OFFICE OF THE COMMISSIONER FOR FUNDAMENTAL RIGHTS HUNGARY

Transcription

1 QUESTIONNAIRE BY SR ON FREEDOMS OF PEACEFUL ASSEMBLY AND ASSOCIATION TO NHRI RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY: 1. Please a) describe positive legislative/institutional measures taken to facilitate the exercise of the right to freedom of peaceful assembly in your country; and b) provide one or more recent examples where the right to freedom of peaceful assembly in your country has been adequately enjoyed and the reasons for citing this example(s). According to Article VIII of the Fundamental Law of Hungary: Everyone shall have the right to peaceful assembly. The Act III of 1989 on Freedom of Assembly specifies this field in detail, and the decision 75/2008. (V.29.) of the Constitutional Court also contains useful interpretation. In his report on the April-May-June demonstrations in 2011, Prof. Dr. Máté Szabó has stated that no measure has occurred which prevented those who wished to participate at the demonstrations. The increased number of the police staff at some of the demonstration events was justified by the declaration of one of the organizers, who said that the protest might lose its peaceful character. In other cases concerning the 16th April and 6th May 2011 demonstrations the ombudsman s investigation found no such commander s measure, which would result in the need of a higher staff participation compared to the usual weekend situation. Besides the documents requested from the Head of the Hungarian Prison Service, from the Chief of Defence, from the Head of the National Tax and Customs Administrations, from the Disaster Relief Commissioner and from the Head of Hungarian Police, the commanders have been repeatedly warned to respect and secure the exercise of the basic rights of the staff. According to the law regulating the assembly on public areas those, who have any objects suitable for take away one s life or assault someone are not allowed to participate. The colleagues of the ombudsman observed some demonstrations on the 16th April event carrying the special axe of firemen. During an ex officio investigation they were even informed that some trade unions were

2 expressly encouraging their members to carry this special axe in the demonstrations. The law explicitly prescribes to disperse the crowd in this case. According to the opinion of the ombudsman the police gave an appropriate and fundamentalrights friendly response when they didn t disperse the crowd as it is regulated by the relevant law, but they cooperated with the organizers of the demonstration to put the firemen s axe away. This and similar fundamental-rights friendly attitude support the practice of the right to assembly. Moreover it serves to maintain the peaceful nature of demonstration. 2. Please a) describe positive legislative/institutional measures taken to protect peaceful protesters, including against agents provocateurs and/or counter-demonstrators; and b) provide one or more examples where peaceful protesters were effectively protected. The provisions of the Act III of 1989 on Freedom of Assembly do not give a clear answer or guideline to handling agents provocateurs or counter-demonstrators. Police even in these situations is obliged to ensure the security of all events coincide in space and time, even though the separation is physically impossible and the security of the participants can not be guaranteed satisfactorily. Every announced and noted demonstration has to be secured by the Police with suitable forces independently of its purpose, duration or the number of the participants regarding the prohibition of discrimination. In 2008 Prof. Dr. Máté Szabó called attention several times in his reports to the danger of those demonstrations where agents provocateurs or counter-demonstrators can be present. The Police has been making extraordinary efforts to separate the demonstrators using fences or police troops since According to media information on the demonstration in January 2012, liberal demonstrators and radical right-wing groups mixed with each other. Therefore, Prof. Dr. Máté Szabó the Commissioner for Fundamental Rights has launched an examination in this field. In accordance with Article I of the Fundamental Law:

3 (1) The inviolable and inalienable fundamental rights of MAN shall be respected. It shall be the primary obligation of the State to protect these rights. (2) Hungary shall recognise the fundamental individual and collective rights of Man. 3. Please describe measures taken to ensure that any restrictions on the free exercise of the right to freedom of peaceful assembly are in accordance with your obligations under international human rights law (proportionality test and due process guarantees). Please explain the legal status of spontaneous assemblies. The Fundamental Law of Hungary states that the country s legal system accepts the generally recognized principles of international law and that domestic law shall be harmonized with obligations assumed under international law. Hungary recognizes the freedom of peaceful assembly and ensures the free exercise thereof. Issues related to freedom of assembly are regulated by Act III of 1989 on Freedom of Assembly. There are other pieces of legislation that have relevance to freedom of assembly (including Acts implementing international treaties: Act CXV of 2001 on the Status of Professional and Contractual Soldiers; Act LXIX of 1999 on Offences; Act XXXIV of 1999 promulgating the Council of Europe Framework Convention for the Protection of National Minorities; Act XXXIV of 1994 on the Police; Act XXXI of 1993 promulgating the Convention for the Protection of Human Rights and Fundamental Freedoms; International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations at session XXI on 16 December 1966 and promulgated in Hungary by Law-Decree 8/1976; and others). Secondary legislation regulating freedom of assembly also exists, most relevant being the Decree of the Minister of Interior on the duties of the police related to assuring the order of assemblies. Pursuant to decision 75/2008. (V.29.), the Constitutional Court establishes that the right of assembly recognized in Article 62 paragraph (1) of the Constitution (currently the Article VIII of the Fundamental Law) also covers the holding of events organised in advance including peaceful events where the assembly can only be held shortly after the causing event. In addition, the right of assembly covers assemblies held without prior organisation. The Constitutional Court held as a constitutional requirement following from Article 62 paragraph (1) of the Constitution (currently the Article VIII of the Fundamental Law) that in the application of

