CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 décembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 6 January 2025   SECOND SECTION Application no. 43901/22 HÁTTÉR TÁRSASÁG and AMNESTY INTERNATIONAL MAGYARORSZAG against Hungary lodged on 22 August 2022 communicated on 17 December 2024 SUBJECT MATTER OF THE CASE The applicant organisations, Háttér Társaság (“the first applicant”) and Amnesty International Magyarország (“the second applicant”) are non ‑ governmental organisations. In July 2021 the Hungarian Government initiated a referendum, referring to the interest of child protection. Amongst others the following questions were to be put in the referendum: “Are you in favour of promoting gender reassignment interventions amongst underaged children?” “Are you in favour of publishing sexual media content for underaged children without any restriction, capable of influencing their development?”, “Are you in favour of making gender reassignment interventions available for underaged children?”. The applicant organisations, together with other civil society organisations, initiated a campaign encouraging voters to cast an invalid ballot, considering that the questions put to the referendum were misleading and promoted homophobic policies. The referendum was held on 3 April 2022. In a decision of 8 April 2022 (no. 324/2022), the National Election Commission (“NEC”) found that the first applicant had infringed the principle of exercise of rights in accordance with their purpose ( rendeltetésszerű joggyakorlás ) foreseen in section 2(1)(e) of Act no. XXXVI of 2013 on Electoral Procedure by publishing on its Facebook page posts calling on voters to cast an invalid ballot. The NEC ordered the first applicant to pay a fine of 3,000,000 Hungarian forints (HUF), approximately 7,400   euros (EUR). On the same day the NEC issued another decision (no.   328/2022) finding that the applicant organisations had breached the principle of exercise of rights in accordance with their purpose as they had operated a website urging voters to cast invalid ballots. It did not impose a fine on the applicant organisations in respect of this conduct. The applicant organisations sought judicial review of these decisions. On 13 April 2022 the Kúria dismissed both requests holding that they were not fit for an examination on the merits as the applicant organisations had merely invoked their fundamental rights but not an alleged unlawfulness under Act no.   XXXVI of 2013. The applicant organisations’ constitutional complaint was dismissed on 22 April 2022. On 8 April 2022 the NEC issued another three decisions: 1) in decision no.   227/2022 it fined the applicant organisations and fourteen other civil society organisations to HUF 176,400 (approximately EUR 430) each, for publishing political advertisements in breach of the principle of exercise of rights in accordance with their purpose; 2) in decision no. 325/2022 it fined the second applicant to HUF 3,000,000 (approximately EUR 7,400) for publishing Facebook posts calling voters to cast an invalid ballot, in breach of section 2(1)(e) of Act no. XXXVI of 2013; and 3) in decision no. 329/2020 it held that the second applicant had breached the same provision by publishing on its website a call for casting invalid ballots. The applicant organisations sought judicial review of these decisions as well. On 15 April 2022 two different sections of the Kúria overturned the three latter decisions of the NEC finding that the applicant organisations’ conduct had constituted campaign activity which could not have been restricted on the grounds invoked by the NEC. The applicant organisations complain that the decisions prohibiting and penalising their campaign calling on voters to cast an invalid ballot had violated their right to freedom of expression as provided for by Article 10 of the Convention. The applicant organisations further complain under Article 13 of the Convention that they did not have an effective remedy before the Kúria as their requests for judicial review were dismissed without an examination on the merits, given the existence of inconsistent domestic case-law in identical situations. QUESTIONS TO THE PARTIES 1.     In the light of the applicant organisations’ allegation that the relevant sections of the Kúria applied different conclusions to identical situations, did the applicant organisations have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Specifically, was the principle of legal certainty contained in this provision complied with by the domestic judiciary (see   Lupeni Greek Catholic Parish and Others v. Romania   [GC], no.   76943/11, § 116, 29   November 2016)?   2.     Has there been an interference with the applicants’ freedom of expression, within the meaning of Article 10 § 1 of the Convention?   If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 (see Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, §§   85-116, 20 January 2020)?