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Fáber v. Hungary, Application No. 40721/08

SECOND SECTION

CASE OF FÁBER v. HUNGARY

(Application no. 40721/08 )

JUDGMENT

STRASBOURG

24 July 2012

FINAL

24/10/2012

This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision .

FÁBER v. HUNGARY JUDGMENT 1
In the case of Fáber v. Hungary ,
The European Court of Human Rights ( Second Section ), sitting as a
Chamber composed of:
Françoise Tulkens , President,
Dragoljub Popović ,
Isabelle Berro -Lefèvre ,
András Sajó ,
Guido Raimondi ,
Paulo Pinto de Albuquerque ,
Helen Keller , judges,
and Stanley Naismith , Section Registrar ,
Having deliberated in private on 26 June 2012 ,
Delivers the following judgm ent, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40721/08) against the
Republic of Hungary lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Hungarian national, Mr Károly Fáber (“the
applicant”), on 12 August 2008 .
2. The applicant was represented by Mr T.R. Gyurta, a lawyer practising
in Budapest. The Hungarian Government (“the Government”) were
represented by Mr L. Höltzl , Agent, Ministry of Public Administration and
Justice.
3. The applicant alleged in particular that his prosecution on accou nt of
displaying a flag amounted to a violation of Article 10 and/or Article 11 of
the Convention .
4. On 15 February 2011 the application was communicated to the
Gove rnment. It was also decided to rule on the admissibility and meri ts of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lives in Budapest .
6. On 9 May 2007 the Hungarian Socialist Party (MSZP) held a
demonstration in Budapest to protest against racism and hatred (hereinafter:
MSZP demonstration). Simultaneously, members of Jobbik , a legally

2 FÁBER v. HUNGARY JUDGMENT
registered right -wing political party assembled in a n adjacent area to express
their disagreement.
The applicant, silently holding a so -called Árpád -striped flag in the
company of some other people , was observed by police as he stood nearby,
at the steps lead ing to the Danube embankment (the location where in
1944/45, during the Arrow Cross regime, Jews were exterminated in large
numbers) . His position was close to the MSZP event a nd a few metr es away
from the lawn of the square where the Jobbik demonstration was being held.
According to the testim onies whic h the police officers subsequently gave
in court, they had been instructed not to tolerate the Árpád -striped flag if it
was displayed closer than 100 metr es to the MSZP demonstration. The
applicant and other witnesses later stated in court that the holders of the
Árpád -striped flag we re called “fascists” and “arrow -crossers” by the
bystanders . The police supervising the scene called on the applicant either to
remove the banner or leave. The applicant refused to do so, pointing out that
this flag was a historical symbol and that no law forbade its display.
Subsequently he was committed to the B udapest Gyorskocsi Police Holding
Facility , where he was held in custody and under interrogation for six hours.
After he had been released, the Budapest 5th District Police Department
fined him 50,000 Hungarian forints (approximately 200 euros) for the
reg ulatory offence of disobeying police instructions. The applicant ’s
complaint to the Pest Central District Court was to no avail.
7. On appeal, the court held hearings on 7 December 2007 and
21 February 2008 and upheld the applicant ’s conviction. The court was
satisfied that his conduct had been of a provocative nature, likely to result in
unruliness in the context of the ongoing Socialist demonstration, and that
his right to free expression could not be considered as reaching so far as to
caus e prejudice to public order. Despite the opinion of a heraldic expert,
submitted by the applicant and stating that the flag in question was a
historical one, the court considered its display offensive in the
circumstances , because it had been placed higher than the national flag
represent ing the Republic of Hungary . Therefore , the applicant ’s behaviour
was considered to have been provocative.
II. RELEVANT DOMESTIC AND INTERNATIONAL TEXTS
8. Act no. XX of 1949 on the Cons titution (as in force at the material
time) provides:
Article 61
“(1) In the Republic of Hungary everyone has the right to freedom of expression and
speech, and to access and distribute information of public interest. ”

FÁBER v. HUNGARY JUDGMENT 3
Article 62
“(1) The Republic of Hunga ry recognis es the right to peaceful assembly and ensure s
the free exercise thereof. ”
9. Act no. III of 1989 on the Right to Freedom of Assembly (“the
Assembly Act”) provides:
Section 1
“The right of assembly is a fundamental freedom guaranteed for everyone. The
Republic of Hungary recognises this right and ensures its undisturbed exercise. ”
Section 2
“(1) In the framework of the exercise of the right of assembly , peaceful gatherings,
marc hes and demonstrations (henceforth jointly: assemblies) may be held where the
participants may freely express their opinion. …”
Section 11
“(1) The order of the assembly shall be secured by the organiser.
(2) The police and other competent bodies shall, upon the organiser ’s request,
contribute to the maintenance of the order of the assembly and arrange for the remov al
of persons disturbing the assembly. ”
Section 14
“(1) Where the exercise of the right of assembly violates s ection 2(3) or the
participants appear bearing arms or carrying weapons or in an armed manner, or hold
an assembly subject to prior notification despite a prohibiting decision, the assembly
shall be dispersed by the police.
(2) The dispersal of the assembly shall be preceded by a warning .”
10 . Act no. LXIX of 1999 on Administrative O ffences provides:
Section 142 – Disturbance
“(1) Anyone who
a) fights or invites another person to fight,
b) in case of disturbance or disorderly conduct manifests disobedience to a me asure
imposed by the acting official person,
shall be punishable with imprisonment or a fine up to HUF 150,000.
(2) Anyone who appears at a public assembly

4 FÁBER v. HUNGARY JUDGMENT
a) possessing firearms or ammunition or any tool suitable for killing or causing
bodily injury,
b) d isobeying the organiser ’s or the police ’s security -related instruction s
shall be punishable with a fine up to HUF 50,000 .
(3) The perpetrator of the administrative offence specified in subsections (1) -(2)
may also be subjected to a ban.
(4) Proceedings for the administrative offence specified in subsection (1) fall with in
the competence of the court, whereas proceedings for the administrative offence
specified in subsection (2) fall with in the competence of the police.
(5) For the purpose s of this Act , public assembly means: an assembly falling within
the ambit of the Act on the Right to Freedom of A ssembly and accessible for anyone
under identical conditions. ”
11 . Section 143 of Act no. CV of 2004 on Defence and t he Hungarian
Defence Force (as in force at the material time) lists the Árpád -striped flag
as one of the historical Hungarian banners.
12 . Government Decree no. 218/1999. (ХП.28.) on Certain
Administrative Offenc es provides as foll ows:
Section 40/A – Disobeying a lawful measure
“(1) A fine of up to HUF 50,000 may be imposed on a person who disobeys the
lawful measures of a professional member of a law enforcement body.”
13 . Decision no. 75/2008. (V. 29.) AB of the Constitutional Court
contains the following passages:
“1. The Constitutional Court establishes tha t the right of assembly recognised in
Article 62 (1) of the Constitution also covers the holding of events organised in
advance including peacef ul events where the assembly can only be held shortly after
the causing event. In addition, the right of assembly covers assemblies held without
prior organisation.
2. The Constitutional Court holds that it is a constitutional requirement fo llowing
from Ar ticle 62(1 ) of the Constitut ion that in the application of s ection 6 of Act no. III
of !989, the obligation of notification pertains to organised events to be held on public
ground. It is unconstitutional to prohibit merely on the basis of late notification the
holding of such peaceful assemblies that cannot be notified three days pri or to the date
of the planned ass embly , because of the nature of the causing event. ”
14 . Decision no. 55/2001 . (XI. 29.) AB of the Constitutional Court
contains the following passages:
“… In so far as the necessity of restricting the right of assembly is concerned, an
independent examination should be made on the restriction realised in the form of the
obligation to give notification in advance of assemblies planned to be held on public
places of any kind, and on the restriction r ealised in the form of the right of the
authorities to prohibit in certain cases the holding of the assembly.

FÁBER v. HUNGARY JUDGMENT 5
In the opinion of the Constitutional Court, the necessity of applying the obligation of
notification to assemblies to be held on public grounds is justified by the fact that, in
line with the detailed definition in section 15(a) of Act n o. III of 1989, public ground
is an area, road, street or square with unlimited access for everyone. Here, unlimited
access for everyone means that both the particip ants in the assembly and everyone
else who does not participate therein should have equal access to the public ground.
The possibility to use the public ground is a precondition not only for the enforcement
of the freedom of assembly but for that of anothe r fundamental right as well: the right
of free movement guaranteed in Article 58 of the Constitution. ”
15 . The Report of the European Commission against Racism and
Intolerance on Hungary (fourth monitoring cycle), adopted on 20 June 2008 ,
contains the following passages:
“61. Since [the Report of the third monitoring cycle], and apparently building on, at
least in part, a series of highly charged anti -government demonstrations at the end of
2006, there has been a disturbing increase in racism and intolerance in public
discourse in Hungary. In particular, the creation and rise of the radical right -wing
Hungarian Guard (Magyar G árda) – a group bearing close ties to a well known radical
right -wing political party – is consistently cited as a cause for deep concern. Since its
creation in August 2007 and the public swearing in of several hundred new members
in October 2007, the Hungarian Guard has organised numerous public rallies
throughout the country, including in villages with large Roma populations; despite
apparently innocuous articles of association, amongst the group ’s chief messages is
the defence of ethnic Hungarians against so -called “Gypsy crime”. Members of the
Hungarian Guard parade in matching, paramilitary -style black boots and uniforms,
with insignia and flags closely resembling the flag of the Arrow Cross Party, an
openly Nazi organisation that briefly held power in Hungary during World War II,
and during whose spell in power ten s of thousands of Jews and Roma were killed or
deported.
62. In January 2008, the Prosecutor General initiated court proceedings to ban the
Hungarian Guard .1”
16 . In Kivenmaa v. Finland (Communication No. 412/1990, U.N. D oc.
CCPR/C /50/D/412/1990 (1994) ), the United Nations Human Rights
Committee held as follows:
“9.2 The Committee finds that a requirement to notify the police of an intended
demonstration in a public place six hours before its commencement may be
compatible with the permitted limitations laid down in article 21 of the Covenant. In
the circumstances of this specific case, it is evident from the information provided by
the parties that the gathering of several individuals at the site of the welcoming
ceremonies for a fo reign head of State on an official visit, publicly announced in
advance by the State party authorities, cannot be regarded as a demonstration. Insofar
as the State party contends that displaying a banner turns their presence into a
demonstration, the Commi ttee notes that any restrictions upon the right to assemble
must fall within the limitation provisions of article 21. A requirement to pre -notify a
demonstration would normally be for reasons of national security or public safety,
public order, the protect ion of public health or morals or the protection of the rights
1 The Hungarian Guard was banned , as an association, on 2 July 2009. A related
application (no. 35943/10) is pending before the Court .

