December 05, 2023
by Ignatius Yordan Nugraha
Does the right to freedom of expression imply the right to use posters in parliament to strengthen the point of your expression? In Ikotity and Others v. Hungary, notified in writing on 5 October 2023, the European Court of Human Rights (ECtHR) seems to be sceptical of such a conception. At best, the Court considers the use of posters as a manner of expression that is subject to extensive restriction, particularly in parliamentary premises, since orderly parliamentary proceedings are deemed indispensable for the efficiency of the democratic process. Thus, when the applicants in this case were denied permission to use posters during interpellation and were then sanctioned for defying that decision, the ECtHR found no violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
This judgment, however, is problematic for two reasons. First, the application of a wide margin of appreciation in this case led to the weakening of the ECtHR’s proportionality test, thus undermining the Court’s potential to instil a ‘culture of justification’ whereby state authorities must always cogently explain every restriction on fundamental rights. Furthermore, the case involves opposition members of parliament (MPs) who sought to gain media attention in the context of significant democratic backsliding. It is questionable whether a wide margin of appreciation is appropriate for such cases.
The case concerned three Hungarian MPs (István Ikotity, Bernadett Szél and Róbert Benedek Sallai) who represented the opposition green party Lehet Más a Politika. On 1 March 2017, in preparation for a parliamentary interpellation, the three applicants asked for permission to use posters to demonstrate the extent of deforestation caused by development plans in Budapest. The House Committee was unable to reach a consensus on the request, which was eventually dismissed by the Speaker of the Parliament who belonged to the ruling Fidesz–KDNP alliance of Viktor Orbán.
Five days later, when a colleague MP was delivering a speech, the three applicants raised three 50 x 60 cm posters that demonstrated the extent of environmental degradation in Budapest. By displaying posters without permission, the applicants breached the Parliament Act. As the House Committee could not reach a consensus on the sanction to be imposed on the applicants, the issue was once again brought to the Speaker. On 16 March 2017, he decided to decrease the salary of the applicants for that month by 100,000 Hungarian forints (around 320 euros).
The applicants contested the Speaker’s decision to the Immunity Committee, which consisted of three Fidesz–KDNP MPs and three opposition MPs. However, as a result of this parity, there was no majority in favour of the applicants’ request. The applicants then asked the Parliament to quash the Speaker’s decisions, but on 3 April 2017, the Fidesz–KDNP supermajority in the Parliament upheld the Speaker’s decisions.
The interference with Article 10 ECHR in this case came in two forms, namely the Speaker’s refusal to allow the applicants to use posters during an interpellation and the sanction imposed on them as a consequence of their defying of the Speaker’s decision. The crux of the matter was whether the interference was necessary and proportionate.
To determine this, the ECtHR identified two main questions. The first is ‘whether the applicable procedure was accompanied by sufficient procedural safeguards’, while the second is ‘whether the refusal of permission and the imposition of a sanction on the applicants for displaying the posters were in themselves disproportionate and thus unjustified’ (para 33). In assessing these two questions, the Court relied on the principles set out by the Grand Chamber in Karácsony and Others v. Hungary, which concerns opposition MPs who disrupted parliamentary proceedings by displaying billboards and using a megaphone.
The ECtHR started by assessing whether the Speaker’s refusal to allow the display of posters was accompanied by sufficient procedural safeguards. In the Court’s observation, the refusal did not concern the substance, but rather the manner of expression, ‘a matter in respect of which the Court’s scrutiny is limited’ (para 34). In light of the principle of the autonomy of Parliament and the wide margin of appreciation accorded to States in matters concerning parliamentary law, the ECtHR held that the parliamentary procedure relating to the use of posters ‘could not be considered to raise an issue under Article 10 of the Convention’ (para 34). This is despite the Court having qualified the Speaker’s refusal to allow the use of posters as representing ‘a prior restraint on the exercise of the right to freedom of expression’ (para 29).
The Court then turned to whether the imposition of sanctions on the applicants was accompanied by procedural safeguards. Referring to Karácsony and Others, the ECtHR held that the procedural safeguards should include, at least: 1) the right of the affected MPs to be heard before the imposition of the sanction, and 2) a statement of basic reasons for the sanction.
