The European Court of Human Rights has held in a judgment handed down on 24 July 2012 that the display of a flag with ‘controversial historical connotations’ was protected under Article 10. The applicant had been displaying the controversial Árpád striped flag, which has links to fascism and the Arrow Cross Regime, in Budapest on a day that the Hungarian Socialist Party (MSZP) was holding a demonstration against racism and hatred.
At the same time Jobbik, a right wing party in Hungary, was holding a counter demonstration. The applicant was holding the flag whilst standing close to both demonstrations on the steps to the embankment of the Danube. Large numbers of Jews were exterminated at this spot during the Arrow Cross regime in 1944 to 45. The applicant was approached by the police, who had been instructed not to tolerate the display of the Árpád flag within the vicinity of the MSZP demonstration, and was asked to either remove the flag or leave the area. The applicant refused and was arrested and fined 50,000 Hungarian forints (approximately €200).
The applicant had previously appealed against his punishment in the Hungarian domestic courts, but his conviction had been upheld. The applicant had argued that the Árpád flag was a historical symbol, but it was held that in the context of the demonstration his behaviour in displaying the flag had been provocative and was likely to cause public disorder. Therefore his demonstration was not protected by his right to freedom of expression guaranteed by Article 10.
It was accepted that there had been an interference with the applicant’s freedom of expression and that it had been in accordance with domestic legislation, and was therefore ‘prescribed by law’. It was further found that the interference had been for the purpose of preventing disorder and protecting the freedoms of others, and was therefore in pursuit of legitimate aims. The issue, therefore, was whether the interference was ‘necessary in a democratic society’.
In order to decide if the interference was necessary in a democratic society the Court had to consider whether it was in response to a ‘pressing social need’. Although noting that states do have a margin of appreciation in this regard, it was also made clear, citing Perna v. Italy (App no 48898/99) and Association Ekin v. France (App no 39288/98), that it is the court who has the final say. It was noted that Article 10 leaves little scope for suppressing political speech or debate on topics of public interest and made clear that:
… the display of a symbol associated with a political movement or entity, like that of a flag, is capable of expressing identification with ideas or representing them and falls within the ambit of expression protected by Article 10 of the Convention. 
Citing Öllinger v. Austria (App no 76900/01), the Court highlighted the importance of examining context when symbols that may have multiple meanings are used as an expression of political speech and held that, ‘utmost care must be observed in applying any restrictions’. 
The government however, argued that;
… the police had acted to protect a lawful demonstration whose participants should have been able to hold the demonstration without having to fear that they would be subjected to physical violence by their opponents. It was the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, and they had a wide discretion in the choice of the means to be used. 
It was also alleged that the punishment had not been imposed for the display of the banner itself, but for the applicants refusal to follow police instructions to remove the flag or move to another area.
The applicant argued that as his presence at a location close to the demonstrations and his displaying of the Árpád flag was neither ‘harmful or provocative’ there had been no lawful basis for the police to intervene stating that ‘there was no indication of any potential or actual hostility or aggression.’  Furthermore, the flag was not a banned symbol under Hungarian law and had a historical meaning.
The Court highlighted the fact that the case involved competing convention rights, and required the balancing of the right to freedom of expression against the right to freedom of assembly. Citing Von Hannover v. Germany (no. 2) (App nos 40660/08 and 60641/08), the Court noted that its task was to ensure a fair balance had been struck stating that:
Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts as long as an overall, optimal balance between the competing rights has been achieved. 
The Court emphasised the importance of protecting the right to express ideas that may annoy, shock or offend and stated that:
Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it (citing Sergey Kuznetsov v. Russia (App no 10877/04) and Alekseyev v. Russia (App nos. 4916/07, 25924/08 and 14599/09)). 
However, the Court then went on to add that:
… a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents … In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. 
On the issue of whether the display of a flag could constitute an exercise of freedom of expression the Court again stressed the importance of context stating:
The applicant’s decision to display that flag in the vicinity of the MSZP demonstration must be regarded as his way of expressing – by way of a symbol – his political views, namely a disagreement with the ideas of the MSZP demonstrators. 