6 FÁBER v. HUNGARY JUDGMENT
and freedoms of others. Consequently, the application of Finnish legislation on
demonstrations to such a gathering cannot be considered as an application of a
restriction permitted by article 2 1 of the Covenant.
9.3 The right for an individual to express his political opinions, including obviously
his opinions on the question of human rights, forms part of the freedom of expression
guaranteed by article 19 of the Covenant. In this particular cas e, the author of the
communication exercised this right by raising a banner. It is true that article 19
authorizes the restriction by the law of freedom of expression in certain
circumstances. However, in this specific case, the State party has not referre d to a law
allowing this freedom to be restricted or established how the restriction applied to
Ms. Kivenmaa was necessary to safeguard the rights and national imperatives set forth
in article 19, paragraph 2(a) and (b) of the Covenant.”
17 . In its decision no. BVerfG, 1 BvR 961/05 of 6 May 2005, the
Federal Constitutional Court of Germany held that, in the light of the
specific circumstances arising from the location and time of the
demonstration, it was constitutionally acceptable to restrict the route of a
planned extreme right -wing rally, despite its pri or announcement, in order to
defend the dignity of the Jewish victims of Nazi violence and tyranny. The
Constitutional Court, appreciating the historical origins of the Federal
Re public of Germany, upheld, in derogation from the principle of priority,
the restriction of the earlier announced demonstration in favour of a
commemorating assembly on the concerned location with special regard to
the anniversary of the surrender in World War II.
18 . The current position of the Supreme Court of the United States is
summarised in Virginia v. Black, 538 U.S. 343 (2003), in the context of
cross burning (a traditional threatening activity of the Klu Klux Klan).
Accordi ng to this judgment, the burning of a cross is a “symbol of hate” ,
regardless of whether the message is a political one or also meant to
intimidate. And while cross -burning sometimes carries no intimidating
message, at other times the intimidating message is the only message
conveyed. The protections afforded by the First Amendment are not
absolute, and the government may regulate certain categories of expression ,
including the ban of a “true threat”. Intimidation , in the constitutionally
proscribable sense of the word , is a type of true threat, where a speaker
directs a threat to a person or group of persons with the intent of placing the
victim in fear of bodily har m or death. The fact that cross -burning is a
symbolic expression does not resolve the consti tutional question.
Sometimes the cross -burning is a statement of ideology, a symbol of group
solidarity. The Supreme Court required effort to distinguish among these
different types of cross -burnings and consider ed the contextual factors that
we re necessar y to de cide whether a particular cross -burning was intended to
intimidate. The Supreme Court went on to state:
“It may be true that a cross burning, even at a political rally, arouses a sense of
anger or hatred among the vast majority of citizens who see a burning cross. But this
sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther

FÁBER v. HUNGARY JUDGMENT 7
has stated, « The lesson I have drawn from my childhood in Nazi Germany and my
happier adult life in this country is the need to walk the someti mes difficult path of
denouncing the bigot ’s hateful ideas with all my power, yet at the same time
challenging any community ’s attempt to suppress hateful ideas by force of law»
(Virginia v. Black, 538 U.S. 343, 366 -7 (2003) ).
The impact of (undeniably outrageous) speech on a funeral procession
was considered in Snyder v. Phelps ( 131 S.Ct. 1207 (2011) . Members of a
church picketed within 200 to 300 feet from a soldier ’s funeral service. The
picket signs reflected the church ’s vi ew that the United States is overly
tolerant of sin and that God kills American soldiers as punishment.
The Supreme Court held:
“In public debate [we] must tolerate insulting, and even outrageous, speech in order
to provide adequate ‘breathing space ’ to th e freedoms pro tected by the First
Amendment … funeral picketing is certainly hurtful and its contribution to public
discourse may be negligible. But [it] addressed matters of public import on public
property, in a peaceful manner… The speech … did no t itself disrupt that funeral …
Speech is powerful. It can stir people to action, move them to tears of both joy and
sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react
to that pain by punishing the speaker. As a Na tion we have chosen a different course –
to protect even hurtful speech on public issues to ensure that we do not stifle public
debate ” (Snyder v. Phelps, 131 S.Ct. 1207, 1219 (2011) ).
In Frisby v. Schultz, 487 U.S. 474 (1988) , the Supreme Court upheld a
municipal ban on residential picketing that had been adopted in response to
the picketing by anti -abortion protestors of the home of a physician who
performed abortions. Here the offensive and disturbing picketing focused on
a “captive” home audience.
THE L AW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
19 . The applicant complained that the prosecution conducted against
him amounted to an unjustified interference with his right to freedom of
expression. He relied on Articles 10 and 11 of the Convention.
The Court considers that this issue falls to be examined under Article 10 ,
read – in the specific circumstances of the case – in conjunction with
Article 11 of the Convention .
Article 10 reads as follows:
“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. …

8 FÁBER v. HUNGARY JUDGMENT
2. The exercise of these freedo ms, 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 integ rity or public safety, for the prevention of disorder or
crime, …”
Article 11 of the Convention reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to jo in trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safe ty, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others. …”
20 . The Government contested the applicant ’s argument.
A. Admissibility
21 . The Court notes that this complaint is not manifestly ill -founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Arguments of the parties
a. The Government
22 . The Government submitted that u nd er Article 11 of the Convention
the right o f assembly was not an absolute right and therefore could be
subjected to restrictions. In Hungary , the pos sibility of interfering with that
right was laid down in an Act of Parliament. The holding of certain
assemblies and meetings on public areas must be notified three days ahead .
Under section 11 (2) of the Assembly Act, the police we re empowe red to
remove from the venue those who disturb ed the assembly. In the course of
securing an assembly , a police officer might , upon the well -founded
suspicion of an administrative or criminal offence , apprehend the
perpetrator ; under section 142(2) b) of Ac t n o. LXIX of 1999 on
Administrative O ffences, disobedience was punishable with a fine. Thus ,
the applicant ’s right to freedom of assembly had been restricted in
compliance with the conditions prescribed by law.

FÁBER v. HUNGARY JUDGMENT 9
23 . The restriction had pursued a legitimate aim and the measure
imposed by the police on the applicant in order to protect the demonstrators
peacefully exercising their right o f assembly had served the interest of
public safety and the protection of the rights and freedoms of others. The
police measure had been applied in order to prevent the occurrence of
hostile or aggressive incidents between the participants in the two, opposing
assemblies – thus, in order to ensure public peace. It could be expected that
one group might intend to disturb the other assembly , and therefore the
endeavour of the police to prevent any clashes between the participants in
the two assemblies had been well -founded. The assembly generating the
instant case h ad not been notified by the applicant or anyone else; indeed, its
participants had appeared at a distance from another venue notified to the
police but close to the venue of the assembly of persons holding opposite
views.
24 . The f act that several persons had appeared at a location higher in
position than the venue of the other , properly notified assembly, holding in
their hands a symbol obviously irritating for the participants in that
assembly, had reasonably led the police office rs in charge to conclude that
persons holding opposing political views had been going to disturb that
assembly. In fact, the police had acted to protect a lawful demonstration
whose participants should have been able to hold the demonstration without
having to fear that they would be subjected to physical violence by their
opponents . It was the duty of Contracting States to take reasonable and
appropriate measures to enable lawful demonstrations to p roceed
peacefu lly, and they had a wide discretion in the choice of the means to be
used. In any case, the applicant could have expressed his counter -opinion at
the original, duly notified assembly.
25 . Lastly, the sanctions in question had not been imposed on account of
the use of the banner but because of the applicant ’s refusal to comply with
the police instructions related to the removal of the banner.
b. The applicant
26 . The applicant stressed at the outset that the Constitutional Court had
prohibited the banning of peaceful assemblies that were notified with delay,
or were unannounced but not organis ed in advance . He submitted that there
had been no separate event or assembly on the day in question. He had
simply been present with some others at the top of the steps leading to the
Danube embankment , a location close to the notified assembly of Jobbik ,
rather than that of the Socialist Party . The nearby presence of the applicant
and his associates should not qualify as a separate assembly, or if it had
been considered as such, it had not had to be announced.
27 . Neither the appearance of the applicant on the scene nor the use of
the flag had been harmful or provocative; therefore there had be en no legal
ground for the p olice to intervene . Their measure – based on the perceived

