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Vajnai v. Hungary, Application No. 33629/06

CONSEILDEL’EUROPECOUNCILOFEUROPECOUREUROPÉENNEDESDROITSDEL’HOMMEEUROPEANCOURTOFHUMANRIGHTS
SECOND SECTION CASE OF VAJNAI v. HUNGARY (Application no. 33629/06) JUDGMENTSTRASBOURG 8 July 2008FINAL 08/10/2008

VAJNAI v. HUNGARY JUDGMENT1 In the case of Vajnai v. Hungary,The European Court of Human Rights (Second Section), sitting as a
Chamber composed of: Françoise Tulkens, President ,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky, ’()9 %:,#(93 András Sajó,
Nona Tsotsoria,
>? @’$’7’>3 judges ,
and Sally Dollé, Section Registrar, Having deliberated in private on 17 June 2008,Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 33629/06) 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 Attila Vajnai
(“the applicant”), on 15 May 2006.2. The applicant was represented by Mr G. Magyar, a lawyer practising
in Budapest. The Hungarian Government (“the Government”) were
represented by their Agent, Mr L. Höltzl of the Ministry of Justice and Law
Enforcement.3. The applicant alleged that his conviction for having worn the symbol
of the international workers’ movement constituted an unjustified
interference with his right to freedom of expression, in breach of Article 10
of the Convention.4. On 24 September 2007 the Court decided to give notice of the
application to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at the same
time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963 and lives in Budapest. The facts of the
case, as submitted by the parties, may be summarised as follows.

2VAJNAI v. HUNGARY JUDGMENT6. On 21 February 2003 the applicant, at the material time
Vice-President of the Workers’ Party (Munkáspárt) – a registered left-wing
political party – was a speaker at a lawful demonstration in the centre of
Budapest. The demonstration took place at the former location of a statue of
Karl Marx, which had been removed by the authorities. On his jacket, the
applicant wore a five-pointed red star (hereinafter “the red star”), 5 cm in
diameter, as a symbol of the international workers’ movement. In
application of Article 269/B § 1 of the Criminal Code, a police patrol which
was present called on the applicant to remove the star, which he did.7. Subsequently, criminal proceedings were instituted against the
applicant for having worn a totalitarian symbol in public. He was
questioned as a suspect on 10 March 2003.8. On 11 March 2004 the Pest Central District Court convicted the
applicant of the offence of using a totalitarian symbol. It refrained from
imposing a sanction for a probationary period of one year.9. The applicant appealed to the Budapest Regional Court (#$%” 
Bíróság).10. On 24 June 2004 that court decided to stay the proceedings and to
refer the case to the Court of Justice of the European Union (CJEU) for a
preliminary ruling under Article 234 of the Treaty establishing the European
Community. The reference – received at the CJEU on 28 July 2004 –
concerned the interpretation of the principle of non-discrimination as a
fundamental principle of Community law.11. In its order for reference, the Regional Court observed that in several
member States of the European Union, such as the Italian Republic, the
symbol of left-wing parties is the red star or the hammer and sickle.
Therefore, the question arose whether a provision in one member State of
the European Union prohibiting the use of the symbols of the international
labour movement on pain of criminal prosecution was discriminatory, when
such a display in another member State did not give rise to any sanction.12. On 6 October 2005 the CJEU declared that it had no jurisdiction to
answer the question referred by the Regional Court. The relevant part of the
reasoning reads as follows:“11. By its question, the national court asks, essentially, whether the principle of
non-discrimination, Article 6 EU, Council Directive 2000/43/EC of 29 June 2000
implementing the principle of equal treatment between persons irrespective of racial
or ethnic origin (OJ L 180, p. 22) or Articles 10, 11 and 12 of the Charter of
Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice
(OJ C 364, p. 1), preclude a national provision, such as Article 269/B of the
Hungarian Criminal Code, which imposes sanctions on the use in public of the symbol
in question in the main proceedings….13. By contrast, the Court has no such jurisdiction with regard to national
provisions outside the scope of Community law and when the subject matter of the

