The ECHR judgment of 23 January 2018 in the case of the Hungarian Dwarf Dog Party (Magyar Ketfarku Kutya Part v. Hungary) (application No. 201/17).
In 2017, the applicant party was assisted in preparing the application. Subsequently, the application was communicated to Hungary.
In the case, a complaint was successfully considered for imposing a fine on a political party for violating the principles of fairness of elections and secrecy of voting by providing voters with an opportunity to receive an application to mobile phones that allows anonymously upload and exchange photos of ballots. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The batch of a two-tailed dog is abbreviated as MKKP, a parody political party in Hungary, which has existed de facto since 2006 and officially registered in 2014. Members of the party are mainly engaged in depicting graffiti and creating parody posters on the typical slogans of the political elite of Hungary, putting forward absurd ideas in elections or making ridiculous official statements.
CIRCUMSTANCES OF THE CASE
In 2016, Hungary held a referendum on the plan for resettlement of migrants to the European Union. Shortly before the referendum, the applicant, the political party, provided voters with an opportunity to receive an application to mobile phones that could anonymously upload and share photos of ballots. After complaints of a private person to the National Electoral Commission, the applicant party was fined for violating the principles of fairness of elections and the secrecy of the ballot.
In the European Court, the applicant party complained that the application of the fine violated her right to freedom of expression as provided for in Article 10 of the Convention.
ISSUES OF LAW
Concerning compliance with the requirements of Article 10 of the Convention. The application to the mobile phone was developed by the applicant party precisely so that voters can exchange views through information and communication technologies through the placement of anonymous photographs of invalid ballots. Thus, the application had a communicative value and, therefore, was an expression of opinion on a matter of public interest protected by Article 10 of the Convention. In this regard, the application of the fine was an interference with the right of the applicant party to freedom of expression. The question before the European Court was whether the interference pursued a legitimate aim.
The Government argued that the aim of the measure taken with respect to the applicant party was to ensure the orderly conduct of the voting procedure and the proper use of ballots for voting, and thus the purpose was "to protect the rights of others." The Supreme Court of Hungary (Kuria,) stressed that the identity of the voters could not be ascertained with the help of anonymously uploaded photos, and that although the publication of ballot photos through an attachment to a mobile phone was a violation of the principle of proper exercise of rights, it did not affect the fair conduct of the elections. The Court did not see any reason to disagree with this and agreed that the applicant's actions had no effect on the secrecy or fairness of the referendum. Despite the fact that the domestic authorities determined that the use of ballot papers for purposes other than voting violated Article 2 (1) (e) of the Election Law Act, the Hungarian authorities did not establish convincingly the relationship between this principle of domestic law and the objectives , exhaustively listed in paragraph 2 of Article 10 of the Convention. Consequently, the sanction applied to the applicant party did not comply with the requirements of article 10, paragraph 2, of the Convention.
In the case there was a violation of the requirements of Article 10 of the Convention (unanimously adopted).
In application of Article 41 of the Convention, the Court awarded the applicant party EUR 330 in respect of pecuniary damage, no claim for compensation for non-pecuniary damage was claimed.