In the ECtHR’s observation, the applicants had the right to be heard before the Immunity Committee, and the Committee also issued a reasoned decision for each applicant. The applicants were also able to bring their objection to the Parliament. Thus, the Court was satisfied that the sanctions were accompanied by the minimum procedural safeguards. By contrast, in Karácsony and Others, Hungarian law at that time did not provide any possible remedy for MPs who received a fine for disrupting parliamentary proceedings.
The applicants raised an argument that these procedures are not effective in practice because the opposition would always be outvoted by the two-thirds majority flexed by Fidesz–KDNP. In this regard, the Court pointed out that the Immunity Committee had a parity between the ruling party and the opposition. Furthermore, the ECtHR found no indications that the applicants were treated differently to MPs from the ruling party, or that the sanctions were intended to suppress the opposition. Thus, the Court concluded that there were sufficient procedural safeguards accompanying the imposition of sanctions on the applicants.
Concerning the necessity and proportionality of the interference, the ECtHR asserted that ‘the exercise of freedom of expression in Parliament carries with it “duties and responsibilities” referred to in Article 10 § 2 in order to ensure the effective operation of Parliament’ (para 39). The Court also reiterated the Grand Chamber’s ruling in Karácsony and Others that less scrutiny should be accorded to how parliaments regulate the time, place and manner of speech within their premises. In this regard, the ECtHR found that the interference did not concern the interpellation procedure itself, which ‘constitutes an important minority right that needs special protection in the parliamentary activity of a democracy’ (para 40). Instead, the restriction only affected the use of posters during such a speech.
The Court then observed that national parliaments are better placed than international judges in determining the necessity of a restriction that could disturb order during parliamentary debates. The ECtHR further asserted that national parliaments have both a wide margin of appreciation and the autonomy to regulate the manner of expression within their premises.
In relation to this, the Court observed that the applicants’ request to use posters was not granted because they were not deemed necessary for understanding the content of the interpellation speech or expanding its meaning. While the Parliament Act has been interpreted in a restrictive manner with respect to the use of presentation tools, ‘it does not appear arbitrary or manifestly unreasonable and there is nothing to suggest that its purpose was other than to ensure the effectiveness of Parliament’ (para 41). Since the applicants had failed to substantiate the necessity of their posters to convey their message, the ECtHR held that the Speaker of the Parliament had not exercised its power in a manner incompatible with the applicants’ freedom of expression.
The ECtHR also considered the applicants’ argument regarding the use of posters to attract media attention, as they had limited access to the audio-visual media in Hungary. In the observation of the Court, the applicants had not demonstrated that displaying the posters during the interpellation was the only way to inform the public. While admitting that ‘non-conventional means of communication’ may be effective to gain media attention, the Court found that such means of communication could obstruct the aim of ‘ensuring the authority and effective functioning of Parliament and hence the efficiency of the democratic process’ (para 43).
Lastly, concerning the severity of the sanction imposed, the Court did acknowledge that the reduction in salary ‘may not have been negligible’ (para 44). However, since Hungary enjoys a wide margin of appreciation in regulating the manner of expression in Parliament, the Court decided to lessen its scrutiny. This is particularly in light of the fact that the applicants still proceeded to violate the Parliament Act, despite their request to use posters having been rejected. For the Court, such conduct ‘could reasonably call for a sanction of a dissuasive nature aimed at maintaining an appropriate standard of political debate within Parliament and ensuring a consistent approach in the handling of cases of disciplinary violations’ (para 44).
Thus, the Strasbourg Court eventually concluded that there was no violation of the right to freedom of expression under Article 10. Additionally, the applicants’ complaint under Article 13 read in conjunction with Article 10, concerning the lack of an effective remedy, was dismissed, due to the overlap with the findings of the Court on the existence of procedural safeguards under Article 10.
In Ikotity and Others, the wide margin of appreciation accorded to Hungary has effectively ‘defanged’ the application of the proportionality test. As a result, the burden on Hungary to provide a cogent justification for restricting the freedom of expression of opposition MPs in Parliament has been significantly lessened. This undermines the Court’s potential to instil a ‘culture of justification’ in Europe.
