CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 17 mai 2016

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HUNGARY   (Applications nos. 42461/13 and 44357/13)                   JUDGMENT     STRASBOURG   17 May 2016           This judgment is final.   In the case of Karácsony and Others v. Hungary, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Luis López Guerra, President ,   András Sajó,   Mirjana Lazarova Trajkovska,   Angelika Nußberger,   Mark Villiger,   Boštjan M. Zupančič,   Khanlar Hajiyev,   Ján Šikuta,   Vincent A. De Gaetano,   Linos-Alexandre Sicilianos,   Erik Møse,   Helena Jäderblom,   Johannes Silvis,   Valeriu Griţco,   Ksenija Turković,   Branko Lubarda,   Yonko Grozev, judges , and Johan Callewaert, Deputy Grand Chamber Registrar , Having deliberated in private on 8 July 2015 and 27 April 2016, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 42461/13 and 44357/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 June and 5 July 2013 respectively. The first application (no.   42461/13) was lodged by four Hungarian nationals, Mr Gergely Karácsony, Mr Péter Szilágyi, Mr Dávid Dorosz and Ms Rebeka Katalin Szabó, and the second (no. 44357/13) by three Hungarian nationals, Ms   Bernadett Szél, Ms Ágnes Osztolykán and Ms Szilvia Lengyel (“the applicants”). 2.     The applicants were represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 3.     The applicants, members of parliament, alleged that decisions to fine them for their conduct in Parliament had violated their right to freedom of expression in breach of Article 10 of the Convention. They also complained under Article 13 of the Convention that there was no remedy available to them to contest the impugned decisions. 4.     The applications were allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). On 16 September 2014 a Chamber of that Section composed of Guido Raimondi, President, Işıl Karakaş, András Sajó, Nebojša Vučinić, Egidijus Kūris, Robert Spano, Jon Fridrik Kjølbro, judges, and Stanley Naismith, Section Registrar, delivered its judgments in the two cases. In each case it unanimously declared the complaints under Article 10 and Article 13 read in conjunction with Article 10 admissible and the reminder of the applications inadmissible. The Chamber held unanimously that there had been a violation of Article 10 and that there had been a violation of Article 13 read in conjunction with Article 10. A joint concurring opinion of Judges Raimondi, Spano and Kjølbro and a partly dissenting opinion of Judge Kūris were annexed to the judgments. 5.     On 15 December 2014 the Government requested the referral of the cases to the Grand Chamber in accordance with Article 43 of the Convention. On 16 February 2015 a panel of the Grand Chamber granted that request. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicants and the Government each filed observations on the merits. 8.     In addition, third-party comments were received from the Czech and the United Kingdom Governments, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 8 July 2015 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   B. Berke , Secretary of State, Ministry of Justice, Mr   Z. Tallódi ,   Agent , Ms   Á. Bruszt , Legal Adviser, Ministry of Justice, Mr   T. Bárány , Deputy Director, Parliament Office, Ms   Z. Tóth , Head, Codification Department,     Parliament Office, Ms   N. Sebők , Legal Adviser, Codification Department,     Parliament Office, Mr   A. Vági , Legal Adviser, Codification Department     Parliament Office,   Advisers ; (b)     for the applicants Mr   D. Karsai ,   Counsel , Mr   V. Kazai , Ms   F. Kollarics ,   Advisers .   Two of the applicants, Ms Lengyel and Ms Szél, also attended. The Court heard addresses by Mr Karsai and Mr Tallódi as well as their replies to questions put by Judges Nußberger and López Guerra. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The applicants in case no. 42461/13 10.     The applicants, Mr Karácsony, Mr Szilágyi, Mr Dorosz and Ms   Szabó, were born in 1975, 1981, 1985 and 1977 respectively and live in Budapest. 11.     At the material time the applicants were members of parliament of the opposition party Párbeszéd Magyarországért (Dialogue for Hungary). Mr Szilágyi was also one of the notaries to Parliament. 1.     Facts regarding Mr Karácsony and Mr Szilágyi 12.     At a plenary session on 30 April 2013, during a pre-agenda speech, an opposition member of parliament from the Hungarian Socialist Party criticised the government and accused it of corruption with regard to, inter alia , the reorganisation of the tobacco market. Mr Zoltán Cséfalvay, the Secretary of State for the National Economy, was replying on behalf of the government when Mr Karácsony and Mr Szilágyi carried into the centre of the Chamber a large placard displaying the words “FIDESZ [the party in government] You steal, you cheat, and you lie”. Subsequently, they placed it next to the Secretary of State’s seat. 13.     