CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 20 janvier 2020

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font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s6ECD6BC1 { width:138.38pt; display:inline-block } .sF10DAA13 { width:156.06pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s25F5CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt }   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.   In the case of Magyar Kétfarkú Kutya Párt v. Hungary, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Linos-Alexandre Sicilianos, President,   Guido Raimondi,   Angelika Nußberger,   Robert Spano,   Branko Lubarda,   Ledi Bianku,   Paul Lemmens,   Valeriu Griţco,   Dmitry Dedov,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Stéphanie Mourou-Vikström,   Gabriele Kucsko-Stadlmayer,   Alena Poláčková,   Jolien Schukking,   Péter Paczolay,   Ivana Jelić, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 21 November 2018 and 30 September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 201/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian political party, Magyar Kétfarkú Kutya Párt (“the applicant party” or “the MKKP”), on 16 December 2016. 2.     The applicant was represented by Mr Cs. Tordai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3.     The application was allocated to the Fourth Section of the Court (Rule   52 §   1 of the Rules of Court). On 23 January 2018 a Chamber of that Section composed of Ganna Yudkivska, President, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, Faris Vehabović, Carlo Ranzoni, Marko Bošnjak, Péter Paczolay, judges, and also of Marialena Tsirli, Section Registrar, delivered a judgment in which it held unanimously that there had been a violation of Article 10 of the Convention. On 23 April 2018 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 28 May 2018 the panel of the Grand Chamber granted that request. 4.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 5.     The MKKP and the Government each filed further written observations (Rule 59 § 1) on the merits. 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 21 November 2018. There appeared before the Court: (a)     for the respondent Government Mr   Z. Tallódi ,   Agent , Ms   M. Weller ,   Co-Agent ; (b)     for the MKKP Mr   Cs. Tordai, Mr   T. Fazekas, Mr   B. T. Tóth ,   Counsel, Ms   D. G. Szabó ,   Adviser .   The Court heard addresses and replies to the questions put by the judges by Mr Tallódi, Mr Fazekas and Mr Tóth. THE FACTS 7.     The MKKP is a political party active in Hungary . At the 2018 legislative elections it obtained 1.73% of the votes cast on national lists (99,410 votes nationwide) and consequently did not attain the statutory threshold for parliamentary representation; moreover, none of its candidates was elected in the individual constituencies. Its political stance is largely conveyed through satire directed at the political elite and governmental policies, through its website (which includes much humorous content), through purported “campaigns” for clearly absurd causes, and through street art and performances. 8.     In 2006 the party presented its candidature for the national elections, with an election manifesto containing ideas such as eternal life, free beer, lower gravitation and two sunsets a day. In their 2006 campaign for the office of mayor of Budapest their slogans included “More of everything, less of nothing!” “Eternal life, free beer and tax deductions!” and “We promise anything!” 9.     In the context of the wave of refugees and migrants crossing Hungarian territory in 2015 and in response to the resultant governmental policies on migration, which received widespread media coverage, the MKKP launched what it called an “anti-anti-immigration campaign”. It was financed through micro-donations from private individuals in the amount of some 33,000,000 Hungarian forints (HUF) (approximately 100,000 euros (EUR)). The campaign included the display of billboards caricaturing the government’s own media campaign with slogans such as “Feel free to come to Hungary, we already work in England!” 10.     On 22 September 2015 the European Union’s interior ministers meeting in the Justice and Home Affairs Council approved a plan to relocate 120,000 asylum seekers over two years from the frontline States Italy and Greece to all other EU countries. Under the plan, Hungary was to accept 1,294 persons from other member States. 11 .     On 24 February 2016 the Prime Minister of Hungary announced that the Hungarian government would hold a referendum on whether to accept the European Union’s proposed mandatory quotas for relocating migrants. On the same day the government submitted for approval before the National Election Commission (“NEC”) the following question to be put to a referendum: “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?” 12.     On 29 February 2016 the NEC, by nine votes to three, approved the question. On 5 May 2016, after examining the legal challenges, the Kúria (the Hungarian supreme court) authorised the holding of the referendum. 13.     