FABER v. HUNGARY - 40721/08 - HEJUD [2012] ECHR 1648 (24 July 2012)

DISSENTING OPINION OF JUDGE KELLER

1. To my regret, I am unable to follow the opinion of the majority. In my view, the imposition of a fine of 50,000 Hungarian forints (approximately 200 euros) for non-obedience of police instructions does not constitute – in the particular circumstances of the case – a violation of Article 10 of the Convention.

I. Facts

2. The facts and the particular circumstances (i.e., location, time and historical context) of the case are relevant. The local authorities in Budapest were faced with a difficult situation caused on the one hand by a demonstration of the MSZP (the Hungarian Socialist Party) protesting against racism and hatred, and on the other hand a counter-demonstration held at the same time by members of Jobbik, a legally registered right-wing political party assembled in the immediate vicinityto express their disagreement with the ideas of MSZP. 20 meters away from the MSZP demonstration, the applicant was holding a so-called Árpád-striped flagin the company of some other people. The location is of particular importance as in 1944/45 during the Arrow Cross regime, Jews were exterminated in large numbers at that place.

3. The police were instructed not to tolerate the Árpád-striped flag in an area of 100 meters around the MSZP demonstration. This preventive measure was aimed at securing public order and the security of the participants in both demonstrations, who were legally protesting to defend their ideas. At the time, the Árpád-striped flag was increasingly used by a radical right-wing party, the Hungarian Guard, which was subsequently banned. The Árpád-striped flag resembled the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II and that was responsible for the killing and deportation of thousands of Jews and Roma. However, the flag is not prohibited under national law.

II. Necessary in a democratic society

4. The majority’s judgment concentrates on the question whether the interference was necessary in a democratic society within the meaning of Article 10 § 2 read in conjunction with Article 11 § 2 of the Convention.

5. States are in a particularly difficult position when it comes to securing the right to hold a peaceful demonstration and counter-demonstration. The Court has emphasised the authority’s duty to protect participants of peaceful demonstrations and counter-demonstrations. In particular, a counter-demonstration must not be prohibited for the sole purpose of protecting the first demonstration (see Öllinger v. Austria, 26 June 2006, no. 76900/01, § 36). Moreover, the Court accepts the strategy of keeping demonstrations and counter-demonstrations apart in order to protect the participants’ security and public order (ibid., § 48).

The national authority adopting preventive measures to ensure public order during a demonstration and counter-demonstration enjoys a wide margin of appreciation (see Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, no. 10126/82, § 34). This is also emphasised in the majority’s judgment at least four times (paragraphs 28, 32, 39 and 47). When the Court retrospectively applies the test to ascertain whether the measures adopted were necessary in a democratic society, it has to be careful not to substitute its view for that of the domestic authorities as long as an overall, optimal balance between the competing rights has been achieved (see Axel Springer AG v. Germany, 7 February 2012, no. 39954/08, §§ 106–107, and Mouvement Raëlien Suisse v. Switzerland [GC], 13 July 2012, no. 16354/06, §§ 59-66).

7. First of all, the ex post examination is always easier than an ex ante evaluation of the risks. However, the general non-tolerance of the Árpád-striped flag in the vicinity of the two demonstrations was both a reasonable measure to prevent disorder and a general instruction that the police officers could follow.

8. Second, observers, bystanders and third parties (non-participating persons) are affected by an on-going demonstration and the security measures taken by the police. As one would have to accept, for example, the limited access to certain places at a given moment during a demonstration, one should also follow a police order to remove a particular symbol (see also Austin and Others v. the United Kingdom [GC], 15 March 2012, nos. 39692/09, 40713/09 and 41008/09, §§ 62-63, where the Court accepted the arguments of the British courts that preventing people who had not planned to attend a demonstration – and who had no intent to resort to violence – from leaving a certain area for seven hours, did not amount to a violation of Article 5 of the Convention). If one subjected the police action in such circumstances to the test of a “clear threat and present danger of violence”(paragraph 44 of the present judgment), it would render the security forces’ task nearly impossible.