The minutes of the session read as follows. “Zoltán Cséfalvay, the Secretary of State for the National Economy: ... Tell them that the increase of commodity wages particularly affects those with a minimum income, since the minimum income has been increased by 5.4 %, which is impossible to keep up with inflation lower than 3.5%. And tell them also ... (Gergely Karácsony and Péter Szilágyi show a placard displaying the words ‘FIDESZ You steal, you cheat, and you lie’. Interventions from the government MPs: Rules of procedure! Doctor! The Speaker rings the bell.) Speaker: Honourable Parliament! (Constant interventions from the government MPs. Gergely Karácsony and Péter Szilágyi place the placard next to the speaker’s pulpit.) I request Mr Gergely Karácsony to remove the placard in the same way as they brought it in. (Gergely Karácsony and Péter Szilágyi leave the placard next to the speaker’s pulpit. Constant interventions from the government MPs. The Speaker rings the bell.) I request the ushers to remove the placard. (Interventions from the government MPs, amongst others: That’s all you can do.) I request the ushers to remove the placard. (The placard is removed.) Thank you very much. Please continue Mr Secretary of State! (Interventions from the government MPs: How could they get that in? [The Speaker] rings the bell.) ” 14.     On 6 May 2013 the Speaker presented a proposal to fine Mr   Karácsony 50,000 Hungarian forints ((HUF); equivalent to 170 euros (EUR)) and Mr Szilágyi HUF 185,520 (EUR 600) for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. The Speaker proposed that the maximum fine (a third of his monthly remuneration) be applied to Mr Szilágyi, since he had been elected an official of Parliament and was not just an ordinary MP. No other reasons were given in the proposal. A decision approving the Speaker’s proposal was adopted by the plenary on 13 May 2013 without debate. 2.     Facts regarding Mr Dorosz and Ms Szabó 15.     On 21 May 2013 during the final vote on Bill no. T/10881 amending certain tobacco-related Acts, Mr Dorosz and Ms Szabó carried into the centre of the Chamber and displayed there a large banner displaying the words “Here Operates the National Tobacco Mafia”. 16.     The minutes of the session read as follows. “Speaker: ... I ask the Honourable Parliament whether it adopts Bill T/10881 in accordance with the consolidated proposal as amended just now. Please vote! ( Voting) I proclaim the decision: Parliament has (Dávid Dorosz and Rebeka Szabó display a banner with the words ‘Here Operates the National Tobacco Mafia’) adopted the Bill with 222 votes in favour, 81 against and 1 abstention. (Applause from FIDESZ MPs.) I call the attention of the two members of parliament to the fact that their conduct constitutes a grave disruption of the plenary proceedings. I inform you accordingly that the Rules of Procedure and section 49(4) of the Parliament Act (continuous applause from members of the Hungarian Socialist Party) sanction such conduct. (István Józsa. We want legislation against the Mafia!) I ask my colleagues to untie and remove the banner. (Dávid Dorosz and Rebeka Szabó do not hand over the banner to the usher. Short break. Loud noise from the opposition MPs.) Please help the lady and gentleman, members of parliament, to remove the banner. (Dávid Dorosz and Rebeka Szabó leave the session.) Thank you very much.” 17.     On 24 May 2013 the Speaker submitted a proposal to fine Mr   Dorosz and Ms Szabó HUF 70,000 (EUR 240) each for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections 49(4) and 49(7) of the Parliament Act. The proposal stated that an increased fine was necessary since similar seriously disruptive conduct had occurred before. No other reasons were specified in the proposal. The plenary adopted the proposal on 27   May 2013 without debate. B.     The applicants in case no. 44357/13 18.     The applicants, Ms Szél, Ms Osztolykán and Ms Lengyel, were born in 1977, 1974 and 1971 and live in Budakeszi, Budapest and Gödöllő respectively. 19.     At the material time the applicants were members of parliament of the opposition party Lehet Más a Politika (LMP) (Politics Can Be Different). 20.     On 21 June 2013 Parliament held a final vote on a new law, Bill no.   T/7979 on the transfer of agricultural and forestry land. The legislative proposal was quite controversial and generated heated reactions among opposition members. In protest, during the final vote on the bill, Ms   Lengyel placed a small, golden wheelbarrow filled with soil on the table in front of the Prime Minister, while Ms Szél and Ms Osztolykán unfurled a banner displaying the words “Land distribution instead of land robbery!” in front of the Speaker’s pulpit; meanwhile, Ms Lengyel used a megaphone to speak. She had previously delivered two speeches during the detailed debate and one speech during the final debate on the bill, filing three amending motions, and introduced two amending proposals just before the final vote. 21.     