10 FÁBER v. HUNGARY JUDGMENT
occurrence of an administrative offence – had not been legitimate since the
use of the Árpád -stгiped flag was not prohibited, it not being a totalitarian
or banned symbo l under Hungarian law . Moreover, it could not be
established that there had been a breach of public order merely because
the re had been another assembly going on with participants holding
opposite political views. There was no indication of any potential o r actual
hostility or aggressi on either; in any ca se, such an incident had been
pre cluded by the locations of the two events . By using the impugned flag
the applicant had intended to express his political opinion and the fact that
he belong ed to the nation, historically considered.
2. The Court ’s assessment
28 . The Court notes that in the instant case the domestic authorities had
regard to various competing Convention rights. In cases such as the presen t
one, which require th e right to freedom of assembly to be balanced against
the right to freedom of expression and, allegedly, against the right of others
to freedom of assembly, the Court considers that the outcome of its scrutiny
should not, in theory, vary according to wheth er the case has been lodged by
a “demonstrator ” or a “counter -demonstrator ”. Accordingly, the margin of
appreciation afforded to the national authorities should in principle be the
same in both cases. Where the balancing exercise has been undertaken by
the national authorities in conformity with the criteria laid down in the
Court ’s case -law, the Court would require strong reasons to substitute its
view for that of the domestic courts as long as an overall, optimal balance
between the competing rights has b een achieved (see , mutatis mutandis ,
Von Hannover v. Germany (n o. 2) [GC], nos. 40660/08 and 60641/08 ,
§§ 106 -107 , 7 February 2012 ). The Court ’s task is therefore to examine
whether those authorities struck a fair balance between the interests of the
protagonists . In order to do so , it is necessary to consider not only the
general principles applicable to freedom of expression but also those
ap plicable to freedom of assembly – which is of particular relevance for the
determination of that balance.
a. Whether there has been an interference
29 . The Court notes that this issue has not been in dispute between the
parties. It therefore concludes that there ha s been an interference with the
applicant ’s right to freedom of expression .
b. “Prescribed by law”
30 . The Court notes the Government ’s submission according to which
section 11 (2) of the Assembly Act (see paragraph 9 above) authorised the
police to remove from the venue those who disturb ed the assembly. It is
satisfied that the exercise of this power in the circumstances met the

FÁBER v. HUNGARY JUDGMENT 11
requirements of lawfulness and concludes that the interference was
“prescribed by law”.
c. Legitimate aim
31 . The Court observes that the appl icant was detained and fined for
disobedience to a lawful order, against the background of the authorities ’
perception that his conduct was likely to disrupt a demonstration. The
interference thus pursued the legitimate aim s “prevention of disorder” and
“the protection of the right s and freedoms of others ”.
d. Necessary in a democratic society
i. General principles
32 . The test of “necessity in a democratic society” requires the Court to
determine whether the interference complained of corresponded to a
“pressing social need”. The Contracting States have a certain margin of
appreciation in assessing whether such a need e xists, but it goes hand in
hand with European supervision, embracing both the legislation and the
decisions applying it, even those given by an independent court. The Court
is therefore empowered to give the final ruling on whether a “restriction” is
recon cilable with freedom of expression as protected by Article 10 (see,
among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39,
ECHR 2003 –V; and Association Ekin v. France , no. 39288/98, § 56,
ECHR 2001 –VIII).
33 . The Co urt ’s task in exercising its supervisory function is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation (see Fressoz and Roire v. France [GC] , n o. 29183/95, § 45,
ECHR 1999 –I). In particular, the Court must determine whether the reasons
adduced by the national authorities to justify the interference were “relevant
and sufficient”, and whether the measure taken was “proportionate to the
legitimate aims pursued” (see Chauvy and Others v. France , no. 64915/01,
§ 70, ECHR 2004 –VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment of the
relevant facts, applied standards which were in conformity with the
principles embodied in Article 10 (see, among many other authorities,
Zana v. Turkey , 25 November 1997, § 51 , Reports of Judgments and
Decisions 1997 -VII ).
34 . Freedom of expression, as secured in paragraph 1 of Article 10,
constitutes one of the essential foundations of a democratic society and one
of the basic conditions for its progress and for each individual ’s self –
fulfilment. Subject to paragraph 2, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those which offend, shock or disturb; such

12 FÁBER v. HUNGARY JUDGMENT
are the demands of pluralism, tolerance and broadmindedness, without
which there is no “democratic society” (see, e.g. , Oberschlick v. Austria
(no. 1), 23 May 1991, § 57 , Series A no. 204 ).
35 . Although freedom of expression may be subject to exceptions, they
“must be narrowly interpreted” and “the necessity for any restrictions must
be convincingly established” (see, e.g. , Observer and Guardian v. the United
Kingdom , 26 November 1991, § 59 , Seri es A no. 216 ). Furthermore, the
Court stresses that there is little scope under Article 10 § 2 of the
Convention for restrictions on political speech or on the debate of questions
of public interest (see , e.g., Feldek v. Slovakia , no. 29032/95, § 74,
ECHR 2001 –VIII; Sürek v. Turkey (no. 1) [GC], no. 2668 2/95, § 61,
ECHR 1999 –IV ).
36 . For the Court, the display of a symbol associated with a political
movement or entity, like that of a flag, is capable of expressing
identification wit h ideas or representing them and falls within the ambit of
expression protected by Article 10 of the Convention. When the right to
freedom of expression is exercised in the context of political speech through
the use of symbols , utmost care must be observe d in applying any
restrictions, especially if the case involves symbo ls which have multiple
meanings . In this connection the Court emphasises that it is only by a
careful examination of the context (see Öllinger v. Austria , no. 76900/01,
§ 47 , ECHR 2006 –IX) , that one can draw a meaningful distinction between
shocking and offensive language which is protected by Article 10 and that
which forfeits its right to to lerance in a democratic society ( see Vajnai v.
Hungary , no. 33629/06, § 53, ECHR –2008 ).
37 . Furthermore, freedom of assembly as enshrined in Article 11 of the
Convention protects a demonstration that may annoy or cause offence to
persons opposed to the ideas or claims that it is seeking to promote (see
Stankov and the Un ited Macedonian Organisation Ilinden v. Bulgaria ,
nos. 29221/9 5 and 29225/95, § 86, ECHR 2001 –IX). The guarantees of
Article 11 of the Convention apply to all assemblies except those where the
organisers and participants have violent intentions or otherwis e deny the
foundations of a “democratic society” (see G. v. Germany , no. 13079/87,
Commission decision of 6 March 1989, Decisions and Reports (DR) 60,
p. 256; Christians against Racism and Fascism v. the United Kingdom ,
Commission decision of 16 July 1980, DR 21, p. 138). Any measures
interfering with freedom of assembly and expression other than in cases of
incitement to violence or rejection of democratic principles – however
shocking and unacceptable certain views or words used may appear to the
authorit ies – do a disservice to democracy and often even endanger it (see
Sergey Kuznetsov v. Russia , no. 10877/04, § 45 , 23 October 2008 ;
Alekseyev v. Russia , nos. 4916/07, 25924/08 and 14599/09, § 80 ,
21 October 2010 ).

FÁBER v. HUNGARY JUDGMENT 13
38 . If every probability of tension and heated exchange between
opposing groups during a demonstration were to warrant its prohibition,
society would be faced with being deprived of the opportunity of hearing
differing views on any question which offends the s ensitivity of the majority
opinion (see Stankov , cited above, § 107). The Court would add that a
demonstration may annoy or give offence to persons opposed to the ideas or
claims that it is seeking to promote. The participants must, however, be able
to hol d the demonstration without having to fear that they will be subjected
to physical violence by their opponents; such a fear would be liable to deter
associations or other groups supporting common ideas or interests from
openly expressing their opinions on highly controversial issues affecting the
community. In a democracy the right to counter -demonstrate cannot extend
to inhibiting the exercise of the right to demonstrate.
39 . While it is the duty of Contracting States to take reaso nable and
appropriate measures to enable lawful demonstrations to proceed
peacefully, they cannot guarantee this absolutely and they have a wide
discretion in the choice of the means to be used (see, mutatis mutandis ,
Abdulaziz, Cabales and Balkandali v. t he United Kingdom , 28 May 1985,
§ 67 , Series A no. 94 ; Rees v. the United Kingdom , 17 October 1986, §§ 35 –
37 , Series A no. 106 ). In this area the obligation they enter into under
Article 11 of the Convention is an obligation as to measures to be taken and
no t as to results to be achieved (see Plattform “Ärzte für das Leben” v.
Austria , 21 June 1988, §§ 32 -34 , Series A no. 139 ).
40 . However, the mere existence of a risk is insufficient for banning the
event: in making their assessment the authorities must produce concrete
estimates of the potential scale of disturbance in order to evaluate the
resources necessary for neutralising the threat of violent clashes (see
Barankevich v. Russia , no. 10519/03, § 33 , 26 July 2007 ; Alekseyev , cited
above, § 75 ).
41 . The protection of opinions and the freedom to express them is one of
the objectives of freedom of assembly a nd association enshrined in Article
11 (see Stanko v, cited above, § 85). The proportionality principle demands
that a balance be struck between the requirements of the purposes listed in
Article 11 § 2 and those of the free expression of opinions by word, gesture
or even silence by persons assembled on the st reets or in other public places
(see Ezelin v. France , 26 April 1991, § 52 , Series A no. 202 ).
ii. Application of those principles to the present case
42 . The Court notes at the outset that the present case is concerned with
competing fundamental rights. The applicant ’s right t o freedom of
expression and his claim to freedom of peaceful assembly have to be
balanced against the MSZP demonstrators ’ right to protection against
disruption of their assembly. For the Court, i n the protection against such a
disruption , a wide discretion is granted to the national authorities , not only

