CASE OF FRATANOLO v. HUNGARY
Violation of Art. 10;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
5. The applicant was born in 1952 and lives in Pécs. 6. On 6 March 2008 the applicant, at the material time a member of the Hungarian Workers’ Party 2006 (Munkáspárt 2006), a registered left-wing political party, was convicted by the Pécs District Court under section 269/B (1) of the Criminal Code of the offence of having displayed a totalitarian symbol in public. The court observed that the applicant had publicly worn a five-pointed red star while participating in a demonstration on 1 May 2004 celebrating Hungary’s accession to the European Union and, at the same time, the International Workers’ Day. As a sanction, the court issued a reprimand. 7. On appeal, on 23 September 2008 the Baranya County Regional Court reversed this judgment and acquitted the applicant. In holding that his act had represented in fact no danger to society, the Regional Court made reference inter alia to a judgment of the European Court of Human Rights, adopted on 8 July 2008, which had been introduced by another individual on account of a conviction similar in nature (Vajnai v. Hungary, no. 33629/06). In that judgment the European Court of Human Rights 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. 8. In pursuit of the prosecution’s further appeal, on 5 March 2010 the Pécs Court of Appeal reversed the second-instance judgment and upheld the applicant’s conviction. It confirmed the reprimand and ordered the applicant to pay 7,500 Hungarian forints in criminal costs. The Court of Appeal held that positive Hungarian law did not permit the domestic courts to apply the holding of Vajnai as such. It pointed out that the conditions of social dangerousness – which had been found by the Supreme Court to be absent in some, otherwise similar, cases – were indeed present in the instant circumstances. The court argued as follows: “The common feature of those cases can be summarised as the absence of identification with the totalitarian symbol, in the first case more emphatically, and in the latter one by virtue of the perpetrator’s indifference towards the symbol connected to the incriminated conduct. The situation in the present case, however, was quite the contrary. János Fratanoló used the five-pointed red star in a political context and as a sign of solidarity felt for his fellow party member, that is, because he identified himself with the symbol, with its meaning known and communicated to the outer world. In this context, the defendant’s concrete political credo is irrelevant: the statutory provision prohibits everyone, irrespective of one’s conviction, from the use of totalitarian symbols, including the five-pointed red star associated with Communist dictatorship. This statement remains true even if the symbol in question has dual meaning referring both to the totalitarian system mentioned above and to the international workers’ movement promoting the ascendance of large groups of society. ... The entirety of the elements of this offence is defined as the legal hypothesis of a socalled “conduct” (immaterial) crime. This means that the offence will be committed merely by performing the sanctioned conduct (dissemination, use in public or public display) and no further condition or result, let alone actual fear or anxiety caused to those perceiving, is required.” The court concluded that the applicant’s act was indeed dangerous to society. 9. 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.”