VAJNAI v. HUNGARY JUDGMENT3 dispute is not connected in any way with any of the situations contemplated by the
treaties (see Kremzow, paragraphs 15 and 16).14. It is clear that Mr Vajnai’s situation is not connected in any way with any of the
situations contemplated by the provisions of the treaties and the Hungarian provisions
applied in the main proceedings are outside the scope of Community law.15. In those circumstances, it must be held, on the basis of Article 92 § 1 of the
Rules of Procedure, that the Court clearly has no jurisdiction to answer the question
referred by the #$%”  Bíróság.”13. On 16 November 2005 the Budapest Regional Court upheld the
applicant’s conviction.
II. RELEVANT DOMESTIC LAW
14. The Constitution of Hungary provides, in its relevant part, as
follows:
Article 2 “1. The Republic of Hungary is an independent and democratic State under the rule
of law …3. No one’s activity shall aim at the violent acquisition or exercise of power or at its
exclusive possession …” Article 61 “1. In the Republic of Hungary everyone has the right to freely express his opinion,
and, furthermore, to have access to and distribute information of public interest.”15. The Criminal Code, as in force at the material time, provided, in so
far as relevant, as follows:
Measures (Az intézkedések)
Probation (Próbára bocsátás)
Article 72 “1. In case of a misdemeanour (vétség) or a felony (./
) punishable by
imprisonment of up to a maximum of three years, the court may postpone the
imposition of a sentence for a probationary period if it can be presumed with good
reason that the aim of the punishment may be just as well attained in this manner.” Article 73 “2. The probation shall be terminated and a punishment shall be imposed if … the
person on probation is convicted of an offence committed during the probationary
period …”

4VAJNAI v. HUNGARY JUDGMENT Crimes against the State
Article 139 – Violent change of the constitutional order “1. A person who commits an action whose direct objective is to change the
constitutional order of the Republic of Hungary by means of violence or by
threatening violence – in particular, using armed force – commits a felony …” Crimes against public order
Article 269 – Incitement against a community “A person who incites, before a wider public, to hatred against(a) the Hungarian nation, or(b) a national, ethnic, racial or religious community or certain groups of the
population …commits a felony …” Article 269/B – The use of totalitarian symbols “1. A person who (a) disseminates, (b) uses in public, or (c) exhibits a swastika, an
SS-badge, an arrow-cross, a symbol of the sickle and hammer or a red star, or a
symbol depicting any of them, commits a misdemeanour – unless a more serious
crime is committed – and shall be sentenced to a criminal fine (pénzbüntetés ).2. The conduct proscribed under paragraph 1 is not punishable, if it is done for the
purposes of education, science, art or in order to provide information about history or
contemporary events.3. Paragraphs 1 and 2 do not apply to the insignia of States which are in force.”16. The Code of Criminal Procedure provides as follows:
Article 406 “1. Review proceedings may be instituted in favour of the defendant if:…(b) a human rights institution set up by an international treaty has established that
the conduct of the proceedings or the final decision of the court has violated a
provision of an international treaty promulgated by an act, provided that the Republic
of Hungary has acknowledged the jurisdiction of the international human rights
organisation and that the violation can be remedied through review.”17. Decision no. 14/2000 (V. 12.) of the Constitutional Court, dealing
with the constitutionality of Article 269/B of the Criminal Code, contains
the following passages:“… [N]ot only do such totalitarian symbols represent the totalitarian regimes known
to and suffered by the general public, but it has from the very beginning been reflected

VAJNAI v. HUNGARY JUDGMENT5 in the legislation of the Republic of Hungary that the unlawful acts committed by such
regimes should be addressed together …The Constitutional Court has expressly confirmed in its decisions … that no
constitutional concern may be raised against the equal assessment and joint regulation
of such totalitarian regimes …In the decades before the democratic transformation, only the dissemination of
Fascist and arrow-cross symbols had been prosecuted … At the same time, resulting
reasonably from the nature of the political regime, the use of symbols representing
communist ideas had not been punished; on the contrary, they were protected by
criminal law. In this respect, the Act does, indeed, eliminate the former unjustified
distinction made in respect of totalitarian symbols …The Convention (of the European Court of Human Rights) affords States a wide
margin of appreciation in assessing what can be seen as an interference which is
‘necessary in a democratic society’ (Barfod, 1989; markt intern, 1989; Chorherr,
1993; Casado Coca, 1994; Jacubowski , 1994). …In several of its early decisions, the Constitutional Court included the historical
situation as a relevant factor in the scope of constitutional review …In its decisions so far, the Constitutional Court has consistently assessed the
historical circumstances (most often, the end of the [previous] regime) by
acknowledging that such circumstances may necessitate some restriction on
fundamental rights, but it has never accepted any derogation from the requirements of
constitutionality on the basis of the mere fact that the political regime has been
changed …The Constitutional Court points out that even the practice of the European Court of
Human Rights takes into account the specific historical past and present of the
respondent State when it assesses the legitimate aim and necessity of restricting
freedom of expression.In the case of Rekvényi v. Hungary concerning the restriction of the political
activities and the freedom of political debate of police officers, the Court passed its
judgment on 20 May 1999 stating that ‘the objective that the critical position of the
police in society should not be compromised as a result of weakening the political
neutrality of its members is an objective that can be accepted in line with democratic
principles. This objective has special historical significance in Hungary due to the
former totalitarian system of the country where the State relied greatly on the direct
commitment of the police forces to the ruling party’ …In the practice of the Constitutional Court, conduct endangering public order and
offending the dignity of communities may be subject to criminal-law protection if it is
not directed against an expressly defined particular person; theoretically, there is no
other – less severe – tool available to achieve the desired objective than criminal
sanction …To be a democracy under the rule of law is closely related to maintaining and
operating the constitutional order … The Constitution is not neutral as regards values;
[on the contrary,] it has its own set of values. Expressing opinions inconsistent with
constitutional values is not protected by Article 61 of the Constitution …

