Rekvényi v Hungary, 20 May 1999 [ECtHR]

Case no 25390/94

II. Alleged violation of article 11 of the convention

51. The applicant submitted that the prohibition on joining a party, prescribed by Article 40/B § 4 of the Constitution, violated his right to freedom of association guaranteed under Article 11 of the Convention ...

52. Both the Commission and the Government accepted that the facts complained of by the applicant attracted the application of the safeguard set forth in Article 11 and that the prohibition interfered with the exercise of his right under that Article. They took the view, however, that the interference was justified under the last sentence of paragraph 2 of Article 11. (...)

58. Notwithstanding its autonomous role and particular sphere of application, Article 11 must in the present case also be considered in the light of Article 10. As the Court has explained in previous judgments, “the protection of personal opinions, secured by Article 10, is one of the objectives of the freedoms of assembly and association as enshrined in Article 11” (see the Vogt judgment cited above, p. 30, § 64).

59.  The last sentence of paragraph 2 of Article 11 – which is undoubtedly applicable in the present case – entitles States to impose “lawful restrictions” on the exercise of the right to freedom of association by members of the police. 
Like the Commission, the Court considers that the term “lawful” in this sentence alludes to the very same concept of lawfulness as that to which the Convention refers elsewhere when using the same or similar expressions, notably the expressions “in accordance with the law” and “prescribed by law” found in the second paragraph of Articles 9 to 11. As recalled above in relation to Article 10, the concept of lawfulness in the Convention, apart from positing conformity with domestic law, also implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness (see paragraph 34 above).

60. In so far as the applicant criticises the basis in domestic law of the impugned restriction (see paragraph 53 above), the Court reiterates that it is primarily for the national authorities to interpret and apply domestic law, especially if there is a need to elucidate doubtful points (see the S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, p. 42, § 36, and also the previously cited Chorherr and Cantoni judgments). In the present case, however, the prohibition on membership of a political party by police officers as contained in Article 40/B § 4 of the Constitution is in fact unambiguous (see paragraph 13 above) and it would not appear to be arguable that subordinate legislation introduced some four years earlier (Regulation 433 of Decree no. 1/1990 of 10 January 1990 – see paragraph 19 above) was capable of affecting the scope of this prohibition. In the circumstances the Court concludes that the legal position was sufficiently clear to enable the applicant to regulate his conduct and that the requirement of foreseeability was accordingly satisfied. Further, the Court finds no ground for holding the restriction imposed on the applicant’s exercise of his freedom of association to be arbitrary. The contested restriction was consequently “lawful” within the meaning of Article 11 § 2.

61. Finally, it is not necessary in the present case to settle the disputed issue of the extent to which the interference in question is, by virtue of the second sentence of Article 11 § 2, excluded from being subject to the conditions other than lawfulness enumerated in the first sentence of that paragraph. For the reasons previously given in relation to Article 10 (see paragraphs 41 and 46 to 48 above), the Court considers that, in any event, the interference with the applicant’s freedom of association satisfied those conditions (see, mutatis mutandis, the previously cited Vogt judgment, p. 31, § 68).

62. In sum, the interference can be regarded as justified under paragraph 2 of Article 11. Accordingly, there has been no violation of Article 11 either.

III. Alleged violation of article 14 of the convention taken in conjunction with Articles 10 OR 11

63. The applicant further alleged that the impugned prohibition on engaging in political activities and on joining a party was discriminatory. (...) He relied on Article 14 of the Convention (...)

67. The Court’s conclusions that the contested restrictions do not amount to a violation of Articles 10 and 11 (see paragraphs 50 and 62 above) do not preclude the finding of a violation of Article 14 of the Convention. While it is true that the guarantee laid down in Article 14 has no independent existence in the sense that under the terms of that Article it relates solely to “rights and freedoms set forth in [the] Convention”, a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature (see the case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), judgment of 23 July 1968, Series A no. 6, pp. 33-34, § 9).

68. The considerations underlying the Court’s conclusions that the interferences with the applicant’s freedoms of expression and association were justified under Articles 10 § 2 and 11 § 2 have already taken into account the applicant’s special status as a police officer (see paragraphs 41, 46 to 49 and 61 above). These considerations are equally valid in the context of Article 14 and, even assuming that police officers can be taken to be in a comparable position to ordinary citizens, justify the difference of treatment complained of. There has accordingly been no violation of Article 14 taken in conjunction with Articles 10 or 11.

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