The National Assembly officially approved the referendum initiated by the government on 10 May 2016. The initiative was approved with 136 votes being cast in favour by the parliamentary majority and the MPs of the opposition party Jobbik, with five votes against; the remaining fifty-three MPs boycotted the session. On 21 June 2016 the Constitutional Court rejected all the appeals against the plan to hold the referendum. It was announced that the referendum would take place on 2 October 2016. 14.     Opposition groups including political parties and civil-society actors considered that the question put to a referendum deliberately misrepresented EU policies, since in their view no project existed involving mandatory quotas for the relocation of migrants. They voiced the opinion that the referendum was merely an instrument of government propaganda and did not provide voters with a real choice between real alternatives, and that its tendentious wording served no other purpose than to exacerbate the controversy over migration. 15.     The MKKP urged its supporters to participate in the referendum but to cast an invalid ballot. Its main reason for advocating an invalid vote was that the referendum constituted in essence an abuse of a democratic legal institution and that, while boycotting was a passive rejection of the referendum, an invalid vote sent a clear message denouncing its lack of legitimacy in an active manner. Furthermore, according to the announcement posted on the MKKP’s website calling on voters to cast invalid ballots, such ballots could not be forged and would certainly not be taken into account when the votes were counted. 16.     In the period preceding the referendum the government engaged in a campaign on migration policy, posting billboards with questions such as: “Did you know? More than 300 people have been killed in terrorist attacks in Europe since the start of the migrant crisis”, “Did you know? The Paris terrorist attacks were carried out by immigrants”, “Did you know? 1.5   million illegal immigrants arrived in Europe in 2015”, “Did you know? Brussels wants the forced resettling of a city’s worth of illegal immigrants in Hungary”, “Did you know? Almost one million immigrants want to come to Europe from Libya alone” and “Did you know? Since the start of the immigration crisis, sexual harassment of women has increased in Europe”. 17.     In reaction to this, the MKKP continued its campaign on billboards (“Did you know there’s a war in Syria?”, “Did you know one million Hungarians want to emigrate to Europe?”, “Did you know? The perpetrators in most corruption cases are politicians”, “Did you know? A tree may fall on your head”, “Did you know? The average Hungarian is more likely to see a UFO than a refugee in his lifetime” and “Did you know? During the Olympic Games, the biggest danger to Hungarian participants came from foreign competitors”). It was again financed by micro-donations. 18.     On 29 September 2016 the MKKP made available a mobile application called “Cast an invalid ballot” which enabled users to upload and share with other users, anonymously, photographs of their ballots or a photograph of the activity they were engaged in instead of voting. It was not disputed by the parties that the use of the application remained entirely anonymous, both for uploaders and passive users. The launch of the application was reported on in some major online journals (index.hu, hvg.hu) . 19 .     The iOS version of the application was available from the AppStore, while the Android version could be downloaded from Google Play, without registration and free of charge. The application had access to the status and identifier of the mobile telephone and to its photo gallery. Under the basic settings of the application, the user could take a photograph with the rear camera of his or her telephone. The front camera could not be used, so that voters could not take so-called “ballot selfies”, including themselves in the photograph. Besides the photograph, users could also provide a comment, either by choosing a pre-set political message or by adding their own messages. They had the option to indicate in which county they had voted and whether they had participated in the referendum and if so whether they had cast a valid or invalid ballot. These messages appeared together with the photograph. Furthermore, the application generated infographics, broken down by county, about the participation rate and the number of valid and invalid votes. The pictures and messages were accessible to other users of the application. The posting and sharing of photographs were anonymous and each user could publish only one photograph. By using the application, the voters sent the non-recoverable encrypted code (hash value) generated by the mobile device’s identifier, and the picture (with a message hardcoded on it), to the operator of the application. Thanks to the hashing technique, neither the MKKP nor the developer of the application could trace the identifier of the mobile telephones. 20 .     On 29 September 2016 a private individual lodged a complaint with the NEC about the application. 21 .     