14 FÁBER v. HUNGARY JUDGMENT
because the two competing rights do, in principle, deserve equal protection
that satisfies the obliga tion of neutr ality of the S tate when opposing views
clash, but also because those authorities are best positioned to evaluate the
security risks and those of disturbance as well as the appropriate measures
dictated by the risk assumption.
43 . However, the Court considers that such discretion applies where the
existence of a seri ous threat of a violent counter -demonstration is
convincingly demonstrated ; counter -demonstrators have the right to express
their disagreement with the demon strators. Therefore , in the application of
such measures , the State has to fulfil its positive obligation s to protect the
right o f assembly of both demonstrating groups, and should find the least
restrictive means that would , in principle , enable both demo nstrations to
take place.
44 . As previously established, t he interference pursued the legitimate
aims of maintai ning public order and protectin g the rights of others (see
paragraph 31 above) . These two concerns are intimately related as long as
the disturbance is affecting the right to hold the demonstration. In the
exercise of the State ’s margin of appreciation , past violence at similar
events and the impact of a counter -demonstration on the targeted
demonstration are relevant considerations for the authorities, in so far as the
danger of violent confrontation between the two groups – a general problem
of public order – is concerned (see Öllinger , cited above, § 47). Experience
with past disorder s is less relevant where the sit uation, as in the present
case, allows the authorities to take preventive measures, such as police
presence keep ing the two assemblies apart and offering a sufficient degree
of protection, even if there was a history of violence at similar events
necessita ting police intervention. The Court would note in this context that
it has not been argued that there was increased likelihood of violence due to
the presence of the Árpád -stripe d banner or that the use of that symbol ,
perceived as provocative by the autho rities, resulted in a clear threat or
present danger of violence.
45 . The Court recalls that i n the Öllinger case it did not consider
relevant the impact which the counter -demonstration could have had on the
targeted demonstrators (§ 45 of the judgment ). In that case the police were
of the opinion that the demonstration in question would disrupt a
commemorati ve event as it was likely to offend the religious feelings of the
public and was regarded as disrespectful towards the dead s oldiers and thus
provocati ve . Nevertheless, no pressing social need to intervene was
established , although there was a risk of protests by some visitors to the
cemetery which could degenerate into an open conflict between them and
those participating in th e assembly. In that case the ban was a preliminary
one based on assumptions about future events .
In the present application the Court notes that , while the flag perceived as
provocative was actually displayed , the disturbance caused – while capable

FÁBER v. HUNGARY JUDGMENT 15
of maki ng the demonstrators feel ill at ease – was not shown to have
disrupt ed the demonstration materially .
46 . In the particular circumstances of the present case, t he Court
observes that amongst those standing at the steps leading to the Danube
embankment the police took action only against those who were holding the
Árpád -stripe d flag. There is no indication that counter -demonstrators,
identifiable with the flag, would have moved in the direction of the
demonstration. The police officers explained that they were acting on
instruction s to remove such flags in the vicinity of the MSZP
demonstration. Neither the applicant ’s conduct nor that of the others present
was threatening or abusive, and it was only the holding of the flag that was
considered provocative (see para graph 6 above).
47 . The Court reiterates that the national authorities have a wide
discretion in determining the appropriate measures to be taken for the
prevention of disorder at an assembly. In the circumstances it could be
expected that one group might intend to disturb the MSZP assembly. For the
Court, t he pol ice ’s endeavour to prevent any clashes between the
participants in the t wo assemblies falls within the authorities ’ margin of
appreciation grante d in the prevention of violence and in the protection of
demonstrators against fear of violence. The Court considers, however, that
the freedom to take part in a peaceful assembly is of such importance that it
cannot be restricted in any way, so long as the person concerned does not
himself commit any repreh ensible act on such an occasion (see Ezelin , cited
abo ve, § 53) . In the absence of additional elements , the Court, even
accepting the provocative nature of the display of the flag, which remains
prima facie an act of freedom of expression, can not see the reasons for the
intervention against the applicant. In this connection, the Court reiterates
that, “where demonstrators do not engage in acts of violence, it is important
for the public authorities to show a certain degree of tolerance towards
peaceful gatherings if the freedom of assembly guaranteed by Articl e 11 of
the Convention is not to be deprived of all substance” ( Oya Ataman v.
Turkey , no . 74552/01, §§ 41 -42, ECHR 2006 –XIV). Given the applicant ’s
passive conduct , the distance from the MSZP demonstration and the
absence of any demonstrated risk of insecu rity or disturbance, it cannot be
held that the reasons given by the national authorities to justify the
interference complained of are relevant and sufficient.
48 . The Court will next examine w hether the display of the flag in
que stion constitutes a reprehensible act in the context of the applicant ’s
right to freedom of expression.
49 . As to the Government ’s observation that the assembly generating the
instant case had not been notified by the applicant or anyone else , the Court
would note that , while this is a relevant consideration in the determination
of the proportionality of an interference with the right of assembly , the
applicant was apprehended for other reasons, namely the display of the

16 FÁBER v. HUNGARY JUDGMENT
Árpád -striped flag. For the domestic court dealing with the lawfulness of
the detention and the fine, the legal basis for the apprehension of the
applicant lay exclusively in his refusal to obey the order to remove the flag
(see paragraph 7 above) . However, i n similar circumstances the Court does
not take additional, ex post facto justifications offered by the Government
into consideration (see Bukta and Others v. Hungary , no. 25691/04, § 34 ,
ECHR 2007 -III ).
50 . Since the Government have failed to demonstrate that the applicant ’s
conduct was sanctioned for an activity falling under the law of assembly –
and therefore that law is immaterial for the Court ’s scrutiny – the Court will
examine the impugned event as an exercise of freedom of ex pression.
51 . The Court notes the applicant ’s argument that the police took action
against him for the display of the flag, perceived as capable of violating the
rights of others and disturbing public tranquillity ; the police officers ’
testimony about the instruction to remove any Árpád -striped banners
disturbing the MSZP demonstration ; the expert opinion (see paragraph 7
above) that the banner was a historical flag of Hungary and that it is
recognis ed as such by law (see parag raph 11 above).
52 . For the Court, t he expressive nature of the display of an object
depends o n the circumstances of the situation. The MSZP demonstration
was intended, among other things , to protest against intolerant views held
by the extreme right -wing movements which often avails itself of Árpád –
striped or similar flags , as observed by the Euro pean Committee against
Racism and Intolerance (see paragraph 15 above) . The applicant ’s decision
to display that flag in the vicinity of the MSZP demonstration must be
regarded as his way of expressing – by way of a symbol – his political
views, namely a disagreement with the ideas of the MSZP demonstrators.
The display was perceived as the expression of a political opinion by the
demonstrators, who identified the applicant as being a “fascist ”.
53 . The Court observes that apparently s ome demonstrators were
troubled by the display of the banner, but they made no verb al threat. The
Court has already found that , in the context of the right s of the other
demonstrators and of public tranquillity , no pressing social need could be
established for the police to intervene (see paragraph 47 above). It remains
to be seen if the display was capable of causing public disorder in itself or
required the intervention of the police on any other legal ground compatible
with paragraph 2 of Article 10 of the Convention.
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 meaning ful distinction between shocking and offensive expression which
is protected by Article 10 and that which forfeits its right to to lerance in a
democratic society (see Vajnai v. Hungary , no. 33629/06, § 53 ,

FÁBER v. HUNGARY JUDGMENT 17
EC HR –2008 ). The Court has already stated in the c ontext of the display of
the red star that it shares the Government ’s view that the crucial issue in that
case was whether or not the applicant ’s conduct represented danger for
society (see Vajnai (II) v. Hungary (dec.), no. 44438/08, 18 January 2011).
55 . The Government argue that the display was irritating, while the
applicant insisted that the display was lawful ( see paragraphs 24 and 27
above ). The Court will therefore examine if the display could have created a
pressing social need to restrict the use of the symbol, for the pro tection of
the rights of others. The Court emphasises at this juncture that in the
interpretation of the meaning of an expression , for the determination of the
proportionality of a specific restrictive mea sure , the location and the timing
of the display of a symbol or of other expressions with multiple meanings
play an important role .
56 . The demonstration organis ed 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 cap able
of disturbing public order or hamper ing 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 (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62 ,
ECHR 1999 -IV ). The Court stresses that i ll feelings or even outrage, in the
absence of intimidation, cannot represent a press ing social need for the
purposes of Article 10 § 2, especially in view of the fact that the flag in
question has never been outlawed .
57 . As stated in the context of the display of the red star, a symbol used
by a totalitarian regi me 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
opin ion is subjected to the heckler ’s veto (see Vajnai , cited above, § 57 ).
58 . The Court does not exclude that the display of a contextually
ambiguous symbol at the specific site of mass murders may in certain
circumstances express identification with the perpetrators of those crimes; it
is for this reason that e ven otherwise pr otected expression is not equally
permissible in all places and all times. In certain countries with a traumatic
histor ical experience comparable to that of Hungary , a ban on
demonstrations – to be held on a specific day of remembrance – which are
offensiv e to the memory of the victims of totalitarianism who perished at a
given site may be considered to represent a pressing social need. The need

