The goal of this paper is to investigate, based on Draft Act No. T/707. re-regulating the freedom of assembly, whether the events under the new regulation mean any restriction of the availability of this important pillar of democracies to the citizens, the events permitted by the law still let the citizens to criticise and affect politics by objection. This paper deals with the procedure to be followed if there is a conflict between the fundamental right to privacy and the fundamental right to assemble and wishes to analyse to what extent impairing the right to assembly is justified to protect privacy. Finally, this paper touches upon the new system of the foreseen restricting provisions of the regulation, which are most debated but have not been amended for a long time.
Constitutional and democratic states are characterised by the recognition of human rights and their inclusion in the legal system. Accordingly, constitutional democracies, almost without exception, list the rights all people have in their constitutions.[2]
In Hungary, the cornerstone for the functioning of human rights is in Article I of the Fundamental Law: "The inviolable and inalienable fundamental rights of MAN shall be respected. It shall be the primary obligation of the State to protect these rights. Hungary shall recognise the fundamental individual and collective rights of man." The Hungarian state declared in its constitution, which is at the top of its hierarchy of sources of law, that people have rights that the state did not create but recognises their existence. Fundamental rights are the rights of the individuals, i.e. they focus on the individual and limit the power of the state, abolish state tyranny and ensure the autonomy and freedom of individuals. The right to assembly is a classic, first-generation and collective freedom that was developed as early as in the 18[th] century, and I regularly come across its exercising during my work.
It was Mihály BIHARI who developed the opinion that the right to assembly is one of the most incompletely and most narrowly regulated fundamental right. In a paper I wrote in a similar topic[3], I also concluded that Act III of 1989 on the right to assembly (hereinafter referred to as Right of Assembly Act) is an outdated and incomplete law that did not catch up with the increase in the variety of forms of collective expression of opinion in public space over the past decades. I wrote that the legislative provisions lacked important supplementary rules, the implementing decree of the Right of Assembly Act[4] did not follow the changes either; its disputable and uncertain enforcement was, therefore, almost necessary. Since the entry into force of the Right of Assembly Act at the political changes in 1989-1990, several decisions of the Constitutional Court have formed the interpretation of the law in terms of right to assembly, which required jurisprudence to constantly adjust.
This paper focuses on the interpretation of certain new rules of Act LV of 2018 on the Right to Assembly, born from Draft Act No. T/707., and attempts to highlight the effects of certain of its provisions and the changes compared to the previous regulation.
I think it is not a question that one of the major results and values of the political changes in 1989-1990 is that Hungarian citizens may exercise the right to assembly freely and without limitation. The definition of the content of constitutional principles and the application of the conclusions drawn from them for specific cases caused obvious uncertainties in the practical application of the law in terms of recognising, or non-recognising, the right to as-
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sembly. This "neither meets the requirements of legal certainty under the rule of law nor is in accordance with the constitutional content and requirements of the functioning of the fundamental rights in question".[5]
The forms, nature and purpose of protests and marches changed a lot over the course of history, and I think that the previous Right to Assembly Act, which entered into force on 24 January 1989, accomplished its regulatory goals to a limited extent only. The previous Right to Assembly Act determined primarily the restrictions for exercising the right to assembly, bearing in mind the principle of "everything that is not prohibited is allowed". I have always thought that the amendment of the Right to Assembly Act may not have the purpose of establishing stricter rules for the exercising of the right to assembly. Its purpose must, however, be to make procedural rules clear and precise and to ease the application of law based on the aspects of amending the Right to Assembly Act.
Since the entry into force of the Fundamental Law, the Constitutional Court has identified inconsistencies with the Fundamental Law due to nonaction related to the regulation of the right to assembly in two of its decisions and called the National Assembly to eliminate such nonactions. The most concrete indications for the amendment of the right to assembly were two decisions of the Constitutional Court which were adopted on the same day.
In its first decision, the Constitutional Court established an inconsistency with the Fundamental Law due to a nonaction inconsistent with Paragraph (1) of Article VI of the Fundamental Law.[6] Consequently, the Constitutional Court established that a situation inconsistent with the Fundamental Law had emerged due to a nonaction inconsistent with Paragraph (1) of Article VI of the Fundamental Law; more specifically, because the legislator had not provide regulations and procedural rules for the elimination of conflicts between the fundamental right to privacy and the fundamental right to assembly.
In the other case[7], the decision of the Constitutional Court established an inconsistency with the Fundamental Law on the grounds of nonaction regarding the previous Right to Assembly Act, because, in the view of the Constitutional Court, the current regulatory setting does not guarantee sufficient protection for assemblers, because the guarantee requirements facilitating and ensuring the exercising of the right to peaceful assembly are incomplete. In the view of the Constitutional Court, the rules laid down in the Right to Assembly Act need to be supplemented to ensure in advance the peaceful nature of assemblies and to protect the assemblers. The Constitutional Court has already pointed out that "it is primarily the legislator that should consider the reasonable extent of amending and supplementing the provisions of the Right to Assembly Act with a view to prevent misappropriation and reduce difficulties in the application of the law.[8]" In this case, the Constitutional Court also stressed that the legislator must pay special attention to the functioning of the provisions in Paragraphs (1) and (3) of Article I of the Fundamental Law of Hungary[9] in eliminating the nonactions specified above; in other words, the protection obligation arising from the Fundamental Law must be fulfilled in reviewing the Right to Assembly Act and this may not result in any unnecessary and disproportionate restriction of fundamental rights either.
The call in the 2016 decisions of the Constitutional Court meant that the National Assembly must eliminate the inconsistencies with the Fundamental Law due to nonaction-it should, as a matter of fact, done that in 2016 already-which happened in mid 2018.
