Information Note on the Court’s case-law 250
Tőkés v. Romania – 15976/16 and 50461/17
Judgment 27.4.2021 [Section IV]
Freedom of expression
Warnings issued to MEP for displaying national-minority flags on the building housing his office without obtaining permission to advertise: violation
Facts – The applicant, a member of the European Parliament who belongs to the Hungarian minority in Romania, was sanctioned for displaying the flags of Szeklerland and the Partium (Részek) territory on the building housing his parliamentary office.
Law – Article 10:
The sanctioning of the applicant for the minor offence of failing to request prior permission to advertise, in breach of legislation that was accessible to everyone, amounted to interference with the exercise of his right to freedom of expression, aimed at protecting the rights of others.
The domestic courts had sought primarily to determine what legislation was applicable and had focused exclusively on their finding that the flags were to be equated with a form of advertising designed to promote the applicant’s activities and the purpose for which the building housing his office was being used. The courts did not explain why they had dismissed the applicant’s claims that the flags in question had merely constituted a means of expressing his own identity as a member of a national minority. Some of the definitions of the notion of advertising contained in the legislation were closely linked to commercial activities in general and their purpose was thus far removed from the message which the applicant was seeking to convey. In that context, the authorities had been under a particular duty to provide reasons for dismissing the applicant’s arguments, given that the notion of advertising in domestic law was defined in broad terms and that the national authorities had a degree of discretion in deciding which flags could be regarded as advertising materials.
The domestic courts had not examined the case-law which, in the applicant’s view, precluded categorising the flags in question as “advertising materials”.
The flags had been displayed in a context that was unrelated to commercial advertising for the purposes of the Court’s case-law, according to which advertising was a means for the public of discovering the characteristics of services and goods offered to them. Nevertheless, the Court acknowledged that the action in question had been liable to draw attention to the purpose for which the building was being used.
The Court had consistently drawn a distinction between commercial advertisements and those aimed at contributing to a public debate on matters of general interest, or even political advertising. It took into consideration the form in which the message was conveyed and its aim, but also the content of the speech in question. It had thus arrived at a classification of the relevant concepts that was to some extent autonomous, defining them irrespective of how the speech in question was characterised by the applicants or the domestic courts. In so doing, it always had regard to States’ margin of appreciation, the extent of which varied depending on the type of speech in issue.
In the present case, in examining what legislation applied and classifying the flags in question as advertising materials, the domestic courts had not examined their content, nor had they furnished any tangible example of the activities or events which the flags had purportedly advertised. However, such an examination had been all the more important given that, in some circumstances, the displaying of the Szekler flag was liable to evoke topics of a sensitive nature within Romanian society concerning a matter of general interest, namely the autonomy of the areas inhabited by the Hungarian minority. Against that background the domestic courts, which were in principle better placed to interpret the intention underlying a particular speech and to assess the way in which the public was likely to perceive it and react to it, should have explained in more detail their decision to classify the flags in question as advertising materials.
The domestic courts had also found that the aim in displaying the flags had been to draw the public’s attention to the purpose for which the space in question was being used. However, the courts had not examined whether the use being made of the building, which the local authorities had designated as the applicant’s parliamentary office, should be an important factor in the case. Likewise, they had not taken into consideration the applicant’s status as a member of the European Parliament or his rights flowing from that status. In particular, they had not established with certainty whether the applicant was seeking to act in his capacity as a politician presenting a political programme or as an ordinary citizen belonging to a national minority who wished to manifest his membership of that minority.
The applicant, who at the relevant time represented Hungary rather than Romania in the European Parliament, was no longer entitled to have a parliamentary office in Romania. He also sat in the European Parliament as a member of a Hungarian, not a Romanian, party and was therefore a political representative of the Hungarian majority in Hungary rather than the Hungarian minority in Romania. These issues were linked to the applicant’s status as a member of the European Parliament and to the rights that flowed from that status, matters of relevance in determining the nature of the speech in question. The national courts should have elucidated these matters, but instead had ignored them.
Because they had failed to examine in depth all the relevant evidence before them, the domestic courts had been unable to determine, in the light of the criteria defined and applied by the Court in cases concerning freedom of expression, the nature of the message which the applicant had sought to convey and the context in which the speech should be situated. In any event, this factual evidence that had been disregarded by the domestic courts suggested that the displaying of the flags in question had been more akin to political speech than to advertising.
Establishing the nature of the speech in question was of particular relevance in assessing whether the interference with the right to freedom of expression had been necessary. That freedom was subject to exceptions, but they had to be construed strictly and the need for any restrictions had to be established convincingly, especially if the speech in question was political rather than commercial in nature.
Furthermore, the judgments of the domestic courts had been very succinct with regard to the necessity of the interference, and did not contain sufficient information to enable the Court to discern the reasoning behind it.
The fact that the applicant had displayed the flags in public was relevant in terms of the stated aim of the applicable legislation, namely to ensure, among other things, that the built environment was coherent, harmonious, safe and healthy, in order to protect natural and man-made assets, preserve the quality of the landscape and conform to the required standards in terms of building quality. However, in the second application the flag of the Partium territory had been flown alongside other flags. The domestic courts had not explained why only that flag, and not the others, had been subject to prior permission to advertise on the basis of the legislation in question and its purpose.
Furthermore, despite being sanctioned in 2014 and 2015 the applicant had not been required to remove the flags until February 2020. Over this period of several years the flying of the flags had not caused the authorities any problems in terms of public or environmental safety.
Notwithstanding their concise nature, the reasons given by the domestic courts in support of their findings suggested that the proportionality of the sanction had been examined. The fact that the sanction was a minor one did not in itself compensate for the lack of relevant and sufficient reasons for restricting the right to freedom of expression.
In any event, in view of the foregoing considerations, and in particular the fact that the domestic courts had not taken due account of the criteria established in the Court’s case-law, those courts had not provided relevant and sufficient reasons to justify the interference with the applicant’s right to freedom of expression. Consequently, the interference complained of had not been “necessary in a democratic society”.
Conclusion: violation (five votes to two).
Article 41: finding of a violation sufficient in respect of non-pecuniary damage.