6VAJNAI v. HUNGARY JUDGMENTThe Constitution belongs to a democratic State under the rule of law and, therefore,
the constitution-making power has considered democracy, pluralism and human
dignity constitutional values worth protecting; at the same time, it makes
unconstitutional any activity directed at the forcible acquisition or exercise of public
power, or at the exclusive possession thereof (Article 2 § 3). Article 269/B orders the
punishment of distributing, using in front of a large public gathering and exhibiting in
public symbols that were used by political dictatorial regimes; such regimes
committed unlawful acts en masse and violated fundamental human rights. All of
these symbols represent the despotism of the State, symbolise negative political ideas
realised throughout the history of Hungary in the twentieth century, and are expressly
prohibited by Article 2 § 3 of the Constitution, which imposes upon everyone the
obligation to resist such activities …Using the symbols in the way prohibited by Article 269/B of the Criminal Code can
cause a reasonable feeling of menace or fear based on the concrete experience of
people – including their various communities – who suffered injury in the past, as
such symbols represent the risk of having such inhuman acts repeated in connection
with the totalitarian ideas concerned.In the opinion of the Constitutional Court, if – in addition to the subject thus
protected by criminal law – the protection of other constitutional values cannot be
achieved by other means, criminal-law protection itself is not considered to be
disproportionate, provided that it is necessary to have protection against the use of
such symbols. Whether or not it is necessary to have such protection in a democratic
society depends on the nature of the restriction, its social and historical context, and
its impact on the persons affected.Based on the above, in the present case, the statute under review serves the purpose
of protecting other constitutional values in addition to the protected subject defined in
criminal law. Such values are the democratic nature of the State under the rule of law
mentioned in Article 2 § 1 of the Constitution, the prohibition defined in Article 2 § 3,
as well as the requirement specified in Article 70/A of the Constitution, stating that all
people shall be treated by the law as persons of equal dignity …Allowing an unrestricted, open and public use of the symbols concerned would, in
the present historical situation, seriously offend all persons committed to democracy
who respect the human dignity of persons and thus condemn the ideologies of hatred
and aggression, and would offend in particular those who were persecuted by Nazism
and communism. In Hungary, the memories of both ideologies represented by the
prohibited symbols, as well as the sins committed under these symbols, are still alive
in the public mind and in the communities of those who have survived persecution;
these things are not forgotten. The individuals who suffered severely and their
relatives live among us. The use of such symbols recalls the recent past, together with
the threats of that time, the inhuman sufferings, the deportations and the deadly
ideologies.In the opinion of the Constitutional Court, it is indeed a measure with a view to the
protection of democratic society – and therefore not unconstitutional – if, in the
present historical situation, the State prohibits certain conduct contrary to democracy,
connected to the use of the particular symbols of totalitarian regimes, their
dissemination, their use in front of a large public gathering, and a public exhibition …