After the foregoing, the seventh amendment of the Fundamental Law of Hungary clearly forecasted the alteration of the right to assembly. In the first step, this amendment stated, by modifying Article VI of the Fundamental Law, that "Everyone shall have the right to have his or her private and family life, home, communications and good reputation respected." The reasoning for the amendment explained that "technological development, digitalisation and the increase of media attention pose new challenges to the protection of individual privacy, and regulations must react to them. In the digital age, the protection of privacy does not only mean the protection of the intimate sphere anymore, but also the wider private sphere, family life, home and relationships. The more complex protec-
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tion of privacy was raised to another level of regulation with the adoption of the Fundamental Law. Previously, the Police could only initiate consultation with a view to protecting privacy; they could, however, not ban a protest in advance but could only interfere if the demonstration started to violate privacy. They warned the organiser or the crowd if there was a threat of violation[10] and ultimately scattered the protest. The expression of the general protection of privacy in the Fundamental Law ensures the highest level of legal recognition and also meets the protection ensured in Article 7 of the Charter of Fundamental Rights of the European Union[11]. The constitution-making power recognised the importance of the conflict between the rights to privacy and other fundamental rights; the proposal, therefore, wishes to lay down in the Fundamental Law that the right to respect the privacy, family lives and the homes of others may, amongst others, constitute a restriction to the freedom of expression and the exercising of the right to assembly.
Based on the arguments provided, the second expression of this paragraph of the amendment also laid down that "The freedom of expression and the exercising of the right to assembly may not violate the privacy and family lives and homes of others." According to the detailed reasoning, "the protection of privacy rights includes one's spatial sphere where one lives his or her private and family life. The reasoning also included the position of the Supreme Court of the United States of America, which stressed that the peaceful home is the last resort of tired people, it is the space where people may retire from the everyday bustle[12].
Within the scope of the seventh amendment of the Fundamental Law of Hungary, the legislator deemed it necessary to amend Article VI of the Fundamental Law which, according to the position of the proposer, guarantees an enhanced protection of privacy; the first opinions, however, regarded it as a restriction of the right to assembly.
The general preconception was that the new regulation would let the Police make to many arbitrary decisions, although a well-functioning act should not let the freedom of assembly depend on the "well-meaning" of an authority subordinate to the Government. The functioning of this fundamental right requires without doubt that protests are prohibited in advance only exceptionally and as a last resort; the new grounds for prohibition appearing in the regulation, however, raise the fear-due to the expression "well-founded presumption" (megalapozottan feltehető in Hungarian)- that the Police would prohibit protests based on completely subjective decisions. Some are of the opinion that, though the new regulations in the new Right to Assembly Act settle many debatable issues, the new act still causes much greater uncertainty in many other cases, and the replacement is not by all means justified either.[13] Note that similar issues were raised in connection with the previous (and now so much protected) Right to Assembly Act as well, and the members of the Constitutional Court did not fully agree on the adequacy of its regulations either. In this regard, the relevant motion still stated that this piece of legislation would let the authorities "abusively exercise their powers concerning assemblies" and this would let them prohibit or scatter events.
As regards Draft Act No. T/707. on the right to assembly, the proposer pointed to the difficult situation the current government is in when regulating the right to assembly. The proposer illustrated this with an example in which the Ministry of Interior and the Ministry of Justice elaborated a draft act on the right of association and the right to assembly in 1868; the government, however, not submitted it to the National Assembly. In the submission, the proposer touched upon the possibility that general restrictions may give grounds for the scattering of an assembly; there are, however, no preliminary restrictions to holding it. He was of the opinion that the case law of courts and the Constitutional Court interpreted the grounds for prohibition in a way that ultimate-
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ly rendered them inapplicable, they have basically rendered them obsolete, and the judicial approach eventually became divergent and inconsequent. The court adopted various rulings despite uniform notifications and Police decisions. Sometimes it deemed the prohibition as a proportionate restriction, sometimes it annulled the decision, sometimes it ordered the Police to conduct a new procedure. In his argument for the necessity of the amendments, the state secretary of the Ministry of Justice mentioned that both the relevant international treaties and the assembly regulations of European states usually identify the direct, disproportionate and unnecessary threat to public security and public order as the reason for prohibition[14]. The position of the casuistic and exhaustive regulatory model is that it is a fake guarantee because law-enforcement experience acquired in the past 29 years and the orientation changes in the interpretation of the grounds for prohibition support the statement that their interpretation is not more predictable than public order clauses and the application of relevant tests.
The proposer also mentioned that the proposal
- makes it clear, by also reacting to the seventh amendment of the Fundamental Law, when the violation of the rights and freedoms of others may be established,
- protects the memory of victims of inhumane crimes committed by the national socialist or communist dictatures,
- assists interpretation and lays down guarantee rules to ensure the peaceful nature of assemblies,
- relies on foreign regulations to establish the rules of restrictions ensuring the peaceful nature of assemblies and to prohibit the wearing of protective gears, uniforms and face masks,
- requires that the organiser or leader of the assembly and the police cooperate with each other during organising and holding an assembly,
- eliminates the well-known incompletion of the previous act and establishes rules for competitive and concurrent assemblies,
- changes (in order to fulfil the recommendation of the ombudsman and by relying on foreign examples) the rules of notification and specifies its earliest date as a guarantee, reacts to the new trends related to the right to assembly and the changes in protesting culture,
- allows, under certain conditions, and regulates the so-called urgent and spontaneous assemblies as well as regulates the state's obligation to protect fundamental rights by establishing additional sanctions.
In today's political culture, it is nearly normal that the opposition parties expressed serious criticism and advocacy organisations expressed their deep concerns. There were MPs who said in the general debate that "the draft act is the delirium of a PhD student" and it is designed to prevent all protests and assemblies in Hungary, though this statement remained unexplained. Other MPs (though they made a few positive remarks on the draft act) said that the title of the draft act should be Act on Eliminating the Right to Assembly or Act on Making the Right to Assembly Impossible, because the 24 sections after the first one are about why and how Hungarian citizens may not protest and assemble in Hungary. This MP was of the opinion that the draft act perfectly allows the preliminary prohibition or scattering of any demonstration at any time in a manner compliant with the text of the act. Another MP was of the opinion that it meant the amendment of the last regulation remaining from 1989, which means the total dismantling of democracy and the rule of law[15].
At the final vote, the National Assembly adopted the single proposal with 131 votes in favour, 56 against and no abstention on 20 July 2018. Act LV of 2018 on the Right to Assembly (hereinafter referred to as Right to Assembly Act) then entered into force on 1 October 2018. It must the stressed that the Decree of the Minister of Interior on the detailed rules for dealing with notifications concerning assemblies falling within the scope of the Right to Assembly Act and the implementation of police duties
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related to the securing of assemblies[16] (hereinafter referred to as Decree of the Minister of Interior), which replaced Decree 15/1990. (V. 14.) of the Minister of Interior on the police duties related to the securing of the order of events concurrently with the entry into force of the Act.