18 FÁBER v. HUNGARY JUDGMENT
to protect the r ights to honour of the murdered and the piety rights of their
relatives may necessitate an interf erence with the right to freedom of
expression, and it might be legitimate when the particular place and time of
the otherwise protected expression unequivocally change s the meaning of a
certain display . Similar considerations apply if the expression, beca use of its
timing and place, amounts to the glorification of war crimes, crimes against
humanity or genocide ( see Garaudy v. France (dec.), no. 65 831/01,
ECHR 2003 –IX (extracts) ). Moreover, w here the applicant expresses
contempt for the victims of a totali tarian regime as such , this may amount –
in application of Article 17 of the Convention – to an abuse of Convention
right s (see Witzsch v. Germany (dec.), no. 41448/98, 20 April 1999).
However, the Court is satisfied that in the instant case no such abusive
element can be identified.
59 . The foregoing considerations are sufficient to enable the Court to
conclude that the restriction complained of did not meet a pressing social
need . It cannot therefore be regarded as “necessar y in a democratic society”.
There has accordingly been a violation of Article 10 read in the light of
Article 11 of the Convention .
II. ALLEGED VIOLATION S OF ARTICLE S 6 AND 14 OF THE
CONVENTION
60 . The applicant also relied on Art icles 6 §§ 1 and 3 and 14 of the
Convention.
61 . Having regard to the above considerations, the Court finds that no
separate examination is warranted under these Articles (see , mutatis
mutandis , Öllinger v. Austria , no. 76900/01, § § 52 and 53 , ECHR 2006 -IX ).
III . APPLICATION OF ARTICLE 41 OF THE CONVENTION
62 . 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 int ernal 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.”
A. Damage
63 . The applicant claimed 4,000 euros (EUR) in r espect of non –
pecuniary damage.
64 . The Government contested this claim.
65 . The Court considers that the applicant must have suffered some non –
pecuniary damage and awards him EUR 1,500 under this head .

FÁBER v. HUNGARY JUDGMENT 19
B. Costs and expenses
66 . The applicant also claimed EUR 1,500 for the costs and expenses
incurred before the Court. This sum corresponds to 10 hours of legal work
billable by his lawyer at an hourly rate of EUR 150.
67 . The Government contested this claim.
68 . According to the Court ’s case -law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria , the Court considers it reasonable to award
the full sum claimed, i.e. EUR 1,500 .
C. Default interest
69 . 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.
FOR THESE REASONS, THE COURT
1. Decla res unanimously the application admissible ;

2. Holds by six votes to one that there has been a violation of Article 10
read in the light of Article 11 of the Convention ;

3. Holds unanimously that there is no need to examine the complaint s
under Article s 6 and 14 of the Convention;

4. Holds by six votes to one
(a) that the respondent State is to pay the applicant , within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention , the following am ounts, to be converted
into the currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR 1,500 (one thousand five hundred euros), plus any tax that
may be chargeable, in respect of non -pecuniary damage;
(ii) EUR 1,500 (o ne thousand five hundred eur os), plus any tax that
may be chargeable to the applicant , in respect of costs and
expenses;
(b) that from the expiry of the above -mentioned three months until
settlement simple interest shall be payable on the above amounts at a

20 FÁBER v. HUNGARY JUDGMENT
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

5. Dismisses unanimously the remainder of the applicant ’s claim for just
satisfaction.
Done in English, and notified in writin g on 24 July 2012 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) dissenting opinion of Judge Keller ;
(b) concurring opinion of Judge Popović joined by Judge Berro -Lef èvre ;
(a) concurring opinion of Judge Pinto de Albuquerque .
F.T.
S.H.N.

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 21
DISSENTING OPINION OF JUDGE KELLER
1. To my regret, I am unable to follow the opinion of the majority. In my
view, the imposition of a fine of 50,000 Hungarian forints (approximately
200 euros) for non -obedience of police instructions does not constitute – in
the particular circumstances of th e case – a violation of Article 10 of the
Convention.
I. Facts
2. The facts and the particular circumstances (i.e., location, time and
historical context) of the case are relevant. The local authorities in Budapest
were faced with a difficult situation c aused on the one hand by a
demonstration of the MSZP ( the Hungarian Socialist Party ) protest ing
against racism and hatred , and on the other hand a counter -demonstration
held at the same time by members of Jobbik , a legally registered right -wing
political p arty assembled in the immediate vicinity to express their
disagreement with the ideas of MSZP . 20 meters away from the MSZP
demonstration, the applicant was holding a so -called Árpád -striped flag in
the company of some other people. The location is of part icular importance
as in 1944/45 during the Arrow Cross regime, Jews were exterminated in
large numbers at that place.
3. The police were instructed not to tolerate the Árpád -striped flag in an
area of 100 meters around the MSZP demonstration. This prevent ive
measure was aimed at securing public order and the security of the
participants in both demonstrations, who were legally protesting to defend
their ideas. At the time, the Árpád -striped flag was increasingly used by a
radical right -wing party, the Hung arian Guard, which was subsequently
banned. The Árpád -striped flag resembled the flag of the Arrow Cross
Party, an openly Nazi organisation that briefly held power in Hungary
during World War II and that was responsible for the killing and deportation
of t housands of Jews and Roma. However, the flag is not prohibited under
national law.
II. Necessary in a democratic society
4. The majority ’s judgment concentrates on the question whether the
interference was necessary in a democratic society within the mea ning of
Article 10 § 2 read in conjunction with Article 11 § 2 of the Convention.
5. States are in a particularly difficult position when it comes to securing
the right to hold a peaceful demonstration and counter -demonstration. The
Court has emphasised t he authority ’s duty to protect participants of peaceful
demonstrations and counter -demonstrations. In particular, a counter –
demonstration must not be prohibited for the sole purpose of protecting the

22 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
first demonstration (see Öllinger v. Austria, 26 June 20 06, no. 76900/01,
§ 36). Moreover, the Court accepts the strategy of keeping demonstrations
and counter -demonstrations apart in order to protect the participants ’
security and public order ( ibid. , § 48).
6. The national authority adopting preventive measu res to ensure public
order during a demonstration and counter -demonstration enjoys a wide
margin of appreciation (see Plattform “Ärzte für das Leben” v. Austria ,
21 June 1988, no. 10126/82, § 34). This is also emphasised in the majority ’s
judgment at least four times (paragraphs 28, 32, 39 and 47). When the Court
retrospectively applies the test to ascertain whether the measures adopted
were necessary in a democratic society, it has to be careful not to substitute
its view for that of the domestic authorities as long as an overall, optimal
balance between the competing rights has been achieved (see Axel Springer
AG v. Germany , 7 February 2012, no. 39954/08, §§ 106 –107, and
Mouvement Raëlien Suisse v. Switzerland [GC], 13 July 2012, no. 163 54/06 ,
§§ 59 -66 ).
7. First of all, the ex post examination is always easier than an ex ante
evaluation of the risks. However, the general non -tolerance of the Árpád –
striped flag in the vicinity of the two demonstrations was both a reasonable
measure to pr event disorder and a general instruction that the police officers
could follow.
8. Second, observers, bystanders and third parties (non -participating
persons) are affected by an on -going demonstration and the security
measures taken by the police. As one would have to accept, for example, the
limited access to certain places at a given moment during a demonstration,
one should also follow a police order to remove a particular symbol (see
also Austin and Others v. the United Kingdom [GC], 15 March 2012,
nos . 39692/09, 40713/09 and 41008/09, §§ 62 -63, where the Court accepted
the arguments of the British courts that preventing people who had not
planned to attend a demonstration – and who had no intent to resort to
violence – from leaving a certain area for s even hours, did not amount to a
violation of Article 5 of the Convention ). If one subjected the police action
in such circumstances to the test of a “ clear threat and present danger of
violence ” (paragraph 44 of the present judgment), it would render the
security forces ’ task nearly impossible.
9. Third, the national authorities did not prohibit the use of the Árpád –
striped flag in general, but only in the vicinity of the demonstrations. The
applicant was indeed entitled to sympathise with and show his sup port for
the Jobbik demonstration by any means other than by displaying the flag in
the immediate vicinity of the demonstrations. The measure was limited in
time and space, and focused on a specific symbol. The interference with the
applicant ’s right under Article 10 was thus proportionate. Therefore, it is
difficult to argue that the domestic authorities did not achieve an “overall,
optimal balance between the competing rights ”.

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 23
10. This line of argument would have enabled the Court to find no
violation in the case at hand.
III. Alternative line of argument
11. Alternatively, one can legitimately ask whether the raising of the
Árpád -striped flag falls within the ambit of expression protected by
Article 10 of the Convention. A demonstration or other forms of expression
may annoy or cause offence to persons opposed to it (see Plattform “Ärzte
für das Leben” v. Austria , cited above, § 32, and Stanko v and the United
Macedonian Organisation Ilinden v. Bulgaria , 2 October 2001,
nos. 29221/95 and 29225/95, § 86 ) or even shock (see, for example,
Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24;
Gerger v Turkey [GC], 8 July 1999, no. 24919/94, § 46; and Monnat
v. Switzerland , 21 September 2006, no. 73604/01, § 63 ).
12. In my view, this threshold is passed in the present case. What
message (in addition to that already expressed by the Jobbik demonstration)
other than a racist and fasc ist one could be conveyed by a flag that is
associated in public opinion with the 1944/45 Nazi Regime in Hungary and
is raised at a place where grave human rights violations were committed
during the Second World War? In the light of Article 17 of the Conv ention
(see Witzsch v. Germany , (dec.), 13 December 2005, no. 7485/03), I have
serious doubts as to whether the expression of such an opinion could attract
the protection of the Article 10.
13. Therefore, the case is different from that of Vajnai v. Hunga ry
(8 July 2008, no. 33629/06) where the Court dealt with a general prohibition
of a specific symbol having several meanings. In addition, in Vajnai , the
symbol in question (a red star) had been displayed by a person who
belonged to a group with no totalit arian ambitions – a lawfully registered
left -wing political party with connections to the international workers ’
movement. Taking due account of the context, the Court held that the
display of the red star was unrelated to any racist or totalitarian propag anda,
and was merely a symbol of the left -wing political movement ( ibid. , §§ 25,
51 and 52). In the case at hand, the Árpád -striped flag was not prohibited in
general. It was banned only during demonstrations, and – in my view – had
a clear fascist meaning at the specific place and time it was displayed by the
applicant.
14. However, even assuming that the display of the Árpád -striped fla g at
that very place and at the very moment could have expressed a message that
falls within the ambit of Article 10, I am convinced that it is not for the
Court to decide on the disputed nature of this historical symbol. The case at
hand is a telling exam ple, showing that the interpretative meaning of a
symbol may vary according to the place, the time and the historical context.
These elements are best assessed by the national authorities (see also

24 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
Ždanoka v Latvia , 16 March 2006, no. 58278/00, § 121, wher e the Court –
taking account of the “ very special historico -political context” – afforded
the State a wide margin of appreciation in the application of Article 3 of
Protocol No. 1; similarly, see also Evans v. the United Kingdom ,
no. 6339/05, § 77; Leyla Şahin v. Turkey , no. 44774/98, 10 November 2005,
§ 109; and the concurring opinion of Judge Rozakis in Egeland and
Hanseid v. Norway , no. 34438/04, 16 April 2009, all highlighting the point
that national authorities were better placed than the Court to deci de the
sensitive issues in question and that therefore national decisions must be
given special importance ).
15. Various international human rights bodies are deeply concerned by
the increasing intolerance in Hungary; see, for example, the Report of the
European Commission against Racism and Intolerance cited in paragraph 15
of the judgment, the Report of the Special Rapporteur on contemporary
forms of racism, racial discrimination, xenophobia and related intolerance,
Githu Muigai, on his mission to Hungar y (A/HRC/20/33/Add.1 2, 23 April
2012), and the most recent concluding observation by the UN Human
Rights Committee (HRC):
“The Committee is concerned at the virulent and widespread anti -Roma statements
by public figures, the media, and members of the disb anded Magyar Gàrda. The
Committee is also concerned at the persistent ill -treatment and racial profiling of the
Roma by the Police. Furthermore, it is concerned at indications of rising anti –
Semitism in the State party …. The State party should adopt spe cific measures to raise
awareness in order to promote tolerance and diversity in society and ensure that
judges, magistrates, prosecutors and all law enforcement officials are trained to be
able to detect hate and racially motivated crimes. The State party should ensure that
members or associates of the current or former Magyar Gàrda are investigated,
prosecuted, and if convicted, punished with appropriate sanctions.” (HRC,
CCPR/C/HUN/CO/5, 16 November 2010, § 18).
I am aware of the fact that the Court does not deal with the general
human rights situation in a country, but decides individual cases. However,
in the case at hand the local authorities granted permissions for a
demonstration against racism and for a counter -demonstration, and tried to
secure pub lic order by not tolerating fascist symbols during the event. This
is exactly what they are called upon to do by various international human
rights bodies.
IV. International texts and materials
16. In paragraph 16 the majority cite the HRC ’s view in
Kivenmaa v. Finland . I have doubts as to the usefulness of this citation.
First of all, the gathering of several persons at the site of welcoming
ceremonies for a foreign head of State on an official visit (described in § 9.2
thereof) seems to fall perfect ly well within the definition of an assembly
recently given in Tatár and Fáber v. Hungary (nos. 26005/08 and 26160/08 ,

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 25
§ 29, 12 June 2012), assuming the intentional presence and willingness of
the participants in articulating an opinion, i.e., protesting a gainst the official
visit. Second, the characterisation of the gathering as an assembly in the
sense of the Hungarian Assembly Act (see paragraph 9) was irrelevant for
the decision in the case at hand, as the Court rejected the Government ’s
observation tha t the assembly had not been notified in advance (see
paragraph 49). Third, the views expressed by the HRC in Kivenmaa v.
Finland might no longer be good law under the International Covenant on
Civil and Political Rights, as there is not a single subsequent
communication that would confirm this approach. The Kivenmaa type of
assembly falls perfectly well within the definition given by the Special
Rapporteur on the rights to freedom of peaceful assembly and association,
Maina Kiai:
“An ‘assembly ’ is an intent ional and temporary gathering in a private or public
space for a specific purpose. It therefore includes demonstrations, inside meetings,
strikes, processions, rallies or even sits -in. …” (A/HRC/20/27, 21 May 2012, § 24).
Moreover, Kivenmaa has been crit icised in literature as follows (Manfred
Novak, CCPR Commentary, N.P. Engel, 2 nd revised edition, 2005) : “ … the
gathering of 26 individuals, amid a larger crowd, with the aim of criticizing
the human rights record of a foreign head of State is … to be considered as
an assembly within the meaning of Art. 21 …” (p. 486) . Nowak holds that
“intentional, temporary gatherings of several persons for a specific purpose
are afforded the protection of freedom of assembly ” (p. 484) under
Article 21 of the Intern ational Covenant on Political and Civil Rights and
that the Kivenmaa assembly would fall within this definition.
17. While I am generally in favour of citing international law materials,
the Court should do this only where it is helpful for the reasoning in the case
at hand. Needless to say, it is dangerous to quote precedents from another
jurisdiction without mentioning that those decisions or judgments are based
on a different human rights concept (e.g. free speech according to the First
Amendment to the US Constitution, rather than freedom of expression in
Article 10 of the Convention) and handed down by a body having different
functions and competences from those of our Court (e.g. a Federal Supreme
Court, as opposed to an international court). The bare citation of such
judgments outside the comparative context is overly simplified and
therefore misleading.

26 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
CONCURRING OPINION OF JUDGE POPOVIĆ JOINED BY
JUDGE BERRO -LEFÈVRE
I voted along with the majority in this case mostly because, as a
disciplined judge, I felt bound by the Court ’s previous rulings in Vajnai
(Vajnai v. Hungary, app. no. 33629/06 ), being the leading case, as well as in
Fratanolo (Fratanolo v. Hungary, app no. 29459/10) , the case in which I
was on the bench. The reasoning which provid es ground for such an
approach is simple: if a left wing political symbol is allowed, irrespective of
the consequences that its exposing may produce, then a right wing symbol
should be allowed as well.
The problem of applying Article 10 of the Convention t o exposing of
political symbols deserves in my opinion our attention and profound
reflection. Exposing extremists ’ symbols does not seem to be a goal to
which I would be ready to subscribe at any cost and rate. The Europe I
believe in is by no means a Euro pe of extremists ’ symbols. I am opposed to
Europe of swastikas, Europe of concentration camps and gulags, Europe of
hatred marked by banners.
These are the reasons which make me submit a separate opinion in the
present case. Concurring with the majority I suggest that the Court revisit its
jurisprudence in the class of cases to which the present one belongs.

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 27
CONCURRING OPINION OF JUDGE PINTO DE
ALBUQUERQUE
The Fáber case deals with the use of symbols with a political
connotation in the public arena. I can subscribe to the finding of a violation
of Article 10 of the European Convention of Human Rights (“the
Convention”), but, with all due respect, I cannot agree with the reasoning of
the judgment. In my understanding, the reasoning says both too much and
too little. On the one hand, it multiplies the legal criteria for assessing the
proportionality of the interference. On the other hand, it does not evaluate
all the relevant facts to be taken into account in the proportionality test and
does not perform the r equired necessity test 1. Those are the purposes of this
concurring opinion.
The nature of the interference
The interference with the applicant ’s freedom of expression was twofold:
first, he was hindered from displaying a flag in a public space by a clear
police order to remove the flag or leave the site and, second, since he did
not comply with the order he was given, he was taken to a police station,
held in custody and under interrogation for six hours and later on convicted
and fined for the regulatory a dministrative offence of disobeying police
instructions. The interference consisted of a sequence of positive acts by the
State authorities, namely the police officers ’ conduct during the
demonstration, the police department ’s conviction and fining of the
applicant and the Pest Central District Court ’s review of that punishment.
Had the police and the Pest Central District Court omitted to carry out
those acts and take those decisions, there would be no case at all. Therefore,
the issue at stake is the cond uct of the police and the decision of the Pest
Central District Court, which interfered with the applicant ’s freedom of
expression, and not, as the Government argued, the duty of the domestic
authorities to take positive measures to enable the lawful demon stration by
MSZP, the Hungarian Socialist Party, and the equally lawful counter –
demonstration by members of Jobbik, a legally registered right -wing party,
to proceed peacefully. In addition, neither the police nor the Pest court
contended that the applican t and his colleagues had staged an unlawful
demonstration, to which the police had a duty to put an end. Finally, the
applicant cannot now be restored to the situation in which he found himself
1 In this regard see the introductory thoughts set out in my dissenting opinion in the Grand
Chamber case of Mouvement ra ëlien suisse v. Switzerland ([GC ] no. 16354/06, 13 July
2012) , where I define the elements of the proportionality and necessity tests utilised in
Article 10 cases.