The minutes of the session read as follows. “Speaker: The next point on the agenda is the vote on the amendments submitted prior to the final vote on the Transfer of Agricultural and Forestry Land Bill and the final vote. Members of parliament have received the Bill under number T/7979 and the consolidated text of the Bill under number T/9797/2610. First we shall vote on the amendments. Their adoption requires a qualified majority. (Continuous disruption of the session.) ... Because the members of Jobbik [opposition party] do not allow me to take my position at the Speaker’s pulpit, I will continue presiding over the session from here. (Loud applause from the ruling parliamentary group.) Because members of Jobbik are not allowing the left-wing, opposition party member and notary to sit at [the Speaker’s pulpit] during the vote by roll call and conduct the vote and proclaim the results (continuous noise) , I request members of parliament to take their seats and listen to me! I request Parliament to confirm that since the members of Jobbik are not allowing the vote by roll call to take place, we shall cast our vote electronically. ( Loud applause from the ruling parliamentary group. Interventions from the same side: Hurray!) Honourable members of parliament! I request all of you who agree, given the unusual circumstances, to cast your votes by electronic voting instead of vote by roll call. ( Members of the parliamentary group Jobbik occupy the Speaker’s seat, chanting ‘Traitors, traitors’ for several minutes. Szilvia Lengyel places a small golden wheelbarrow filled with soil on the table in front of the Prime Minister. Bernadett Szél and Ágnes Osztolykán [the applicants] unfurl a banner containing the words ‘Land distribution instead of land robbery!’ in front of the Speaker’s pulpit . ) I request technical assistance to enable the vote to take place. (Short break. Members of the Jobbik group keep chanting ‘Traitors’. Szilvia Lengyel uses a megaphone to speak . András Schiffer applauds. Intervention from the FIDESZ group: Where are the parliamentary guards? Laughter.) Ms Member of Parliament! I have to warn you as well that your methods are unacceptable under the rules of procedure. I therefore request you to terminate your speech using the megaphone. Again, I request technical assistance to overcome this problem so that the members of parliament can exercise their right to vote, since I am hindered in accessing my own voting card. ...” 22.     On 25 June 2013 the Speaker presented a proposal to fine Ms Szél and Ms Lengyel HUF 131,400 (EUR 430) each and Ms Osztolykán HUF   154,000 (EUR 510) for their conduct, as recorded in the minutes and considered to be gravely offensive to parliamentary order, in application of sections   49(4) and 49(7) of the Parliament Act. 23.     The Speaker proposed that the maximum fine be applied, given the extraordinary situation that had developed during the voting process and that the MPs had engaged in conduct gravely offensive to parliamentary order by displaying their banner and using a megaphone. A decision approving the proposal of the Speaker was adopted by the plenary on 26   June 2013 without debate. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Fundamental Law 24.     The Fundamental Law of Hungary, which came into force on 1   January 2012, provides the following, in so far as relevant. Article C “1.     The functioning of the Hungarian State shall be based on the principle of division of powers.” Article I “1.     The inviolable and inalienable fundamental rights of man shall be respected. It shall be the primary obligation of the State to protect these rights. 2.     Hungary shall recognise the fundamental individual and collective rights of man. 3.     The rules for fundamental rights and obligations shall be laid down in an Act. A fundamental right may only be restricted to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of such a fundamental right.” Article IX “1.     Everyone shall have the right to freedom of speech. 2.     Hungary shall recognise and protect the freedom and diversity of the press, and shall ensure the conditions for free dissemination of information necessary for the formation of democratic public opinion. ... 4.     The right to freedom of speech may not be exercised with the aim of violating the human dignity of others.” Article XXVIII “7.     Everyone shall have the right to seek legal remedy against any court, authority or other administrative decision which violates his or her rights or legitimate interests.” Article 5 “7.     Parliament shall establish the rules of its operation and the order of its debate in the provisions of the Rules of Parliament [ Házszabály ] adopted with the votes of two-thirds of the members of parliament present. In order to ensure undisturbed operation of Parliament and to preserve its dignity, the Speaker shall exercise policing and disciplinary powers as laid down in the Rules of Parliament.” 25.     Paragraph 5 of the amended closing and miscellaneous provisions of the Fundamental Law, which came into force on 1 April 2013, provides: “The decisions of the Constitutional Court taken prior to the entry into force of the Fundamental Law are repealed. This provision shall be without prejudice to the legal effects produced by those decisions.” B.     The Parliament Act 26.     The Parliament Act (no. XXXVI of 2012), which came into force on 20 April 2012, provided the following at the material time, in so far as relevant. 1.     The Speaker of Parliament Section 2 “The Speaker shall ... (2)(f)     open the sessions, preside over the sessions impartially, and close them; call members of parliament to speak, ensure that the Rules of Parliament are observed, announce the results of the voting and preserve order and decorum during the sessions. ...” 