CEDH · CASELAW;CLIN;ENG — 8 juillet 2008

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 110 July 2008 Vajnai v. Hungary - 33629/06 Judgment 8.7.2008 [Section II] Article 10 Article 10-1 Freedom of expression Criminal conviction for wearing an outlawed totalitarian symbol (red star) at a political demonstration: violation   Facts : Section 269/B of the Criminal Code made it a criminal offence to disseminate, use in public or exhibit certain symbols that were deemed “totalitarian”. These included the red star. The constitutionality of that provision was upheld by the Constitutional Court in a decision in 2000 in which it noted that allowing the unrestricted, open and public use of such symbols would seriously offend all persons committed to democracy and in particular those who had been persecuted by Nazism and Communism. Accordingly, the historical experience of Hungary and the danger the symbols represented to its constitutional values convincingly, objectively and reasonably justified their prohibition and the use of the criminal law to combat them. At the material time the applicant was the Vice-President of the Workers’ Party ( Munkáspárt ), a registered left-wing political party. In 2003 he was convicted of using a totalitarian symbol for wearing a red star on his jacket at an authorised demonstration in the centre of Budapest he was attending as a speaker. Sentencing was deferred for a probationary one-year period. Law : The applicant’s conviction amounted to interference with his right to freedom of expression that was “prescribed by law” and pursued the legitimate aims of preventing disorder and protecting the rights of others. When – as in the applicant’s case – freedom of expression was exercised as political speech, limitations were only justified if there was a clear, pressing and specific social need. In view of the multiple meanings of the red star, a blanket ban was too broad as it was not exclusively associated with totalitarian ideas. Accordingly, as with offending words, a careful examination of the context in which it was used was required. The applicant had worn the symbol at a lawfully organised, peaceful demonstration in his capacity as the vice-president of a registered, left-wing, political party, with no known intention of defying the rule of law. The Government had not cited any instance where an actual or even remote danger of disorder triggered by the public display of the red star had arisen in Hungary. The containment of a mere speculative danger, as a preventive measure for the protection of democracy, could not be seen as a “pressing social need” and various other offences existed in Hungarian law to prevent public disturbances. Moreover, the ban was indiscriminate. Merely wearing the red star could lead to a criminal sanction and no proof was required that its display amounted to totalitarian propaganda. While the Court accepted that the display of a symbol which had been ubiquitous during the reign of the Communist regimes might create unease among past victims and their relatives, such sentiments, however understandable, could not alone set the limits of freedom of expression. Almost two decades had gone by since the transition to pluralism in Hungary, which was now a Member State of the European Union and had proved itself to be a stable democracy. Accordingly, the applicant’s conviction could not be considered to have responded to a “pressing social need”. Conclusion : violation (unanimously). Article 41 – Finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes