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SECOND
SECTION
CASE OF FRATANOLÓ v. HUNGARY
(Application
no. 29459/10)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fratanoló v.
Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29459/10)
against the Republic of Hungary lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Hungarian national, Mr János Fratanoló (“the
applicant”), on 21 May 2010.
- The
applicant was represented by Mr G. Magyar, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
3. The
applicant alleged under Article 10 of the Convention that his
prosecution for having worn a red star constituted a breach of his
right to freedom of expression.
- On
5 January 2011 the President of
the Second Section decided to give notice of the application
to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Pécs.
- On
6 March 2008 the applicant, at the material time a member of the
Hungarian Workers’ Party 2006 (Munkáspárt
2006), a registered left-wing political party, was convicted by
the Pécs District Court under section 269/B (1) of the
Criminal Code of the offence of having displayed a totalitarian
symbol in public. The court observed that the applicant had publicly
worn a five-pointed red star while participating in a demonstration
on 1 May 2004 celebrating Hungary’s accession to the European
Union and, at the same time, the International Workers’ Day. As
a sanction, the court issued a reprimand.
- On
appeal, on 23 September 2008 the Baranya County Regional Court
reversed this judgment and acquitted the applicant. In holding that
his act had represented in fact no danger to society, the Regional
Court made reference inter alia to a judgment of the European
Court of Human Rights, adopted on 8 July 2008, which had been
introduced by another individual on account of a conviction similar
in nature (Vajnai v. Hungary, no. 33629/06). In that
judgment the European Court of Human Rights held that prosecution for
having worn a red star amounted to a violation of that applicant’s
freedom of expression enshrined in Article 10 of the Convention.
- In
pursuit of the prosecution’s further appeal, on 5 March 2010
the Pécs Court of Appeal reversed the second-instance judgment
and upheld the applicant’s conviction. It confirmed the
reprimand and ordered the applicant to pay 7,500 Hungarian forints
in criminal costs. The Court of Appeal held that positive Hungarian
law did not permit the domestic courts to apply the holding of Vajnai
as such. It pointed out that the conditions of social dangerousness –
which had been found by the Supreme Court to be absent in some,
otherwise similar, cases – were indeed present in the instant
circumstances. The court argued as follows:
“The common feature of those cases can be
summarised as the absence of identification with the totalitarian
symbol, in the first case more emphatically, and in the latter one by
virtue of the perpetrator’s indifference towards the symbol
connected to the incriminated conduct.
The situation in the present case, however, was quite
the contrary.
János Fratanoló used the five-pointed red
star in a political context and as a sign of solidarity felt for his
fellow party member, that is, because he identified himself with the
symbol, with its meaning known and communicated to the outer world.
In this context, the defendant’s concrete political credo is
irrelevant: the statutory provision prohibits everyone, irrespective
of one’s conviction, from the use of totalitarian symbols,
including the five-pointed red star associated with Communist
dictatorship. This statement remains true even if the symbol in
question has dual meaning referring both to the totalitarian system
mentioned above and to the international workers’ movement
promoting the ascendance of large groups of society. ...
The entirety of the elements of this offence is defined
as the legal hypothesis of a so called “conduct”
(immaterial) crime. This means that the offence will be committed
merely by performing the sanctioned conduct (dissemination, use in
public or public display) and no further condition or result, let
alone actual fear or anxiety caused to those perceiving, is
required.”
The
court concluded that the applicant’s act was indeed dangerous
to society.
II. RELEVANT DOMESTIC LAW
- Act
no. IV of 1978 on the Criminal Code provides:
Section 10 (Definition of a criminal offence)
“(1) A criminal offence is an act
perpetrated intentionally or – if the law also punishes
negligent perpetration – by negligence, which represents a
danger for society and for which the law orders the infliction of
punishment.
(2) An activity or omission shall be an act
dangerous to society if it violates or endangers the constitutional,
social or economic order of the Republic of Hungary, or the person or
rights of citizens.”
Section 269/B (The use of totalitarian symbols)
“(1) Any person who (a) disseminates,
(b) uses in public or (c) exhibits a swastika, an SS-badge, an
arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red
star, or a symbol depicting any of them, commits an offence –
unless a more serious crime has been committed – and shall be
sentenced to a fine.
(2) The conduct prescribed under paragraph
(1) is not punishable if it is done for the purposes of education,
science, art or in order to provide information about history or
contemporary events.