VAJNAI v. HUNGARY JUDGMENT7 The constitutional assessment and evaluation of criminally sanctioning separate
violations of the values protected by the law – namely, public order and the dignity of
communities committed to the values of democracy – could possibly result in a
different conclusion; however, since the use of totalitarian symbols violates both
values jointly and simultaneously, there is a cumulative and synergic effect reinforced
by the present-day impact of recent historical events.The Constitutional Court holds that the historical experience of Hungary and the
danger to the constitutional values threatening Hungarian society reflected in the
potential publicly to demonstrate activities based on the ideologies of former regimes,
convincingly, objectively and reasonably justify the prohibition of such activities and
the use of the criminal law to combat them. The restriction on freedom of expression
found in Article 269/B § 1 of the Criminal Code, in the light of the historical
background, is considered to be a response to a pressing social need.According to the Constitutional Court, in the present historical situation, there is no
effective legal tool other than the tools of criminal law and penal sanction (ultima
ratio) against the use of the symbols specified in Article 269/B § 1; the subjects
committing the crime and, in particular, the three specific types of conduct in
committing the crime, require restriction for the protection of the aims represented by
the constitutional values. In another country with a similar historical experience, the
Criminal Code also deems it an offence, endangering the democratic State under the
rule of law, to use the symbols (flags, badges, uniforms, slogans and forms of
greeting) of unconstitutional organisations [ Strafgesetzbuch (StGB) vom 15. Mai 1871
(RGBl. S. 127) in der Fassung der Bekanntmachung vom 13. November 1998 (BGBl.
I, 3322) § 86a.] …It is not prohibited by the law to produce, acquire, keep, import, export or even use
such symbols provided it is not done in front of a large public gathering. There are
only three specific types of conduct mentioned in the law as being contrary to the
values of the democratic State under the rule of law (distribution, use in front of a
large public gathering and public exhibition), because of the tendency of such conduct
not only to ‘insult or cause amazement or anxiety’ to the public, but also to create
express fear or menace by reflecting an identification with the detested ideologies and
an intention to propagate openly such ideologies. Such conduct can offend the whole
of democratic society, especially the human dignity of major groups and communities
which suffered from the most severe crimes committed in the name of both ideologies
represented by the prohibited symbols….On the basis of the above, in the opinion of the Constitutional Court, the restriction
specified in Article 269/B § 1 of the Criminal Code is not disproportionate to the
weight of the protected objectives, while the scope and the sanction of the restriction
is qualified as the least severe potential tool. Therefore, the restriction of the
fundamental right defined in the given provision of the Criminal Code is in
compliance with the requirement of proportionality …”

8VAJNAI v. HUNGARY JUDGMENTTHE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
18. The applicant complained that the fact that he had been prosecuted
for having worn a red star infringed his right to freedom of expression
guaranteed by Article 10 of the Convention, which 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 …2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society … for the prevention of
disorder … [or] … for the protection of the … rights of others …”19. The Government contested that argument.
A. Admissibility
20. The Government asserted that the application was incompatible
ratione materiae with the provisions of the Convention, in the light of
Article 17 which provides:“Nothing in [the] Convention may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction
of any of the rights and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.”21. The Government referred to the case-law of the Convention
institutions, including the Court’s decision in Garaudy v. France ((dec.),
no. 65831/01, ECHR 2003-IX). They pointed out that, where the right to
freedom of expression had been relied on by applicants to justify the
publication of texts that infringed the very spirit of the Convention and the
essential values of democracy, the European Commission of Human Rights
had had recourse to Article 17 of the Convention, either directly or
indirectly, in rejecting their arguments and declaring their applications
inadmissible (examples included J. Glimmerveen and J. Hagenbeek v. the
Netherlands, nos. 8348/78 and 8406/78 (joined), Commission decision of
11 October 1979, Decisions and Reports (DR) 18, p. 187, and Pierre
Marais v. France , no. 31159/96, Commission decision of 24 June 1996,
DR 86-A, p. 184.) In the Government’s view, the Court subsequently
confirmed that approach (see Lehideux and Isorni v. France, 23 September
1998, §§ 47 and 53, Reports of Judgments and Decisions 1998-VII).
Moreover, they pointed out that, in a case concerning Article 11 (see W.P.
and Others v. Poland (dec.), no. 42264/98, ECHR 2004-VII), the Court had