As argued persuasively by Moshe Cohen-Eliya and Iddo Porat, the adoption of the proportionality test is made possible by the spread of a ‘culture of justification’. Under this culture, it is not sufficient that a measure is enacted in line with the authority bestowed by the constitution. Instead, the legality and legitimacy of a measure are determined by the cogency of the reasons provided by public authorities.
Thus, under the culture of justification, it is not enough that the Speaker of the Parliament is legally authorised to restrict the use of presentation tools during an interpellation speech. The Speaker must also provide cogent reasons as to why such a restriction is rational and reasonable. To put it differently, the restriction must be in the public interest (legitimate aim), have a rational connection with the aim invoked (suitability), be the least restrictive to rights (necessity) and strikes a fair balance between the benefit obtained from the restriction and the harm incurred (proportionality stricto sensu). In comparative constitutional law scholarship, this is called the four-stage proportionality test; by applying this test, courts are effectively pushing state authorities to convincingly elaborate on each of these steps, thus spreading the culture of cogently justifying every state measure.
In Ikotity and Others, because of the wide margin of appreciation and the principle of autonomy of parliament, the ECtHR has not really asked why refusing the use of posters during an interpellation speech served the aim of preventing disorder in Parliament. Worse, the Court even said that parliamentary procedure relating to the use of posters does not raise an issue under Article 10 ECHR (see para 34). As a result, the proportionality test has been weakened: Hungary was not called to provide cogent justifications as to why denying the use of posters would actually help to maintain orderly conduct in parliament. This is particularly problematic because the issue raised by the applicants pertains to environmental degradation, where a picture is worth a thousand words.
With regard to the imposition of sanction after the applicants’ defiance, the proportionality test has also been ‘defanged’ by the wide margin of appreciation accorded to Hungary and the principle of the autonomy of parliament. In this respect, the Court applied the suitability and proportionality stricto sensu tests. However, it refrained from assessing the ‘necessity’ of the sanction imposed, in the sense of whether the reduction of salary was the measure least restrictive to the applicants’ freedom of expression. Furthermore, the application of proportionality stricto sensu itself was not strict, since the Court did not assess whether a fair balance had been struck between the harm incurred by the fine and the benefit obtained in maintaining order in parliament. Instead, it simply observed that the salary reduction was appropriate to have a dissuasive effect.
What is also striking in Ikotity and Others, is how a wide margin of appreciation affected the Court’s assessment of the existence of procedural safeguards. As can be seen in the judgment, the Court has invoked this wide margin to refrain from assessing the existence of procedural safeguards accompanying the Speaker’s refusal to allow the use of posters. Furthermore, with regard to the imposition of sanctions, in assessing the adequacy of procedural safeguards, the Court merely scratched the surface. It was satisfied by the existence of Potemkin safeguards through the possibility to be heard and the basic reasons provided by the relevant authorities. It dismissed the applicants’ concern about the effectiveness of the remedy. This is despite the fact that parity in the Immunity Committee effectively means the Fidesz MPs can always frustrate decision-making. Furthermore, a remedy involving the Parliament is also ineffective given the supermajority wielded by Fidesz-KDNP.
Additionally, the applicants’ argument about raising media attention was not without merit in a country where, as observed by Kim Lane Scheppele, ‘every broadcasting outlet and almost all print media regularly repeated government campaign slogans. The opposition, by contrast, had a hard time getting its message out through the few online news sites.’ Indeed, only three years after Ikotity and his colleagues were sanctioned by the Fidesz speaker, Hungary’s proudly independent online news site, Index.hu, has been captured by Orbán’s cronies. In the context of a state that has experienced significant democratic backsliding since 2010, one may ask whether it is wise for the Court to apply less scrutiny in cases involving opposition MPs, whose room for manoeuvre has been restricted.
Ikotity and Others has shown how a wide margin of appreciation may ‘defang’ the four-stage proportionality test. It led to the ECtHR applying only weak scrutiny to the proportionality of a measure and even refraining from assessing one of its stages altogether. While the Court often grants a wide margin of appreciation to States in cases concerning morally sensitive issues, it is questionable whether less scrutiny should be applied to cases concerning opposition MPs in a state that has experienced a democratic backsliding. As the Strasbourg Court has proven itself to be capable of tackling the challenge of authoritarian populism, it is perhaps time for the Court to step up its game with respect to Hungary.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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