28 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
prior to the police ’s action, which indicates that the State ’s obligation in the
present case was negative in nature.
Thus, the police ’s and the court ’s actions and decisions are to be assessed
in terms of the negative obligations arising from Article 10 of the
Convention, which narrows the breadth of the margin of appreciation of the
respondent State .
The form of the expression
The applicant was silent and only held a flag in the company of some
other people. A symbol, such as a flag, an emblem, a uniform or a motto,
can be a powerful way of conveying a message. In the case of political
expression, a symbol can synthesise a fully -fledged doctrine or ideology,
just as the sickle -and -hammer or a five -pointed red star represents
communist ideology or the swastika cross stands for National Socialist
ideology 1. The same a pplies with regard to religious expression, for
example with the Star of David for Jews, the cross for Christians, and the
crescent moon for Muslims 2. Moreover, the handling of a symbol in the
public arena may be an issue of general interest, 3 and both the use and the
desecration of a symbol can, under strict legal conditions, be criminalised 4.
Hence, the display of a symbol, such as a flag, in a public space is a form of
expression protected under Article 10 of the Convention, which may only
be restricted within the limits of its second paragraph .
In the instant case, the applicant exhibited an Árpád -striped flag. This
flag has been listed as one of the historical Hungarian banners. The Árpád
stripes are the name of a particular heraldic configuration which has been
1 On political symbols in the Court’s case -law, see Vajnai v. Hungary , no. 33629/06,
ECHR 2008, and Fratanoló v. Hungary , no. 29459/10, 3 November 2011. 2 On religious symbols in the Court’s case -law, see Lau tsi and Others v. Italy [GC],
no. 30814/06, ECHR 2011; Dogru v. France , no. 27058/05, 4 December 2008; and Leyla
Şahin v. Turkey [GC ], no. 44774/98, 10 November 2005,. 3 See Filatenko v. Russia , no. 73219/01, 6 December 2007, concerning a question put by a
journalist during a live TV show with the participation of election candidates with regard to
the tearing down of the Tyva Republic flag. 4 With reference to the use of prohibited symbols, see Vajnai , cited above, § 53, and
Fratanoló , cited above, §§ 26 -27, both concerning section 269/B of the Hungarian
Criminal Code; with reference to denigration of a flag, see Grigoriades v. Greece ,
25 November 1997, § 38, Reports of Judgments and Decisions 1997 -VII, concerning
Article 74 of the Gre ek Military Criminal Code; with reference to denigration of
“Turkishness”, see Altuğ Taner Akçam v. Turkey , no. 27520/07, §§ 93 -95, 25 October
2011, concerning Article 159 of the former Turkish Criminal Code and Article 301 of the
new Turkish Criminal Code , both couched in unacceptably broad terms resulting in a lack
of foreseeability as to the effects of the criminal law ; and with reference to the same crime,
but from the perspective of the “social need” for the criminal punishment, see Dink
v. Turkey , nos . 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, §§ 134 -136,
14 September 2010.

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 29
used since at least 1202 in Hunga rian heraldry. They were associated with
the founding dynasty of Hungary, the House of Árpád, but later dynasties of
Hungary adopted them in one form or another to stress the legitimacy of
their claim to the Hungarian throne. The four silver stripes (often depicted
as white) are sometimes claimed to symbolise “the four silver rivers” of
Hungary – the Danube, the Tisza, the Sava and the Drava. They still can be
seen in the dexter of the current coat of arms of Hungary.
It cannot be ignored that the Hungarian Arrow Cross Party, a National
Socialist party which led a Government of National Unity from 15 October
1944 to 28 March 1945, used a similar flag. During its short rule, it is
estimated that fifteen thousand people, many of them Jews, were murdered.
In sp ite of the graphic similarities of these flags, the Arrow Cross Party flag
is not to be confused with the Árpád flag: the Árpád stripes have been
defined since the late nineteenth century as a barry of eight stripes , starting
with red and ending with argen t, contrasting with the nine stripes of the
Arrow Cross Party, starting and ending with red, with white stripes in
between, and a green arrow cross within a white square and a white capital
“H” in the middle .
Since the Árpád -striped flag was lawful at the time of the events, and still
is, and it cannot be objectively mistaken for the flag of the Hungarian Arrow
Cross Party, a narrow margin of appreciation is left to the respondent State 1.
The space and timing of the expression
Given that the use of a flag o r any other symbol of a political ideology,
regime, party or movement falls per se under the protection of Article 10,
this form of expression may nonetheless lose such protection when it
provokes a clear and imminent danger of public disorder, crime or ot her
infringement of the rights of others 2. The danger is not linked to the symbol
itself but to its use in a particular context 1.
1 On the objective standard for comparing symbols see, for instance, the German Federal
Constitutional Court judgment of 1 June 2006 and the German Supreme Court judgments
of 13 August 2009 and 28 July 2005. Both courts have argued that the perspective of a
common, uninvolved citizen, and not that of an expert, is the test for comparing and
assessing the similarity between symbols. 2 The judgment proposes three different cri teria for assessing the proportio nality of the
interference: “ clear threat or present danger of violence” (paragraph 44), “reprehensible
act” (paragraph 48) and “capable of causing public disorder” (paragraph 53). It should be
noted that in Vajnai (cited a bove, § 49) the Court used the “real and present danger”
standard. In Fratanol ó (cited above, §§ 25 -26), after referring to the Vajnai precedent, the
Court backed away from using it, censuring the respondent State solely for the lack of
judicial scrutiny o f the dangerousness of the applicant’s conduct . These multiple and
different criteria do not match the Court’s own case -law concerning the justification for
restricting freedom of expression in order to maintain public order, prevent the commission
of crim es and protect the rights of others. In fact, the Court established the “clear and
imminent danger” standard in Gül and Others v. Turkey (no. 4870/02, § 42, 8 June 2010)

30 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
In the present case, the flying of the flag took place in a public space, at
the steps leading to the Danube embankment, the l ocation where from 1944
to 1945, during the Arrow Cross Party regime, Jews were exterminated in
large numbers. The date was 9 May, “Victory Day” or the Second World
War commemorative day in Hungary, which marks the capitulation of Nazi
Germany to the Sovie t Union in the Second World War. The applicant held
the flag while two demonstrations were occurring, one organised by the
MSZP and the other supported by members of Jobbik. It seems that the
applicant and his colleagues were placed between the two demonst rations.
In principle, States have a narrow margin of appreciation with regard to
expression in a public space, such as the embankment of a river, in the
vicinity of Parliament. But when the place or the time chosen for the
expression is linked to the hist ory of the country, a broader margin of
appreciation should be afforded to States , because they are in a better
position to assess the impact that the expression could have in their society
in the light of its cultural specificities. There is a caveat to t his principle:
history cannot be a panacea for content control of speech and expression.
The State does not have to perform the role of keeper of the official version
of a country ’s history, simply because there is no such thing as an official
history in d emocratic societies 2. Yet respect for tragic events in the history
of a country may be viewed as a relevant factor when the State regulates
expression in certain public places and on certain dates 3. Hence, in the
particular circumstances of the case, the h istorical background of that part of
the Danube embankment where the interference occurred broadens the
margin of appreciation of the respondent State.

and Kılıç and Eren v. Turkey (no. 43807/07, § 29, 29 November 2011), and had already
implicitly done so in Ergin v. Turkey (no. 6) (no. 47533/99, § 34, 4 May 2006), when it
considered whether the applicant’s action could “ precipitate immediate desertion” . The
wording used in Vajnai hints at a different criterion, since a present danger may not yet be
imminent, the latter criterion being much more demanding than the former. 1 On the importance of context to assess the dangerousness of symbols, see Vajnai (cited
above, § 53) and Fratanoló (cited above, §§ 26 -27). For instance, the swastika is dangerous
if used in a context of Nazi activities, while it is harmless if used as a symbol of Hinduism
or Buddhism. 2 In the Court’s case -law a distinction is made between “established historical fac ts”, which
cannot be disputed and may form a ground for restriction of expression, and an ongoing
debate on historical facts, which allows for unrestricted expression (for examples of
“established historical facts”, such as the Holocaust, see Lehideux and Isorni v. France ,
23 September 1998, no. 24662/94 , § 47, Reports 1998 -VII , and Garaudy v. France (dec.),
no. 65831/01, ECHR 2003 -IX, and for examples of ongoing debates on historical facts, see
Fatullayev v. Azerbaijan , no. 40984/07, § 87, 22 April 2010; Karsai v. Hungary ,
no. 5380/07 , § 35, 1 December 2009; and Giniewski v. France , no. 64016/00 ,§§ 50 -51,
ECHR 2006 -I). 3 See, for example, the German Federal Constitutional Court judgment of 6 May 2005, on
the passing of extreme right -wing demonstrators near a memorial of the Holocaust.

