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MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
in its Guidelines no. 12/2014, applicable in election proceedings and
referendums, which had specified that, regard being had to the new
technical developments, voters could not take ballot papers outside the
polling station, even in virtual form, by recording them in any way.
Therefore, voters could not record ballot papers. This interpretation of the
law had been both accessible and foreseeable to the MKKP.
78. Turning to the examination of the legitimate aims pursued by the
disputed restriction, the Government considered that the measure
complained of had been necessary in a democratic society to protect the
public interest in ensuring the orderly conduct of the voting procedure
(including campaigning) and the “normal” use of ballot papers. They
contended that these aims fell within the ambit of “the protection of rights
of others”, including the right to the secrecy of the vote, a fair electoral
process and the proper functioning of the democratic institutions. The aims
in question protected the free expression of voters’ political opinions by
shielding voters from any coercion.
79. As to the principle of the “exercise of rights in accordance with their
purpose” laid down in section 2(1)(e) of the Act on Electoral Procedure, the
Government argued that this requirement amounted to a prohibition of the
abuse of rights and that it followed from the State’s obligation to protect
democratic institutions in order to ensure the “prevention of disorder” and
the “protection of the rights of others”. It also guaranteed the rule of law and
legal certainty.
80. With regard to the necessity of the interference in a democratic
society, the Government emphasised that different societies reacted to the
phenomenon of ballot photographs in different ways, depending on their
historical experiences and legal and cultural traditions. In the absence of a
European consensus, the member States had a wide margin of appreciation
in this field and the domestic authorities were better placed to respond to the
needs of society.
81. The Government argued that there was a pressing social need to
maintain the prohibition on taking ballot papers outside the polling station,
in either their physical or virtual form. Firstly, the general prohibition on
taking photographs was necessary in order to prevent vote buying. Although
it was not suggested that this was an actual problem in the present case, this
type of election fraud had previously occurred in the form of chain-voting.
Moreover, in the Government’s view, the use of mobile applications had an
impact on the fairness of the electoral process also because it could
undermine the public’s trust in the functioning of the electoral bodies and
the official results. Applications that processed data on cast ballots without
complying with the strict data security standards applicable to official
electoral IT systems might provide results different from those of the
electoral bodies, thereby casting doubt on the legality of the latter’s work.