According to Paragraph (1) of Section 1, "Everyone shall have the right to organise and take part peacefully and unarmed, together with others, in marches and demonstrations (hereinafter "assembly") without authorisation or, with the exceptions laid down in this Act, without prior notification." The Act sets out that the police have the right to notice, but not the right to approve, a notification[17], meaning that if they do not prohibit the assembly, the organisers are not required to acquire any other police permission to hold it.
The provisions of Section 2 of the new Act define the concept of assembly and were criticised for their specification regarding the headcount and for missing the concept of public space. "For the purposes of this Act, assembly means a public gathering held with the participation of at least two persons for the purpose of expressing opinion in a public affair."
Determination of the minimum headcount for an assembly to be regarded as the exercising the right to assembly used to be a problem in the application of the law in practice. The Hungarian Helsinki Committee expressed its concerns regarding a 2007 draft amendment of the right to assembly act and wrote that "the amendment of the act remains unclear in terms of the minimum number of persons for regarding an assembly, march or protest as falling within the scope of right to assembly; it is, therefore, conceptually still unclear whether the police need to be notified of a single-person demonstration for instance."[18] I think that the regulations have been modernised in this respect as well and are not intended to cover all conversations. The grammatical interpretation of the words "gathering" and "assembling" implies that "assembly" means the presence of multiple persons. The plural form used in the provisions of the previous regulations such as "the participants are allowed to [...] express their opinion" also implies that the Act also assumed more than one participants. It is now clear that the previous practice of the police during "single-person demonstrations" was wrong because-although the behaviour of those involved may be protected by the freedom of expression, which is closely related to the right to assembly, and, agreeing with the position of the United Nations Commission on Human Rights expressed in the Patrick Coleman vs. Australia case (where "the right to assembly may, logically, come into question in relation to the gathering of more than one persons for the same purpose") and the grammatical interpretation and the investigation of the connections in the Right to Assembly Act yields the same result-the per definitionem collective right may not be exercised by a single person[19]. Given that assembly is conceptually missing from single-person demonstrations, as the foregoing implies, these cases are not to be regarded as falling within the scope of the Right to Assembly Act. The Right to Assembly Act clarifies here the principle previously developed in the case-law, more specifically that the joint expression of opinion requires at least two persons, as it was made clear in Decision No. 75/2008. (V. 29.) of the Constitutional Court.
The requirement that the organisation of events in public space, i.e. areas that are accessible to everyone without limitation, must be notified still applies; the assembly authority is, therefore, does not need to be notified of gatherings to be held in non-public spaces. Regarding the matter of public space, the European Court of Human Rights and the Venice Commission previously adopted the position that the right to peaceful assembly includes the right to assembly in both private and public space; the concerns expressed in the general debate[20] are, therefore, in my view, unsubstantiated. Nobody will subject friends chatting next to an open garden gate to the right to assembly.
On account of the concept of assembly, it is important to mention that holding the gathering "for the purposes of expressing opinion on public affairs" is a substantive component of the
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concept. To define "public affairs", we can rely on the interpretations of Decision No. 55/2001. (XI. 29.) and Decision 75/2008. (V. 29.) of the Constitutional Court. According to these decisions, affairs are to be deemed as public affairs if they go beyond the private interests of legal entities governed by private law and are the subject-matter of debate on the state of affairs and issues of general interest.
Religious rituals, events, processions, cultural and sports events and family events usually do not have any assembly features; these gatherings are, therefore, not to be regarded as assemblies. In its Decision No. 28/2014. (IX. 29.), the Constitutional Court declared that the right to assembly in a constitutional sense does not only protect gatherings in public spaces that are deemed as directly political, but also indirectly political gatherings to discuss public affairs in a broader sense. According to the Constitutional Court, gatherings protected by the right to assembly are not limited to conventional gatherings, assemblies, rallies and marches only. Deciding whether a gathering is, as for its purpose, typically an expression of opinion, an expression, dissemination of views to achieve a common goal, a public event or just merely entertainment is key for taking a position on whether a gathering is actually the exercising of the right to assembly.
Although the new law does not enumerate events outside the scope of the Right to Assembly Act; I am of the opinion, agreeing with that of Barnabás HAJAS, that the regulation of exceptions is only valid if the events described in them were assemblies if this exception did not apply. This requirement did, however, not fully function previously as it does not fully function in the Right to Assembly Act[21].
The fact that the legislator does not take out election rallies from the scope of the Right to Assembly Act is, however, a significant change. Family and church events and events with music and dancing also used to be outside the scope of the Right to Assembly Act, as their purpose is not expressing opinion on public affairs. Non-public events are also outside the scope of the Right to Assembly Act. If at least two persons attend a gathering or its purpose is not expressing opinion on public affairs, then Section 17 of Act CL of 2016 on General Public Administration Procedures (hereinafter referred to as General Public Administration Procedures Act) applies, and the assembly authority rejects the request to assess the relevant notification establishing its lack of competence. By contrast, the more differentiated regulation of election rallies was, according to the reasoning of the legislator, indispensable, and the legislator thought that the complete removal of election rallies from the scope of the Right to Assembly Act is not justified.
The regulation stresses that an assembly is public if anybody can freely join it. Free joining by anybody who identifies himself or herself with the goals of the assembly (as the lack of goals would exclude participation) is a conceptual component of gatherings falling within the material scope of the Act. The above-mentioned publicity of the assembly remains, however, unaffected if people can join it at a specific place or time.[22]
Among the new provisions, Paragraph (2) of Section 1 includes the requirement that "An assembly organised at places not classified as public spaces shall require the consent of the owner and user of the property." This Paragraph does not exclude organising assemblies on private areas; this, however, requires the consent of both the owner and the user. There are opinions which deem this a "truly startling restriction" because this would exclude assemblies on private areas opened for the public[23]. This provision indeed renders a demonstration unlawful if the owner and the user do not consent to it. But could owners of private property be obliged to tolerate something like this on his or her own property? The requirement of consent follows from the rights of the owner, as everybody is obliged to refrain from disturbing the ownership/possession of others.[24] Yes, I think that demonstrating by flooding a supermarket car park with melons will not be an option; the other forms of objection, however, still ensure the opportunity of collective expression of opinion. The regulation has, in my opinion, become more modern, as it does not fully lack the regulation and distinction of assemblies held in non-public spaces anymore.
