. 1), 24 March 1988, § 61, Series A no. 130).
94. As regards the requirement of foreseeability, the Court has
repeatedly held that a norm cannot be regarded as a “law” within the
meaning of Article 10 § 2 unless it is formulated with sufficient precision to
enable a person to regulate his or her conduct. That person must be able – if
need be with appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty. Whilst
certainty is desirable, it may bring in its train excessive rigidity, and the law
must be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser extent, are
vague, and whose interpretation and application are questions of practice
(see further Delfi AS, cited above, § 121, and Centro Europa 7 S.r.l. and
Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012). The criterion of
foreseeability cannot be interpreted as requiring that all detailed conditions
and procedures governing the interference be laid down in the substantive
law itself, the requirements of “lawfulness” can be met if points which
cannot be satisfactorily resolved on the basis of substantive law are set out