Decorum without Democracy in the Hungarian Parliament: The Grand Chamber’s Potential Intervention in Ikotity and Others v Hungary

by Dániel Karsai[1] and Viktor Kazai[2]

In October 2023, the European Court of Human Rights delivered its judgment in Ikotity and Others v Hungary and found that the Speaker’s refusal to grant three opposition Member of Parliaments (MPs) permission to use posters during a parliamentary debate, and the sanctions they received for having used the posters without permission, did not violate their freedom of expression. After the landmark Grand Chamber decision in Karácsony and Others v Hungary (2016), this case presented the first opportunity for the Court to examine the slightly amended disciplinary system and its application in the Hungarian National Assembly. Unfortunately, the Chamber arrived at a fundamentally erroneous conclusion because it failed to carry out a thorough analysis of the amended disciplinary system and it applied inconsistently the limitation test. This is why one of the applicants decided to submit a request for referral to the Grand Chamber.

Facts of Ikotity and Others v Hungary and the Findings of the Chamber

In March 2017, three opposition MPs requested permission to use posters during an interpellation delivered by a member of their own parliamentary group. The House Committee did not reach the required consensus to allow the use of the posters, so the issue was referred to the Speaker, member of the ruling Fidesz party, who refused to grant permission. Nevertheless, the applicants held up three posters during the speech of their colleague without causing any disturbance in the House. The speech was addressed to the Government regarding its development plans for Budapest, and the posters contained photographs of city landscapes, prior to and after the environmental degradation discussed in the interpellation (open this link and click on “3:14” to see the video recording of the speech).

The presiding Chair of the session, also a member of Fidesz, initiated disciplinary proceedings against the applicants (H/14774, H/14776, H/14778). The House Committee did not reach a consensus regarding the proposal to impose a sanction on the applicants, so the matter was referred to the Speaker who decided to decrease the applicants’ monthly salary by approximately 320 EUR for a month. The applicants challenged the Speaker’s decision before the Committee on Immunities, and the second applicant, Ms Szél, was even heard by the committee. However, since the committee is composed of an equal number of members from the governing and the opposition parties, and none of the MPs from the governing parties decided in favor of the applicants, the Immunity Committee did not reach the majority required to set aside the Speaker’s decision. Finally, the applicants requested the plenary to overturn the disciplinary sanction imposed by the Speaker. However, the members of the governing coalition parties occupied 131 of the 199 seats in the National Assembly at the material time. Therefore, not surprisingly, Parliament voted, without a debate, to uphold the Speaker’s decisions and the applicants’ remuneration was subsequently decreased.

Having nowhere else to turn in Hungary, the three opposition MPs decided to bring their case to the Court. A few years before, the Grand Chamber had already found in Karácsony and Others v Hungary that the imposition of disciplinary sanctions on MPs without adequate procedural safeguards was contrary to Article 10 of the Convention and laid down several requirements for a disciplinary system to comply with. The regulation of the National Assembly was subsequently amended, and the Ikotity and Others v Hungary case presented the first opportunity for the Court to examine the slightly modified disciplinary system and its application.

The Chamber concluded that neither the procedure for permission to display the posters, nor the imposition of disciplinary sanctions constituted a violation of the Convention. The judges found that the procedural safeguards introduced in the disciplinary system were adequate and the limitation of the applicants’ freedom of expression was not disproportionate.

Reasons to Refer the Case to the Grand Chamber

The Chamber judgment creates the impression that it simply applies the general principles laid down in Karácsony and Others in the somewhat new regulatory context of the disciplinary system. However, a closer look reveals that Ikotity and Others v Hungary requires the intervention of the Grand Chamber again not only because the case raises a serious question affecting the interpretation or application of the Convention but also because it presents several serious issues of general importance. A previous blog post published on Strasbourg Observers gave an excellent critical overview of the judgment, therefore in the remaining part of this article we limit ourselves to highlighting the three most important reasons that would justify the referral of the case to the Grand Chamber.

Firstly, the adjudication of the case by the Grand Chamber is necessary to guarantee the consistency of the Court’s case law. In Karácsony and Others, the Court considered three factors to assess the proportionality of the restrictions of the Applicants’ freedom of expression, namely (1) the nature of the intended expression, (2) the impact on order in Parliament and the authority of Parliament, and finally (3) the process applied and the sanctions imposed. In Ikotity and Others, the Chamber deviated from this limitation test as it completely skipped the analysis of whether, and if so, to what extent had the Applicants’ behavior caused a disorder in Parliament. This would have been very important because, by contrast to the Karácsony case, the applicants in Ikotity did not cause any disorder in the House whatsoever; they just silently held up posters during the speech of the fellow party member. Had the Chamber considered the impact of the applicants’ behavior, it should have concluded that only a less severe sanction would have been justified in the present case due to the complete absence of any disturbance in the House.

