issued by the Registrar of the Court

ECHR 133 (2021)

27.04.2021

Displaying of flags: the judicial decisions failed to examine the facts in depth

and lacked sufficient reasoning

In today’s Chamber judgment¹in the case of Tőkés v. Romania (applications nos. 15976/16 and

50461/17) the European Court of Human Rights held, by a majority, that there had been:

a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned a Romanian national, László Tőkés, who belongs to the Hungarian minority in

Romania and who was elected as a member of the European Parliament in respect of Hungary. The

Romanian authorities imposed sanctions on Mr Tőkés for flying the flags of Szeklerland²and the

Partium (Részek) territory on the building housing his office in Oradea.

The Court did not agree with the applicant’s view that the interference with his right to freedom of

expression had lacked any legal basis. However, it found that the domestic courts had not examined

in depth all the relevant evidence before them, and that the reasons given for their decisions had

been insufficient. It noted that the reasons given for the judgments had been succinct and did not

contain sufficient information to enable the Court to discern the reasoning behind the interference.

The Court found a procedural violation of Article 10 of the Convention.

Principal facts

The applicant, László Tőkés, is a Romanian national who was born in 1952 and lives in Oradea

(Romania). Mr Tőkés belongs to the Hungarian minority in Romania. He was elected as a member of

the European Parliament on the list of the Democratic Union of Hungarians in Romania following the

2009 European elections, and subsequently on the list of the Hungarian Fidesz party following the

European elections of May 2014. At the time of the events he had an office in Oradea.

In his first application (no. 15976/16), Mr Tőkés stated that on 18 June 2014 he had displayed a

Szekler flag, measuring two metres by one metre, on the building housing his office in Oradea. On

20 August 2014 the local police in Oradea imposed a minor-offence sanction on him, in the form of a

warning, for displaying a flag – the Szekler flag – for advertising purposes without first obtaining

temporary permission to advertise, in breach of Law no. 185/2013 on the placement and

authorisation of advertising materials. The applicant was requested to remove the flag. He

challenged the minor-offence report in the Oradea Court of First Instance, which dismissed the

challenge on 26 January 2015. Mr Tőkés appealed against that judgment.

In a final judgment of 27 November 2015 the Bihor County Court dismissed the appeal and upheld

the reasoning of the first-instance judgment. According to the court, the applicant had flown the

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Szeklerland is a historical and ethnographic region of Transylvania, in Romania, home to most of Transylvania’s Hungarian-speaking

Szeklers, who comprise a majority of the local population. In Romania, Hungarians are recognised as a national minority by the Law on the

status of minorities; the Szeklers are an ethnic group within the Hungarian minority.

flag, which included Szekler symbols, in order to draw the public’s attention to the use to which the

space in question was being put, and the flag had thus been used for advertising purposes as defined

by Law no. 185/2013. The court made clear that flying a flag such as the one in question in public,

but on a privately owned building, was not prohibited by law. Nevertheless, the flag had to be

displayed in accordance with the statutory provisions, including those requiring permission to be

obtained in order to advertise.

In his second application (no. 50461/17) Mr Tőkés stated that in December 2015 he had displayed

on the building housing his office the flag of the Partium territory, a white flag bearing a double

cross and four red lines representing the four rivers running through the region. The flag had been

flown alongside several others, namely the Szekler flag, the Romanian national flag, the Hungarian

national flag and the flag of the European Union. On 16 December 2015 the police imposed a

minor-offence sanction on the applicant in the form of a warning and requested him to remove the

flag.

Mr Tőkés challenged the minor-offence record in the Court of First Instance, arguing that

Law no. 185/2013 was not applicable to the case. He pointed out that he was a member of the

European Parliament, that he spent most of his time in Brussels and Strasbourg and that he had

rented an office in Oradea for the duration of his term. On 27 April 2016 the Court of First Instance

dismissed the challenge, finding that the applicant had displayed a flag which included Szekler

symbols and which thus did not fall into the category of flags belonging to a recognised State. The

court held that in displaying the flag the applicant had sought to draw the public’s attention to, and

inform them about, activities and events; the flag was therefore to be regarded as “advertising

material”. According to the court, the flying of the Szekler flag in public, including on privately

owned buildings, was governed by Law no. 185/2013 and was therefore subject to temporary

permission to advertise.

Mr Tőkés appealed against that judgment. On 6 February 2017 the County Court dismissed the

appeal and upheld the first-instance judgment.

On 24 February 2020, following a police check, Mr Tőkés himself removed the flags without any

involvement by the authorities.

Complaints, procedure and composition of the Court

Relying on Article 10 (freedom of expression), the applicant alleged that the fact of being issued with

warnings for displaying the flags of Szeklerland and the Partium territory on the building in which he

worked in Oradea had infringed his right to freedom of expression.

