A Court had to Overturn the Actions of the Police and the Counterterrorism Center
Szerző: Társaság a Szabadságjogokért
Létrehozva: 2013. augusztus 5, hétfő
Módosítva: 2018. április 24, kedd
The Metropolitan Court of Budapest invalidated the decision of Budapest’s chief police officer that effectively banned an announced demonstration at the Prime Minister’s residence. The decision also found that closing the area, in order to prevent the demonstration, violated the law. The HCLU welcomes the decision by the court which stated that “limiting a peaceful demonstration because it is held in the presence of a high level official but otherwise serves as an expression of a political opinion is unnecessary in a democratic society.”
The Counterterrorism Center (CTC) ordered on July 4th to close the streets near to the home of the Prime Minister to the public so as to guarantee his personal safety. On July 5th the Chief Officer of the Budapest Police Department refused to accept the notification he received concerning a demonstration of 10 people, planned to be held on the sidewalk across the home of the Prime Minister. The Chief Officer’s rationale was that the sidewalk in question temporarily ceased to be a public space; therefore there was no formal way of announcing the demonstration on that venue. The organizer – represented by a lawyer of the HCLU – went to Court, requesting a review the decision of the police, stating that the authorities gave no reason for closing the area. And if there is no reason, the limitation of the right to assembly is unjustified. The Court overruled the police’s order and highlighted the tasks and duties of the authorities pertaining to the right to freedom of assembly.
Ensuring the right to effective remedy, the Metropolitan Court reviewed not only the specific decision of the police, but examined the legality of the CTC’s order to close an area to the public. The Court stated that the right to free assembly would be empty if one administrative body could define an area as not open to the public, in an order that cannot be legally challenged, while another agency, relying on this definition, could refuse to accept the notification for a peaceful demonstration – which practically amounts to banning it. In the Hungarian legal system the police have the sole authority to decide in all cases pertaining to the right to assembly, therefore it should consider each case on its merit.
The Metropolitan Court, taking the European Court of Human Rights’ jurisprudence as a basis for its own decision, examined the necessity and proportionality of the police’s decision. The court acknowledged that the right to assembly could be lawfully limited in the interest of the safety of a high-ranked state official, but the Court did not find the full closing of the sidewalk either necessary or proportional. The Court stated that the police failed to review alternative means for protecting the Prime Minister and to attempt to diminish the limitation of the right to assembly. Furthermore, closing an area to the public does not mean that the police can prevent everyone from entering that area without case-by-case deliberation (i.e. neighbors), and the police failed to justify the general barring of the demonstrators from the area in question.
Even though the Court overruled the decision by the police, the demonstration could not take place on the day planned since the court decision was announced posterior to this date. Meanwhile, the CTC withdrew its own order to close down the area in question on July 17th, 2013, stating that the circumstances justifying the closure of the area no longer existed. They did not specify any reasons for the closure in the order of withdrawal either.
