On 9 July 2013 the European Court of Human Rights issued its judgment in the case of Vona v Hungary relating to a supremacist organisation engaged in military-style assemblies. The authorities had ultimately dissolved the organisation following its attempt, blocked by police, to march through a street inhabited by Roma families. In the context of protecting the rights of the Roma community from racist expression, the Court found this action against Magyar Gárda was compatible with the ECHR.
The grounds on which states may restrict assemblies and association under Article 11(2) of the ECHR, when lawful and proportionate to do so, are not limited to the ‘prevention of disorder’ but also include the ‘protection of the rights and freedoms of others’. Parade-related and other expression can be restricted on this ground, which refers to the recognised human rights of others and not for example parades which ‘offend, shock or disturb’, as it has been long established that the ECHR protects such expression (Handyside v UK, 1976). The more complex question has always been the threshold question of when a state is permitted, or even obliged, to impose restrictions.
The Vona case will no doubt be compared with the 2012 judgment of Fáber v Hungary which related the seizure of Árpád-striped flag associated with the fascist 1944/45 Arrow Cross regime being held by a counter protestor to an anti-racist demonstration. Despite the demonstration taking place on the banks of the Danube where large numbers of Jews had been massacred by the regime the Court held it had not constituted intimidation, and the arrest and fine against the protestor for the mere display of the flag had been disproportionate. This set a high threshold for sanctioning protestors in the circumstances of that case.
The case of Vona also relates to a group with affiliations to the Arrow Cross regime. A Magyar Gárda movement and association had been set up with the stated aim of preserving Hungarian traditions and culture, but engaged in clear racist discourse targeting the Roma minority in ‘defence’ of the ‘ethnic-Hungarian’ majority. A number of military-style parades and rallies had been held across Hungary often targeting areas with Roma populations. The case focuses not on the assemblies per se but on the drastic subsequent sanction of the ordering the dissolution of the organisation, following its attempt to march past Roma homes in the village of Tatárszentgyörgy. The Court, in the particular context of the case, unanimously found this action was compatible with ECHR Article 11. A lengthy concurring opinion from Judge Pinto de Albuquerque emphasises international obligations to sanction racist expression, and the Court had already held, in Asku v Turkey, there is a positive duty on states to protect persons against racist expression. The principal Council of Europe treaty body dealing with anti-racism has
characterised sectarianism in Northern Ireland as a form of racism. Given this and the interface between free expression, assembly and association the judgment therefore provides some interesting material as to what thresholds and contexts of sectarian expression are likely to be accepted as legitimate grounds to restrict assemblies.
As well as the ECHR protecting ideas which could shock and disturb, the Court in Vona did reiterate groups could not be restricted on the basis they created ‘uneasiness’ in groups of citizens or that some may perceive them as disrespectful. Rather such action should only be taken when organisations were a ‘hotbed for violence’ or incarnated a negation of democratic principles, such as the promotion of discrimination or ethnic division. A domestic court held Magyar Gárda “had made a programme about discrimination between people and expressed it by way of marches in several cases” and the European Court shared the view of the domestic courts citing that the activities and expressions of the group were targeted at the Roma. Notably the domestic courts had held this despite Magyar Gárda not being explicitly constituted as a racist group but rather given it had created an anti-Roma atmosphere by its actions. The European Court concurs it “may only be in light of the actual conduct of such demonstrations that the real nature and goals of an association become apparent”, indicating a mere denial that a
groups aims or actions are racist will not suffice.
In relation to the impact of the form of expression the domestic courts considered the marches, given the military-style appearance of their participants, as having amounted to a “demonstration of power and to threatening others.” The European Court cited the domestic judgements as having regarded Magyar Gárda as having “created an anti-Roma atmosphere by verbal and visual demonstrations of power” and held public authorities are entitled to take restrictive measures “if the right to freedom of assembly is repeatedly exercised by way of intimidating marches involving large groups” and the measures are necessary needed to avert large-scale, coordinated intimidation related to the advocacy of racially motivated polices. The Court held, particularly when ethnic groups are singled out, the state can protect the right of targeted groups to live without intimidation. The Court emphasised that although there was no actual violence at the march, its paramilitary nature was problematic given as this means the groups discriminatory message was “accompanied by the physical presence of a threatening group of organised activists” and hence that it was capable of “conveying the message to those present that its organisers had the intention and the ability to have recourse to a paramilitary organisation to achieve their aims, whatever they may be.” The Court contextualised this threat to the historic associations and context of its association with the past racist violence of Arrow Cross, and held in that context the reliance of an association with paramilitary demonstrations, accompanied by racist discourse, “must have an intimidating effect on members of a racial minority.”
The Court considered that the repeated organisation of the rallies was capable of intimidating others and affecting their rights, it elaborated that this was “notably given the location of the parades” which had been held in proximity to Roma populations. Vona referenced a concept emphasised in the domestic courts that Roma residents were a ‘captive audience’ of the parades and, given their locations they “had not been in a position to avoid the extreme and exclusionary views” which they articulated. The judgement concurred that the intimidating effect of the actions of the Magyar Gárda on the Roma minority was particularly the case when they were in there homes as a ‘captive audience’, indicating proximity is a relevant consideration.
Vona held that actual individual violations of the rights of others or actual disorder did not have to take place in order state to justify action against Magyar Gárda. Rather that the state could take preventative measures if the prejudice to the rights of others (in this case the Roma, and the potential impact of further racial segregation) was sufficiently imminent. The Court held the Magyar Gárda activities, as well as being anti-Semitic, were quite clearly targeted at Roma minority and in such circumstances authorities cannot be required to await further developments before intervening for the protection of the rights of others.
On a number of levels Vona therefore does take forward ECHR jurisprudence on the ‘threshold’ questions regarding the factors and contexts of where protected freedom of expression ends and where unprotected racist expression begins.