Application No. 33629/06
European Court of Human Rights
During a demonstration, the applicant wore the red star as a symbol of the international workers’ movement and was convicted of the offence of using a totalitarian symbol. The ECtHR found that despite the atrocities committed by the Communist Regime, the uneasiness the wearing of the star may create amongst victims of this regime or their relatives is not sufficient to lead to a restriction of Article 10. As such, it found a violation of Article 10.
Link: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-87404%22]}
Theme(s): Totalitarian symbol, Totalitarianism
Date: 8 October 2008
Description of applicant(s): Politician (vice-president of the Workers’ Party)
Brief description of facts: The applicant alleged that his conviction for having worn the symbol of the international workers’ movement constituted an unjustified interference with his right to freedom of expression, in breach of Article 10 of the Convention. He was a speaker at a lawful demonstration in the centre of Budapest which took place at the former location of a statue of Karl Marx, which had been removed by the authorities. On his jacket, the applicant wore a five-pointed red star as a symbol of the international workers’ movement. In application of Article 269/B § 1 of the Criminal Code, a police patrol which was present called on the applicant to remove the star, which he did. Subsequently, criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public. He was questioned as a suspect on 10 March 2003. On 11 March 2004 the Pest Central District Court convicted the applicant of the offence of using a totalitarian symbol. It refrained from imposing a sanction for a probationary period of one year. The applicant appealed to the Budapest Regional Court. On 16 November 2005 the Budapest Regional Court upheld the applicant’s conviction.
(Alleged) target(s) of speech: Victims of Communist regime and their relatives.
The Court’s assessment of impugned speech: The ECtHR found that the ban was too broad since the star can represent the international workers’ movement and not the totalitarian communist regime, that there is no real danger of the rise of totalitarian communism in Hungary, a Member State of the European Union, and that, although it is aware of the terror applied under totalitarian communism in Hungary and the uneasiness the wearing of the star can cause amongst victims and their relatives, this is not sufficient to lead to a restriction of Article 10 ECHR.
Important paragraphs from the judgment:
Para. 49: Hungary has become a member State of the European Union, after its full integration into the value system of the Council of Europe and the Convention. Moreover, there is no evidence to suggest that there is a real and present danger of any political movement or party restoring the communist dictatorship. The Government have not shown the existence of such a threat prior to the enactment of the ban in question.
Para.52: The Court is mindful of the fact that the well-known mass violations of human rights committed under communism discredited the symbolic value of the red star. However, in the Court’s view, it cannot be understood as representing exclusively communist totalitarian rule, as the Government have implicitly conceded (see paragraph 40 above). It is clear that this star also still symbolises the international workers’ movement, struggling for a fairer society, as well certain lawful political parties active in different member States.
Para.55: As regards the aim of preventing disorder, the Court observes that the Government have not referred to any instance where an actual or even remote danger of disorder triggered by the public display of the red star had arisen in Hungary. In the Court’s view, the containment of a mere speculative danger, as a preventive measure for the protection of democracy, cannot be seen as a “pressing social need”. In any event, apart from the ban in question, there are a number of offences sanctioned by Hungarian law which aim to suppress public disturbances even if they were to be provoked by the use of the red star (see paragraph 15 above).
Para 57: 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.
ECHR Article: Article 10
Decision: Violation
Use of ‘hate speech’ by the Court in its assessment? No