Whilst accepting that states have a wide discretion in the measures taken to balance the applicant’s right to freedom of expression against the MSZP’s right to freedom of assembly, the Court held that the optimal balance had not been struck in the present case. The applicant had not acted in an abusive or threatening manner and the display of the flag “was not shown to have disrupted the demonstration materially”. 
The Court made it clear that freedom to take part in peaceful demonstrations is of such importance that it can only be restricted to prevent violence. Thus, even accepting the provocative nature of the flag, the absence of any violence or legitimate fear of violence in the present case meant there had been no basis for intervening:
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. 
The Court went on to state that merely causing offence or outrage cannot, in the absence of intimidation, justify restrictions of freedom of expression under Article 10(2):
… even assuming that some demonstrators may have considered the flag as offensive, shocking, or even “fascist”, for the Court, its mere display was not capable of disturbing public order or hampering the exercise of the demonstrators’ right to assemble as it was neither intimidating, nor capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons (Citing Sürek v Turkey (no. 1) (App no. 26682/95)). 
However, returning again to the issue of context, the Court made it clear that shocking or offensive expression that may otherwise be permissible may be restricted at certain places and at certain times in order to ‘protect the rights to honour of the murdered and the piety rights of their relatives’. 
Holding that there had been a violation of Article 10 read in the light of Article 11 of the Convention, the applicant was awarded €1,500 compensation plus €1,500 costs.
Judge Keller expressed a dissenting opinion.
In this judgment the Court makes clear the importance attached to the right to freedom of expression and the right to freedom of assembly. This case illustrates an increasing recognition at Strasbourg that some tolerance of demonstrations that may shock, annoy or distress others is an integral part of ensuring these rights are properly protected.
However, the Court also made it clear that whilst they found in favour of the applicant in this instance, there are some situations where the location or timing of the demonstration would warrant restrictions on freedom of expression and assembly. This resonates with the approach by our domestic courts where prosecutions for distressing or offensive demonstrations have been brought under section 5 of the Public Order Act. The Act makes it an offence to display a sign or any writing that is ‘threatening, abusive or insulting’ or to use ‘threatening, abusive or insulting’ words ‘within the hearing or sight of a person likely to be caused harassment, alarm or distress’. The Act is clearly relevant in situations, such as the present case, where unpopular or offensive ideas are being expressed.
Section 5 was used to prosecute Emdadur Choudhury, a member of Muslims Against Crusades (MAC), for burning poppies at a remembrance day ceremony in 2011. The case received much attention from the press, in large part due to the perceived leniency of the £50 fine imposed. However, the case also attracted criticism from those who argued that such behaviour, although undoubtedly offensive and unpleasant, should be tolerated in the name of free speech. The judgment was criticised as an ‘uncomfortable balance’.
Section 5 was also used to prosecute five men for yelling abuse at British soldiers during a homecoming parade. They appealed but the High Court held that their prosecution had not been a breach of Article 10. Comparisons have been made between this case and Snyder v Phelps, in which the United States Supreme Court held that protests at the funerals of soldiers by religious groups were protected by the right to free speech. Cases such as these have led some to question whether non violent protest should ever result in a criminal conviction in a democratic society.
Indeed section 5 has been labeled a ‘menace’ and accused of ‘strangling free speech’. Critics point to the lack of any requirement of intent and to the highly subjective nature of the offence. The recent publicity surrounding s5 cases has led to the rather unusual alliance of gay rights activist Peter Tatchell, religious groups and the conservative MP David Davis to establish Reform 5, a campaign calling for the repeal of section 5.
Considering the above, it is open to argument whether the chamber’s judgment goes far enough. While the emphasis on the importance of free expression and assembly is welcome, the possible limitations on offensive or upsetting ideas is troubling, especially in light of the domestic case law in England and Wales. Limitations based solely on offence (actual or potential) seriously undermine the value of these rights. Freedom of expression must encompass the freedom to express ideas that are uncomfortable, unpalatable and just plain offensive. If it does not, society cannot engage in proper debate and discredit these viewpoints. There is an important balance to be struck between challenging unpleasant and hateful ideas whilst simultaneously ensuring that the law is not used to stifle free debate. This balance has not yet been achieved.
Eloise le Santo is a research assistant at the Law Commission and will be commencing traineeship at Matrix in October 2012.