Therefore, having regard to Paragraphs (2) of Section 1 of the Right to Assembly Act, it is the responsibility of the assembly authority to
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determine whether the location indicated in a notification received by it and concerning an assembly within the scope of exercising the right to assembly is actually public space. The interpretation of the concept of public space raised several issues regarding its interpretation and the application of the law. According to the long-applied police practice, therefore, areas subject to the consent to the use of public space lost their "public feature in the sense of Point (a) of Section 15 of the Right to Assembly Act", hence the Police consequently decided that events notified as held there are outside the scope of the Right to Assembly Act; the police, therefore, does not have the competence to assess the event. This practice was put to an end by Decision No. 3/2013. (II. 14.) of the Constitutional Court assessing the justification and lawfulness of agreement on the use of public space[25].
Paragraph (8) of Section 10 of the new Right to Assembly Act, however, defines the concept of public space: "For the purposes of this Act, public space means any piece of land for public use owned by the State or by a local government and registered as such in the real estate register, provided that it may be accessed by any person without restriction, including the parts of public space used as public road or square." The public nature of the assembly location indicated in the notification may either be publicly known or officially known by the assembly authority. According to the conceptual regime of the Act, consent of the owner and the lawful user are required for holding assemblies in public buildings, private buildings or on other property (e.g. fenced-off land). In these cases, the authority should draw the attention of the notifier[26] to the fact that Point (d) of Paragraph (1) of Section 189 of Act II of 2012 on minor offences, offence procedures and the registration system of offences (hereinafter referred to as Offences Act) orders the sanctioning of the behaviour of the person who organises an assembly on a non-public location without the consent of the owner or user of the property as an offence. The Decree of the Minister of Interior has expressed provisions for cases where the right to assembly is exercised illegally in non-public spaces.
Within the meaning of Paragraph (1) of Section 3 "The organiser of the assembly is the person who publicly calls upon the participants to take part in the assembly, announces the assembly (hereinafter jointly "announcement") and who organises and leads the assembly. The name of the organiser shall be indicated in the announcement."
The two key behaviours of the assembly organiser are assembly organisation and the public call to that. Predominantly, the assembly organiser is unequivocally identifiable based on its behaviour. In addition to the call, organisation and, typically, the leading of the assembly are substantive elements of organiser behaviour. The assessment of the above organiser behaviours allows the identification of the organiser, even if the event is not notified to the authorities.[27] The public call during the organisation of the assembly, which also includes the call for assembly, is important in this context. The reasoning of the Act implies the important requirement that assemblies may not be organised anonymously, the call must include the name of the organiser, which is significant for any subsequent determination of liability and obligation to pay compensation and for precisely identifying the contact person[28]. The importance of this provision is implied by the fact that Point (e) of Paragraph (3a) of Section 189 of the Offences Act provides that the behaviour of a person who fails to indicate his or her name in the public call is to be sanctioned as an offence.
According to Paragraph (2) of Section 3, "Announcing an assembly the holding of which has been prohibited by an enforceable decision shall be prohibited." The legislator attached special importance to this prohibition of the non-appealable prohibition decision due to the prevalence of Web 2.0 applications (Facebook, Twitter) which allow the rapid calling of a large number of participants even to prohibited assemblies. The act attaches a legal consequence to the violation of this prohibition in its latter provisions, as the legislative environment provides that a person who calls to participate in a prohibited event or who attends such an event be sanctioned.[29] It is the law-abiding be-
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haviour complying with these provisions why Paragraph (1) of Section 15 of the Right to Assembly Act provides that "The assembly authority shall communicate its decision to the organiser without delay and shall also announce it publicly. In case of doubt, the time of public announcement shall be considered to be the time of communication." This allows people who wish to attend the assembly to be informed of the prohibition.
Within the meaning of Paragraph (3) of Section 3, "The following may be organisers of an assembly:
(a) Hungarian nationals,
(b) persons who have the right of free movement and residence in accordance with the Act on the entry and residence of persons having the right of free movement and residence,
(c) persons who fall under the scope of the Act on the entry and residence of third-country nationals and who have immigrant or resident status or residence permit, or
(d) Hungarian legal persons or other organisations the statutory representative of which complies with the conditions laid down in points (a) to (c).
The new Right to Assembly Act regulates the conditions applying to the organiser by allowing Hungarian legal entities or organisations without legal personality to also be organisers in addition to individuals, if their lawful representatives otherwise comply with the requirements in Points (a) to (c) of Paragraph (3) of Section 3 of the Right to Assembly Act. According to the reasoning to the Act, the significance of the new provision lies, on the one hand, in the fact that the organiser is, especially in case of events with many participants and requiring actual organisation, not an individual but an organisation established on the basis of the right to association ensured in Paragraphs (2) to (5) of Article VIII of the Fundamental Law, the lawful representative of which is, in normal cases, the notifier; i.e. the Act adjusts the regulation of the right to assembly to the actual situation. On the other hand, the secondary and full liability rule for damages of the organiser for any damage caused by participants is easier to enforce against an organisation.
The former Right to Assembly Act did not deal with the right of legal entities to organise assemblies; moreover, Decision No. 55/2001. (XI. 29.) of the Constitutional Court made it clear that only individuals may be organisers.[30] I must add that the legal capacity of legal entities covers all rights and obligations the nature of which allows their attachment not only to humans.[31] Practical experience with event organisers shows that it is a person acting in the name of an organisation who makes the notification in which the organisation (e.g. an association) is indicated as the event organiser. I have been of the opinion for quite some time that this legislative provision required an amendment excluding non-governmental organisations, trade unions and associations from the scope of organisers. Today's practice shows that organisations can meet the requirements regarding organisers, through their representatives, clearly. This also means a modernisation of the law and allows the expansion of the scope of potential organisers. Based on the Decree of the Minister of Interior, however, the assembly authority must check whether the notifier of the assembly meets the requirements of Paragraph (3) of Section 3 of the Right to Assembly Act.