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 31
The nature of the expression
The display of the Árpád -striped flag had, objectively, a political
connota tion in the particular circumstances of time and space in which it
took place. Moreover, the applicant and his colleagues had a clear political
intention by holding the flag of the Árpád regime, which was to state that
they belonged to the nation, historic ally considered (see paragraph 27 of the
judgment). The objectively and subjectively political nature of the
expression is irrefutable, which significantly narrows the margin of
appreciation of the respondent State.
The proportionality test
In the case at hand, the nature of the interference and the nature of the
expression point in the direction of a narrow margin of appreciation, but the
place and time of the expression point in the opposite direction. Assessing
the weight of these factors on both arms of the scales, the balancing act
clearly favours that arm of the scales which considers the essence of the
interference and of the expression, to the detriment of the arm which
considers the circumstantial elements of space and time. Overall, a narrow
margin of appreciation prevails in the particular circumstances of the case.
Having established the admissible criteria and their relative and overall
weight, the Court should then have evaluated the reasons given by the
national court for the int erference with the applicant ’s freedom of
expression. The Pest Central District Court gave two reasons: first, the
applicant ’s conduct had been provocative, likely to result in unruliness in
the context of the ongoing socialist demonstration, and second, i t was also
offensive, since the flag displayed by the applicant was placed higher than
the national flag. These two arguments do not stand up, the first being
groundless from a factual perspective and the second being inadmissible in
a democratic society.
The first argument is based on the protection of public order as a
legitimate aim for the restriction of the freedom of expression. Five facts
could be put forward to deny the pertinence of the Pest court ’s reasoning 1.
First, at no time did the applicant a nd the few people accompanying him
display aggressive or threatening conduct. They neither proffered Nazi
slogans nor made Nazi salutations. They were silent and inert. A more self –
restrained appearance in a public space than this is difficult to imagine.
Second, they were at a clear numerical disadvantage in relation to the police
and the other two groups of demonstrators. The number of people
surrounding the applicant could not be ascertained with certainty, but their
1 See, for the consideration of a similar set of circumstances, Öllinger v. Austria ,
no. 76900/01, § 47, ECHR 2006 -IX.

32 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
group was much smaller than the other two groups of demonstrators. Third,
there was a considerable physical distance between the two groups of
demonstrators and the applicant and his colleagues. Fourth, the police were
present at all times, keeping the different groups of demonstrators apart.
Fifth, no previous incidents were referred to by the police to justify the
argument that the applicant or the group of people with him could
reasonably be expected to cause disturbances in the public arena. In these
circumstances, it is totally unsubstant iated to maintain that there was a clear
and imminent danger. Not even the wider standard of a real and present
danger, or the much wider standard of a clear threat or present danger, could
be said to adequately describe the factual situation. In relation to the Pest
court ’s first argument, one cannot but conclude that there was no clear and
imminent danger and that therefore the reason invoked for the interference
was not sufficient.
The second argument concerns the protection of the national flag of
Hunga ry. Implicitly, the Pest court considered that the applicant ’s conduct,
in placing the Árpád -striped flag higher than the national flag, had offended
the national flag. The denigration of a flag may be a form of expression
punishable by criminal law 1 and t herefore the prevention of crime may be a
legitimate ground for restricting such expression. Even in those countries
whose criminal laws do not contain such a provision, denigration of the
national flag may justify a restriction of the freedom of expressio n in order
to prevent public disorder.
In the instant case, the domestic authorities did not accuse the applicant
of the crime of denigration of the national flag, although that offence is
provided for in the national legislation. Having regard to the omis sion to
prosecute the applicant for that criminal offence, it is difficult to understand
why the Pest court would have considered that same circumstance relevant
for the purpose of establishing a regulatory administrative offence.
Moreover, a former royal flag may be displayed in a republican State or
placed higher than the republican flag, these forms of political expression
1 The applicable provision was section 269/A of the Hungarian Criminal Code, which is
similar to §§ 90a a nd 104 of the German Criminal Code, Articles 270 and 298 of the Swiss
Criminal Code, §§ 248 and 317 of the Austrian Criminal Code, section 110 (e) of the
Danish Penal Code, Article 236 of the Romanian Criminal Code, Articles 173 and 175 of
the Serbian Crim inal Code, Article 433 -5-1 of the French Criminal Code in the form of
Law no. 2003 -239 of 18 March 2003, and Articles 323 and 332 of the Portuguese Criminal
Code. The broadness of some of these provisions is certainly problematic in view of the
strictness of Article 10, paragraph 2, of the Convention. The problem is resolved in the
United States, since the Supreme Court ruled, in Texas v. Johnson , 491 U.S. 397 (1989),
and reaffirmed in U.S. v. Eichman , 496 U.S. 310 (1990), that it was unconstitutional for
federal, State or municipal government to prohibit the desecration of a flag, although
content -neutral restrictions may be imposed to regulate the time, place and manner of such
expression.

FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS 33
being protected by Article 10. Hence, the Pest court ’s second argument does
not sufficiently justify the impugned interference either .
The necessity test
The police ’s action during the demonstration sought to avoid public
disorder. In order to achieve that goal, the police chose to order the
applicant to leave the site and, after his refusal, to detain him. His
disobedience was punished in accordance with an administrative offence
law. The question put by the necessity test is: could the social need pursued
by the police have been achieved without such a strong interference with the
applicant ’s freedom of expression? The answer is crysta l-clear: yes. Even
assuming that the interference was proportionate, which it was not, it cannot
be said that the police ’s action would satisfy the necessity test. Instead of
detaining and handcuffing the applicant, who remained silent and inert,
without a ny threatening attitude towards the socialist demonstrators or any
inciting attitude towards the right -wing demonstrators, the police could have
kept the situation under control and countered any possible danger by less
draconian measures, such as strategi c positioning between the
demonstrators and close surveillance of the evolving situation 1.
Since there was no clear and imminent danger to trigger the police ’s
action, the use of less intrusive measures would have been perfectly
adequate to avoid any distu rbance of order. Within the police ’s general
powers of prevention of public disorder (section 30 of Act no. XXXIV of
1994 on the police), they could have continued to observe the situation
closely. Such surveillance had been effective up until the moment t he police
interfered and there is nothing to suggest that it had become ineffective. In
fact, the detention of the applicant corresponded to the most intrusive
measure the police could have taken: it caused not only the physical
removal of the flag from th e place where the applicant was displaying it, but
the removal of the applicant himself. Thus, he was hindered from
manifesting his political views in any other way in that particular place and
at that particular time 2.
1 The same argument was put forward in Öllinger , cited above, § 48. 2 This situation is different from the one examined by the United Nations Human Rights
Committee in Kivenmaa v. Finland (communication no. 412/1990, U.N. Doc.
CCPR/C/50/D/412/1990 (1994)), where a banner critical of a foreign government was
“taken down” by the police, but the demonstration was allowed to continue, the applicant
and her group being authorised to go on to distribute their leaflets and presumably give
vent in public to their opinion concerning the visit of the contested Head of State. The
UNHRC rightly found a violation of Articles 19 and 21 of the International Covenant on
Civil and Political Rights. A fortiori , in the present case, whose features are much more
serious, where the app licant was hindered from speaking out after his flag was removed, a
finding of a violation is inexorable.

34 FÁBER v. HUNGARY JUDGMENT – SEPARATE OPINIONS
The impairment of the applicant ’s fr eedom of expression was
compounded by the fact that, after his detention, he was even fined for
disobedience. It is specious to argue, as the Government did, that the
penalty imposed on the applicant was not a punishment for the use of the
flag, but for di sobeying police instructions, since the applicant only
disobeyed the police ’s instruction in order to express his opinion.
Furthermore, according to the applicable national law, the fine imposed
could be replaced by prison in the event that it was not paid 1. If on the one
hand the regulatory administrative nature of the offence for which the
applicant was punished diminishes its seriousness, on the other hand the
system whereby a fine can lawfully be converted into regulatory
confinement in prison enhances the excessive character of the State ’s
interference. In sum, the essence (or minimum core) of the applicant ’s
freedom of expression was not respected.
Conclusion
Having regard to the State ’s negative obligation to refrain from
interfering with the applican t’s freedom of expression, the lawful form and
the political nature of the expression, the lack of any clear and imminent
danger resulting from the expression, the excessive character of the police ’s
action and the potential harshness of the sanction, and after assessing the
reasons given by the national authorities in the light of their narrow overall
margin of appreciation, I conclude that the interference lacked justification
and that the respondent State breached the applicant ’s freedom of political
exp ression.

1 In accordance with section 17(1) of Act no. LXIX of 1999 on regulatory offences as
applicable at the time (1,000 -3,000 Hungarian forints (HUF) = o ne day of regulatory
confinement), subsequently replaced by section 12(1) of Act no. II of 2012 on regulatory
offences, minor -offence proceedings and the Registry of Regulatory Offences, effective as
of 15 April 2012 (HUF 5,000 = one day of regulatory conf inement).

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