4 Section 6 of the Act III of 1989 on Freedom of Assembly, the obligation of notification pertains to organised events to be held on public ground. It is unconstitutional to prohibit merely on the basis of late notification the holding of peaceful assemblies that cannot be notified three days prior to the date of the planned assembly due to the causing event. The Constitutional Court received several petitions concerning the notification obligation related to events to be organised on public ground and to the dispersal of unannounced events. In a petition, initiating the annulment of the text if an assembly under the obligation of notification is being held without notification in Section 14 paragraph (1) of the Act III of 1989 on Freedom of Assembly, one of the petitioners referred to Article 61 of the Constitution (currently the Article IX of the Fundamental Law) enshrining the freedom of expression in the context of Article 62 of the Constitution (currently the Article VIII of the Fundamental Law). In addition, the petitioner referred to the judgement of the European Court of Human Rights Bukta et al v. Hungary (25691/04; Strasbourg, 17 July 2007) where Hungary was condemned because of the dispersal of a peaceful assembly. The spontaneous assemblies do not have to be announced because there is no organizer, thus the lack of notification does not mean any abuse of the freedom of assembly. 4. Please a) describe positive legislative/institutional measures taken to ensure accountability for i) arbitrary restrictions to hold assemblies; ii) arbitrary or excessive use of force by law enforcement officials against peaceful demonstrators; and iii) violence by agents provocateurs and/or counter-demonstrators; and b) provide one or more examples for each of these situations where such measures have been implemented. An LGBT pride march had been announced by the organizers in 2010 for the next year. The announcement was noticed by the Hungarian Police. A bit later the organizers of the pride march made some modifications on the announcement including especially the route of the event. However the new route and the announcement were prohibited by the police due to the disproportionate harm of traffic. In a report (AJB-871/2011) Prof. Dr. Szabó found the judicial review process of the

5 prohibiting decision worked and the Metropolitan Court of Budapest annulled the decision of the police. I would also like to mention the fact that in a previous report No. AJB 6021/2009 criticism was already expressed of the inconsistent legal practice related to this route and it was found that the established practice of the police related to the prohibition or approval of certain notified events for Andrássy Avenue and Heroes Square, which practice varies to a great extent, constitutes an infringement of the prohibition of discrimination. On the 50th anniversary of the 1956 Hungarian Revolution, on the 23rd and in the after period in October 2006, days of clashes occurred between protesters and police. Riot police equipment/gear, tear gas, rubber bullets, and water cannons were used to force back the crowd. Rubber bullets were frequently aimed head-high, causing a high number of injuries. Vandalism was reported on the side of protesters and police alike. Some vandals broke shop windows while many other protesters tried to prevent them. But evidence shows that action by police was unprecedentedly brutal and disproportionate to the protest. The police shot gas grenades and rubber bullets in at head-height and didn't sort peaceful participants and protesters from provocateurs. Many peaceful passers-by were injured. The fact that police suddenly reduced public transport in many places and directly and indirectly detained. More than 170 accusations were received by the Prosecution Service against the violence of police officers until the beginning of Many of the police officers could not be identified because they did not wear identification number on their clothes. A number of examinations were launched by various authorities. The former ombudswoman Katalin Gönczöl was also requested to lead an expert group which examined the background, the reasons, and the consequences of violent occurrences and the results of these examinations were summarized in a long, detailed report. Violence by agents provocateurs and/or counter-demonstrators is criminalized both by the Criminal Code of Hungary and the Code on Petty Crimes. However there is no practice under the Codes in question so far.

