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GRAND CHAMBER CASE OF MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY (Application no. 201/17) JUDGMENT Art 10 • Freedom of expression • Freedom to impart information • Insufficiently foreseeable legal basis for a fine on political party for making available a mobile application allowing voters to share anonymous photographs of their ballot papers • Vagueness of the principle of the ‘exercise of rights in accordance with their purpose’ • Domestic legal framework not ruling out any arbitrariness in its application • Restrictions on the freedom of expression of political parties in the context of an election or a referendum calling for rigorous supervision STRASBOURG 20 January 2020 This judgment is final but it may be subject to editorial revision.

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In re Magyar Ketfarku Kutya Part v. Hungary

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Description: The MKKP, a political party in Hungary obtained only 1.73% of votes cast on the national lists and did not meet the threshold for parliamentary representation and none of its candidates were elected. The MKKP circulated an application called “cast an invalid ballot” that permitted voters to circulate photographs of invalid ballots. The application remained anonymous, but the application itself had access to the mobile phone numbers and photo gallery. On September 30, 2016, an individual filed a complaint with the National Election Commission (NEC) stating that the mobile application infringed on the fairness of elections, voting secrecy, and the exercise of rights. The NEC found that the photograph and transport of ballots violates the 2013 Electoral Procedure. When the political party again initiated the same application for the October 2, 2016 referendum, the same private individual filed a complaint and the NEC reiterated its previous finding and fined the political party. On October 10, 2016 the Kuria upheld the NEC’s decision and shortly thereafter the MKKP filed a constitutional claim against that decision. MKKP alleges that the decisions prohibiting and penalizing the operation of the application violated the freedom of expression set forth under Article 10 of the Convention. In this case the MKKP was not the author of the photographs, but served instead as a participant in their dissemination. Regardless, the court has established that the Article 10 applies to both the production and dissemination of the materials. In domestic proceedings, the court considered the dissemination a campaign activity because it could be regarded as a means of influencing voter opinion. Based on the timing, the court considered this action an expression of opinion on the referendum. The court determined that Hungarian law was not sufficiently aligned with Article 10 such that it could lawfully limit the MKKP’s conduct. The court declared the application admissible and held that there was a violation of Article 10 of the Convention.

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Latitude: 47.50266083614043

Longitude: 18.97909164210657

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Author(s): European Court of Human Rights

Date: Jan 20, 2020

Primary Documents

CASE OF MAGYAR K_TFARK_ KUTYA P_RT v. HUNGARY.pdf
english
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AFFAIRE MAGYAR K_TFARK_ KUTYA P_RT c. HONGRIE.pdf
french
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