9. Third, the national authorities did not prohibit the use of the Árpád-striped flag in general, but only in the vicinity of the demonstrations. The applicant was indeed entitled to sympathise with and show his support for the Jobbik demonstration by any means other than by displaying the flag in the immediate vicinity of the demonstrations. The measure was limited in time and space, and focused on a specific symbol. The interference with the applicant’s right under Article 10 was thus proportionate. Therefore, it is difficult to argue that the domestic authorities did not achieve an “overall, optimal balance between the competing rights”.

10. This line of argument would have enabled the Court to find no violation in the case at hand.

III. Alternative line of argument

11. Alternatively, one can legitimately ask whether the raising of the Árpád-striped flag falls within the ambit of expression protected by Article 10 of the Convention. A demonstration or other forms of expression may annoy or cause offence to persons opposed to it (see Plattform “Ärzte für das Leben” v. Austria, cited above, § 32, and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, 2 October 2001, nos. 29221/95 and 29225/95, § 86) or even shock (see, for example, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Gerger v Turkey [GC], 8 July 1999, no. 24919/94, § 46; and Monnat v. Switzerland, 21 September 2006, no. 73604/01, § 63).

12. In my view, this threshold is passed in the present case. What message (in addition to that already expressed by the Jobbikdemonstration) other than a racist and fascist one could be conveyed by a flag that is associated in public opinion with the 1944/45 Nazi Regime in Hungary and is raised at a place where grave human rights violations were committed during the Second World War? In the light of Article 17 of the Convention (see Witzsch v. Germany, (dec.), 13 December 2005, no. 7485/03), I have serious doubts as to whether the expression of such an opinion could attract the protection of the Article 10.

13. Therefore, the case is different from that of Vajnai v. Hungary (8 July 2008, no. 33629/06) where the Court dealt with a general prohibition of a specific symbol having several meanings. In addition, in Vajnai, the symbol in question (a red star) had been displayed by a person who belonged to a group with no totalitarian ambitions – a lawfully registered left-wing political party with connections to the international workers’ movement. Taking due account of the context, the Court held that the display of the red star was unrelated to any racist or totalitarian propaganda, and was merely a symbol of the left-wing political movement (ibid., §§ 25, 51 and 52). In the case at hand, the Árpád-striped flag was not prohibited in general. It was banned only during demonstrations, and – in my view – had a clear fascist meaning at the specific place and time it was displayed by the applicant.

14. However, even assuming that the display of the Árpád-striped flag at that very place and at the very moment could have expressed a message that falls within the ambit of Article 10, I am convinced that it is not for the Court to decide on the disputed nature of this historical symbol. The case at hand is a telling example, showing that the interpretative meaning of a symbol may vary according to the place, the time and the historical context. These elements are best assessed by the national authorities (see also Ždanoka v Latvia, 16 March 2006, no. 58278/00, § 121, where the Court – taking account of the “very special historico-political context” – afforded the State a wide margin of appreciation in the application of Article 3 of Protocol No. 1; similarly, see also Evans v. the United Kingdom, no. 6339/05, § 77; Leyla Şahin v. Turkey, no. 44774/98, 10 November 2005, § 109; and the concurring opinion of Judge Rozakis in Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009, all highlighting the point that national authorities were better placed than the Court to decide the sensitive issues in question and that therefore national decisions must be given special importance).

15. Various international human rights bodies are deeply concerned by the increasing intolerance in Hungary; see, for example, the Report of the European Commission against Racism and Intolerance cited in paragraph 15 of the judgment, the Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Githu Muigai, on his mission to Hungary (A/HRC/20/33/Add.1 2, 23 April 2012), and the most recent concluding observation by the UN Human Rights Committee (HRC):

“The Committee is concerned at the virulent and widespread anti-Roma statements by public figures, the media, and members of the disbanded Magyar Gàrda. The Committee is also concerned at the persistent ill-treatment and racial profiling of the Roma by the Police. Furthermore, it is concerned at indications of rising anti-Semitism in the State party .... The State party should adopt specific measures to raise awareness in order to promote tolerance and diversity in society and ensure that judges, magistrates, prosecutors and all law enforcement officials are trained to be able to detect hate and racially motivated crimes. The State party should ensure that members or associates of the current or former Magyar Gàrda are investigated, prosecuted, and if convicted, punished with appropriate sanctions.” (HRC, CCPR/C/HUN/CO/5, 16 November 2010, § 18).

I am aware of the fact that the Court does not deal with the general human rights situation in a country, but decides individual cases. However, in the case at hand the local authorities granted permissions for a demonstration against racism and for a counter-demonstration, and tried to secure public order by not tolerating fascist symbols during the event. This is exactly what they are called upon to do by various international human rights bodies.

IV. International texts and materials

16. In paragraph 16 the majority cite the HRC’s view in Kivenmaa v. Finland. I have doubts as to the usefulness of this citation. First of all, the gathering of several persons at the site of welcoming ceremonies for a foreign head of State on an official visit (described in § 9.2 thereof) seems to fall perfectly well within the definition of an assembly recently given in Tatár and Fáber v. Hungary (nos.26005/08 and 26160/08, § 29, 12 June 2012), assuming the intentional presence and willingness of the participants in articulating an opinion, i.e., protesting against the official visit. Second, the characterisation of the gathering as an assembly in the sense of the Hungarian Assembly Act (see paragraph 9) was irrelevant for the decision in the case at hand, as the Court rejected the Government’s observation that the assembly had not been notified in advance (see paragraph 49). Third, the views expressed by the HRC in Kivenmaa v. Finland might no longer be good law under the International Covenant on Civil and Political Rights, as there is not a single subsequent communication that would confirm this approach. The Kivenmaa type of assembly falls perfectly well within the definition given by the Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai:

“An ‘assembly’ is an intentional and temporary gathering in a private or public space for a specific purpose. It therefore includes demonstrations, inside meetings, strikes, processions, rallies or even sits-in. ...” (A/HRC/20/27, 21 May 2012, § 24).

Moreover, Kivenmaa has been criticised in literature as follows (Manfred Novak, CCPR Commentary, N.P. Engel, 2nd revised edition, 2005): “... the gathering of 26 individuals, amid a larger crowd, with the aim of criticizing the human rights record of a foreign head of State is ... to be considered as an assembly within the meaning of Art.21 ...” (p. 486). Nowak holds that “intentional, temporary gatherings of several persons for a specific purpose are afforded the protection of freedom of assembly” (p. 484) under Article 21 of the International Covenant on Political and Civil Rights and that the Kivenmaa assembly would fall within this definition.

17. While I am generally in favour of citing international law materials, the Court should do this only where it is helpful for the reasoning in the case at hand. Needless to say, it is dangerous to quote precedents from another jurisdiction without mentioning that those decisions or judgments are based on a different human rights concept (e.g. free speech according to the First Amendment to the US Constitution, rather than freedom of expression in Article 10 of the Convention) and handed down by a body having different functions and competences from those of our Court (e.g. a Federal Supreme Court, as opposed to an international court). The bare citation of such judgments outside the comparative context is overly simplified and therefore misleading.

CONCURRING OPINION OF JUDGE POPOVIĆJOINED BY JUDGE BERRO-LEFÈVRE

I voted along with the majority in this case mostly because, as a disciplined judge, I felt bound by the Court’s previous rulings in Vajnai (Vajnai v. Hungary, app. no. 33629/06), being the leading case, as well as in Fratanolo (Fratanolo v. Hungary, app no. 29459/10), the case in which I was on the bench. The reasoning which provides ground for such an approach is simple: if a left wing political symbol is allowed, irrespective of the consequences that its exposing may produce, then a right wing symbol should be allowed as well.

The problem of applying Article 10 of the Convention to exposing of political symbols deserves in my opinion our attention and profound reflection. Exposing extremists’ symbols does not seem to be a goal to which I would be ready to subscribe at any cost and rate. The Europe I believe in is by no means a Europe of extremists’ symbols. I am opposed to Europe of swastikas, Europe of concentration camps and gulags, Europe of hatred marked by banners.

These are the reasons which make me submit a separate opinion in the present case. Concurring with the majority I suggest that the Court revisit its jurisprudence in the class of cases to which the present one belongs.

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

The Fáber case deals with the use of symbols with a political connotation in the public arena. I can subscribe to the finding of a violation of Article 10 of the European Convention of Human Rights (“the Convention”), but, with all due respect, I cannot agree with the reasoning of the judgment. In my understanding, the reasoning says both too much and too little. On the one hand, it multiplies the legal criteria for assessing the proportionality of the interference. On the other hand, it does not evaluate all the relevant facts to be taken into account in the proportionality test and does not perform the required necessity test[2]. Those are the purposes of this concurring opinion.

The nature of the interference

The interference with the applicant’s freedom of expression was twofold: first, he was hindered from displaying a flag in a public space by a clear police order to remove the flag or leave the site and, second, since he did not comply with the order he was given, he was taken to a police station, held in custody and under interrogation for six hours and later on convicted and fined for the regulatory administrative offence of disobeying police instructions. The interference consisted of a sequence of positive acts by the State authorities, namely the police officers’ conduct during the demonstration, the police department’s conviction and fining of the applicant and the Pest Central District Court’s review of that punishment.

Had the police and the Pest Central District Court omitted to carry out those acts and take those decisions, there would be no case at all. Therefore, the issue at stake is the conduct of the police and the decision of the Pest Central District Court, which interfered with the applicant’s freedom of expression, and not, as the Government argued, the duty of the domestic authorities to take positive measures to enable the lawful demonstration by MSZP, the Hungarian Socialist Party, and the equally lawful counter-demonstration by members of Jobbik, a legally registered right-wing party, to proceed peacefully. In addition, neither the police nor the Pest court contended that the applicant and his colleagues had staged an unlawful demonstration, to which the police had a duty to put an end. Finally, the applicant cannot now be restored to the situation in which he found himself prior to the police’s action, which indicates that the State’s obligation in the present case was negative in nature.

Thus, the police’s and the court’s actions and decisions are to be assessed in terms of the negative obligations arising from Article 10 of the Convention, which narrows the breadth of the margin of appreciation of the respondent State.

The form of the expression

The applicant was silent and only held a flag in the company of some other people. A symbol, such as a flag, an emblem, a uniform or a motto, can be a powerful way of conveying a message. In the case of political expression, a symbol can synthesise a fully-fledged doctrine or ideology, just as the sickle-and-hammer or a five-pointed red star represents communist ideology or the swastika cross stands for National Socialist ideology[3]. The same applies with regard to religious expression, for example with the Star of David for Jews, the cross for Christians, and the crescent moon for Muslims[4]. Moreover, the handling of a symbol in the public arena may be an issue of general interest,[5] and both the use and the desecration of a symbol can, under strict legal conditions, be criminalised[6]. Hence, the display of a symbol, such as a flag, in a public space is a form of expression protected under Article 10 of the Convention, which may only be restricted within the limits of its second paragraph.

In the instant case, the applicant exhibited an Árpád-striped flag. This flag has been listed as one of the historical Hungarian banners. The Árpád stripes are the name of a particular heraldic configuration which has been used since at least 1202 in Hungarian heraldry. They were associated with the founding dynasty of Hungary, the House of Árpád, but later dynasties of Hungary adopted them in one form or another to stress the legitimacy of their claim to the Hungarian throne. The four silver stripes (often depicted as white) are sometimes claimed to symbolise “the four silver rivers” of Hungary – the Danube, the Tisza, the Sava and the Drava. They still can be seen in the dexter of the current coat of arms of Hungary.

It cannot be ignored that the Hungarian Arrow Cross Party, a National Socialist party which led a Government of National Unity from 15 October 1944 to 28 March 1945, used a similar flag. During its short rule, it is estimated that fifteen thousand people, many of them Jews, were murdered. In spite of the graphic similarities of these flags, the Arrow Cross Party flag is not to be confused with the Árpád flag: the Árpád stripes have been defined since the late nineteenth century as a barry of eight stripes, starting with red and ending with argent, contrasting with the nine stripes of the Arrow Cross Party, starting and ending with red, with white stripes in between, and a green arrow cross within a white square and a white capital "H" in the middle.

Since the Árpád-striped flag was lawful at the time of the events, and still is, and it cannot be objectively mistaken for the flag of the Hungarian Arrow Cross Party, a narrow margin of appreciation is left to the respondent State[7].

The space and timing of the expression

Given that the use of a flag or any other symbol of a political ideology, regime, party or movement falls per se under the protection of Article 10, this form of expression may nonetheless lose such protection when it provokes a clear and imminent danger of public disorder, crime or other infringement of the rights of others[8]. The danger is not linked to the symbol itself but to its use in a particular context[9].

In the present case, the flying of the flag took place in a public space, at the steps leading to the Danube embankment, the location where from 1944 to 1945, during the Arrow Cross Party regime, Jews were exterminated in large numbers. The date was 9 May, “Victory Day” or the Second World War commemorative day in Hungary, which marks the capitulation of Nazi Germany to the Soviet Union in the Second World War. The applicant held the flag while two demonstrations were occurring, one organised by the MSZP and the other supported by members of Jobbik. It seems that the applicant and his colleagues were placed between the two demonstrations.

In principle, States have a narrow margin of appreciation with regard toexpression in a public space, such as the embankment of a river, in the vicinity of Parliament. But when the place or the time chosen for the expression is linked to the history of the country, a broader margin of appreciation should be afforded to States, because they are in a better position to assess the impact that the expression could have in their society in the light of its cultural specificities. There is a caveat to this principle: history cannot be a panacea for content control of speech and expression. The State does not have to perform the role of keeper of the official version of a country’s history, simply because there is no such thing as an official history in democratic societies[10]. Yet respect for tragic events in the history of a country may be viewed as a relevant factor when the State regulates expression in certain public places and on certain dates[11]. Hence, in the particular circumstances of the case, the historical background of that part of the Danube embankment where the interference occurred broadens the margin of appreciation of the respondent State.

The nature of the expression

The display of the Árpád-striped flag had, objectively, a political connotation in the particular circumstances of time and space in which it took place. Moreover, the applicant and his colleagues had a clear political intention by holding the flag of the Árpád regime, which was to state that they belonged to the nation, historically considered (see paragraph 27 of the judgment). The objectively and subjectively political nature of the expression is irrefutable, which significantly narrows the margin of appreciation of the respondent State.

The proportionality test

In the case at hand, the nature of the interference and the nature of the expression point in the direction of a narrow margin of appreciation, but the place and time of the expression point in the opposite direction. Assessing the weight of these factors on both arms of the scales, the balancing act clearly favours that arm of the scales which considers the essence of the interference and of the expression, to the detriment of the arm which considers the circumstantial elements of space and time. Overall, a narrow margin of appreciation prevails in the particular circumstances of the case.

Having established the admissible criteria and their relative and overall weight, the Court should then have evaluated the reasons given by the national court for the interference with the applicant’s freedom of expression. The Pest Central District Court gave two reasons: first, the applicant’s conduct had been provocative, likely to result in unruliness in the context of the ongoing socialist demonstration, and second, it was also offensive, since the flag displayed by the applicant was placed higher than the national flag. These two arguments do not stand up, the first being groundless from a factual perspective and the second being inadmissible in a democratic society.

The first argument is based on the protection of public order as a legitimate aim for the restriction of the freedom of expression. Five facts could be put forward to deny the pertinence of the Pest court’s reasoning[12]. First, at no time did the applicant and the few people accompanying him display aggressive or threatening conduct. They neither proffered Nazi slogans nor made Nazi salutations. They were silent and inert. A more self-restrained appearance in a public space than this is difficult to imagine. Second, they were at a clear numerical disadvantage in relation to the police and the other two groups of demonstrators. The number of people surrounding the applicant could not be ascertained with certainty, but their group was much smaller than the other two groups of demonstrators. Third, there was a considerable physical distance between the two groups of demonstrators and the applicant and his colleagues. Fourth, the police were present at all times, keeping the different groups of demonstrators apart. Fifth, no previous incidents were referred to by the police to justify the argument that the applicant or the group of people with him could reasonably be expected to cause disturbances in the public arena. In these circumstances, it is totally unsubstantiated to maintain that there was a clear and imminent danger. Not even the wider standard of a real and present danger, or the much wider standard of a clear threat or present danger, could be said to adequately describe the factual situation. In relation to the Pest court’s first argument, one cannot but conclude that there was no clear and imminent danger and that therefore the reason invoked for the interference was not sufficient.

The second argument concerns the protection of the national flag of Hungary. Implicitly, the Pest court considered that the applicant’s conduct, in placing the Árpád-striped flag higher than the national flag, had offended the national flag. The denigration of a flag may be a form of expression punishable by criminal law[13] and therefore the prevention of crime may be a legitimate ground for restricting such expression. Even in those countries whose criminal laws do not contain such a provision, denigration of the national flag may justify a restriction of the freedom of expression in order to prevent public disorder.

In the instant case, the domestic authorities did not accuse the applicant of the crime of denigration of the national flag, although that offence is provided for in the national legislation. Having regard to the omission to prosecute the applicant for that criminal offence, it is difficult to understand why the Pest court would have considered that same circumstance relevant for the purpose of establishing a regulatory administrative offence. Moreover, a former royal flag may be displayed in a republican State or placed higher than the republican flag, these forms of political expression being protected by Article 10. Hence, the Pest court’s second argument does not sufficiently justify the impugned interference either.

The necessity test

The police’s action during the demonstration sought to avoid public disorder. In order to achieve that goal, the police chose to order the applicant to leave the site and, after his refusal, to detain him. His disobedience was punished in accordance with an administrative offence law. The question put by the necessity test is: could the social need pursued by the police have been achieved without such a strong interference with the applicant’s freedom of expression? The answer is crystal-clear: yes. Even assuming that the interference was proportionate, which it was not, it cannot be said that the police’s action would satisfy the necessity test. Instead of detaining and handcuffing the applicant, who remained silent and inert, without any threatening attitude towards the socialist demonstrators or any inciting attitude towards the right-wing demonstrators, the police could have kept the situation under control and countered any possible danger by less draconian measures, such as strategic positioning between the demonstrators and close surveillance of the evolving situation[14].

Since there was no clear and imminent danger to trigger the police’s action, the use of less intrusive measures would have been perfectly adequate to avoid any disturbance of order. Within the police’s general powers of prevention of public disorder (section 30 of Act no. XXXIV of 1994 on the police), they could have continued to observe the situation closely. Such surveillance had been effective up until the moment the police interfered and there is nothing to suggest that it had become ineffective. In fact, the detention of the applicant corresponded to the most intrusive measure the police could have taken: it caused not only the physical removal of the flag from the place where the applicant was displaying it, but the removal of the applicant himself. Thus, he was hindered from manifesting his political views in any other way in that particular place and at that particular time[15].

The impairment of the applicant’s freedom of expression was compounded by the fact that, after his detention, he was even fined for disobedience. It is specious to argue, as the Government did, that the penalty imposed on the applicant was not a punishment for the use of the flag, but for disobeying police instructions, since the applicant only disobeyed the police’s instruction in order to express his opinion. Furthermore, according to the applicable national law, the fine imposed could be replaced by prison in the event that it was not paid[16]. If on the one hand the regulatory administrative nature of the offence for which the applicant was punished diminishes its seriousness, on the other hand the system whereby a fine can lawfully be converted into regulatory confinement in prison enhances the excessive character of the State’s interference. In sum, the essence (or minimum core) of the applicant’s freedom of expression was not respected.

Conclusion

Having regard to the State’s negative obligation to refrain from interfering with the applicant’s freedom of expression, the lawful form and the political nature of the expression, the lack of any clear and imminent danger resulting from the expression, the excessive character of the police’s action and the potential harshness of the sanction, and after assessing the reasons given by the national authorities in the light of their narrow overall margin of appreciation, I conclude that the interference lacked justification and that the respondent State breached the applicant’s freedom of political expression.

[1]The Hungarian Guard was banned, as an association,on 2 July 2009. A related application (no. 35943/10) is pending before the Court.

[2] In this regard see the introductory thoughts set out in my dissenting opinion in the Grand Chamber case of Mouvementraëliensuisse v. Switzerland([GC] no. 16354/06, 13 July 2012), where I define the elements of the proportionality and necessity tests utilised in Article 10 cases.

[3] On political symbols in the Court’s case-law, see Vajnai v. Hungary, no. 33629/06, ECHR 2008, and Fratanoló v. Hungary, no. 29459/10, 3 November 2011.

[4] On religious symbols in the Court’s case-law, see Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011; Dogru v. France, no. 27058/05, 4 December 2008; and LeylaŞahin v. Turkey[GC], no. 44774/98, 10 November 2005,.

[5] See Filatenko v. Russia, no. 73219/01, 6 December 2007, concerning a question put by a journalist during a live TV show with the participation of election candidates with regard to the tearing down of the TyvaRepublic flag.

[6] With reference to the use of prohibited symbols, see Vajnai, cited above, § 53, and Fratanoló, cited above, §§ 26-27, both concerning section 269/B of the Hungarian Criminal Code; with reference to denigration of a flag, see Grigoriades v. Greece, 25 November 1997, § 38, Reports of Judgments and Decisions 1997-VII, concerning Article 74 of the Greek Military Criminal Code; with reference to denigration of “Turkishness”, see AltuğTanerAkçam v. Turkey, no. 27520/07, §§ 93-95, 25 October 2011, concerning Article 159 of the former Turkish Criminal Code and Article 301 of the new Turkish Criminal Code, both couched in unacceptably broad terms resulting in a lack of foreseeability as to the effects of the criminal law; and with reference to the same crime, but from the perspective of the “social need” for the criminal punishment, see Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, §§ 134-136, 14 September 2010.

[7] On the objective standard for comparing symbols see, for instance, the German Federal Constitutional Court judgment of 1 June 2006 and the German Supreme Court judgments of 13 August 2009 and 28 July 2005. Both courts have argued that the perspective of a common, uninvolved citizen, and not that of an expert, is the test for comparing and assessing the similarity between symbols.

[8] The judgment proposes three different criteria for assessing the proportionality of the interference: “no clear threat or present danger of violence” (paragraph 44), “reprehensible act” (paragraph 48) and “capable of causing public disorder” (paragraph 53). It should be noted that in Vajnai (cited above, § 49) the Court used the “real and present danger” standard. In Fratanoló (cited above, §§ 25-26), after referring to the Vajnai precedent, the Court backed away from using it, censuring the respondent State solely for the lack of judicial scrutiny of the dangerousness of the applicant’s conduct.These multiple and different criteria do not match the Court’s own case-law concerning the justification for restricting freedom of expression in order to maintain public order, prevent the commission of crimes and protect the rights of others. In fact, the Court established the “clear and imminent danger” standard in Gül and Others v. Turkey (no. 4870/02, § 42, 8 June 2010) and Kılıç and Eren v. Turkey (no. 43807/07, § 29, 29 November 2011), and had already implicitly done so in Ergin v. Turkey (no. 6) (no. 47533/99, § 34, 4 May 2006), when it considered whether the applicant’s action could “precipitate immediate desertion”.The wording used in Vajnaihints at a different criterion, since a present danger may not yet be imminent, the latter criterion being much more demanding than the former.

[9] On the importance of context to assess the dangerousness of symbols, see Vajnai (cited above, § 53) and Fratanoló (cited above, §§ 26-27). For instance, the swastika is dangerous if used in a context of Nazi activities, while it is harmless if used as a symbol of Hinduism or Buddhism.

[10] In the Court’s case-law a distinction is made between “established historical facts”, which cannot be disputed and may form a ground for restriction of expression, and an ongoing debate on historical facts, which allows for unrestricted expression (for examples of “established historical facts”, such as the Holocaust, see Lehideux and Isorni v. France, 23 September 1998, no. 24662/94, § 47, Reports 1998-VII, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX, and for examples of ongoing debates on historical facts, see Fatullayev v. Azerbaijan, no. 40984/07,§ 87, 22 April 2010; Karsai v. Hungary, no. 5380/07, § 35, 1 December 2009; and Giniewski v. France, no. 64016/00,§§ 50-51, ECHR 2006-I).

[11] See, for example, the German Federal Constitutional Court judgment of 6 May 2005, on the passing of extreme right-wing demonstrators near a memorial of the Holocaust.

[12] See, for the consideration of a similar set of circumstances, Öllinger v. Austria, no. 76900/01, § 47, ECHR 2006-IX.

[13] The applicable provision was section 269/A of the Hungarian Criminal Code, which is similar to §§ 90a and 104 of the German Criminal Code, Articles 270 and 298 of the Swiss Criminal Code, §§ 248 and 317 of the Austrian Criminal Code, section 110 (e) of the Danish Penal Code, Article 236 of the Romanian Criminal Code, Articles 173 and 175 of the Serbian Criminal Code, Article 433-5-1 of the French Criminal Code in the form of Law no. 2003-239 of 18 March 2003, and Articles 323 and 332 of the Portuguese Criminal Code. The broadness of some of these provisions is certainly problematic in view of the strictness of Article 10, paragraph 2, of the Convention. The problem is resolved in the United States, since the Supreme Court ruled, in Texas v. Johnson, 491 U.S. 397 (1989), and reaffirmed in U.S. v. Eichman, 496 U.S. 310 (1990), that it was unconstitutional for federal, State or municipal government to prohibit the desecration of a flag, although content-neutral restrictions may be imposed to regulate the time, place and manner of such expression.

[14] The same argument was put forward in Öllinger, cited above, § 48.

[15]This situation is different from the one examined by the United Nations Human Rights Committee in Kivenmaa v. Finland (communication no. 412/1990, U.N. Doc. CCPR/C/50/D/412/1990 (1994)), where a banner critical of a foreign government was "taken down" by the police, but the demonstration was allowed to continue, the applicant and her group being authorised to go on to distribute their leaflets and presumably give vent in public to their opinion concerning the visit of the contested Head of State. The UNHRC rightly found a violation of Articles 19 and 21 of the International Covenant on Civil and Political Rights. A fortiori, in the present case, whose features are much more serious, where the applicant was hindered from speaking out after his flag was removed, a finding of a violation is inexorable.

[16] In accordance with section 17(1) of Act no. LXIX of 1999 on regulatory offences as applicable at the time (1,000-3,000 Hungarian forints (HUF) = one day of regulatory confinement), subsequently replaced by section 12(1) of Act no. II of 2012 on regulatory offences, minor-offence proceedings and the Registry of Regulatory Offences, effective as of 15 April 2012 (HUF 5,000 = one day of regulatory confinement).

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You are here: BAILII >> Databases >> European Court of Human Rights >> FABER v. HUNGARY - 40721/08 - HEJUD [2012] ECHR 1648 (24 July 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/1648.html Cite as: [2012] ECHR 1648

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