In a decision of 30 September 2016 the NEC found that the mobile application infringed the principles of fairness of elections, voting secrecy, and the exercise of rights in accordance with their purpose ( rendeltetésszerű joggyakorlás ), and ordered the MKKP to refrain from further breaches of section 2(1)(a) and (e) of Act no. XXXVI of 2013 on Electoral Procedure, and Article 2 § 1 of the Fundamental Law. Relying on previous Guidelines issued in 2014, it held that voters could not treat ballot papers as their own [property], and therefore could neither take them out of the polling booths nor take a photograph of them. It held that taking photographs of ballot papers could lead to electoral fraud. Furthermore, although the principle of secrecy did not create any obligation on the voters’ side, it nevertheless did not entitle them to abuse their situation, bearing in mind that voting secrecy could be maintained only with their cooperation. The NEC concluded that the mobile application was capable of discrediting the work of the electoral bodies and the tallying systems in the eyes of the public. 22.     The MKKP sought judicial review of this decision before the Kúria. As a result, the decision of the NEC had not taken effect by the date of the referendum. 23.     On 2 October 2016 the referendum on the European Union’s migrant relocation plan was held. The mobile application in question was available throughout polling day and altogether 3,894 photos were shared on it. It appears from the case file that the photographs were not made available anywhere other than on the mobile application. 24.     On 3 October 2016 the same private individual (see paragraph   20 above) lodged a new complaint with the NEC, in the light of the fact that the MKKP had activated the “Cast an invalid ballot” application on the day of the referendum. The complainant maintained that by operating the mobile application and by encouraging voters to make use of it, the MKKP had infringed the principles of the bona fide exercise of rights and the exercise of rights in accordance with their purpose, and also the principles of fairness and secrecy of elections. 25 .     In a decision of 7 October 2016 the NEC reiterated its previous finding and fined the political party HUF 832,500 (approximately EUR   2,700). The NEC supplemented its previous reasoning by noting that providing voters with a mobile application and calling on them to upload and publish photographs of ballot papers , and encouraging them to cast an invalid ballot could have influenced voters and had thus constituted unlawful campaigning. 26 .     By a decision of 10 October 2016 the Kúria upheld the NEC’s decision of 30 September 2016 as to its finding regarding the infringement of the principle of the exercise of rights in accordance with their purpose, but dismissed its conclusions regarding the fairness of the referendum. The decision contained the following passages: “... The request for review The petitioner has lodged a petition for review of the decision of the National Election Commission, requesting that the decision be set aside and the complaint be overturned. In its view, the decision violates Articles 2 § 1 and IX § 1 of the Fundamental Law and section 2(1)(e) of the Electoral Procedure Act. The petitioner pointed out that it was for the complainant to prove that the application was illegal, and that since he had failed to do so, the complaint should have been rejected without examination on the merits. The NEC did not examine the application, basing its findings on press releases. The petitioner attached the application on an external device and argued that neither it nor the developer of the application could have access to the personal data of the users; the data transferred could not be linked to a user and therefore did not constitute personal data. The Guidelines [of the National Election Commission] did not have binding force and could not constitute a legal basis for the decision. According to the petitioner’s reasoning, its conduct in providing publicity for the application and calling on voters to use the application fell on the one hand within the sphere of protection of freedom of expression, and on the other hand called on voters to exercise their right to freedom of expression, protected by Article IX § 1 of the Fundamental Law. The right to freedom of expression was not an unlimited fundamental right. However, regard being had to a number of Constitutional Court judgments, it could only be restricted in so far as necessary and proportionate in relation to another fundamental right or constitutional principle, and any restriction should be capable of achieving the stated aim. The secrecy of the vote had not been infringed by the application since the content of the vote could not be linked to the voter. The secrecy of the vote entailed the right for voters to ensure that no one could gain knowledge of how they had voted, but it did not create an obligation for voters not to share details of their vote with others. Irrespective of the above, the application, which provided a forum for voters to share the content of their vote with others, was incapable of infringing the secrecy of the vote. Therefore, in the petitioner’s view, the application did not infringe Article   2 § 1 of the Fundamental Law or section 2(1)(a) and (e) of the Electoral Procedure Act. ... According to the petitioner, the NEC did not give reasons in its decision for finding that the application was particularly likely to shake public confidence in the IT and tallying system for