Within the meaning of Paragraph (3) of Section 3 "The assembly shall be led by the organiser. If more than one person organises the assembly, they shall jointly designate the leader of the assembly. If the leader of the assembly is changed, the organisers shall notify the police and the participants of the assembly without delay." The assembly is generally led by the organiser, these two positions (leader and organiser) only need to be distinguished if the assembly has multiple organisers, in which case the leader is a person appointed among the organisers. If an assembly is organised by many, it may still only have one leader, and its organisers have the right to appoint the leader together.[32]
Paragraph (6) of Section 3 provides that "After the end of the assembly, the organiser [or the leader under paragraph (5) if the organiser is unknown] shall ensure without delay that the place of the assembly is restored to the state it was before the assembly, including in particular disassembling the constructions and equipment erected during the assembly, removing the posters placed during the assembly, disposing the waste generated during the
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assembly and restoring any damage done to the environment."
The provisions of Section 4 determine the features, rights and obligations of the leader of the assembly. "The leader of the assembly shall determine the order and the course of the assembly, including giving and taking word to or from speakers, closing the assembly or declaring its end and letting the participants leave the place. The leader shall take the measures necessary for securing and maintaining order." If these measures remain unsuccessful, the leader shall dissolve the assembly. The leader of the assembly is responsible for maintaining the peaceful nature of the assembly and for compliance with the provisions set forth in the decision made to secure public order. The leader of the assembly may exclude from the assembly any person who is significantly disturbing the assembly.[33] Another important requirement is that if the leader of the assembly is changed, the new leader shall contact the police without delay at the place of the assembly.[34] The Act gives the leader "full right of disposal" (as its reasoning explains) regarding the event, which is, on the one hand, good, but (as the reasoning also explains) "the leader is not only responsible for keeping the peaceful nature and the order of the assembly, but for its programme and conducting as well (including any offensive speeches during the assembly)".
In my view, this last expression of the reasoning could conflict the freedom of opinion, which protects one's opinion according to the principle of ideological neutrality regardless of its value and the truth in it. In its fundamental decision[35], the Constitutional Court emphasised that the freedom of expression only has external limits: as long as it is not in conflict with a constitutional external limit, i.e. the protection or functioning of another fundamental right and freedom or the protection of other constitutional values, both the option of and the actual expression remains protected regardless of its content. Having regard to the special role of the right to free expression, law enforcers should not interpret this part of the reasoning in the broader sense.
According to Paragraph (1) of Section 5, "The organiser or leader of the assembly shall use the assistance of adult staff in the adequate number necessary for carrying out the assembly peacefully and for maintaining the order of the assembly, proportionately with the expected number of participants (hereinafter "staff").
The new Right to Assembly Act did not made any fundamental changes to the fact that the organiser and/or the leader is responsible for keeping the order of the assembly, which they can ensure if they provide a staff the number of which is adjusted to the number of assembly participants and who are uniformly distinguished and follow the orders of the organiser/leader. The new legislation does not specify the tasks of the staff; in most of the cases, however, the leader can secure the peaceful nature of the event only through them, and the staff contribute to that, in which they are obliged to adhere to the instructions of the leader and remove persons disturbing the assembly. If the continued presence of the excluded person at the assembly poses an immediate risk to public safety or public order, or it implies the infringement of the rights and freedoms of others, the leader of the assembly may ask for the contribution of the police in removing the excluded person. The new Right to Assembly Act provides, on the one hand, protection of criminal law to the assembly organiser, leader and staff[36], on the other hand, it imposes criminal sanctions on persons who violate the restrictions securing the peaceful nature of the assembly[37]; the assembly leader is still liable for the activities of the staff appointed by it, the sanctions for which are laid down in Paragraph (2) of Section 217/B. of the Criminal Code.[38] No major criticism was expressed on most of the new sets of facts included in the Criminal Code. The provision regarded as most problematic is that any person who hampers or makes an assembly impossible or who gravely disturbs an assembly is guilty of a misdemeanour punishable by imprisonment not exceeding one year. This virtually means that the legislator criminalises counter-protests as well as whistling at the prime minister's speech can have serious consequences. The
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obvious question is where jurisprudence will draw the limits by weighting the expressions "hamper, make impossible or gravely disturb an assembly" against the freedom of expression. I have no doubts that there will be police actions deemed excessive until the contents of these provisions become clear to everyone.
The legislator does not specify the mandatory minimum number of staff, it only provides that the number of staff must be sufficient for the expected number of participants and for ensuring the order of the assembly. The Right to Assembly Act currently in force merely provides that the written notification must also include the number of staff ensuring an undisturbed assembly. In its decision made based on the Decree of the Minister of Interior and Paragraph (5) of Section 11 of the Right to Assembly Act, the assembly authority may specify the requirement for the sufficient number of staff, the adequate distribution of staff members and their communication with the organiser, taking into account the assembly location and the number of participants. This provision of the Decree of the Minister of Interior refers the determination of the minimum staff to the competence of the police acting as assembly authority, and the police may specify this number either during consultations or in a decision. In certain respects, this provision could be seen as a restriction of exercising the fundamental right; however, if the legislator respects the aspects of necessity and proportionality, the criteria provided for by the Decree of the Minister of Interior, then the resulting case-law will not prove the concerns.
According to the provisions of Section 6:
(1) The participants of the assembly shall be required to follow the instructions of the leader of the assembly and of the staff acting under the direction of the leader, given for the purpose of maintaining and securing the order of the assembly.
(2) A person who seriously disturbs the assembly shall leave the place of the assembly without delay upon being called upon by the staff to do so.
(3) The participants of the assembly shall be required to leave the place at the time of closing the assembly.
The persons participating in the assembly decide individually how long they attend the assembly; as long as they stay there, however, they are obliged to adhere to the instructions the assembly leader and/or organiser gives to maintain and secure order. If the participants fail to adhere to these instructions, the organisers may demand that persons disturbing the assembly leave, or the leader may remove them from the location of the assembly. If the presence of the disturbing persons is against the law, i.e. the continued presence of the excluded person at the assembly poses an immediate risk to public safety or public order, or it implies the infringement of the rights and freedoms of others, the leader of the assembly may ask for the contribution of the police.