VAJNAI v. HUNGARY JUDGMENT9 observed that “the general purpose of Article 17 is to prevent totalitarian
groups from exploiting in their own interests the principles enunciated by
the Convention”. Similar conclusions were reached in the cases of Norwood
v. the United Kingdom ((dec.), no. 23131/03, ECHR 2004-XI), and Witzsch
v. Germany ((dec.), no. 7485/03, 13 December 2005).22. Since in the Government’s view the red star symbolises totalitarian
ideas and practices directed against the Convention’s underlying values,
they asserted that to wear it – being conduct disdainful of the victims of the
communist regime – meant the justification of a policy aimed at the
destruction of the rights and freedoms under the Convention. Although the
cases cited above concerned the expression of racist and anti-Semitic ideas
pertaining to the Nazi totalitarian ideology, the Government submitted that
all ideologies of a totalitarian nature (including bolshevism symbolised by
the red star) should be treated on an equal footing, and their expression
should thus be removed from the protection of Article 10.23. The applicant did not comment on this point.24. The Court considers that the present application is to be
distinguished from those relied on by the Government. It observes,
particularly in Garaudy and Lehideux and Isorni (both cited above), that the
justification of Nazi-like politics was at stake. Consequently, the finding of
an abuse under Article 17 lay in the fact that Article 10 had been relied on
by groups with totalitarian motives.25. In the instant case, however, it has not been argued by the
Government that the applicant expressed contempt for the victims of a
totalitarian regime (contrast Witzsch, cited above) or belonged to a group
with totalitarian ambitions. Nor do the elements contained in the case file
support such a conclusion. The applicant was, at the material time, an
official of a registered left-wing political party and wore the contested red
star at one of its lawful demonstrations. In these circumstances, the Court
cannot conclude that its display was intended to justify or propagate
totalitarian oppression serving “totalitarian groups”. It was merely the
symbol of lawful left-wing political movements. Unlike in the above-cited
cases, the expression which was sanctioned in the instant case was unrelated
to racist propaganda.26. It follows that, for the Court, the application does not constitute an
abuse of the right of petition for the purposes of Article 17 of the
Convention. Therefore, it is not incompatible ratione materiae with the
provisions of the Convention, within the meaning of Article 35 § 3 of the
Convention. The Court further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.

10VAJNAI v. HUNGARY JUDGMENTB. Merits
1. Whether there has been an interference
27. The applicant emphasised that the domestic courts had convicted
him of the offence of using a totalitarian symbol. While it is true that for a
probationary period of one year the Hungarian courts had refrained from
imposing a criminal sanction, in his view it was beyond doubt that there had
been an interference with his freedom of expression, since his criminal
liability had been established.28. The Government submitted that, even supposing that the applicant’s
conviction had constituted an interference with his freedom of expression,
that interference had been justified under Article 10 § 2 of the Convention.29. The Court considers that the criminal sanction in question
constituted an interference with the applicant’s rights enshrined in
Article 10 § 1 of the Convention. Moreover, it reiterates that such an
interference will infringe the Convention if it does not meet the
requirements of Article 10 § 2. It should therefore be determined whether it
was “prescribed by law”, whether it pursued one or more of the legitimate
aims set out in that paragraph and whether it was “necessary in a democratic
society” in order to achieve those aims.
2. “Prescribed by law”
30. The Government reiterated the Constitutional Court’s position
according to which the restriction on the use of totalitarian symbols was
prescribed by law, an Act of Parliament, which was sufficiently clear and
met the requirements of foreseeability.31. The Court notes that this issue has not been in dispute between the
parties. It is therefore satisfied that the interference was indeed prescribed
by law.
3. Legitimate aim(a) The applicant’s arguments
32. The applicant stressed that almost two decades had elapsed since
Hungary’s transition from a totalitarian regime to a democratic society.
Hungary had become a member of the Council of Europe, the North
Atlantic Treaty Organisation, the Organisation for Economic Cooperation
and Development and the European Union. The country was a stable
democracy, in which five multi-party general elections had been held since
1990. The left-wing party to which the applicant belonged had never been
accused of attempting to overthrow the Government. It had participated in
all these elections but had never passed the threshold required for gaining a

