MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
37
Koutmeridis and Zaharakis v. Greece, nos. 27863/05 and 2 others,
§§ 29-35, 10 April 2008).
100. When those legal provisions form the basis for restricting the
exercise of freedom of expression, this is an additional element to be taken
into account when considering the foreseeability requirements which the
law must fulfil. In this connection the Court reiterates that free speech is
essential in ensuring “the free expression of the opinion of the people in the
choice of the legislature”. For this reason, it is particularly important in the
period preceding an election that opinions and information of all kinds be
permitted to circulate freely (see Orlovskaya Iskra v. Russia, no. 42911/08,
§ 110, 21 February 2017). This is especially true when the freedom of
expression at stake is that of a political party. As the Court has repeatedly
stated, political parties play an essential role in ensuring pluralism and the
proper functioning of democracy. Restrictions on their freedom of
expression therefore have to be made the subject of a rigorous supervision
(see among others, mutatis mutandis, Refah Partisi (the Welfare Party) and
Others v. Turkey [GC], nos. 41340/98 and 3 others, §§87-88 and 100,
ECHR 2003-II). The same applies, mutatis mutandis, in the context of a
referendum aimed at identifying the will of the electorate on matters of
public concern.
101. In the Court’s opinion, this kind of supervision naturally extends to
the assessment of whether the legal basis relied on by the authorities in
restricting the freedom of expression of a political party was foreseeable in
its effects to an extent ruling out any arbitrariness in its application. A
rigorous supervision here not only serves to protect democratic political
parties from arbitrary interferences by the authorities, but also protects
democracy itself, since any restriction on freedom of expression in this
context without sufficiently foreseeable regulations can harm open political
debate, the legitimacy of the voting process and its results and, ultimately,
the confidence of citizens in the integrity of democratic institutions and their
commitment to the rule of law.
(b) Application of these principles in the present case
102. In the present case, the parties’ opinions (see paragraphs 69 and 79
above respectively) differed as to whether the legal basis for the interference
with the MKKP’s freedom of expression had been sufficiently foreseeable
and, thus, whether the interference was “prescribed by law”.
103. The MKKP argued that neither domestic law nor judicial practice
prohibited the taking of ballot photographs and that the principle of the
exercise of rights in accordance with their purpose, as applied by the
domestic authorities, could serve as a legal basis for restrictions in an
electoral context only if it was relied on in a situation where the restricted
conduct entailed a negative consequence, for instance the infringement of