(3) Paragraphs (1) and (2) do not apply to
the insignia of States which are in force.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his conviction was a
breach of his right to freedom of expression, enshrined in Article 10
of the Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
prevention of disorder ... [or] ... for the protection of the ...
rights of others ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Where there has been an interference, whether it was
“prescribed by law” and whether it pursued a legitimate
aim
- It
has not been in dispute between the parties that there has been an
interference with the applicant’s rights enshrined in Article
10 § 1 of the Convention; and the Court finds no reason to hold
otherwise. Such an interference will infringe the Convention if it
does not meet the requirements of paragraph 2 of Article 10. It
should therefore be determined whether it was “prescribed by
law”, whether it pursued one or more of the legitimate aims set
out in that paragraph and whether it was “necessary in a
democratic society” in order to achieve those aims.
- The
parties have not addressed the legal basis of the interference or the
legitimate aim it pursued. The Court observes that the restriction on
the use of totalitarian symbols is prescribed by law, an Act of
Parliament, which is sufficiently clear and met the requirements of
foreseeability. It is therefore satisfied that the interference was
indeed prescribed by law. Moreover, it considers that it can be seen
as having pursued the legitimate aims of the prevention of disorder
and the protection of the rights of others.
2. “Necessary in a democratic
society”
(a) The parties’ arguments
i. The Government
- The
Government argued, and submitted an example, that whenever the
element of danger to society, a constitutive feature of an offence,
could not be established in a case otherwise similar to that of the
applicant, the domestic courts acquitted those defendants. The
absence of danger to society in such cases flowed from the absence of
the defendants’ identification with the totalitarian symbol in
question. The situation in the present case, however, was quite the
contrary. The applicant had used the five-pointed red star in a
political context, as a sign of solidarity with a fellow party
member, that is, because he had identified himself with the symbol
and with what it means to the outside world. His own political
conviction was immaterial since the law prohibited everyone from the
use of totalitarian symbols, including the five-pointed red star
associated with Communist dictatorship, whether or not possessing
multiple meanings.
- According
to the final judgment given by the Pécs Court of Appeal, the
aim, in the pursuit of which the symbol was displayed, was
irrelevant. To require an examination of the aim and an exploration
of the perpetrator’s inner conviction would result in the
unrestricted use of the symbols by anyone for any purpose. However,
where identification between the perpetrator and the symbol existed,
the mere use of the prohibited symbols could create a sense of threat
and fear in others. Indeed, the offence in question was so-called
‘conduct offence’ meaning that by performing the
sanctioned conduct the offence was committed without any further
criteria or specific result being necessary. The court had pointed
out that the defendant had worn the red star, obviously with
political motivation, in the street in the midst of an assembly of
many people and while television had been interviewing him. For the
spectators, it had not been possible to appreciate the defendant’s
reasons for this conduct, but it had been obvious that the bearer of
the symbol had identified himself therewith and had in this way
represented a danger to society. Concerning the issue of
proportionality, the Government further drew attention to the fact
that the applicant had been sanctioned only with a reprimand.
ii. The applicant
- The
applicant submitted that there was little scope for restrictions on
the rights enshrined in Article 10 when political expression or
public debate was in question. In his view, the restriction imposed
on him was not justified under paragraph 2 of that provision.
- He
argued that the Government had not shown that wearing the red star
exclusively meant an identification with totalitarian ideas,
especially in the light of the fact that the applicant had done so in
his capacity of chairman of the Hungarian Worker’s Party 2006,
a registered political party with no known intention of participating
in Hungarian political life in defiance of the rule of law. He had
worn the red star as a logo at a peaceful and lawful political event
organised by the National Federation of Hungarian Trade Unions on 1
May 2004. The aim of the event had been to celebrate Hungary’s
accession to the European Union and, at the same time, the
International Workers’ Day.
- The
applicant stressed that he had used the red star to express his
political views, namely his affiliation with Communism, the
international workers’ movement and also to demonstrate his
solidarity with a fellow party member who had been prosecuted for
having worn the red star. Using the red star in that context could
hardly create a sense of threat or fear in anyone. An indiscriminate
ban on totalitarian symbols without any proof being required that
their display amounted to totalitarian propaganda could not be
considered to have responded to a pressing social need.
(b) The Court’s assessment
i. General principles
- The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, among many other authorities, Perna
v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and
Association Ekin v. France, no. 39288/98, § 56, ECHR
2001-VIII).
- The
Court’s task in exercising its supervisory function is not to
take the place of the competent domestic courts but rather to review
under Article 10 the decisions they have taken pursuant to their
power of appreciation (see Fressoz and Roire v. France [GC],
no. 29183/95, § 45, ECHR 1999-I).
- In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient”, and whether the measure taken was
“proportionate to the legitimate aims pursued” (see
Chauvy and Others v. France, no. 64915/01, § 70, ECHR
2004-VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see, among many other
authorities, Zana v. Turkey, 25 November 1997, § 51,
Reports of Judgments and Decisions 1997 VII).
- The Court further reiterates that freedom of
expression, as secured in paragraph 1 of Article 10, constitutes
one of the essential foundations of a democratic society and one of
the basic conditions for its progress and for each individual’s
self-fulfilment. Subject to paragraph 2, it is applicable not
only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those which offend, shock or disturb; such
are the demands of pluralism, tolerance and broadmindedness, without
which there is no “democratic society” (see, among many
other authorities, Oberschlick v. Austria (no. 1), 23 May
1991, § 57, Series A no. 204; and Nilsen and Johnsen v.
Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
Although freedom of expression may be subject to exceptions, they
“must be narrowly interpreted” and “the necessity
for any restrictions must be convincingly established” (see,
for instance, Observer and Guardian v. the United Kingdom,
26 November 1991, § 59, Series A no. 216).
- Furthermore,
the Court stresses that there is little scope under Article 10 §
2 of the Convention for restrictions on political speech or on the
debate of questions of public interest (see Feldek v. Slovakia,
no. 29032/95, § 74, ECHR 2001-VIII; and Sürek v.
Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).
In the instant case, the applicant’s decision to wear a red
star in public must be regarded as his way of expressing his
political views. The display of vestimentary symbols falls within the
ambit of Article 10.
ii. Application of those principles to the
present case
- The
Court has outlined its approach to the application of the above
principles in the context of the display of the five-pointed red star
in the case of Vajnai v. Hungary (no. 33629/06, §§
48 to 58, July 2008). It held that, for a restriction on the display
of that symbol to be justified, it was required that there was a real
and present danger of any political movement or party restoring the
Communist dictatorship. However, the Government had not shown the
existence of such a threat prior to the enactment of the ban in
question. The Court perceived a risk that a blanket ban on the use of
that symbol might also restrict its use in contexts in which no
restriction would be justified. It therefore considered that the ban
in question was too broad in view of the multiple meanings of the red
star: it could encompass activities and ideas which clearly belonged
to those protected by Article 10, and there was no satisfactory way
to sever the different meanings of the incriminated symbol. Indeed,
the relevant Hungarian law did not attempt to do so. Moreover, even
if such distinctions had existed, uncertainties might have arisen
entailing a chilling effect on freedom of expression and
self-censorship. The Court furthermore stressed that even the
potential propagation of Communist ideology could not be the sole
reason to limit the display of the red star by way of a criminal
sanction. However, in any case, a symbol which might have several
meanings in the context of the case of Vajnai, where it had
been displayed by a leader of a registered political party with no
known totalitarian ambitions, could not be equated with dangerous
propaganda.
- The
Court is satisfied that the present application does not
substantially differ from the Vajnai case and that the
considerations underlying that judgment are equally valid in the
present context. Just like Mr Vajnai, the applicant wore the symbol
in question as a member of a registered political party and at a
lawful demonstration. That display formed therefore part of his
political expression and as such enjoyed the protection of Article
10. Indeed, the only element which may distinguish the present
application from the Vajnai case is the Government’s
submission that the applicant’s conduct represented danger to
society because it symbolised his identification with totalitarian
ideas (see paragraph 15 above). However, the Court considers that it
is not called upon to examine the purported justification for the
interference in question from this perspective, since the Government
admitted (see paragraph 16 above) that the sanction had been applied
merely on account of the display itself, without any judicial
scrutiny of its dangerousness having taken place. For the Court, the
applicant has thus been subjected to the same indiscriminate
restriction as Mr Vajnai.
- The
Court has already established that, for the interference to be
justified, the Government must show that wearing the red star
exclusively means identification with totalitarian ideas, especially
in view of the fact that the applicant did so at a lawfully
organised, peaceful demonstration. However, the position of the Court
of Appeal (see paragraph 8 above) expressly denies the necessity of
an examination of the context in which the impugned expression
appears. Therefore, no meaningful distinction can be made between
those shocking forms of expression which are protected by Article 10,
and unjustifiably offensive ones which forfeit their right to
tolerance in a democratic society. The Court would note in particular
that the Court of Appeal did not even analyse if the expression had
resulted in intimidation (cf. the above-mentioned Vajnai judgment,
§ 53). In the absence of a scrutiny of the proportionality
of the interference, as precluded by the interpretation of the Court
of Appeal, the Court cannot find that the Government have proven that
the restriction corresponded to a “pressing social need”.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage and awards him, on the basis of equity, EUR
4,000.
B. Costs and expenses
- The
applicant also claimed EUR 2,400 for the costs
and expenses incurred before the Court. This amount corresponds, as
per a time-sheet submitted, to the legal fees billable by his lawyer
at an hourly rate of EUR 200 plus 25% VAT in respect of
altogether 10 hours of legal work.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the full
sum claimed.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into
Hungarian forints at the rate applicable at the date of settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,400 (two thousand four hundred euros), plus any tax that may be
chargeable to the applicant, 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;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
