SANDOR TIBOR HORVATH v. HUNGARY
Inadmissible
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
The applicant, Mr Sándor Tibor Horváth, is a Hungarian national who was born in 1942 and lives in Budapest. He was represented before the Court by Mr G. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 March 2007 the applicant, at the material time a member and activist of the Workers’ Party (Munkáspárt), a registered left-wing political party, was convicted by the Pest Central District Court under section 269/B (1) of the Criminal Code of the offence of having worn a totalitarian symbol in public. The court observed that the applicant had worn a five-pointed red star and a sickle-and-hammer logo on several occasions of public appearance. The court refrained from imposing a sentence for a probationary period of one year. On 10 June 2008 the Budapest Regional Court upheld this judgment. On 8 July 2008 the European Court of Human Rights adopted a judgment in a case introduced by another individual on account of a conviction similar in nature (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 that applicant’s freedom of expression enshrined in Article 10 of the Convention. In pursuit of this judgment, on 10 March 2009 the Supreme Court’s review bench acquitted the defendant in that case holding that his incriminated act no longer represented danger to society. Act no. IV of 1978 on the Criminal Code provides: “(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment. (2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.” “(1) Any 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 five-pointed red star, or a symbol depicting any of them, commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine. (2) The conduct prescribed 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.” Act No. XIX of 1998 on Criminal Procedure provides: “(1) [... R]eview proceedings may be initiated ... if ... (a) a person ... was convicted ... in breach of the substantive provisions of criminal law ...” “(1) The rules of third-instance proceedings (Chapter XV) shall be applicable to the conduct of the review proceedings ...” “(1) The third-instance court may reverse the second-instance court’s judgment and adopt a lawful decision if the second-instance court gave its judgment in breach of the [substantive] provisions of criminal law ... provided that the findings of fact are well-founded or their deficiency could be rectified before the third-instance court.” In case no. Bhar.II.2/2010/4 (judgment of 5 March 2010) which concerned the prosecution of a Mr F. for having displayed a red star, the Pécs Court of Appeal examined in detail whether or not Mr F.’s conduct represented any danger to society – an element inherent in the notion of a crime within the meaning of section 10 of the Criminal Code (see above) – and this in particular in the face of the Vajnai judgment cited above.