The participants' obligation to immediately leave the place after the end of the assembly regardless of the fact whether the assembly is ended by the leader or scattered either by the leader or the police is a new requirement. The expression of opinion ends with the end of the event, so there is no further reason to stay at the place.
It must the emphasised that the Act requires participants to leave the place after the actual end of the assembly, i.e. not at the time specified in advance in the notification to the assembly authority or in the call for the assembly. As it might happen that the leader can end the assembly for whatever reason, the participants may arrive later, so they also end the assembly at a later time, or the assembly might cease to be peaceful, so the leader or the police need to scatter it, and this ends the assembly earlier or later than planned.
Within the meaning of the provisions of Section 7:
(1) In addition to the duties set forth in the Act on the police, the police shall be responsible for securing the peaceful holding of assemblies, maintaining the public order during assemblies and, in the context of the foregoing, carrying out appropriate measures for the purpose of prevent-
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ing third persons from disturbing the assembly.
(2) If there are valid grounds to assume that persons may appear at an assembly by violating the restrictions that secure the peaceful nature of the assembly, the police may carry out enhanced control as regulated in the Act on the police in the interest of the security of the participants and for the purpose of maintaining the peaceful nature of the assembly.
(3) Control points shall be set up in a way not hindering the holding of and access to the assembly and allowing the swift implementation of the controls.
(4) The police shall notify the organiser or leader on ordering the control and shall also announce it publicly.
(5) The representative of the police may attend the assembly.
(6) The provisions of the Act on the police shall be applied in the questions not regulated in this Act, with regard to the activity of the police.
Activities of the police during the assembly are subject to two regulations; on the one hand, provisions of the Police Act for which the Right to Assembly Act does not lay down any special rules, on the other hand, the own requirements of the Right to Assembly Act. It is the fundamental responsibility of the state to ensure the right to peaceful assembly and the security of the participants. It is the Police that ensure the fulfilment of the state obligation to protect fundamental rights on account of assemblies. The Police Act declares that the police is responsible for protecting public order and public security, hence the securing public security for assemblies. It is important to note that the Right to Assembly Act does not limit this obligation of the police to assemblies in public spaces only.
The security activities of the police at assemblies falling within the scope of the right to assembly are, in terms of fundamental rights, different from those at public events (e.g. the state ceremony at Kossuth Square), because assemblies falling within the scope of the right to assembly are about the exercising of fundamental freedoms.[39] The new regulation laid down a more transparent and clearer framework for police responsibilities, and the consultations allow the development of a police procedure the impact of which does not restrict the freedom of assembly and the closely related right to expression of opinion either.
Pursuant to the Implementing Decree, the police decides (based on the data provided in the notification, the information provided at the consultation, if there has been any, and other available data on the assembly, as well as the relevant request of the organiser) whether a police representative is to attend the assembly and determines how the assembly should be secured.
The Police has the right to order the enhanced control specified in the Police Act if assembly participants presumably violate Section 9 and appear violating the restrictions securing the peaceful nature of the assembly. The organiser and/or the leader must be informed of the ordering of the enhanced control and must be disclosed on the www.police.hu website. Ordering of the enhanced control is not subject to a formal decision. Pursuant to the Implementing Decree, the person ordering the enhanced control discloses the fact that there will be enhanced control, its start and end and the area subject to enhanced control on the website of the police[40].
In the past, the police attempted to minimise conflicts and to secure order through consultations, an option provided by the Decree of the Minister of Interior, and by setting up security zones, even by installing fences, if necessary. Despite these efforts, assembly notifiers were sometimes still uncooperative, because nothing obliged them to coordinate with the police, so non-coordination did not have any legal consequences. As I explained in a previous pa-per[41], event organisers should be required to exercise their rights with regard to the general requirement of exercising their rights in good faith and according to their purpose and the norms of civil harmony.
Within the meaning of the provisions of Section 8:
(1) The organiser or leader of the assembly and the police shall cooperate with each
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other during organising and holding an assembly.
(2) In the framework of the cooperation, the organiser or leader of the assembly shall continuously inform the police, indicating the nature and the level of the risks, of any significant change in the security situation that he has become aware of.
(3) Everyone shall exercise his rights in good faith and appropriately during organising and holding the assembly.
The obligation for cooperation was implied by the previous regulation of the right to assembly; due to its special role, however, the new Right to Assembly Act specifically identifies this obligation of the assembly organiser, the assembly leader and the police during the organisation and holding of the assembly. It is in the interest of both the organiser and the police that the assembly takes place without any extraordinary event or action from its notification until its end. In Section 8 of the Right to Assembly Act, the legislator generally provides that the parties are obliged to cooperate; the fulfilment of this obligation is supported by the consultations, the presence of a police representative and the obligation to inform the assembly authority of any changes since the notification [Paragraph (2) of Section 8]. In addition to imposing the obligation for cooperation, the Right to Assembly Act also provides that all must act in compliance with the obligation to exercise rights within the scope of their purpose from the notification until the ending or scattering of the assembly, meaning that nobody may exercise their rights in an abusive way (nobody may behave in a way that makes impossible or hampers the exercising of the rights of other participants or third parties).
The provisions of Section 9 specify these requirements:
(1) Attending an assembly, including going to and leaving it, shall be prohibited for persons
(a) carrying a firearm, ammunition, explosives, detonating equipment, a device designed to use explosives or detonating equipment, a dangerous substance within the meaning of Article 2 (2) of Council Directive 67/548/EEC, or the imitation of the foregoing,
(b) carrying an instrument capable of causing death, personal injury or a serious material damage, or
(c) (wearing paramilitary or similar clothing conveying violence or having an intimidating character.
(2) Unless specified in the notification which was noted, the participants
(a) may not wear a protective equipment, uniform or clothing that may be mistaken for the foregoing,
(b) and may not cover their face.