18.     Maintenance of order and disciplinary powers Section 46 “(1)     The chair [1] of the session shall order any members who clearly digress from the point without any reason during their speech, or pointlessly repeat their own or other speakers’ speeches during the same debate, to address the point, and simultaneously warn them of the consequences of non-compliance. (2)     The chair of the session may withdraw the right of members to speak if during their speech they continue to behave in the manner specified under section 46(1) after being warned for the second time.” Section 47 “The chair of the session may withdraw the right of members to speak, giving reasons, if they have used up the time allotted to them or to their parliamentary group.” Section 48 “(1)     The chair of the session shall call speakers to order if they use an indecent expression that is indecent or offensive to the authority of Parliament or to a person or group, particularly any national, ethnic, racial or religious community, and shall simultaneously warn them of the consequences of using the offensive or indecent expression repeatedly. (2)     The chair of the session shall withdraw the right of members to speak if they persist in using an offensive or indecent expression after being called to order. (3)     If during his or her speech a member uses an expression that is gravely offensive to the authority of Parliament or to any person or group, particularly any national, ethnic, racial or religious community, or the offensive expression used by him or her causes grave disorder, the chair of the session may propose, without calling to order or issuing a warning, the exclusion of the member from the remainder of that day’s sitting and the imposition of a fine against him or her. (4)     Parliament shall decide on the exclusion proposal without a debate. If Parliament does not have a quorum, the chair of the session shall decide on the exclusion. The chair of the session shall inform Parliament at its next sitting of the exclusion and the reasons. Parliament shall subsequently decide, without a debate, whether the decision of the chair of the session was legal. (5)     The member excluded from the sitting may not speak again during that sitting. A member excluded from the sitting day shall not be entitled to remuneration for the day of the exclusion. (6)     The chair of the session, in the absence of a proposal to apply any sanction referred to in subsection (3), may propose the imposition of a fine against the member within five days of his or her using the gravely offensive expression. (7)     Parliament shall decide on the proposal for the imposition of a fine referred to in subsections (3) and (6) during the session following the proposal, without a debate. The amount of the fine may not exceed one third of the member’s monthly remuneration.” Section 49 “(1)     The chair of the session may withdraw the right of members to speak if they object to any decision by the chair of the session or his or her chairing of the session, except for procedural motions. A speaker whose right to speak has been withdrawn by the chair of the session without warning may request an individual resolution of the case by the Committee responsible for the interpretation of the Rules of the House. (2)     A member’s right to speak shall not be withdrawn if the chair of the session has not warned him or her of the consequences of the call to order. (3)     Anyone whose right to speak has been withdrawn pursuant to subsection (1), section 46(2) or section 48(2) may not speak again during the same session day on the same matter. (4)     If a member’s conduct is gravely offensive to the authority or order of Parliament, or violates the provisions of the Rules of Parliament on the order of debate or voting, the chair of the session may propose the exclusion of the member for the remainder of the session day without calling him or her to order or warning, and the imposition of a fine on him or her. The proposal shall contain the reason for the measure and ... the provision of the Rules of Parliament that has been violated. (5)     Parliament shall decide on the exclusion proposal without a debate. If Parliament does not have a quorum, the chair of the session shall decide on the exclusion. The chair of the session shall inform Parliament at its next sitting of the exclusion and the reasons. Parliament shall subsequently decide without a debate whether the decision of the chair of the session was legal. (6)     The member excluded from the sitting day may not speak again during that sitting day. A member excluded from the sitting day shall not be entitled to remuneration for the entire day of the exclusion. (7)     The chair of the session, in the absence of a proposal on any sanction referred to in subsection (4), may propose the imposition of a fine on the member within five days of his or her engaging in conduct specified in subsection (4). (8)     Parliament shall decide on the proposal on the imposition of a fine referred to in subsections (4) and (7) during the session following the proposal, without a debate. The amount of the fine may not exceed one third of the