Secondly, the Grand Chamber should be given the opportunity to adapt its previous case law to the new situation and to develop new principles for similar cases in the future. Very importantly, in Ikotity and Others, the applicants’ freedom of expression was limited not only by an ex post restraint (imposition of sanctions for the use of posters), but also by a prior restraint (the Speaker’s refusal to grant permission to use posters). The procedural requirements laid down in Karácsony regarding the imposition of ex post sanctions were applied in the present case to prior restraints of the MPs’ freedom of expression. This judicial move presents a significant development in the Court’s jurisprudence without providing a sufficiently detailed analysis of the newly emerged legal issue.

What is more, the Ikotity and Others would be the perfect opportunity for the Grand Chamber to see that the procedural requirements laid down in Karácsony and Others have not actually been implemented by the Hungarian Government. Despite some formal changes in the law, the disciplinary system still does not guarantee any effective procedural safeguards because it was designed in a way to make sure that the ruling party alliance can always apply disciplinary sanctions against the opposition MPs successfully. The decision of the House Committee requires unanimity, so the issue is always referred to the Speaker who is a member of the ruling majority. The Committee on Immunity can aside the Speaker’s decision only if at least one MP from the ruling parties would vote in favor of the concerned opposition MP, which is an unimaginable scenario in the Hungarian Parliament. Furthermore, the plenary is dominated by the ruling coalition parties. In sum, the applicants had as much chance of winning their disciplinary case as a defendant getting acquitted in a political show trial.

Thirdly, the facts of Ikotity and Others disclose the existence of a structural or systemic problem necessitating a substantial change to Hungarian law and practice. In Karácsony and Others, the Grand Chamber emphasised the importance of carrying out a context-sensitive analysis of the facts to see whether the majority abuses its dominant position and thus uses the disciplinary system to the disadvantage of the opposition. However, in Ikotity and Others, the Chamber carried out a very superficial analysis of the amended regulation and its application. Data available on the website of the National assembly show that in the 2014-2018 and 2018-2022 parliamentary terms, 22 and 50 disciplinary procedures (respectively) were initiated, all of them against opposition MPs, and in all cases the plenary maintained the reduction of the MPs’ salary. What is more, although the sanctions were relatively moderate between 2014 and 2018 (ranging between c. 260 EUR and 1 135 EUR), the amounts have drastically increased in the 2018-2022 parliamentary term (ranging between c. 1 100 EUR and 25 600 EUR). In addition, several opposition MPs were repeatedly sanctioned. These figures strongly indicate that the majority has abused its dominant position and the whole disciplinary system has been operating solely to the disadvantage of the opposition. In sum, the regulation and the operation of the disciplinary system reveals a systemic oppression of the opposition MPs by the majority which is detrimental to the state of democracy in Hungary.

Conclusion

The Ikotity and Others v Hungary case concerns members of the opposition, who had to fulfill their duties in a very hostile political and media environment, and who were systematically deprived of any meaningful participation in the legislative process and parliamentary debate. In this situation they expressed their political opinion on subjects of high public importance, by way of using non-verbal speech but without causing any disruption in the working of Parliament. However, they were fined and, despite some formal changes to the law, had no effective remedy against the decision imposing a financial penalty on them.

Neither the applicants in the present case, nor their fellow opposition MPs in the Hungarian National Assembly have any realistic chance to find justice in such situations because the whole disciplinary system operates to their disadvantage. Disciplinary sanctions have become a subtle but effective way of intimidating the opposition. The intervention of the Grand Chamber is crucial because Hungary has been experiencing a systemic erosion of democracy and the rule of law, and without the Court’s help the notion of democracy will soon become nothing but an empty shell.

[1] Dániel Karsai was the legal representative of the applicants in Karácsony and Others v Hungary and he currently represents the applicants in Ikotity and Others v Hungary.

[2] Viktor Kazai served as a legal advisor in Karácsony and Others v Hungary and he currently provides legal advice in Ikotity and Others v Hungary.