voting and in the work of the electoral bodies. ... The decision of the Kúria and its reasoning The NEC was right to find that the application enabled users to upload data in connection with the referendum of 2 October 2016; the information published on the petitioner’s website and Facebook page called on voters to post photographs and other information on the application. The subject-matter of the review is the decision of the NEC coming within the scope of the petition for review, that is, the decision finding that calling on voters to upload and publish photographs of ballot papers from the national referendum on a mobile application infringed the secrecy of voting, the fairness of the voting and the bona fide exercise of rights in accordance with their purpose. The complainant attached to his complaint as evidence the information about the application published on the petitioner’s website and on the websites hvg.hu and index.hu. The reviewing court thus finds that the complainant fulfilled his obligation to adduce the requisite evidence in support of his complaint. The NEC adequately clarified the underlying facts, and did not violate section 43(1) of the Electoral Procedure Act. The Kúria emphasises at the outset that the Guidelines do not constitute a legislative act and do not have binding legal force under section 51(2) of the Electoral Procedure Act; thus, they are irrelevant for the legal assessment of the present case. Although the NEC relied on the Guidelines in taking its decision, the latter should be assessed on its own, applying the relevant provisions of the Fundamental Law and the Electoral Procedure Act to the facts of the present case. Pursuant to Article 2 § 1 of the Fundamental Law, Members of the National Assembly are elected by universal and equal suffrage in a direct and secret ballot, in elections which guarantee the free expression of the will of the voters in a manner laid down in a cardinal Act. In the view of the reviewing court, the secrecy of voting (voting rights) as regulated by Article 2 § 1 means, firstly, that the right of all voters to a secret vote – not detectable by anybody –- must be secured. Secondly, a system must be developed that does not make it possible to establish how a voter has cast his or her ballot. The Kúria does not agree with the reasoning of the impugned decision according to which the application and its functions – and in particular the uploading of photographs, the sending of messages, the participation in voting, and the sending of notifications by voters – were openly aimed at infringing the secrecy of the vote and the referendum. The provisions of the Act on Initiating Referenda, the European Citizens’ Initiative and the Referendum Procedure, and of the Electoral Procedure Act, as well as the procedural rules on voting, clearly ensure that voters cast a secret ballot. The application attached to the present petition does not allow access to the personal data of the users, and is thus incapable of linking a cast ballot to a voter. The NEC reached the same conclusion. In the light of the above, the secrecy of the ballot was not infringed by the application or by the use thereof, and the NEC’s decision to uphold the complaint in that respect was unlawful. According to section 2(1) of the Electoral Procedure Act, the following principles shall prevail in the application of the rules of electoral procedure: (a) the protection of the fairness of the election; (e) the exercise of rights in good faith and in accordance with their purpose. The provisions relevant to voting are contained in sections 168-186 of the Electoral Procedure Act. Under section 180(1) of the Act voters must be provided with a polling booth in which to mark their ballot papers. Under section 182(1), the voter must put the ballot paper in an envelope and place it in a ballot box. Section 186(1) states that a valid vote can be given only to the candidates or lists whose names are printed on the official ballot paper. In the Kúria’s opinion – contrary to the reasoning of the NEC – the taking of photographs of ballot papers in the polling booth does not infringe the secrecy of voting and elections. There is no legislative act that forbids the taking of such photographs and the NEC was likewise unable to name any such provision. As stated above, the exercise of secret voting is twofold, and the taking of photographs does not infringe the secrecy of ballots and does not allow a cast ballot to be linked to a voter. The next question to be decided in the present case is whether calling on voters to upload their ballot photographs to the application and managing that application infringed the secrecy of the ballot and the bona fide exercise of rights in accordance with their purpose. According to the established case-law set out in Kúria decision no.   