member’s monthly remuneration.” Section 50 “(1)     If a member has engaged in physical violence during the session of Parliament, threatened to use direct physical violence or called for the use of violence, the chair of the session may propose the member’s exclusion from the sitting day, the suspension of the exercise of his rights and the imposition of a fine against him. (2)     Parliament shall decide on the exclusion proposal without a debate. If Parliament does not have a quorum, the chair of the session shall decide on the exclusion. If the member has been excluded from the sitting day pursuant to subsection (1), he or she may not participate in the session of Parliament or in the work of parliamentary committees, and shall not be entitled to remuneration during the period of exclusion. The chair of the session shall inform Parliament during its next session of the exclusion and the reasons. Parliament shall subsequently decide without a debate whether the decision of the chair of the session was legal. (2a)     The chair of the session, in the absence of a proposal to apply any sanction referred to in subsection (1), may propose the suspension of the member’s rights and/or imposition of a fine against the member within five days of his or her engaging in conduct specified in subsection (1). (3)     Parliament shall decide on the suspension of the member’s rights after requesting resolutions of the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials, with the votes of two-thirds of the members present. The rights of the member may be suspended for a maximum of three days. (4)     Parliament shall decide on the proposal for the imposition of a fine referred to in subsections (1) and (2a) during the sitting following the proposal, without a debate. The amount of the fine shall not exceed one-third of the member’s monthly remuneration. (5)     Parliament may suspend the member’s rights with the votes of two-thirds of the members present if he or she persists in engaging in the conduct specified in subsection (1) during the same session (a)     for six sitting days on the second occasion, (b)     for nine sitting days on the third and every subsequent occasion. (6)     If the member’s rights have been suspended, he or she may not participate in the session of Parliament or the work of the parliamentary committees during the period between the first and last sitting days of the suspension and shall not be entitled to remuneration. (7)     The first sitting day of the suspension is the sitting day following the day of the decision suspending the member. When calculating the period of the suspension, the recess between sessions shall not be taken into account. (8)     If the member has engaged in conduct specified in subsection (1) in a committee meeting, this fact shall also be considered when applying subsection (5).” Section 51 “If disorderly conduct occurs during the session of Parliament making it impossible to continue the proceedings, the chair of the session may suspend the session for a definite period of time or close it. When the session is closed, the chair of the session shall convene a new session. If the chair of the session is unable to announce his or her decision, he or she shall leave the chair’s seat, which thus interrupts the session. When the session is interrupted, it may only continue if it is reconvened by the chair of the session.” 27.     Section 52 of the Act prescribes disciplinary sanctions that may be applied in respect of certain forms of expression or conduct in committee meetings. C.     Amendment to the Parliament Act 28.     On 13 February 2014 Parliament passed an amendment to the Parliament Act, modifying the rules of disciplinary procedure for MPs (Law no.   XIV of 2014, incorporating a new section 51/A into the Parliament Act). The amendment introduced, inter alia , the possibility for a fined MP to seek a remedy before a committee. It came into force on 4 March 2014. 29.     The new section 51/A reads as follows, in so far as relevant. Section 51/A “(1)     Based on a proposal of any of its members, the House Committee [ Házbizottság [2] ] – in the absence of any other legal consequences – may order the reduction of a member’s allowance within fifteen days of the conduct specified in sections 48(3), 49(4) and 50(1). The decision shall contain the reasons for the measure and, if the conduct violated the rules on debating, voting or ..., the provision of the Rules of Parliament that was violated. ... (3)     The Speaker shall immediately inform the member concerned of the decision taken pursuant to subsection (1). (4)     Should the member disagree with the decision taken pursuant to subsection (1), he or she may request within five days of the notification specified in subsection (3) the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials to overrule the decision taken pursuant to subsection (1). Should the member not request the overruling of the decision within the specified time-limit, his allowance shall be reduced by the amount specified in the decision. ... (6)     The Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials shall decide on the request submitted pursuant to subsection (4) ... within fifteen days. Should the