6 5. In this context, please describe positive legislative/institutional measures taken to build and strengthen the human rights capacity of administrative and law enforcement officials in your country. There are conferences in Police Studies within which the representatives of the Office of the Commissioner for Fundamental Rights regularly hold lectures and presentations. In addition, the administrative and law enforcement officials widely use the Reports and the Project Brochure on Peaceful Assembly of the ombudsman. 6. Please describe one or more recent examples where the right to freedom of peaceful assembly may have not been respected and the reasons for citing this example(s). In particular, please describe challenges faced in the implementation of laws, policies or programmes for the promotion and protection of the right to freedom of peaceful assembly in your country. Please provide details of any lessons learnt in that regard. Briefly evaluate, in both law and practice, the enjoyment of the right to freedom of peaceful assembly in your country, including by women, individuals facing discrimination or violence because of their sexual orientation and gender identity, as well as persons with disabilities, espousing minority or dissenting views or beliefs, and belonging to other groups at risk. In the beginning of July 2011 a number of papers reported about a controversial incidence, namely that policemen obstructed Tibet activists who wanted to demonstrate, the police has banned a Tibet demonstration and all the Tibetan refugees were required to report to the Immigration Office for no reason the day of the visit of Wen Jiaobao, to prevent them from demonstrating. The ombudsman Prof. Dr Máté Szabó published his report, which reminds that on 24th and 25th July, before and during the visit of the Chinese Prime Minister Wen-Jiabao in Budapest, the police acted against persons who were expressing their opinion with Tibet flags and criticizing the policy of the People's Republic of China.

7 RIGHT TO FREEDOM OF ASSOCIATION: A new Act CLXXV of 2011 on Right of Association, Non-profit Status, and the Operation and Funding of Civil Society Organisations (hereinafter: NGOs) was adopted by Parliament at the 5 th of December According to the Government, NGOs would be able to rely on stable, transparent rules and less administration; citizens would be able to rely on much more precise and clearer rules regarding the right of association, and reassuring guarantees regarding the utilisation of public funds for NGOs. The Government expects more legitimate and transparent functioning in the civil society sphere, and thereby increased trust in NGOs, and a growth of assertiveness in the civil sphere that would play a role in easing the country s problems. In the submitter s opinion, the legislation provides new opportunities for citizens through the introduction of a new type of organisation classed as a civil corporation. This new category expands freedom of association and creates the opportunity for establishment of an organisation without legal entity that operates with a more flexible structure and has fewer administrative restrictions. Unfortunately, we haven t had any available practical experiences yet in relation to the new Act we could share. Cooperation with UN and regional human rights mechanisms: 15. Please indicate any cooperation your country has with the United Nations and regional human rights mechanisms aimed at maximizing the promotion and protection of the rights to freedom of peaceful assembly and of association. Good practice for dialogue and communication as strategic principles for policing political manifestations in Europe (GODIAC): The transnational project runs from the 1 st of August 2010 to 31 st of July It is funded to 70% by the Action Grant of the specified programme Prevention of and Fight against Crime from the European Union s General Programme on Security and Safeguarding Civil Liberties. The Swedish National Police Board, who is the project coordinator, contributes with 30 % of the total project budget of EUR.

8 There are 20 partner organisations in 11 countries participating in the project. These consist of 12 police organisations inter alia the Hungarian National Police and 8 research/educational organisations like the Office of the Commissioner for Fundamental Rights as the legal successor of the Parliamentary Commissioner for Civil Rights. The objectives of the project are to contribute to the development of a European approach to policing political manifestations, to learn how research based principles, especially communication and dialogue are applied to de-escalate and prevent public order disturbances. The project will develop co-operation and networks between practitioners, researchers and trainers in partner countries and enhance the use of research based knowledge in police operations. Optional Protocol to the Convention against Torture (OPCAT) Subcommittee on Prevention of Torture The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ( SPT ) is a new kind of treaty body in the United Nations human rights system. It has a purely preventive mandate focused on an innovative, sustained and proactive approach to the prevention of torture and ill treatment. The SPT started its work in February The SPT was established pursuant to the provisions of a treaty, the Optional Protocol of the Convention against Torture ( OPCAT ). The OPCAT was adopted on December 2002 by the General Assembly of the United Nations and entered into force in June In accordance with Article (3) of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punisment wich was proclaimed by the Act CXLIII of 2011 the Commissioner for Fundamental Rights is going to provide the task of the national preventive mechanisms from Contact persons: Dr. Gábor Kaszper (kaszper.gabor@ajbh.hu); Dr. Barnabas Hajas (hajas.barnabas@ajbh.hu)