VAJNAI v. HUNGARY JUDGMENT11 seat in Parliament. The Government have not claimed that the applicant, his
party or its ideology would threaten the democratic political regime of the
country. In these circumstances, the legitimate aim for instituting criminal
proceedings against the applicant for having displayed a red star at a
political event remained unclear.
(b) The Government’s arguments
33. The Government submitted that the contested provision had been
inserted into the Criminal Code because twentieth-century dictatorships had
caused much suffering to the Hungarian people. The display of symbols
related to dictatorships created uneasy feelings, fear or indignation in many
citizens, and sometimes even violated the rights of the deceased. To wear
the symbols of a one-party dictatorship in public was, in the Government’s
view, tantamount to the very antithesis of the rule of law, and must be seen
as a demonstration against pluralist democracy. In line with the
Constitutional Court’s position in the matter, the Government contended
that the measure in question pursued the legitimate aims of the prevention of
disorder and the protection of the rights of others.
(c) The Court’s assessment
34. The Court considers that the interference in question can be seen as
having pursued the legitimate aims of the prevention of disorder and the
protection of the rights of others.
4. “Necessary in a democratic society”(a) The applicant’s arguments
35. The applicant argued that there was a profound difference between
Fascist and communist ideologies and that, in any event, the red star could
not be exclusively associated with the “communist dictatorship”. In the
international workers’ movement, the red star – sometimes understood as
representing the five fingers of a worker’s hand or the five continents – had
been regarded since the nineteenth century as a symbol of the fight for
social justice, the liberation of workers and freedom of the people, and,
generally, of socialism in a broad sense.36. Moreover, in 1945 Hungary and other countries of the former
Eastern bloc had been liberated from Nazi rule by Soviet soldiers wearing
the red star. For many people in these countries, the red star was associated
with the idea of anti-Fascism and freedom from right-wing totalitarianism.
It had been adopted by the progressive intelligentsia seeking to achieve the
reconstruction and modernisation of Hungary from the beginning of the
twentieth century.

12VAJNAI v. HUNGARY JUDGMENT37. The applicant conceded that, before the transition to democracy in
central and eastern Europe, serious crimes had been committed by the
security forces of totalitarian regimes, whose official symbols included the
red star. These violations of human rights could not, however, discredit the
ideology of communism as such, let alone challenge the political values
symbolised by the red star.38. The applicant drew attention to the fact that, unlike Fascist
propaganda (see, inter alia, Article 4 of the 1947 Paris Treaty of Peace with
Hungary – volume 41, p. 135), the promotion of communism had not been
outlawed by instruments of international law. The red star was understood
to represent various left-wing ideas and movements, and could be freely
displayed in most European states. In fact, Hungary was the only
Contracting State in which its public display was a criminal offence.39. Finally, the applicant stressed that the Government had not
demonstrated the existence of a “pressing social need” requiring a general
ban on the public display of this symbol. In his view, it was unlikely that the
stability of Hungary’s pluralistic democracy could be undermined by his
using a political logo in order to express an ideological affiliation and
political identity. On the contrary, the general ban on using the red star as a
political symbol undermined pluralism by preventing him and other
left-wing politicians from freely expressing their political views.
(b) The Government’s arguments
40. The Government submitted that in Hungary the red star was not only
the symbol of the international workers’ movement, as alleged by the
applicant. Recent history in Hungary had altered its meaning to symbolise a
totalitarian regime characterised by ideologies and practices which had
justified mass violations of human rights and the violent seizure of power.
To wear this symbol in public amounted to identification with, and the
intention to propagate, the ideologies of a totalitarian nature which
characterised communist dictatorships.41. The Government drew attention to the Constitutional Court’s
findings that the restriction at issue, having regard to the historical
experience of Hungarian society, had been a response to a “pressing social
need” in pursuit of the legitimate aims of the prevention of disorder and the
protection of the rights of others. That court had been satisfied that these
aims could not have been achieved by less severe means than those of the
criminal law. Moreover, it had found that the restriction had been
proportionate to the aims pursued since it had been limited in scope,
extending only to some well-defined forms of the public use of such
symbols, which entailed identification with, and the intention to propagate,
the totalitarian ideologies represented by them. It had been satisfied that the
use of such symbols for scientific, artistic, educational or informational
purposes was not prohibited.

VAJNAI v. HUNGARY JUDGMENT13 42. The Government also submitted that the offence in question was
qualified not as a felony (./
) but only as a misdemeanour (vétség),
punishable with a criminal fine (pénzbüntetés) which was the least severe
sanction in Hungarian criminal law. Moreover, the applicant had been put
on probation, which was not a punishment (büntetés ) but a “measure”
(intézkedés).
(c) The Court’s assessment(i) General principles
43. 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 exists, 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
reconcilable with freedom of expression as protected by Article 10 of the
Convention (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).44. The Court’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], no. 29183/95, § 45,
ECHR 1999-I).45. 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 1997-VII).46. The Court further reiterates that freedom of expression, as secured in
Article 10 § 1 of the Convention, 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 Article 10 § 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 are the demands of pluralism,
tolerance and broad-mindedness, without which there is no “democratic
society” (see, among many other authorities, Oberschlick v. Austria (no. 1),