Kvk.IV.37.359/2014/2, the exercise of rights in accordance with their purpose is an obligation emanating from the principle of civil law concerning the prohibition of abuse of rights, to be applied in the whole legal system. This means that rights are to be exercised by their holders in conformity with their aim and content. Only such exercise of rights is protected by law, where besides the formal entitlement the real content of the right can be recognised. Thus, an infringement of the exercise of rights in accordance with their purpose amounts to more than establishing an infringement of rights: the intention to abuse the content of a legal institution under the guise of lawful conduct must be recognisable. The reviewing court attaches particular importance to the role and use of ballot papers in the electoral process. A ballot paper clearly serves the purpose of allowing voters to express their opinion on a question put to the vote; any use of ballot papers contrary to this purpose infringes the principle of the exercise of rights in accordance with their purpose. Accordingly, the application in question and the petitioner’s conduct in calling on voters to take photographs and publish them through the application also constitute an infringement of that principle. Under Article IX § 1 of the Fundamental Law everyone has the right to freedom of expression. The Constitutional Court established in its decision no. 30/1992 (V.26) AB that the State may have recourse to the restriction of fundamental rights if the exercise of another fundamental right or freedom or the protection of any constitutional value cannot be achieved by other means. Thus, it is not enough that the restriction is imposed in order to protect another fundamental right or freedom or for any other constitutional aim; it is also necessary for the restriction to be proportionate, that is, for the importance of the intended aim and the gravity of the violation of the fundamental right to be in balance with each other. The legislature must choose the least restrictive measure that is adequate to achieve the intended aim. Any restriction of a right that does not serve a pressing need or is arbitrary, or any restriction that is disproportionate to the aim, will be unconstitutional. The reviewing court emphasises that its reasoning regarding the exercise of rights in accordance with their purpose does not infringe voters’ right to freedom of expression. In the present case the right of voters to freedom of expression in the context of voting is twofold. Firstly, they express their opinion on the question put to a vote by casting their ballot; secondly, they have the option to share the way they have voted with others orally, in writing, or in any other way, for example on social media or other websites. The Kúria finds that the application is in breach of the principle of the exercise of rights in accordance with their purpose not because it enables voters – without them being individually recognisable – to publicise the way they have voted, but rather because of the manner in which it enables them to publicise it, namely through the taking and uploading of ballot photographs. The petitioner’s conduct was therefore in breach of the exercise of rights in accordance with their purpose. However, the breach was not of a degree of gravity that would entail an infringement of the principle of protection of fair elections as set forth in section 2(1)(a) of the Electoral Procedure Act. The breach had no material impact on the fairness of the national referendum. The Kúria also examined whether the petitioner’s conduct infringed the principle of the bona fide exercise of rights. In this context it emphasises that developing the application and calling on voters to use it does not infringe the principle of the bona fide exercise of rights. No malicious intent of the petitioner has been proven and the decision of the NEC does not contain any substantive argument in this regard. The Kúria does not agree with the NEC’s reasoning according to which the application is particularly liable to shake people’s confidence in the IT and tallying system for voting. The NEC did not provide any substantive argument in this regard. Likewise, in the Kúria ’s view, there is no aspect of the application or of the call to voters to use the application that would be capable of shaking public confidence in the work of the electoral bodies. Taking ballot photographs does not enable electoral fraud. The decision of the United States Court of Appeals submitted by the petitioner shows that the sharing of ballot photographs has been the subject of litigation in the United States as well. However, this is irrelevant in the present case. Under section 231(5)(b) of the Electoral Procedure Act, the Kúria hereby amends the NEC’s decision as set out in the operative part. The only reason to uphold the complaint is that the conduct of the petitioner was in violation of section 2(1)(e) on the principle of the exercise of rights in accordance with their purpose. The Kúria upholds the requirement for the petitioner to refrain from further unlawful conduct. ...” 27 .     