In the case of Fáber v. Hungary, the ECHR held that Article 10 of the European Convention on Human Rights had been violated where Government authorities arrested and fined a man for displaying a controversial flag.
On the day Mr. Fáber, a Hungarian national, was arrested, the Hungarian Socialist Party (MSZP) was holding a demonstration against racism and hatred in Budapest. At the same time, members of Jobbik, a right-wing political party, held a counter-protest nearby. Police observed Mr. Fáber standing near the demonstrators and holding an Árpád-striped flag at a location where, during the Arrow Cross regime(1944/1945), many Jews were exterminated. The police, who had testified that they were instructed not to allow the Árpád-striped flag within 100 meters of the MSZP demonstration, requested that Mr. Fáber cease displaying the flag or leave the area. Mr. Fáber refused, saying that the flag was a historical symbol and no law prohibited its display. He was held in police custody and subjected to interrogation for six hours. He was also fined for disobeying police instructions. On appeal, the Hungarian court upheld Mr. Fáber’s conviction, reasoning that his behavior was of a provocative nature.
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. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ....
Mr. Fáber complained that his prosecution constituted an unjustified interference with his freedom of expression.
The Court considered that this type of case required it to balance the right to freedom of assembly against the right to freedom of expression and, allegedly, against the right of others to freedom of assembly.
As the issue was not disputed, the Court concluded that there was an interference with Mr. Fáber’s right to freedom of expression. The Court also concluded that the interference was prescribed by law and pursued the legitimate aims of “prevention of disorder” and “the protection of the rights and freedoms of others.”
To ascertain whether restrictions on the exercise of freedom of expression are necessary in a democratic society, the court determines whether the interference complained of corresponds to a pressing social need.
The Court stated: “Given the applicant’s passive conduct, the distance from the MSZP demonstration and the absence of any demonstrated risk of insecurity or disturbance, it cannot be held that the reasons given by the national authorities to justify the interference complained of are relevant and sufficient.”
Although some demonstrators may have been troubled by the display of the Árpád-striped flag, they made no verbal threat. With respect to the rights of other demonstrators and public tranquility, the Court found that there was no pressing social need for police to intervene. The Court found that, although some demonstrators may have considered the flag offensive, shocking, or “fascist,” its mere display could not disturb public order or impede the exercise of the demonstrators’ right to assemble, since it was “neither intimidating, nor capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons….” The Court emphasized that bad feelings or outrage, in the absence of intimidation, could not constitute a pressing social need for the purposes of Article 10 § 2 of the Convention.
The Court found that the restriction on Mr. Fáber’s right to freedom of expression did not meet a pressing social need and could not be regarded as necessary in a democratic society. Thus, there was a violation of Article 10 read in light of Article 11 of the Convention.