14VAJNAI v. HUNGARY JUDGMENT23 May 1991, § 57, Series A no. 204, and Nilsen and Johnsen v. Norway
[GC], no. 23118/93, § 43, ECHR 1999-VIII). 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, for instance, Observer and Guardian v. the United
Kingdom, 26 November 1991, § 59, Series A no. 216).47. 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 Feldek v. Slovakia ,
no. 29032/95, § 74, ECHR 2001-VIII, and Sürek v. Turkey (no. 1) [GC],
no. 26682/95, § 61, ECHR 1999-IV). In the instant case, the applicant’s
decision to wear a red star in public must be regarded as his way of
expressing his political views. The display of vestimentary symbols falls
within the ambit of Article 10.
(ii) Application of these principles to the present case
48. At the outset, the Court reiterates the case of Rekvényi v. Hungary
([GC], no. 25390/94, §§ 44-50, ECHR 1999-III), which concerned, as a
matter of freedom of expression, a restriction on certain political rights of
Hungarian police officers. In that case, those restrictions were found to be
compatible with Article 10 of the Convention, essentially on the grounds
that they concerned members of the armed forces who – in the specific
circumstances of transition to democracy – were to play a crucial rule in
sustaining pluralism, but could equally undermine it if they lost their
neutrality. The Court held that the interference in question fell within the
national authorities’ margin of appreciation, especially in the light of the
Hungarian historical experience underlying the restriction at issue.49. However, the Court finds that the circumstances of the present
application are to be distinguished from that case in at least two respects.
Firstly, Mr Vajnai was a politician not participating in the exercise of
powers conferred by public law, while Mr Rekvényi had been a police
officer. Secondly, almost two decades have elapsed since Hungary’s
transition to pluralism and the country has proved to be a stable democracy
(see, in this connection, Sidabras and Džiautas v. Lithuania, nos. 55480/00
and 59330/00, § 49, ECHR 2004-VIII, and Rainys and 7%K v.
Lithuania, nos. 70665/01 and 74345/01, § 36, 7 April 2005). Hungary has
become a member State of the European Union, after its full integration into
the value system of the Council of Europe and the Convention. Moreover,
there is no evidence to suggest that there is a real and present danger of any
political movement or party restoring the communist dictatorship. The
Government have not shown the existence of such a threat prior to the
enactment of the ban in question.50. The Court further notes the Constitutional Court’s argument relied
on by the Government concerning the broad scope of the margin of

VAJNAI v. HUNGARY JUDGMENT15 appreciation which States enjoy in this field. However, it must be
emphasised that none of the cases cited by the Constitutional Court (Barfod
v. Denmark , 22 February 1989, Series A no. 149; markt intern Verlag
GmbH and Klaus Beermann v. Germany , 20 November 1989, Series A
no. 165; Chorherr v. Austria, 25 August 1993, Series A no. 266-B; Casado
Coca v. Spain , 24 February 1994, Series A no. 285-A; and Jacubowski v.
Germany, 23 June 1994, Series A no. 291-A) dealt with the particular
question of the extent of State discretion in restricting the freedom of
expression of politicians.51. In the Court’s view, when freedom of expression is exercised as
political speech – as in the present case – limitations are justified only in so
far as there exists a clear, pressing and specific social need. Consequently,
utmost care must be observed in applying any restrictions, especially when
the case involves symbols which have multiple meanings. In such
situations, the Court perceives a risk that a blanket ban on such symbols
may also restrict their use in contexts in which no restriction would be
justified.52. The Court is mindful of the fact that the well-known mass violations
of human rights committed under communism discredited the symbolic
value of the red star. However, in the Court’s view, it cannot be understood
as representing exclusively communist totalitarian rule, as the Government
have implicitly conceded (see paragraph 40 above). It is clear that this star
also still symbolises the international workers’ movement, struggling for a
fairer society, as well certain lawful political parties active in different
member States.53. Moreover, the Court notes that the Government have not shown that
wearing the red star exclusively means an identification with totalitarian
ideas, especially when seen in the light of the fact that the applicant did so at
a lawfully organised, peaceful demonstration in his capacity as the vice-
president of a registered left-wing political party, with no known intention
of participating in Hungarian political life in defiance of the rule of law. In
this connection, the Court emphasises that it is only by a careful
examination of the context in which the offending words appear that one
can draw a meaningful distinction between shocking and offensive language
which is protected by Article 10 of the Convention and that which forfeits
its right to tolerance in a democratic society.54. The Court therefore considers that the ban in question is too broad in
view of the multiple meanings of the red star. The ban can encompass
activities and ideas which clearly belong to those protected by Article 10,
and there is no satisfactory way to sever the different meanings of the
incriminated symbol. Indeed, the relevant Hungarian law does not attempt
to do so. Moreover, even if such distinctions had existed, uncertainties
might have arisen entailing a chilling effect on freedom of expression and
self-censorship.

