MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY JUDGMENT
9
B. Merits
1. The parties’ submissions
31. The applicant political party submitted that the voters’ posting
photographs showing their participation in the referendum and the way they
had cast their votes had constituted the expression of opinions on political
matters, as protected under Article 10 of the Convention. It also maintained
that providing a forum for voters to express their opinions, in the form of
using a mobile telephone application, fell under the scope of the right to
freedom of expression. Thus, the restriction on, and penalisation of, the use
of the application had constituted an interference with its right to freedom of
expression, which had neither been prescribed by law nor had pursued a
legitimate aim.
32. According to the applicant political party, the interference had had
no legal basis, since the provisions of the Act on Electoral Procedure did not
prohibit the taking of photographs of ballot papers; moreover, the guidelines
of the National Election Commission had no binding effect.
33. Moreover, the principle of the proper exercise of rights could not
possibly serve as a legitimate reason for a restriction on the right to freedom
of expression. At any rate, the posting of photographs of ballot papers had
not violated the fairness or secrecy of the voting procedure.
34. The Government maintained that there had been no interference
with the exercise of the applicant political party’s right to freedom of
expression, since it had only provided a mobile telephone application for
voters to share their opinions with other users and had not engaged in
political speech itself. They submitted, however, that even if the Court were
to consider that there had been such interference, it had been in accordance
with the second paragraph of Article 10. The interference with the applicant
political party’s freedom of expression had had a legal basis, as clarified in
the National Election Commission’s guidelines, and it had pursued the
legitimate aim of ensuring the orderly conduct of the voting procedure and
the proper use of ballot papers – notions falling under the scope of “the
protection of the rights of others”. As to whether the interference in question
had been necessary in a democratic society and proportional, the
Government highlighted the fact that the Kúria had considerably reduced
the fine imposed on the applicant political party.
2. The Court’s assessment
(a) Whether there was an interference with the applicant political party’s
freedom of expression
35. The Court notes at the outset that the applicant political party was
sanctioned for running a mobile telephone application enabling users to
share their comments and photographs taken of their ballot papers. The
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