member request a hearing, the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials shall hear the member in person. (7)     Should the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials uphold the member’s request, his allowance shall not be reduced and the proceedings specified in subsection (1) shall be discontinued. (8)     Should the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials dismiss the member’s request or not render a decision within the time-limit specified in subsection (6), the member’s allowance shall be reduced by the amount specified in the decision taken pursuant to subsection (1). (9)     Should the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials dismiss the member’s request submitted pursuant to subsection (4) or not decide within the time-limit specified in subsection (6), the member may request Parliament to overrule the decision taken pursuant to subsection   (1). ... (11)     The President of the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials shall immediately inform the member concerned and the House Committee of its decision taken pursuant to subsection (8) ... or of the expiry of the time-limit. (12)     A request under subsection (9) shall be submitted within five working days of the notice given by the President of the Committee on Immunities, Conflict of Interest, Discipline and Verification of Credentials pursuant to subsection (11). (13)     Parliament shall rule on the decision taken pursuant to subsection (1) during the session following a request under subsection (9), without a debate. The amount of the fine may not exceed (a)     one-third of the member’s monthly remuneration if the reduction was due to conduct specified in section 48(3) or 49(4), (b)     the member’s monthly remuneration if the reduction was due to conduct specified in section 50(1).” D.     The Constitutional Court Act 30.     The Constitutional Court Act (no. CLI) came into force on 1   January 2012. It provides for the following types of constitutional complaint. Section 26 “(1)     In accordance with Article 24 § 2 (c) of the Fundamental Law, persons or organisations affected by a specific case may submit a constitutional complaint to the Constitutional Court if, due to the application of a legal regulation contrary to the Fundamental Law in their judicial proceedings, (a)     their rights enshrined in the Fundamental Law have been violated, and (b)     the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available. (2)     By way of derogation from subsection (1), constitutional court proceedings may also be initiated in exceptional circumstances if (a)     due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights have been directly violated, without a judicial decision, and (b)     there is no procedure for obtaining a legal remedy designed to repair the violation, or the petitioner has already exhausted the possibilities for obtaining a remedy. ...” Section 27 “In accordance with Article 24 § 2 (d) of the Fundamental Law, persons or organisations affected by judicial decisions contrary to the Fundamental Law may submit a constitutional complaint to the Constitutional Court if the decision made regarding the merits of the case or other decision terminating the judicial proceedings (a)     violates their rights laid down in the Fundamental Law, and (b)     the possibilities for obtaining a legal remedy have already been exhausted by the petitioner or no possibility for obtaining a legal remedy is available to him or her.” 31.     Section 30(4) of the Constitutional Court Act provides: “No constitutional court proceedings may be initiated more than 180 days after the communication of the decision, the violation of the right guaranteed by the Fundamental Law, and, in cases defined in section 26(2), the entry into force of the legal regulation that is contrary to the Fundamental Law.” E.     Constitutional Court judgment no. 3206/2013 (XI.18) AB of 4   November 2013 32.     Mr E.N., an MP of the opposition party, Jobbik, lodged a   constitutional complaint under section 26(2) of the Constitutional Court Act against a number of provisions of the Parliament Act. He claimed that the impugned provisions unduly restricted the freedom of expression of MPs and did not provide for a remedy against decisions of Parliament. The Constitutional Court examined the constitutionality of sections 50(1) and   52(2)(a) of the Parliament Act and declared the remainder of the complaint inadmissible [3] . 33.     When reviewing the constitutionality of section 52(2)(a) [4] , the Constitutional Court noted that parliamentary freedom of speech constituted an important element of freedom of expression, protected by Article IX § 1 of the Fundamental Law. Parliament, as the decision-making forum for issues of direct relevance for the life of the nation, was of particular importance for the realisation of freedom of expression. The Constitutional Court observed that with regard to MPs’ freedom of expression a distinction had to be made between freedom of expression as such and the form or manner in which that expression was communicated. In the latter respect, Parliament was entitled to enact rules which guaranteed its dignity and undisturbed functioning. 34.     