The right to assembly consists in the right to peaceful and unarmed assembly, only such assemblies are subject to constitutional protection. Section 9 of the Right to Assembly Act enumerates the prohibitions the breach of which is a criminal offence, depending on the fact whether the behaviour violates the prohibitions of Paragraph (1) or (2). If the prohibited behaviour appears sporadically, then it must be individually investigated whether the assembly has become unpeaceful or action is only required against individuals.
In addition to the prohibition to take prohibited objects to the place of the assembly, participants may also not keep such objects with them both on the way to and from the place of the assembly. If the police notice such objects or find such objects during enhanced control or such objects are notified, then they are obliged to investigate the commitment of criminal offences in the Criminal Code[42].
Another restriction securing peaceful assembly is the restriction on clothing specified in Point (c) of Paragraph (1) of Section 9, and Paragraph (2) of Section 9 of the Right to Assembly Act also specifies restrictions regarding protective gear, uniforms or clothing appearing as uniforms and face masking. The enforcement of the punitive power of the state, protection of the rights and freedoms of others, a constitutional and public interest, may similarly justify the identifiability of participants. My previous position was that if masks have nothing to do with communication rights and is, therefore, insignificant in terms of expression of opinion,
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then it should not be allowed. The wearing of masks, the covering of faces and making identification more difficult has always been some kind of a sign of unpeaceful and unlawful actions. Practice shows that if an increasing number of the members of the crowd start to cover their faces parallel to the tense verbal actions, then violations against the police are to be expected with greater probability[43]. The wearing of masks is prohibited in several European countries[44], exceptions being carnivals or similar events. Within the framework of the rules in force (if the notification does not provide any data in this regard and the assembly authority ignores that by considering the absence of data), such activities and behaviours are not allowed at the assembly. Pursuant to the Implementing Decree, the assembly authority takes into account the notification pertaining to the wearing of protective gear, uniforms, mistake-able clothing and the covering of the face in determining the conditions and requirements in its decisions referred to in Paragraph (5) of Section 11 and Paragraph (5) of Section 13 of the Right to Assembly Act, on the account of which the assembly authority may establish security rules and temporary restrictions, e.g. for the wearing of performance masks, in order to verify compliance with the prohibitions specified in Paragraph (1) of Section 9 of the Right to Assembly Act.
In my paper I only touched upon a small part of the Act, its comprehensive analysis would require the investigation of further aspects. Before the submission of the draft act on the new regulations, there were several opinions and guesses regarding the extent of restrictions imposed by the new regulations. These fears might not be unsubstantiated, and the early fears are not soothed through authority decisions[45] that might prove the concerns of rights defenders. The days following the entry into force of the Act saw the adoption of the first prohibition decision that referred to the threat to public order on account of the Turkish delegation - more specifically, having regard to circumstances hampering the fulfilment of obligations undertaken on account of a person being in Hungary and under diplomatic immunity or other immunity based on international law. The set of facts included in this decision were not in proper accordance with the actual set of facts. I believe that the authority did not use its now wide discretion in compliance with the requirements of the new Right to Assembly Act in this decision, which might seem abusive to those involved. What I think about this case is that it was merely about failing to investigate whether the threat is direct, disproportionate and grave, and whether a less strict prohibition had been effective. This happened despite the fact that the reasoning for the new Right to Assemble Act includes the above requirement.
These issues of the application of the law will only be eliminated if the spirit of the previous decisions of the Constitutional Court appears in the authority decisions based on the new legislation and decision makers adopt the new rules to an extent similar to the previous Right to Assembly Act. Compliance probably requires that we do not forget about the statement: According to the case-law of the Constitutional Court, which appears in Article I of the Fundamental Law, the state may limit fundamental rights if it is necessary, i.e. if the protection or functioning of another fundamental right or freedom or the protection of other constitutional values is not possible in any other way. In addition, the intervention must be proportionate; in the limitation, the legislator must apply the lightest means to achieve a given goal.[46] The importance of the goal to be achieved and the gravity of the violation of a fundamental right made with a view to that goal should be proportional. ■
NOTES
[1] This paper has been made within the framework of the programmes initiated by the Hungarian Ministry of Justice to raise the standard of legal education.
[2] Gábor Halmai and Gábor Attila Tóth: Emberi jogok. [Human Rights]. Osiris, Budapest 2003. p. 25-30
[3] Balázs Pethő: A gyülekezési jog szabályozásával kapcsolatos problémák a gyakorlat tükrében. [Regulatory issues of the right to assembly as appearing in practice.] OTDK entry paper 2010.
[4] Decree No. 15/1990. (V.14.) of the Minister of Interior on the tasks of the police in relation to securing the order of events (hereinafter referred to as Decree of the Minister of Interior).
[5] Máté Szabó: A demokrácia stabilitása és a gyülekezők joga. [Stability of democracy and the right of assemblers.] In: Ki őrzi az őrzőket - Az ombudsmani jogvédelem. [Who watches the watchmen? Legal protection by the ombudsman.] Kairosz Kiadó, Budapest 2010., p. 211.
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[6] This was established as a result of the investigation of an appeal requesting the investigation of the inconsistency with the Fundamental Law of a decision rejecting a request for review submitted against a prohibition decision of the Police, on the account of a protest organised in a residential area. The mover argued that the court approved contra legem of a new reason for prohibition. The mover also argued that the forces applying the law mixed the reasons for prohibition and scattering. For the details, see Decision No. 13/2016. (VII. 18.) of the Constitutional Court.
[7] This decision was adopted on account of the motions to review the prohibition decision of the Police concerning the Day of Honour (becsületnap in Hungarian) event and the court order approving it and is in several respects similar to the other decision. For the details, see Decision No. 14/2016. (VII.18.) of the Constitutional Court.
[8] Decision No. 75/2008. (V. 29.) of the Constitutional Court
[9] Paragraph (1) of Article I of the Fundamental Law of Hungary: "The inviolable and inalienable fundamental rights of MAN shall be respected. It shall be the primary obligation of the State to protect these rights." Paragraph (3) of Article I: The rules for fundamental rights and obligations shall be laid down in an Act. A fundamental right may only be restricted to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of such fundamental right".
[10] According to Decree No. 15/1990. (V. 14.) of the Minister of Interior, if the notification allowed the conclusion that the notification of the planned event or the event itself is in conflict with statutory provisions but cannot be banned in advance, then the Police warned the organisers thereof and, in more serious cases, informed them of potential scattering.
