August 07, 2013
This guest post was written by Judit Geller and Dezideriu Gergely, European Roma Rights Centre.
In the case of Vona v Hungary, the European Court of Human Rights (ECtHR) openly stood up against racism and hatred when it ruled that if an association’s activities amounts to widespread racist intimidation of a group then the association can be banned lawfully without contravening to the European Convention of Human Rights. This is the first case when the Court ruled on the dissolution of an association under Article 11 of the Convention.
In its judgment delivered on 9 July 2013, the Court found that the dissolution of the Hungarian Guard Association (Magyar Gárda) by domestic courts was a lawful restriction of the applicant’s rights under Article 11 of the Convention. The court made the ruling on the basis that the activities of the Movement, which was part of the Association, included a series of paramilitary rallies in several villages with large Romani populations across Hungary and advocacy for racially-motivated policies, which intimidated the Romani population and violated their fundamental rights. The Court found that the Hungarian authorities were therefore entitled to take preventive measures to protect democracy and ban the Association.
The European Roma Rights Centre (ERRC) intervened in the case arguing that freedoms guaranteed under Article 11 of the Convention could be restricted in order to protect the rights and freedoms of minority communities such as the Roma. The ERRC called attention to the fact that Roma enjoyed special protection under Article 14 of the Convention. The submission further addressed attitudes towards racism in democratic society, the extent of discrimination against Roma, particularly in Hungary, and the obligation of states to protect the rights of their Romani minorities.
An integral part of the Court’s reasoning related to the lawful restriction against the association was based on the fact that the activities of the Hungarian Guard run counter to human dignity and prejudiced the rights of the Romani citizens, members of a minority, which, as highlighted by the ERRC, and in line with the Court’s jurisprudence “have become a specific type of disadvantaged and vulnerable minority […] and therefore require special protection”.
In this post we will try to discuss the main line of reasoning of the Court in this case and highlight what is new in the judgment.
The applicant, Gábor Vona, was the chairman of the Magyar Gárda Egyesület (Hungarian Guard Association) (‘Association’), founded by members of the political party Jobbik Magyarországért Mozgalom (Movement for a Better Hungary) in 2007. The Association, soon after it was created, also founded the Magyar Gárda Mozgalom (Hungarian Guard Movement) (‘Movement’). Guardsmen of the Movement wore military uniforms, including armbands similar to those of Arrow Cross officers responsible for Hungary’s ‘reign of terror’ in 1944-1945. Guardsmen held intimidating military-style rallies throughout Hungary, particularly targeting villages with large Romani populations. Much of their rhetoric centred around protecting ethnic Hungarians from so-called ‘Gypsy criminality’.
The Court rejected the Government’s argument that the application constituted an abuse of rights under Article 17 of the Convention (paras 33-39) citing jurisprudence of the Court relating to freedom of expression. In its reasoning the Court made a clear distinction between cases under Article 10 (freedom of expression) relied on by groups with totalitarian motives and the present case that concerned Article 11, i.e. freedom of association.
When deciding on the merits of the case the Court established that the dissolution was indeed a restriction of Mr Vona’s Article 11 rights, but it was prescribed by law and could be seen as pursuing the legitimate aims of public safety, the prevention of disorder and the protection of the rights of others.
The Court carefully examined the question of whether the interference in the case was ‘necessary in a democratic society’ as required by Article 11(2) of the Convention.
In doing so, the Court recalled its general principles established in settled case law, and referred to the right of creation and operation of political parties (such as United Communist Party of Turkey and Others v. Turkey and Refah Partisi (the Welfare Party) and Others v. Turkey.) The Court however pointed out that while the creation of social organisations and political parties falls under the protection of Article 11, these types of entities are different, at least in one respect. Social organisations, such as the Association in the present case, are distinct from political parties in terms of the role they play in the functioning of a democratic society, and regard has to be paid to the actual influence of such organisations when any danger to democracy is being assessed (see para 56.)
Social organisations are also capable of interfering with democracy ‘if a sufficiently imminent prejudice to the rights of others undermines the fundamental values upon which a democratic society rests and functions. One of such values is the cohabitation of members of society without racial segregation, without which a democratic society is inconceivable.’ (para. 57).
When assessing the necessity of a restriction on the right to associate, the Court noted a distinction between a political party and an association and a movement, given by the political aim and the limited possibilities of national influence in the later case. Therefore in the case of a non-political association the most compelling scrutiny of the necessity of a restriction on the right to associate applies.
However, as to associations with political aims and influence the Court notes that the distinction has to be applied with sufficient flexibility and the level of scrutiny depends on the actual nature and functions of the association in view of the specific circumstances of the case.
What is new?
First of all, this is the first time that the European Court has taken a firm stance against anti-Roma expressions and activities that reflect a race-based opposition and a policy of racial segregation vis a vis the Roma minority. In the present case, while reiterating that even shocking, disturbing or disrespectful ideas cannot be excluded from the protection of the Convention, the Court established as a matter of fact that ‘the activities and expressions of the Movement relied on a race-based opposition of the Roma minority to the ethnic Hungarian majority’ (para. 62) and went beyond the use of peaceful and legal means of articulating political views (para. 66). Similarly, the reliance on paramilitary demonstrations which express racial division and implicitly call for race-based action were considered by the Court to have had an intimidating effect on the Roma, as the activities quite clearly targeted the Roma minority, purportedly responsible for “Gipsy criminality and particularly when they were a captive audience (that is they were effectively trapped in their homes).
The Court further reiterated its view that, a series of rallies organised to keep “Gipsy criminality” at bay by paramilitary parading is capable of implementing a policy of racial segregation (para. 63-70)
Secondly, in the overall circumstances of the case, the Court referred to the fact the State is entitled to take measures restricting the related freedom of association in so far as it is necessary to avert the danger which such large-scale intimidation represents for the functioning of democracy.
Thirdly, the Court specifically stated that a State party to the Convention cannot be required to wait until a political movement takes action to undermine democracy, or has recourse to violence, before it intervenes. In particular, it ruled that States are entitled to take preventive measures to protect democracy if a sufficiently imminent prejudice to the rights of others such as the members of the Roma minority undermines the fundamental values upon which a democratic society rests and functions. One of such values is “the cohabitation of members of society without racial segregation, without which a democratic society is inconceivable.”
By this judgment the highest court of Europe is certainly sending a clear message to today’s European societies that dissemination of racism and intimidating Roma minority members is not tolerated in Europe and that State Parties are entitled to take preventive measures in order to stop such activities.
 Aksu v Turkey [GC], nos. 4149/04 and 41029/04, 15 March 2012, para. 44, See as well Muñoz Díaz v Spain, no. 49151/07, 8 December 2009, para. 60