HORVATH AND VAJNAI v. HUNGARY - 55795/11 55798/11 - Committee Judgment [2014] ECHR 1000 (23 September 2014)

In the case of Horváth and Vajnai v. Hungary,

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

          Helen Keller, President,
          András Sajó,
          Robert Spano, judges,

and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 2 September 2014,

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

PROCEDURE

1. The case originated in two applications (nos. 55795/11 and 55798/11) 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 two Hungarian nationals, Mr Sándor Tibor Horváth and Mr Attila Vajnai (“the applicants”), on 29 August 2011.

2. The applicants were represented by Mr G. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3. The applicants complained under Article 10 of the Convention that their convictions for wearing a red star and a sickle-and-hammer logo were a breach of their right to freedom of expression.

4. On 17 October 2013 the applications were communicated to the Government.

5. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1942 and 1963 respectively and live in Budapest.

7. At the material time, Mr Vajnai was Vice-President and Mr Horváth was a member and activist of the Workers’ Party (Munkáspárt), a registered left-wing political party. The party had no known intention of participating in Hungarian political life in defiance of the rule of law.

8. Mr Vajnai was the editor of the Party’s web page containing news and articles related to the Hungarian and European Communist movements. On 18 November 2003 Mr Vajnai placed a five-pointed red star and a sickle-and-hammer logo on the web page.

9. On 3 April 2004 the applicants participated in a peaceful demonstration commemorating the 1945 Soviet liberation of Hungary from Nazi occupation. Mr Vajnai wore a five-pointed red star on his jacket, whilst Mr Horváth wore a sweater ornamented with five-pointed red star and a sickle-and-hammer pattern.

10. Subsequently, criminal proceedings were instituted against them for the offence of having worn totalitarian symbols in public. In the context of these proceedings, the public prosecutor summoned the applicants. On 10 September 2004 they appeared in the public prosecutor’s office wearing five-pointed red stars on their jackets.

11. On 11 March and 2 June 2004 and 16 November 2005, in the context of other criminal proceedings against him, Mr Vajnai appeared in court wearing a five-pointed red star on his jacket. On 5 November 2004, the applicant spoke on the national television about his Party’s political aims and the criminal proceedings against him. On that occasion he wore a five-pointed red star on his jacket.

12. On 2 July 2005 the applicants participated in a peaceful demonstration in the National Cemetery. Mr Vajnai wore a five-pointed red star on his jacket, whilst Mr Horváth wore a five-pointed red star on his rain coat.

13. On 22 March 2007 the applicants were convicted by the Pest Central District Court under section 269/B (1) of the Criminal Code of the offence of having worn totalitarian symbols in public. The court observed that the applicants had worn a five-pointed red star and a sickle-and-hammer logo on several occasions of public appearance.

14. Mr Vajnai was sentenced to a criminal fine of 120,000 Hungarian forints (HUF) and ordered to pay another HUF 45,000 in criminal costs[1]. In the case of Mr Horváth, the court refrained from imposing a sentence for a probationary period of one year.

15. On 10 June 2008 the Budapest Regional Court upheld this judgment.

16. On 8 July 2008 the European Court of Human Rights adopted a judgment in a case introduced by Mr Vajnai on account of a previous conviction similar in nature (see Vajnai v. Hungary, no. 33629/06, 8 July 2008). The Court held that prosecution for having worn a red star amounted to a violation of the applicant’s freedom of expression enshrined in Article 10 of the Convention.

17. Subsequently, the applicants challenged the Regional Court’s judgment before the Supreme Court. Relying on section 10(2) of the Criminal Code, they claimed that their conduct did not represent danger for society in the face of the Vajnai judgment.

18. On 23 June 2011 the Supreme Court dismissed the applicants’ petition for review.

THE LAW

19. Given that the applications raise the same issue in essence, the Court decides that they should be joined under Rule 42 § 1 of the Rules of Court.

20. The applicants complained that their convictions infringed their rights under Article 10, just like in the Vajnai case (cited above).

21. The Government contested these views in general terms.

22. The Court recalls that it has already found that the prosecution of an applicant for displaying the red star was an admissible complaint and constituted a violation of Article 10 (see Vajnai, cited above; Fratanoló v. Hungary, no. 29459/10, 3 November 2011). It notes that the impugned provision of the national law was the same in those applications as in the present case and the circumstances of the interferences were virtually identical. Consequently, the Court finds no reason to depart from its earlier conclusion in the matter.

It follows that there has been a violation of Article 10 of the Convention in respect of both applicants.

23. Relying on Article 41 of the Convention, each applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage.

The Government disputed this claim.

The Court considers that the applicants must have suffered some non-pecuniary damage and awards them each the full sum claimed, that is, EUR 4,000.

24. The applicants, jointly, also claimed EUR 2,200 plus VAT for the costs and expenses incurred before the Court. This figure corresponds to eleven hours of legal work billable by their lawyer at an hourly rate of EUR 200 plus VAT.

25. The Government contested the claim.

26. Regard being had to the documents in its possession and to its case-law, the Court considers that the sum claimed should be awarded in full.

27. 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. Joins the applications and declares them admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) to each applicant, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) to the applicants jointly, EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable to the applicants, 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 rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 23 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Helen Keller
Deputy Registrar President

[1] Altogether, approximately 540 euros (EUR).

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