CASE OF NOÉ, VAJNAI AND BAKO v. HUNGARY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Helen Keller;Robert Spano
5. The applicants were born in 1970, 1963 and 1989 and live in Paks and Budapest respectively. 6. At the material time, Mr Vajnai was Vice-President and Ms Noé and Mr Bakó were activists 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. 7. On 21 December 2008 the applicants organised an event in front of a shopping mall in Budapest, entitled “Anti-Capitalist Santa Claus”, with the intention to demonstrate against consumerism, draw attention to poverty, point out the shortcomings of market economy, and demand free internet access for all. 8. To express their affiliation with Communism, four persons, including the applicants, displayed a sheet and a flag with a five-pointed red star and distributed leaflets with their political message, depicting red stars. 9. In application of section 269/B(1) of the Criminal Code, a police patrol which was present called on the applicants to terminate the demonstration, checked their identity and committed them to Budapest VI District Police Department for interrogation. 10. On 23 December 2008 the applicants lodged a complaint with the Independent Police Complaints Board against the police measures. They relied on the judgment of the European Court of Human Rights adopted in the case of Vajnai v. Hungary (no. 33629/06, ECHR 2008). They referred to the Court’s finding that the prosecution for having worn a red star had amounted to a violation of Mr Vajnai’s freedom of expression enshrined in Article 10 of the Convention. 11. The applicants’ complaints were dismissed by the Complaints Board on 4 March 2009. 12. The applicants’ further complaints against the measures were dismissed by the District Police Department on 22 May 2009. This decision was upheld by the Budapest Chief Police Commander, acting as a second-instance authority, on 17 November 2009. 13. On 29 June 2010 the Budapest Regional Court dismissed the applicants’ requests for judicial review. The court held that the display of the red star contravened section 269/B of the Criminal Code, despite the Vajnai judgment, whose application in the circumstances had been no task of the police officers present on the premises. Consequently, the applicants’ identity check and committal to the Police Department was justified under sections 29 (1) and 33 (1) of Act no. XXXIV of 1994 on the Police. 14. In review proceedings, the Supreme Court upheld the Regional Court’s decision on 22 June 2011 (in the case of Mr Bakó), 27 June 2011 (in the case of Ms Noé), and 5 September 2011 (in the case of Mr Vajnai), endorsing in essence the first-instance decisions’ reasoning. 15. The applicants, jointly (they had a lawyer in common), incurred altogether 2,760 euros in legal costs.