By a decision of 18 October 2016 the Kúria upheld the NEC’s decision of 7 October 2016 in part. It reduced the fine to HUF 100,000 (approximately EUR 310). It relied on essentially the same reasoning as above, adding the following: “... The petitioner lodged a petition for review against the decision of the National Election Commission requesting, firstly, that the decision be set aside and the complaint be overturned and, secondly, the setting-aside of the finding of a violation of section 2(1)(e) of the Electoral Procedure Act, as well as the setting-aside of the fine imposed. In the petitioner’s view the decision infringes Articles 2 § 1 and IX § 1 of the Fundamental Law, sections 2(1)(a) and (e), 47(2) and 218(2)(d) of the Electoral Procedure Act, section 79 of the Referendum Act and sections 223(3)(b) and 219(1) of the Electoral Procedure Act. .... The petitioner also pointed out that in reviewing NEC decision no. 118/216, the Kúria only found that section 2(1)(e) of the Electoral Procedure Act had been infringed and not any other provision. It requested that the Kúria ’s reasoning be taken into account. The petitioner also complained about the fine and considered the standard applied in imposing the fine to be unlawful. In its view, it had not been penalised for violating the campaign regulations, since the decision [of the NEC] had not established that calling on voters to cast an invalid ballot was unlawful. The NEC had merely established that the name of the application was capable of influencing voters’ choice; therefore, no fine could be imposed for any possible unlawfulness. The assessment of the amount of the fine by the NEC was also erroneous, in the petitioner’s view. Since the Kúria had already found that the finding of unlawfulness in NEC decision no. 118/2016 was erroneous, no such unlawfulness could be established in the present case either. In the petitioner’s view, the method it used to express an opinion was not unlawful to an extent that would justify the imposition of a fine. The fact that it did not comply with NEC decision no. 118/2016 could not serve as the basis for a fine, since the decision was not final or legally binding. ... During the campaign preceding the referendum of 2 October 2016 on the question “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?”, as initiated by the government of Hungary, the campaigning not only addressed the way in which the question was to be answered, but also the question whether to vote or to abstain from voting ... Based on the above, developing and providing voters with a mobile application encouraging them to cast an invalid ballot is likely to influence voters’ choice. Under section 140 of the Electoral Procedure Act, campaign material is any material that is likely to influence, or attempts to influence, voters’ choice; this is true also of the present mobile application. Under section 141 of the Electoral Procedure Act campaigning activity is any activity using campaign material during the campaign period, and any other activity likely to influence or attempting to influence voters’ choice during the campaign period. The NEC rightly established that the petitioner carried out campaigning activity during the campaign period as provided for in section   139 of the Electoral Procedure Act. The Kúria further examined whether the fine had been imposed in accordance with section 218(2)(d) of the Electoral Procedure Act. The Kúria emphasises that the general principles and rules of the voting procedure must be respected also when carrying out campaign activities. It does not share the observation of the applicant in relation to campaign activities to the effect that in the present case no fine could be imposed for the manner in which an opinion had been expressed. The applicant in the present case was not fined solely because of the manner in which an opinion had been expressed. The campaigning activity had been carried out contrary to the principle of exercise of rights in accordance with their purpose as enshrined in section 2(1)(e) of the Electoral Procedure Act. Therefore, imposing a sanction was in compliance with section 218(2)(d) of the Electoral Procedure Act. ...” 28 .     The MKKP lodged a constitutional complaint under section 27 of the Constitutional Court Act against the Kúria decisions of 10 and 18   October 2016. The complaint contained the following passages:   “The complainant developed the application in question, available through the application stores Google Play (Android) and Apple Store (iOS), with a view to the referendum held on 2 October 2016. The application was developed as a response to the spreading of new communication channels on social media. Nowadays, it is common for citizens to express their experiences, thoughts and opinions by sharing photographs taken with their mobile telephones on various websites (Facebook, Instagram, Tumblr, blogs). In the course of elections this manifests itself by citizens taking ballot photographs and sharing them with others on social media. In developing the application the complainant’s intention was to secure the possibility for voters to exercise their right to freedom of expression by anonymously sharing a photograph of their ballot papers (or, in the case of those who did not participate in the referendum, a photograph of the activity they were otherwise engaged in) and a related comment in a manner that did not allow the cast ballot to be linked to the voter him or herself. ... In the complainant’s view, the interpretation by the Kúria and the legal consequences of that interpretation infringed its rights under Article IX § 1 of the Fundamental Law and is therefore unconstitutional. The aim of taking photographs of ballot papers and sharing them with others is for voters to express a viewpoint on a matter of public interest; therefore it falls