36358/14, VAJNAI AND OTHERS v. WĘGRY - Wyrok Europejskiego Trybunału Praw Człowieka

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Wyrok Europejskiego Trybunału Praw Człowieka z dnia 27 czerwca 2019 r. 36358/14

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2019:0627JUD003635814

FOURTH SECTION

CASE OF VAJNAI AND OTHERS v. HUNGARY

(Application no. 36358/14 and 5 other cases - see appended list)

JUDGMENT

STRASBOURG

27 June 2019

This judgment is final but it may be subject to editorial revision.

In the case of Vajnai and Others v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President,

Georges Ravarani,

Jolien Schukking, judges,

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 6 June 2019,

Delivers the following judgment, which was adopted on that date:

Postępowanie

PROCEDURE

1. The case originated in applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table

2. Notice of the applications was given to the Hungarian Government ("the Government").

Uzasadnienie faktyczne

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the restriction on their freedom of expression for displaying a totalitarian symbol.

Uzasadnienie prawne

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

6. The applicants complained of the restriction on their freedom of expression for displaying a totalitarian symbol. They relied on Article 10 of the Convention, which reads as follows:

Article 10

"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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

7. The Court has outlined its approach to the application of Article 10 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, ECHR 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, no existence of such a threat prior to the enactment of the ban in question had been shown and 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. 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 (see Fratanoló v. Hungary, no. 29459/10, § 25, 3 November 2011).

8. As concerns the present case, the Court notes that the impugned provision of the national law was the same and the circumstances of the interference comparable.

9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject (Vajnai, cited above, and Fratanoló, cited above), the Court considers that in the instant case the applicants' conviction for the mere fact that they had displayed a red star cannot be considered to have responded to a "pressing social need".

10. These complaints are therefore admissible and disclose a breach of Article 10 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. 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."

12. Regard being had to the documents in its possession and to its case–law (see, in particular, Vajnai, cited above; Fratanoló, cited above; and Noé, Vajnai and Bakó v. Hungary, nos. 24515/09 and 2 others, 23 September 2014), the Court considers it reasonable to award the sums indicated in the appended table.

13. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that these applications disclose a breach of Article 10 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

5. Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 27 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt

Stéphanie Mourou-Vikström

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 10 of the Convention

(restriction on freedom of expression for displaying a totalitarian symbol)

No.

Application no.

Date of introduction

Applicant's name

Date of birth

Representative's name and location

Event

Location

Date

Actions taken by authorities

Penalty

Final domestic decision date

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros) 1

1.

36358/14

08/05/2014

Attila Vajnai

11/08/1963

Cech András

Budapest

Public display of red star at a protest event in Budapest on 01/05/2012.

Public display of red star at a political gathering in Budapest on 29/07/2012.

transfer to police station

none

12/02/2014

(service: 04/04/2014)

12/03/2014

(service: 07/04/2014)

2,000

2.

66792/14

02/10/2014

Éva Vass

14/04/1964

Cech András

Budapest

Public display of red star at a political gathering in Budapest on 29/07/2012.

transfer to police station

none

26/02/2014

(service: 09/04/2014)

2,000

3.

66798/14

01/10/2014

Krisztina Noé

01/07/1970

Cech András

Budapest

Public display of red star at a protest event in Budapest on 01/05/2012.

Public display of red star at a political gathering in Budapest on 29/07/2012.

transfer to police station

none

12/02/2014

(service: 04/04/2014)

12/02/2014

(service: 04/04/2014)

2,000

4.

66889/14

02/10/2014

Judit Róna

24/04/1952

Cech András

Budapest

Public display of red star at a political gathering in Budapest on 29/07/2012.

transfer to police station

none

26/02/2014

(service: 07/04/2014)

2,000

5.

72826/14

05/11/2014

Jenő Fock

24/02/1950

Cech András

Budapest

Public display of red star at a political gathering in Budapest on 29/07/2012.

transfer to police station

none

14/05/2014

(service: 02/07/2014y)

2,000

6.

4240/15

15/01/2015

Zsolt Nyári

28/03/1980

Cech András

Budapest

Public display of red star at a political gathering in Budapest on 29/07/2012.

transfer to police station

none

14/05/2014

(service: 15/07/2014)

2,000

1

. Plus any tax that may be chargeable to the applicants.