Under Article 5 § 7 of the Fundamental Law, the Speaker exercised policing and disciplinary powers as prescribed by the Rules of Parliament in order to ensure Parliament’s undisturbed functioning and to preserve its dignity. In this way the Fundamental Law created the constitutional basis for parliamentary law enforcement, which inevitably restricted the rights of MPs, including their right to freedom of expression. The Constitutional Court further referred to Parliament’s autonomy, which was protected by the Fundamental Law. In the Constitutional Court’s view, the effective functioning of Parliament and the preservation of its authority and dignity could thus represent constitutionally justified limitations on MPs’ right to freedom of expression. 35.     The Constitutional Court noted that a reduction of MPs’ remuneration and their exclusion from Parliament’s work were the most severe disciplinary sanctions, but were not unheard of historically or internationally. It held that the rule contained in section 52(2)(a) of the Parliament Act could not be regarded as a disproportionate restriction on the right to freedom of expression. 36.     The Constitutional Court also examined the procedural aspect of section 52(2)(a), which, similarly to the conduct enumerated in section   48(3), regulated the most severe cases of “gravely offensive” expression. It found that if such an expression was used (as opposed to the “offensive or indecent” expressions mentioned in section 48(1)) or caused serious disorder, the possibility of applying the most severe disciplinary sanctions, even without issuing a call to order or a warning, could not be considered unconstitutional. The Constitutional Court noted that in such cases it could not be expected, or sometimes even envisaged, that an MP should be preliminarily warned of the consequences. 37.     Secondly, the Constitutional Court examined the argument that the impugned sections of the Parliament Act did not provide for a remedy against disciplinary decisions. It noted that Article XXVIII § 7 of the Fundamental Law established the right to a remedy against decisions of a judicial organ, State administration or an administrative authority. However, since disciplinary decisions of Parliament did not fall into any of the above categories, the lack of a remedy against them was not unconstitutional in itself. In addition, from a historical and comparative perspective, disciplinary powers with respect to MPs formed part of Parliament’s autonomy. Having regard to the above, the Constitutional Court found that the disciplinary power of Parliament concerned the internal functioning of Parliament, and as such the conduct of members of parliament in the exercise of their mandate. Thus, no obligation to provide a remedy against such decisions could be derived from Article XXVIII § 7 of the Fundamental Law. 38.     The President of the Constitutional Court expressed a dissenting opinion, joined by two other judges [5] . He considered that the right to freedom of speech of MPs did not originate from freedom of expression as that freedom was a fundamental right of citizens against the State. The basis of the freedom of speech of MPs was the right of members of parliament to a free mandate enshrined in the Fundamental Law. Nonetheless, he found that, should regulations restrict the exercise of freedom of speech, it was reasonable to invoke an infringement of the freedom of expression as well. The President of the Constitutional Court noted that the Fundamental Law created the basis for Parliament’s power to impose sanctions in the interests of the undisrupted functioning of Parliament. However, this did not mean that Parliament’s right to create its own Rules also allowed it to disregard the core element of the right to freedom of expression. The President of the Constitutional Court found that qualifying an expression as gravely offensive or offensive entailing serious disorder and the exclusion of a member of parliament could only be considered proportionate if it was preceded by a call to order and a warning of the legal consequences. Currently this was not the case either in committee meetings (section   52(2)(a)) or in plenary sessions (section 48(3)). F.     Constitutional Court judgment no. 3207/2013 (XI.18) AB of 4   November 2013 39.     The same petitioner, Mr E.N., lodged a constitutional complaint against sections 48(3) and (4) and 48(7) of the Parliament Act. In its judgment of 4 November 2013, the Constitutional Court dismissed his constitutional complaint in respect of section 48(3) [6] and declared the remainder of the complaint inadmissible. 40.     When reviewing section 48(3), the Constitutional Court noted that when intervening in Parliament, an MP did not express his or her views as a “private individual”, but as a member of parliament, that is, a member of the country’s supreme representative organ. Given this quality of a representative, the limits of expression were different from those concerning private individuals: because of an MP’s immunity, those limits were wider on the one hand, and, given the parliamentary disciplinary rules, narrower on the other hand. Part of MPs’ expressions were governed by the parliamentary disciplinary rules precisely because of the far ‑ reaching immunity which MPs enjoyed in their parliamentary activities. It was therefore justified for the Speaker to have prerogatives in such cases so as to be able to prevent abuses of the right to freedom of expression by MPs. Furthermore, the Constitutional Court noted that the right to speak in Parliament was not only a personal right belonging to an MP; it was also a fundamental element of parliamentary debate which had to be regulated from the perspective of the effective functioning of Parliament. 