within the scope of freedom of expression, and in particular the salient aspect of the discussion of public matters. Therefore, the complainant’s own conduct in enabling the exercise of voters’ right to freedom of expression also falls within the sphere of protection of Article IX § 1 of the Fundamental Law. ... In the complainant’s view the purpose of the object shown on a photograph cannot serve as the basis for a constitutionally justified restriction on freedom of expression, exercised through taking photographs and sharing them with others, since such a restriction does not have a legitimate aim and it is not absolutely necessary. ... The purpose of the object shown on a photograph is not a fundamental right or a constitutional value; therefore, it cannot serve as a legitimate basis for restricting a fundamental right. That is to say, it does not fulfil the conditions required for the restriction of a fundamental right. ... In the complainant’s view the impugned decision of the Kúria restricts, without a constitutional basis, its conduct falling within the ambit of freedom of expression, by restricting voters’ right to freedom of expression. ... The complainant notes that it is common practice among voters to share their ballot photographs – like other aspects of their lives – with their friends and third parties on social media. Given the features of social media, this type of photograph-sharing links the cast ballot with the voter, since the photograph appears under the name of the user. By contrast, the application in the present case explicitly provides a possibility for individuals to share ballot photographs, and the content of their vote, with others without revealing their identity; therefore it is even less liable to breach the secrecy of the ballot than photographs shared on Facebook or other social media. If the development and advertising of the application were declared unlawful, this would result in voters sharing their ballot photographs on social media in a manner linking them with their vote, which would increase rather than decrease the hypothetical likelihood of electoral fraud.” 29.     On 24 October 2016 the Constitutional Court issued two decisions, declaring both the complaint against the Kúria’ s decision of 10 October 2016 (decision no. 3226/2016 (XI.14) AB) and the complaint against the Kúria ’s decision of 18 October 2016 (decision no. 3227/216 (XI.14) AB) inadmissible and employing identical reasoning, as follows: “The Constitutional Court rejects [declares inadmissible] the constitutional complaint lodged against decision no. KvK.II.37.967/2016/2 of the Kúria . ... According to section 56(1) of the Constitutional Court Act, the Constitutional Court, sitting as a committee, decides on the admissibility of constitutional complaints. The committee, within its margin of appreciation, examines the statutory procedural and substantive conditions of admissibility of a constitutional complaint, and in particular the issues of victim status, the exhaustion of remedies under sections 26-27 and the conditions laid down in sections 29-31. Firstly, the Constitutional Court examined whether the constitutional complaint fulfilled the formal and procedural conditions. ... Secondly, the Constitutional Court examined whether the constitutional complaint fulfilled the substantive conditions under sections 27 and 29. Under section 27 persons or organisations affected by a judicial decision may submit a constitutional complaint to the Constitutional Court if the decision on the merits or any other decision terminating the judicial proceedings infringes a fundamental right of the complainant and if the complainant has exhausted available remedies or there were no remedies available. The Constitutional Court has established that the constitutional complaint does not fulfil the conditions laid down in section 27(a), that is, the impugned judicial decision does not concern a fundamental right of the complainant. The complainant submitted in its constitutional complaint that ‘the impugned decision of the Kúria restricts, without a constitutional basis, its conduct falling within the ambit of the exercise of the right to freedom of expression, by restricting voters’ right to freedom of expression’. ... In the present case the Constitutional Court needs to decide whether the decision establishing the unlawfulness of the ‘Cast an invalid ballot’ application developed by the complainant, a political party, and ordering the applicant to refrain from further unlawful behaviour, concerned the complainant’s right to freedom to express opinions, as described above. ... The Constitutional Court shares the view of the Kúria that the present case concerns voters’ right to freedom of expression. However, in the view of the Constitutional Court, this does not mean that the right of the complainant to freedom of expression was also the subject of the judicial proceedings. In the view of the Constitutional Court the complainant, by means of the application, merely provided a possibility for voters to share with each other their ballot photographs or their abstention from the referendum, in the exercise of their right to freedom of expression. Thus the complainant simply provided a forum, an interface where opinions could be published; this in itself does not mean that the complainant itself expressed its opinion. The complainant merely maintained that the impugned decision of the Kúria restricted voters’ right to freedom of expression and thus also concerned its own conduct, which in turn fell within the ambit of the exercise of freedom of expression. Thus, it relied only on an indirect infringement of its right to freedom of expression, alleging that the restriction of voters’ right to freedom of expression also infringed its right to freedom of expression. Based on the above, the Constitutional Court finds that the complainant requested the setting-aside of the impugned decision of the Kúria by relying on a violation, not of its own fundamental rights, but of the rights of others. Therefore the complaint does not fulfil the condition set out in section 27(a). In the light of the above, the Constitutional Court rejects the constitutional complaint pursuant to section 56(1) and (2) of the Constitutional Court Act and Rule   30(2)(h) of the Rules of Procedure.” 30.     In a dissenting opinion, Judge Czine took the view that the case raised issues of constitutional importance. She commented as follows: “I do not agree with the decision rejecting the constitutional complaint, for the following reasons. In my opinion the substantive conditions, in particular those under sections 27 and   29, were met in the present case, since the arguments submitted concerning both the right to freedom of expression and the principle of the exercise of rights in accordance with their purpose under section 2(1)(e) of the Electoral Procedure Act raise doubts about the constitutionality of the judicial decision. They also render it necessary to examine a question of fundamental constitutional importance. ... In the present case the National Election Commission established, based on the available evidence, that the complainant had ‘encouraged voters to take photographs of valid and invalid ballot papers in the course of the referendum and to publish them on the application, thereby sending a message to the Government’. The complainant clearly argued in its constitutional complaint that ‘by making the application available its intention was to provide a possibility for voters to exercise their right to freedom of expression by taking and anonymously sharing photographs of ballot papers, or in the case of those who decided not to participate in the referendum, photographs of the activities they were engaged in instead of voting’. According to the complainant, its conduct in enabling the exercise of voters’ right to freedom of expression falls within the sphere of protection of Article IX § 1 of the Fundamental Law. In my opinion, in the present case, it is a question of fundamental constitutional importance whether the impugned judicial decision restricted the right to freedom of expression and whether the principle of the exercise of rights in accordance with their purpose under section 2(1)(e) could serve as a constitutional ground, within the meaning of Article I § 3 of the Fundamental Law, for restricting the right to freedom of expression. In the light of this, I considered it necessary to declare the constitutional complaint admissible and to examine it on its merits.” RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law Act CCXXXVIII of 2013 on Initiating Referenda, the European Citizens’ Initiative and the Referendum Procedure 31.     T he relevant provisions of this Act provide as follows: Chapter I General provisions Section 1 “(1) The general provisions of Act XXXVI of 2013 on Electoral Procedure ... shall apply – with the differences included in this Act – to the procedures falling within the scope of this Act. (2) The National Election Commission may issue guidelines for the electoral bodies in order to ensure a unified interpretation of the legal provisions relating to the procedures regulated by this Act.” Act XXXVI of 2013 on Electoral Procedure 32 .     T he relevant provisions of this Act read as follows: The basic principles of electoral procedure Section 2 “(1) The following principles shall prevail in the application of the rules of electoral procedure: (a) the protection of the fairness of the election; (b) voluntary participation in the election procedure; (c) equal opportunities for candidates and nominating organisations; (d) support for voters with a disability in exercising their right to vote; (e) the exercise of rights in accordance with their purpose and in good faith; (f) the publicity of the electoral procedure. ...” Guidelines Section 51 “(1) The National Election Commission may issue guidelines to electoral bodies with a view to ensuring the uniform interpretation of legislation relating to elections. (2) The guidelines shall not be legally binding; they shall serve exclusively as guidance, and no appeal shall lie against them. (3) The guidelines shall be published on the official website of the elections.” Campaign period and materials Section 139 “The election campaign period shall last from the fiftieth day before voting until the end of voting on polling day.” Section 140 “Campaign materials shall include all materials which are capable of influencing or which attempt to influence voters’ choices, including espec