Freedom of Association and Assembly / Protests
Fanele Maqele v. Ngwabi Bhebhe and Midlands State University
Closed Expands Expression
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The European Court of Human Rights (“ECtHR”) recalled that it had already found that the prosecution of a left-wing politician for wearing a five-pointed red star on his jacket while participating in a peaceful demonstration was an admissible complaint and constituted a violation of Article 10 European Convention on Human Rights (“ECHR”). It also awarded pecuniary costs, legal fees, and court costs to the applicant.
The European Court of Human Rights (“ECtHR”) found in 2008 (see Vajnai v. Hungary, No. 33629/06) that the applicant’s complaint alleging that the Hungarian government violated his Freedom of Expression as enshrined in Article 10 European Convention on Human Rights (“ECHR”) by criminally prosecuting the applicant for wearing a five-pointed red star on his jacket during a protest was admissible. The Court then found that the government’s action in that case violated the applicant’s rights under Article 10 ECHR.
In 2009, the applicant again protested wearing a five-pointed red star on his jacket. Again, he was arrested and criminally prosecuted for wearing the five-pointed red star, he appealed his conviction, and his appeal was dismissed by the domestic courts. The applicant exhausted his domestic remedies and then lodged the present complaint before the ECtHR.
The Hungarian government argued that the applicant’s complaint before the ECtHR was inadmissible because, unlike the Vajnai v. Hungary, No. 33629/06 judgment, “the issue here was whether or not the police officers had the duty or possibility to carry out the contextual scrutiny of the applicant’s conduct, as required by the Vajnai judgment.” Therefore, the government argued, “the police measure was lawful and justified, because the officers had acted under the reasonable assumption that the applicant’s conduct had [violated] the Criminal Code [which] still prohibit[ed] the display of a red star.”
The ECtHR unanimously rejected the Hungarian government’s claims and awarded all costs to the applicant, recalling that it had already decided the admissibility issue in Vajnai v. Hungary, No. 33629/06 (2008).
The Court then unanimously found the applicant’s complaint admissible, and recalling its holding in Vajnai v. Hungary, No. 33629/06, found that the Hungarian government had breached its duties to the applicant under Article 10 ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR’s decision in this case expands expression by reinforcing its earlier holding that a domestic statute barring the display of a political symbol violated Article 10 ECHR. It puts States Parties on notice that it is irrelevant whether the police acted reasonably in complying with the domestic statute if the ECtHR has already found that the statute in question constitutes a violation of the ECHR.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The ECtHR’s decision puts ECHR State Parties on notice that it is irrelevant whether the police acted reasonably in complying with the domestic statute if the ECtHR has already found that the statute in question constitutes a violation of the ECHR.
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