CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 novembre 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }       SECOND SECTION Application no. 35493/13 Tibor Jenő SZANYI against Hungary lodged on 27 May 2013 STATEMENT OF FACTS   The applicant, Mr Tibor Jenő Szanyi, is a Hungarian national, who was born in 1956 and lives in Budapest. He is represented before the Court by Mr D. Karsai, a lawyer practising in Budapest. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a Member of Parliament and a member of the largest opposition party, the Hungarian Socialist Party. At a plenary session on 18 March 2013 he showed his middle figure, in the course of his speech, to the members of the right-wing party Jobbik, Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom) to express his opinion about the anti-Semitic remarks allegedly made by the Movement’s members. There is no information indicating whether a sanction was imposed on these latter for their comments. On 25 March 2013 the Speaker initiated disciplinary proceedings against the applicant, submitting a proposal to the plenary to fine him 131,410 Hungarian forints (HUF – approximately 450 euros (EUR)) for using a blatantly offensive expression. The decision in this regard was adopted by the plenary on 28 March 2013. On a subsequent date the applicant submitted an interpellation request to the Speaker, addressed to the Minister of National Development, concerning the recent publication of the winners’ list for the tender to own licences for selling tobacco products. His request was dismissed by the Speaker on 6   May 2013, with the reasoning that the interpellation contained statements that were injurious to the prestige of Parliament and inadmissible in a democratically functioning system. The proposed interpellation reads as follows:     “Honourable Minister, The nation has acquired a few thousand tobacconists. They have most of the dough [1] ; more precisely FIDESZ’s [2] pals and cronies have it. The mafia-government cannot be bothered that several thousands of petrol station keepers, grocers, newsagents or real tobacconists have lost their living. Tobacco retailers have not had a significant margin, exactly 4 per cent. This was just enough to cover the overheads, although the costs of the lease of the shop and of the wages of the employees had to be generated beyond this profit. It has been the State that got the real profit through the excise tax and the VAT. What is happening now? More or less, every twenty tobacco retailers will go bankrupt and be replaced by one, that is, instead of every twenty retailers, one tobacconist will have the concentrated profit. However, the newly introduced 10 per cent – some say, even 12 per cent – profit, now predominantly awarded to the cronies, will result in a situation in which the [new] “national” tobacconists will have fifty-sixty times higher profit than was usual. Multiple profit for the pals and the cronies! This is real big-time dirty business ( disznóság )! Tobacco licences are, in Europe, normally the privilege of those with impaired working abilities. Why? Because this work requires the least mobility, it is locally done and not too complicated. The government have finished off this tradition by destroying tens of thousands of small Hungarian enterprises. Instead, they give virtually all the opportunities to their obese pals, who can now freely select their underpaid dummy employees among the freshly expropriated losers. The government’s trust of lies is meanwhile disseminating their false sermon. But there is no point in lying; the tens of thousands who have lost their living and their families will not be deceived. But I am going even further. There is almost no one in this country who would believe your nasty talk. Not even yourselves, since you are perfectly aware that you are legislating in order to steal. You have sacrificed tens of thousands of Hungarian employments in order to be able to freely abuse the State monopoly. In this respect, your Hungary is indeed performing better than any previous regime. I am asking therefore the Honourable Minister: are you not burning with shame? And if so, are you then planning to surrender the power and duly hide your head? Or else are you planning to continue looting the country completely shamelessly ( pofátlanul ), to borrow your vocabulary? I am awaiting your lame attempt to explain all this.” The applicant submitted a further interpellation request on the same topic, which was again dismissed by the Speaker on 27 May 2013. This interpellation reads as follows: “Honourable Minister, The recent weeks were mostly about you distributing tobacco licences. To benefit from that, one basically needed to be right-wing, extreme-right-wing. But to get the golden prize of the juicy retail spots possibly generating millions per day, one needed to belong to, one way or another, the jamboree of buddies of the local FIDESZ-chieftains. To win, you did not even need to have business premises. Originally, it was sufficient to undertake to sell tobacco and to adore FIDESZ. In exchange and ex post facto , you have increased the profit rate and, at the same time, prohibited tobacco selling anywhere else, destroying tens of thousands of shops and their employees, under the slogan “let the strong live and the weak perish”. You, a mercenary of FIDESZ, are apparently eager to keep serving the other projects of FIDESZ as well, that is, what you can buy in these [new] shops will include, in addition to tobacco, alcohol, gambling tickets, newspapers and even things to lick. The category of “things to lick” seems still to be open, but one can fear that whatever you can buy in these “ Sipahi -shops”, such as tax-free spirits, will be prohibited elsewhere. Amongst these, I am sure, you will consider sex toys, common horse-riding equipment, and, to please your [extreme-right-wing] friends, maybe penis pumps as well or those dance bars around which naked strippers jerk. I am asking you: have you calculated the damage you are causing to provincial Hungary through this operation? Will the licences issued be sufficient for the mayors and MPs of FIDESZ, reduced to a dummy existence after the falling down? Do you believe that the democratic forces winning the 2014 elections will allow your failed teams to continue operating on these looting fields? My previous, prohibited question also targeted this issue: are you not burning with shame? Since then, the answer has become clear: no, you are not, because you have already been shamelessly, or to use your favourite expression, barefacedly been playing games with the livelihood of Hungarian citizens. You could push anyone into misery; you have taken away even the allowances of the most miserable, those disabled – just to be able to stuff your mafia feeding on public procurement. I am asking therefore another question: are you ready to rush voluntarily into History’s garbage dump, or do you want first to try your luck with the bold game called “power or prison”? I am waiting for you reply!” No remedy lay against the impugned decisions. COMPLAINTS The applicant alleges that the decisions to fine him and to ban his interpellation violated his right to freedom of expression under Article 10 of the Convention, since they did not serve a legitimate aim and were disproportionate. He claims that declaring interpellations inadmissible for the protection of Parliament’s prestige constitutes censorship and deprives the Members of Parliament of the possibility to express their opinion on issues of public interest. He further maintains that under domestic law no remedy lay against the decision of the Speaker, in violation of Article 13 of the Convention read in conjunction with Article 10. Finally, he submits that the measures targeted him as a member of the opposition party, constituting discrimination on the ground of political affiliation, in breach of Article 14 read in conjunction with Article   10.           QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention, in particular having regard to his role as an elected Member of Parliament in participating in debates of public interest and scrutinizing decisions of the Government? If so, did the interference pursue a legitimate aim and was it necessary in terms of Article 10 § 2? Did the applicant enjoy adequate procedural safeguards to know and challenge the reasons for the limitation on his right to freedom of expression (see Lombardi Vallauri v. Italy , no.   39128/05, § 46, 20 October 2009)? Were the scope and the reasoning of the impugned measure sufficiently clear and well-defined, especially in terms of foreseeability of the sanction imposed on the applicant?   2.     Did the applicant have an effective remedy for the alleged violation of his freedom of expression, in accordance with Article 13 of the Convention read in conjunction with Article 10, in view of the fact that the domestic law does not foresee any redress against the measure in question?   3.     Has the applicant suffered discrimination in the enjoyment of his right to freedom of expression on the ground of his political beliefs, contrary to Article 14 of the Convention read in conjunction with Article 10, given that only opposition members were subjected to disciplinary measures and restrictions due to the content of their statements?   4.     The Government are requested to provide information on comparable interferences with the freedom of expression of Members of Parliament in the Member States of the Council of Europe.         [1] “ Dohány ” in the original Hungarian, literally meaning “tobacco’’ but being as well an informal expression for cash. [2] The governing party.