The applications were lodged with the European Court of Human Rights on 9 February 2016 and

19 May 2017.

Judgment was given by a Chamber of seven judges, composed as follows:

Yonko Grozev (Bulgaria), President,

Tim Eicke (the United Kingdom),

Iulia Antoanella Motoc (Romania),

Armen Harutyunyan (Armenia),

Gabriele Kucsko-Stadlmayer (Austria),

Pere Pastor Vilanova (Andorra),

Ana Maria Guerra Martins (Portugal),

and also Ilse Freiwirth, Deputy Section Registrar.

Decision of the Court

Article 10

The Court observed that the applicant had been sanctioned for flying the Szekler flag and the flag of

the Partium territory without first applying for permission to advertise. According to the

minor-offence reports, which were subsequently upheld by the domestic courts, the applicant had

acted in breach of Law no. 185/2013. Under Article 49 § 1 (a) of that Law, the placing of advertising

materials without temporary permission to advertise constituted a minor offence. The Court did not

agree with the applicant’s view that the interference had lacked any legal basis, and proceeded to

examine whether the measure had pursued a legitimate aim and had been necessary in a

democratic society.

The Court noted that the aim referred to by the Government as justification for the measures in

question was that of ensuring public safety and respect for the rights of others. The purpose of

Law no. 185, as defined in Article 1, was to ensure 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. The Court

accepted that the interference of which the applicant complained had been aimed at protecting the

rights of others. The domestic courts had been called upon to strike a fair balance between the

applicant’s right to freedom of expression and the protection of the rights of others in the context of

Law no. 185/2013, which was applicable in the present case.

In examining whether the interference had been necessary in a democratic society, the Court

focused on the decisions handed down by the domestic courts. In that connection it observed that

the courts had omitted to take into consideration the context of the applicant’s complaints, namely

his argument that the sanctions imposed had interfered with his right to freedom of expression as

guaranteed both by the Constitution and by Article 10 of the Convention. The Court went on to note

that in seeking to determine what legislation was applicable, the domestic courts had focused on

their finding that the flags in question were to be equated with a form of advertising. They had not

explained why they had rejected the applicant’s claims that the flags had not been intended to

promote his activities but had merely been a means for him to express his own identity. The Court

noted that some of the definitions of the notion of advertising contained in Article 3 (o) of

Law no. 185/2013 were closely linked to commercial activities in general and that their purpose was

thus far removed from the message which the applicant was seeking to convey. Against that

background the authorities had been under a duty to provide reasons for dismissing the applicant’s

arguments, in so far as the notion of advertising in domestic law was defined in broad terms and the

national authorities had a degree of discretion in deciding which flags should be regarded as

advertising materials.

The Court pointed out that it had consistently drawn a distinction between commercial

advertisements and those aimed at contributing to a public debate on matters of general interest. In

the present case it noted that, in classifying the flags in question as advertising materials, the

domestic courts had not examined their content, nor had they furnished any example of the

activities or events which the flags had purportedly advertised. While they were 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, the domestic courts had not explained in sufficient detail in the

present case their decision to classify the flags in question as advertising materials.

The Court further observed that the domestic 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 Court also noted

that at the relevant time the applicant had sat in the European Parliament as a member of a

Hungarian, rather than a Romanian, party and had therefore been a political representative of the

Hungarian majority in Hungary rather than the Hungarian minority in Romania. These issues had

been relevant to determining the nature of the speech in question; the domestic courts should have

elucidated them 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.

Regarding the question of public safety and respect for the rights of others relied on by the

Government, the Court noted that the domestic courts had not cited any evidence to suggest that

the flying of the flags had been liable to give rise to any public-safety issues. Moreover, they had

stated that the flying of the flags was not prohibited as such, but that it had to be done in

accordance with the statutory provisions and after obtaining temporary permission to advertise. The

Court also noted that the flag of the Partium territory had been displayed 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 in accordance with legislation that was designed to “ensure 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” . Furthermore, although he had been sanctioned in June 2014 and

December 2015 the applicant had not been required to remove the flags until 24 February 2020.

There was nothing in the case file to indicate that, over this period of several years, the flying of the

flags had caused the authorities any problems in terms of public or environmental safety.

Lastly, the Court considered that, for the purposes of Article 10 of the Convention, the fact that the

sanction had been 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 view of 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”. The Court found a procedural

violation of Article 10 on account of the way in which the domestic courts had examined the

applicant’s complaints.

There had thus been a violation of Article 10 of the Convention.

Just satisfaction (Article 41)

The Court held that Romania was to pay the applicant 2,112 euros (EUR) in respect of costs and

expenses.

Separate opinion

Judges Motoc and Kucsko-Stadlmayer expressed a separate opinion which is annexed to the

judgment.

The judgment is available only in French.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive