Yesterday the ECHR published its decision on a case concerning the criminalisation of the use of totalitarian symbols, as prescribed by Hungarian law. It declared that article 269/B was in breach of Article 10 of the Convention. Article 269/B contains the following criminal offence:
“(1) Any person who:
b) uses before great publicity;
c) exhibits in public;
a swastika, the SS sign, an arrow-cross, sickle and hammer, a five-pointed red star or any symbol depicting the above is guilty of a misdemeanor punishable with a fine, if such act does not result in a criminal act of greater gravity.
(2) The person who engages in the act defined in Subsection (1) for academic purposes or the purposes of education, science, or art, or with the purpose of enlightenment about the events of history or the present time, shall not be liable for prosecution.”
The case is related to VAJNAI v. HUNGARY (2008), in which the ECHR declared that:
The Court is of course aware that the systematic terror applied to consolidate communist rule in several countries, including Hungary, remains a serious scar in the mind and heart of Europe. It accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness among past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression. Given the well-known assurances which the Republic of Hungary provided legally, morally and materially to the victims of communism, such emotions cannot be regarded as rational fears. In the Court’s view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.
The circumstances of the case:
7. On 21 December 2008 the applicants organised an event in front of a shopping mall in Budapest, entitled “Anti-Capitalist Santa Claus”, with the intention to demonstrate against consumerism, draw attention to poverty, point out the shortcomings of market economy, and demand free internet access for all.
8. To express their affiliation with Communism, four persons, including the applicants, displayed a sheet and a flag with a five-pointed red star and distributed leaflets with their political message, depicting red stars.
9. In application of section 269/B(1) of the Criminal Code, a police patrol which was present called on the applicants to terminate the demonstration, checked their identity and committed them to Budapest VI District Police Department for interrogation.
10. On 23 December 2008 the applicants lodged a complaint with the Independent Police Complaints Board against the police measures. They relied on the judgment of the European Court of Human Rights adopted in the case of Vajnai v. Hungary (no. 33629/06, ECHR 2008). They referred to the Court’s finding that the prosecution for having worn a red star had amounted to a violation of Mr Vajnai’s freedom of expression enshrined in Article 10 of the Convention.
11. The applicants’ complaints were dismissed by the Complaints Board on 4 March 2009.
12. The applicants’ further complaints against the measures were dismissed by the District Police Department on 22 May 2009. This decision was upheld by the Budapest Chief Police Commander, acting as a second-instance authority, on 17 November 2009.
13. On 29 June 2010 the Budapest Regional Court dismissed the applicants’ requests for judicial review. The court held that the display of the red star contravened section 269/B of the Criminal Code, despite the Vajnai judgment, whose application in the circumstances had been no task of the police officers present on the premises. Consequently, the applicants’ identity check and committal to the Police Department was justified under sections 29 (1) and 33 (1) of Act no. XXXIV of 1994 on the Police.
14. In review proceedings, the Supreme Court upheld the Regional Court’s decision on 22 June 2011 (in the case of Mr Bakó), 27 June 2011 (in the case of Ms Noé), and 5 September 2011 (in the case of Mr Vajnai), endorsing in essence the first-instance decisions’ reasoning.
The applicants asked for compensation.
2. Holds that there has been a violation of Article 10 of the Convention;
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) to the applicants jointly, EUR 2,760 (two thousand seven hundred and sixty euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) to each applicant, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) to the applicants jointly, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
See the full decision here
See the VAJNAI v. HUNGARY (2008) here