Vajnai v. Hungary, No. 33629/06, ECtHR (Second Section), 8 July 2008

Criminal conviction for wearing an outlawed totalitarian symbol at a political demonstration.

Art. 10 ECHR

1. When freedom of expression is exercised as political speech, limitations are justified only in so far as there exists a clear, pressing and specific social need. Consequently, utmost care must be observed in applying any restrictions, especially when the case involves symbols which have multiple meanings.

2. It is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by article 10 of the Convention and the language that, on the contrary, forfeits its right to tolerance in a democratic society.

3. The display of a symbol which had been ubiquitous during the reign of Communist regimes might create uneasiness among past victims and their relatives. Nevertheless, such sentiments, however understandable, cannot alone set the limits of freedom of expression.

4. As regards the aim of preventing disorder, the containment of a mere speculative danger, as a preventive measure for the protection of democracy, cannot be considered to respond to a pressing social need.

5. A legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling cannot be regarded as meeting the pressing social needs recognised in a democratic society: to hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.

(In the present case, the Vice-President of a left-wing political party was convicted of wearing a red star on his jacket at an authorised demonstration in Hungary, on the basis of a legislation that made it a criminal offence to disseminate, use in public or exhibit certain symbols being deemed as “totalitarian”. According to the Court, the applicant’s conviction for the mere fact that he had worn such symbol cannot be considered to have responded to a pressing social need, and thus breaches article 10 of the Convention).

According to the Court, the application did not constitute an abuse of rights for the purposes of Article 17 of the Convention for three reasons. First, it was not shown that the applicant had expressed contempt for the victims of a totalitarian regime, belonged to a group with totalitarian ambitions or had been involved in racist propaganda. Second, although mass violations of human rights committed under communism discredited its symbolic value, the red star still symbolises also the international workers’ movement as well as certain lawful political parties in different member States. Third, the Hungarian Government did not show that wearing the red star exclusively amounted to dangerous totalitarian propaganda.