Application Number 40721/08
European Court of Human Rights
The applicant complained that he was fined for displaying the striped Árpád flag (which has controversial historical connotations in Hungary) less than 100 metres away from a demonstration against racism and hatred. The Court found that the applicant, who had not behaved violently or abusively and had not posed a threat to public order, should not have been sanctioned for merely displaying the Árpád flag.
Theme(s): Totalitarian symbols, Totalitarianism
Date: 24 October 2012
Description of applicant(s): Citizen
Brief description of facts: The case concerned Fáber’s complaint that he was fined for displaying the striped Árpád flag, which has controversial historical connotations in Hungary, less than 100 metres away from a demonstration against racism and hatred. The Court found that the applicant, who had not behaved violently or abusively and had not posed a threat to public order, should not have been sanctioned for merely displaying the Árpád flag.
(Alleged) target(s) of speech: Victims and relatives of Arrow Cross regime
The Court’s assessment of impugned speech: The Court found that the applicant’s passive conduct and distance from the MSZP demonstration, as well as the fact that the banner may have multiple meanings, and that even if one of those meanings hurts the feelings of relatives of those killed by the regime, that was not enough to give rise to a restriction of Article 10.
Important paragraph(s) from the judgement:
Para. 44: In the present application the Court notes that, while the flag perceived as provocative was actually displayed, the disturbance caused – while capable of making the demonstrators feel ill at ease – was not shown to have disrupted the demonstration materially.
Para 47: Given the applicant’s passive conduct, the distance from the MSZP demonstration and the absence of any demonstrated risk of insecurity or disturbance, it cannot be held that the reasons given by the national authorities to justify the interference complained of are relevant and sufficient.
Para 54: Assuming that the banner in question has multiple meanings – that is, it can be regarded both as a historical symbol and as a symbol reminiscent of the Arrow Cross regime – it is only by a careful examination of the context in which the offending expressions appear that one can draw a meaningful distinction between shocking and offensive expression which is protected by Article 10 and that which forfeits its right to tolerance in a democratic society.
Para 56: The demonstration organised by MSZP was located at a site laden with the fearful memory of the extermination of Jews and was intended to combat racism and intolerance; the choice of the venue appears to be directly related to the aims of the demonstration. However, even assuming that some demonstrators may have considered the flag as offensive, shocking, or even “fascist”, for the Court, its mere display was not capable of disturbing public order or hampering the exercise of the demonstrators’ right to assemble as it was neither intimidating, nor capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons. The Court stresses that ill feelings or even outrage, in the absence of intimidation, cannot represent a pressing social need for the purposes of Article 10 § 2, especially in view of the fact that the flag in question has never been outlawed.
Para 57: As stated in the context of the display of the red star, a symbol used by a totalitarian regime in Hungary, the Court accepts that the display of a symbol which was ubiquitous during the reign of such regimes may create uneasiness amongst 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. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? No