On July 9, 2013, the European Court of Human Rights held in Vona v. Hungary that the Hungarian courts’ dissolution of the radical extreme-right Hungarian Guard Association did not violate freedom of assembly under Article 11 of the European Convention of Human Rights.
The case emerged against the background of an escalation of attacks against Roma in Hungary in 2008 and 2009. In a series of similar incidents, attackers threw petrol bombs at Roma houses and fired guns as the inhabitants fled. While the Hungarian authorities have attempted to crack down on anti-Roma violence, the population continues to face entrenched discrimination; the third largest political party in Hungary, Jobbik, is gaining electoral votes even as it expounds thinly-veiled anti-Roma and anti-Semitic rhetoric.
Ten members of Jobbik were the founders in 2007 of the group at the center of this case, the Hungarian Guard Association for Protection of Traditions and Culture (Magyar Gárda Hagyományőrző és Kulturális Egyesüle). The purported mission of the association was to preserve Hungarian traditions and culture. The applicant in this case, Vona Gábor, assumed the role of chairman. A few months after its formation, the association in turn founded the Hungarian Guard Movement (Magyar Gárda Mozgalom), with the objective of “defending Hungary, [which is] defenceless physically, spiritually and intellectually.” Members of the Gárda dressed in uniforms featuring logos reminiscent of those worn by the Arrow Cross Party, a Hungarian fascist political party during World War II, and held demonstrations in various Hungarian villages with large Roma populations while openly calling for the defense of “ethnic Hungarians” against “gypsy criminality.” Anti-Semitic slurs were also made at certain events.
In response to the rallies, the Budapest Chief Prosecutor’s Office lodged a court action to dissolve the association, arguing that the Magyar Gárda Mozgalom infringed the rights of the Roma. On December 16, 2008, the Budapest Regional Court ordered the dissolution of the association; the Budapest Court of Appeal and Supreme Court of Hungary upheld the ruling.
This case is groundbreaking because previous Article 11 cases before the European Court of Human Rights had mainly involved dissolutions of trade unions, religious organizations, and political parties. The court had yet to give a detailed ruling on the freedom of association specifically vis-à-vis hate groups.
The court explored the tension between freedom of association under Article 11 and the fundamental rights that unlimited freedom of association can run up against when it comes to organizations with racially-charged ideologies. Generally, the right of freedom of assembly and association can only be restricted if it is (1) prescribed by law, (2) necessary in a democratic society, and (3) for a legitimate aim. The court had no problem with the first and third requirements; the key issue here was whether the dissolution of the Hungarian Guard Association was necessary in a democratic society.
It was also a particularly interesting case because of the association’s strong ties with Jobbik. The court has scrutinized dissolution of political parties with particular care under Article 11 due to the centrality of the multi-party system to the principles of democracy. However, the court made a crucial distinction here, pointing out that social organizations are distinct from political parties with respect to the role they play in the functioning of a democracy. The association was not a political party with a legally endorsed function in the electoral process but rather a malleable entity which could not claim a role in upholding core democratic values that would merit the protectons due to a political party. Whereas political parties deserve the most compelling scrutiny of the necessity of a restriction on the right to associate, social organizations like the association do not require as compelling justifications to support an order of dissolution.
That being said, the court acknowledged the fine line between merely shocking, disturbing, or even disrespectful ideas, which are protected by freedom of expression under Article 10 (see Vajnai v. Hungary), and ideas that incite violence or negate fundamental democratic principles which may serve as grounds to dissolve an organization. Given the demonstrations’ threatening physical presence—hundreds of individuals marching into small, villages with significant Roma populations wearing Nazi-style uniforms in a manner clearly intended to intimidate—the court found that the actions of the Magyar Gárda Mozgalom and the association definitively crossed that line between disrespectful and violent, and that preventive interference was necessary and justified.
A concurring opinion went further, stressing that states who are parties to the European Convention on Human Rights have an “international positive obligation” to “criminalize speech or any other form of dissemination of racism, xenophobia, or ethnic intolerance; prohibit every assembly; and dissolve every group, organization, association, or party that promotes them.” In so arguing, the concurring judge also explicitly grounded the importance of the ruling in the social context of racism against Roma in Hungary.
This week’s ruling is not only an anti-discrimination victory but also a much-needed call to action for the defense of Roma rights. Ostalinda Maya, who works with Roma groups in Hungary for the Open Society Foundations, welcomed what she called the court’s “clear and unambiguous message that there is no room in a democracy for any paramilitary group which incites racial hatred or actively intimidates Roma citizens.”