16VAJNAI v. HUNGARY JUDGMENT55. As regards the aim of preventing disorder, the Court observes that
the Government have not referred to any instance where an actual or even
remote danger of disorder triggered by the public display of the red star had
arisen in Hungary. In the Court’s view, the containment of a mere
speculative danger, as a preventive measure for the protection of
democracy, cannot be seen as a “pressing social need”. In any event, apart
from the ban in question, there are a number of offences sanctioned by
Hungarian law which aim to suppress public disturbances even if they were
to be provoked by the use of the red star (see paragraph 15 above).56. As to the link between the prohibition of the red star and its
offensive, underlying, totalitarian ideology, the Court stresses that the
potential propagation of that ideology, obnoxious as it may be, cannot be
the sole reason to limit it by way of a criminal sanction. A symbol which
may have several meanings in the context of the present case, where it was
displayed by a leader of a registered political party with no known
totalitarian ambitions, cannot be equated with dangerous propaganda.
However, Article 269/B of the Hungarian Criminal Code does not require
proof that the actual display amounted to totalitarian propaganda. Instead,
the mere display is irrefutably considered to do so unless it serves scientific,
artistic, informational or educational purposes (see paragraph 41 above in
fine). For the Court, this indiscriminate feature of the prohibition
corroborates the finding that it is unacceptably broad.57. The Court is of course aware that the systematic terror applied to
consolidate communist rule in several countries, including Hungary,
remains a serious scar in the mind and heart of Europe. It accepts that the
display of a symbol which was ubiquitous during the reign of those regimes
may create uneasiness among past victims and their relatives, who may
rightly find such displays disrespectful. It nevertheless considers that such
sentiments, however understandable, cannot alone set the limits of freedom
of expression. Given the well-known assurances which the Republic of
Hungary provided legally, morally and materially to the victims of
communism, such emotions cannot be regarded as rational fears. In the
Court’s view, a legal system which applies restrictions on human rights in
order to satisfy the dictates of public feeling – real or imaginary – cannot be
regarded as meeting the pressing social needs recognised in a democratic
society, since that society must remain reasonable in its judgement. To hold
otherwise would mean that freedom of speech and opinion is subjected to
the heckler’s veto.58. The foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s conviction for the mere fact that he had worn a
red star cannot be considered to have responded to a “pressing social need”.
Furthermore, the measure with which his conduct was sanctioned, although
relatively light, belongs to the criminal-law sphere, entailing the most
serious consequences. The Court does not consider that the sanction was

VAJNAI v. HUNGARY JUDGMENT17 proportionate to the legitimate aim pursued. It follows that the interference
with the applicant’s freedom of expression cannot be justified under
Article 10 § 2 of the Convention.There has accordingly been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
59. Article 41 of the Convention provides:“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
60. The applicant claimed 10,000 euros (EUR) in respect of
non-pecuniary damage for the loss of reputation resulting from the judgment
against him.61. The Government were of the view that the finding of a violation
would, in itself, provide sufficient just satisfaction for the applicant, given
the possibility under domestic law to request the revision of a final criminal
judgment after such a finding.62. The Court considers that the finding of a violation constitutes
sufficient just satisfaction for any non-pecuniary damage which the
applicant may have suffered.
B. Costs and expenses
63. The applicant also claimed EUR 2,000, plus 20% value-added tax,
for the legal fees incurred before the Court. This figure corresponded to
10 hours’ legal work, charged at an hourly rate of EUR 200, including
3 hours of client consultations, 2 hours to study the file, 2 hours for the legal
analysis and 3 hours for drafting submissions.64. The Government contested this claim.65. 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 were reasonable
as to quantum. In the present case, regard being had to the information in its
possession and the above criteria, the Court awards the entire amount
claimed.

18VAJNAI v. HUNGARY JUDGMENTC. Default interest66. 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 UNANIMOUSLY
1. Declares the application admissible;2. Holds that there has been a violation of Article 10 of the Convention;3. Holds that the finding of a violation constitutes sufficient just satisfaction
for any non-pecuniary damage which the applicant may have suffered;4. Holds(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, EUR 2,000 (two thousand euros), plus
any tax that may be chargeable to the applicant, in respect of costs and
expenses, to be converted into Hungarian forints at the rate applicable at
the date of the settlement;(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President

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