[11] "Everyone has the right to respect for his or her private and family life, home and communications."
[12] Carey v. Brown [447 US 455 (1980)] and Frisby v. Schultz [487 US 474 (1988)]
[13] Compare with https://tasz.hu/cikkek/a-tarsasag-a-szabadsagjogokert-tasz-elemzese-a-gyulekezesi-jogrol-szolo-t-707-szamu-torvenyjavaslatrol (downloaded on 20 October 2018)
[14] Compare with Directorate of Cultural Affairs of the Office of the Hungarian National Assembly: Gyülekezési jog - EU tagállamok. [Right to Assembly, EU Member States.] Elemzés országgyűlési képviselők részére. [An analysis for MPs.] Képviselői Információs Szolgálat [MP Information Service], 2017
[15] Based on the minutes of the general debate in the National Assembly
[16] Decree No. 26/2018. (IX. 27.) of the Minister of Interior
[17] Section 16 of the new Right to Assembly Act clearly declares that no other authorisation of the assembly authority shall be required for holding an assembly organised in public space.
[18] See the detailed reasoning of the Right to Assembly Act.
[19] Barnabás Hajas: Kommentár a gyülekezési jogról szóló 1989. évi III. törvényhez. [Commentary on Act III of 1989 on the Right to Assembly.] Wolters Kluwer Kiadó, Budapest 2017.
[20] There were speakers at the general debate on the draft act who missed the expression "public space" from the concept of assembly. Compare with Minutes of the general debate in the National Assembly
[21] Barnabás Hajas: Kommentár a gyülekezési törvényhez. [Commentary on the Right to Assembly Act.] Compare with "Exempted" events in general.
[22] See the detailed reasoning of the Right to Assembly Act.
[23] Based on the minutes of the general debate in the National Assembly
[24] This may also constitute the misdemeanour or criminal offence of illegal entry into private property.
[25] Barnabás Hajas: quoted work.
[26] Based on Section 3 of Decree No. 26/2018. (IX. 27.)
[27] In accordance with the judicial approach and having regard to the changes in the nature of assemblies, the Act also regulates the case where the organiser or leader of the assembly is not known: in this case, the Act requires that the assembly leader is the person who can actually affect the course of the assembly, i.e. the person who instructs and directs the crowd. If an assembly has an organiser, then it is not a spontaneous gathering.
[28] See the detailed reasoning of the Right to Assembly Act.
[29] According to Section 217/C of the Criminal Code, "A person who organises a prohibited assembly or calls others to attend that assembly under the Right to Assembly Act is guilty of a misdemeanour punishable by imprisonment not exceeding one year." According to Paragraph (3a) of Section 189 of the Offences Act, which Paragraph is in force as from 1 October 2018, attendance at an assembly prohibited with a non-appealable decision is to be regarded as an offence. "Any person who appears at an assembly prohibited by the assembly authority" commits an offence.
[30] An obligation to inform the police was still imposed in November 2010 in case of events in public spaces organised by governmental and other public bodies.
[31] Paragraph (2) of Section 3:1 of Act V of 2013 on the Civil Code.
[32] Based on the obligation for cooperation defined in Section 8 of the Right to Assembly Act, the organisers must immediately inform the police and the assembly participants if the assembly leader is changed.
[33] Excluded persons shall be required to leave the place without delay. If the excluded person does not leave the place, the leader shall have him removed from the place of the assembly. If the continued presence of the excluded person at the assembly poses an immediate risk to public safety or public order, or it implies the infringement of the rights and freedoms of others, the leader of the assembly may ask for the contribution of the police in removing the excluded person.
[34] This provision serves compliance with the obligation for cooperation laid down in Section 8 of the Right to Assembly Act.
[35] See Decision No. 30/1992. (V. 26.) of the Constitutional Court
[36] According to Section 217/A. of the Criminal Code, in the absence of a graver criminal offence,"Any person who defies the assembly organiser, leader or the staff with violence or threat during their lawful performing their organising tasks or insults them while they are carrying out their organising tasks" commits a misdemeanour.
[37] Pursuant to Paragraph (1) of Section 217/B, "Any person who violates the restrictions ensuring the peaceful nature of the assembly under the Right to Assembly Act" is, in the absence of any other graver criminal offence, is guilty of misdemeanour punishable by imprisonment not exceeding one year."
[38] The assembly leader shall be guilty of misdemeanour punishable by imprisonment not exceeding one year if a staff member employed by them violates the restrictions securing the peaceful nature of the assembly and they fail to replace that staff member as soon as they become aware thereof."
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[39] Report No. OBH 5642/2008
[40] See Paragraph (5) of Section 9 of the Implementing Decree
[41] Compare with Balázs Pethő: A gyülekezési jog szabályozásával kapcsolatos problémák a gyakorlat tükrében. [Regulatory issues of the right to assembly as appearing in practice.] OTDK entry paper 2010.
[42] E.g. the legislator penalised the breach of restrictions securing the peaceful nature of the assembly separately, as a subsidiary set of facts, under Sections 324-325 as well as Paragraph (1) of Section 217/B of the Criminal Code.
[43] In terms of legal dogmatics, the security and safety of sports events and action against disorderly conduct are independent from the regulation of the right to assembly in Hungary and the actions against disorderly conduct that disturbs events falling within the scope of right to assembly. I would, however, note that practice shows that the various groups of perpetrators involved in disorderly conduct overlap, sports hooligans are inciters/executors behind violence on the street.
[44] E.g. Norway, Latvia.
[45] http://www.police.hu/sites/default/files/2018.10.08._%20Budapest_Tilt%C3%B3%20hat%C3%A1rozat.pdf (downloaded on: 07.10.2018)
[46] Péter Sólyom: Chapter XII. Fundamental Rights and Obligations. In.: Az Alkotmány Kommentárja II. (Commentary to the Constitution II.) András Jakab (editor). Századvég Kiadó, Budapest 2009. p. 2311. and Decision 879B/1992 of the Constitutional Court.
Lábjegyzetek:
[1] The Author is doctoral student, Faculty of Law at the University of Pécs
Visszaugrás