41.     The Constitutional Court found that the rationale behind regulating MPs’ right to speak was to secure a proper balance between the rights of individual MPs and the guaranteeing of effective parliamentary activity. It held that section 48(3) of the Parliament Act did not disproportionately restrict the constitutional freedom of expression as it regulated the most extreme cases falling within Parliament’s disciplinary powers. This provision, together with the preceding subsections of that section, adequately reflected the principle of gradual application of the sanctions (the more severe the disciplinary breach, the more severe the sanction that could be applied). III.     RELEVANT COUNCIL OF EUROPE DOCUMENTS A.     The Parliamentary Assembly of the Council of Europe 42.     Article 28 of the Statute of the Council of Europe provides, in so far as relevant: “a.     The Consultative (Parliamentary) Assembly shall adopt its rules of procedure and shall elect from members its President, who shall remain in office until the next ordinary session. b.     The President shall control the proceedings but shall not take part in the debate or vote. ...” 43.     Rule 22 of the Rules of Procedure of the Assembly (Resolution 1202 (1999) adopted on 4 November 1999) with subsequent modifications of the Rules of Procedure concerning maintenance of order reads as follows. “22.1.     The President shall call to order any member of the Assembly who causes a disturbance during proceedings. 22.2.     If the offence is repeated, the President shall again call the member to order, and this shall be recorded in the report of the debates. 22.3.     In the event of a further offence, the President shall direct the offender to resume his or her seat or may exclude him or her from the Chamber for the remainder of the sitting. 22.4.     In serious cases the President may propose to the Assembly a motion of censure, which shall involve immediate exclusion from the Chamber for two to five sitting days. The member upon whom a motion of censure is proposed shall have the right to speak for a maximum period of two minutes before the Assembly decides. 22.5.     The vote on a motion of censure shall be taken without debate. 22.6.     Words or expressions which affront human dignity, undermine the right to respect for private life, or which may prejudice orderly debate may not be used. The President may order such words to be struck from the report of debates. He or she may similarly strike from the report words spoken by a member not called by him or her. The report of the debates shall record any such decision.” 44.     The complementary texts of the Rules of Procedure of the Assembly relating to Assembly debates (as amended) provide as follows. “viii. - Conduct of members of the Parliamentary Assembly during Assembly debates (Rule 22 of the Rules of Procedure) 1.     Pursuant to Rules 20.1. and 22 of the Rules of Procedure, the President of the Assembly maintains order and decorum and ensures that debates are conducted in a civil and orderly manner, in conformity with the rules and practices in force. 2.     Members of the Parliamentary Assembly shall behave in a courteous, polite and respectful manner towards each other and towards the President of the Assembly or any other person who is presiding. They shall refrain from any action that may disrupt the proceedings. This provision shall apply mutatis mutandis to meetings of the Bureau and of committees. 3.     With regard to Assembly members’ discipline and observance of the rules of conduct, paragraphs 17 to 21 of the code of conduct for members of the Parliamentary Assembly shall apply.” 45.     In its Resolution 1965 (2013) on the discipline of the members of the Parliamentary Assembly, the Assembly stated as follows. “1.     The Parliamentary Assembly reaffirms its commitment to the right to freedom of expression, which is the most important parliamentary privilege and an essential precondition for the independence of elected representatives of the people. There are various ways to express one’s position in the context of a political debate, including by displaying symbols or logos or wearing a particular garment or costume, which are protected by the right to freedom of expression. Nonetheless, whoever exercises their freedom of expression also has duties and responsibilities, the scope of which will depend on the situation and the means used.” 46.     In paragraph 5 of the same Resolution the Assembly noted that it was entitled, under Article 28 of the Statute of the Council of Europe, to adopt its rules and manage its internal affairs; and that it therefore had the right to discipline its members for misconduct and the po