ECHR Ruling of April 27, 2021 in the case "Tekesh v. Romania" (applications NN 15976/16 and 50461/17).
In 2016 and 2017, the applicant was assisted in the preparation of applications. Subsequently, the applications were combined and communicated to Romania.
In the case, applications were successfully considered against issuing a warning to a member of the European Parliament for placing a national minority flag on the building where his office was located without an advertising permit. The case involved a violation of the requirements of article 10 of the Convention.
CIRCUMSTANCES OF THE CASE
The applicant, a member of the European Parliament who belonged to the Hungarian national minority in Romania, was sanctioned for placing the flags of the Szeklerland and Partium district on the building where his parliamentary office was located.
Regarding compliance with article 10 of the Convention. The application of sanctions against the applicant for committing a minor crime in the form of the absence of a preliminary request for permission to advertise in violation of the legislation accessible to all was an interference with the applicant's exercise of his right to freedom of expression, aimed at protecting the rights of others.
The Romanian courts mainly established the applicable rules of law and focused on the conclusion that the flags were equated to a form of advertising intended to promote the applicant's activities, as well as the purpose for which the building in which the applicant's office was located was used. The Romanian courts did not explain why they rejected the applicant's claim that the flags simply expressed the applicant's belonging to a national minority. Some definitions of the concept of "advertising" contained in Romanian legislation were closely related to commercial activities, and thus their purpose was very far from the essence of the message that the applicant wanted to express by his actions. In this context, the Romanian authorities had a special obligation to give reasons for rejecting the applicant's arguments, given that in Romanian legislation the concept of "advertising" was given in broad terms and that the Romanian authorities had discretion in deciding which flags could be considered as objects of advertising.
The Romanian courts did not consider the case-law, which, in the applicant's opinion, did not allow the flags in question to be defined as "objects of advertising".
The flags were displayed in a context that was not related to commercial advertising for the purposes determined by the case law of the European Court of Justice, according to which advertising is a way of communicating to the public the characteristics of the services and goods offered. Nevertheless, the European Court recognized that the mentioned actions justified consideration of the purpose for which the building where the flags were placed was used.
The European Court has repeatedly distinguished between commercial advertising and advertising related to public disputes on issues of public interest, or even political ads. The Court took into account the form of transmission of the message and its purpose, as well as the content of the relevant statement. Thus, the European Court developed a classification that was somewhat autonomous from the concepts in question, defining them regardless of how the applicants or the State courts characterized the relevant statement. At the same time, the European Court always takes into account the discretion granted to States, the degree of which varies depending on the type of statement in the case.
In the present case, considering the applicable legislation and classifying the flags displayed by the applicant as advertising, the Romanian courts did not investigate the content of these items and did not provide any convincing example of the activities or events that the flags allegedly advertised. However, such a study was all the more important, given that under some circumstances the demonstration of the Secean flag could raise sensitive issues of public interest in Romanian society, namely questions about the autonomy of the territories where the Hungarian national minority lived. Based on these facts, the Romanian courts, which in principle were in a better position to interpret the intentions underlying specific statements and assess how the public was likely to perceive and react to this statement, should have explained in more detail their decision to consider the flags displayed by the applicant as advertising.
The Romanian courts also found that the reason for the demonstration of flags was to draw public attention to the purposes for which the place of demonstration of flags was used. However, the Romanian courts did not consider whether the purpose of using the building, which the local authorities called the applicant's parliamentary office, should be a significant factor in the case. Also, the Romanian courts did not take into account the applicant's status as a member of the European Parliament or his rights arising from this status. In particular, they did not establish exactly whether the applicant sought to act as a politician representing a political program, or as an ordinary citizen belonging to a national minority who wanted to express his belonging to this minority.
The applicant, who at the time in question represented Hungary rather than Romania in the European Parliament, no longer had the right to have a parliamentary office in Romania. He also sat in the European Parliament as a member of the Hungarian, not the Romanian party, and therefore was a representative of the Hungarian majority in Hungary, not the Hungarian minority in Romania. These issues were related to the applicant's status as a member of the European Parliament and the rights that followed from this status, which were important factors in determining the nature of the statement in question. The Romanian courts should have clarified these issues, but they ignored them.
Since the Romanian courts did not examine in detail all the evidence presented to them, they were unable to determine, taking into account the criteria developed and applied by the European Court in cases on the right to freedom of expression, the nature of the message the applicant wanted to convey and the context in which the applicant's actions should have been considered. In any case, this factual evidence, which was ignored by the Romanian courts, suggested that the display of the flags mentioned in the case was closer to a political statement than to advertising.
The determination of the nature of the statement in the present case was of particular importance in assessing whether interference with the right to freedom of expression was necessary. This right provides for exceptions, but they must be interpreted restrictively, and the need for any restriction must be established convincingly, especially if the contested statement is political, not commercial in nature.
In addition, the decisions of the Romanian courts were very brief on the need for intervention and did not contain enough information that would allow the European Court to assess the motivation of the decisions.
The fact that the applicant displayed the flags in public was significant from the standpoint of the purpose specified in the legislation, namely, to ensure, among other things, that the created environment was consistent, harmonious, safe and healthy in order to protect natural and anthropogenic resources, preserve the quality of the landscape and meet the necessary standards in the field of construction quality. However, in the second complaint, along with other flags, the flag of the territory of the Partium was hung out. The Romanian courts did not explain why it was for this flag, and not for others, it was necessary to obtain, on the basis of the legislation in question, a preliminary permit for advertising and for what purpose.
In addition, despite the fact that sanctions were applied to the applicant in 2014 and 2015, he was not required to remove the flags until February 2020. During these several years, the demonstration of flags on the building did not cause any concern to the Romanian authorities from the point of view of public safety or environmental protection.
Despite the brief nature, the reasons given by the Romanian courts for their decisions led to the assumption that the question of the proportionality of the sanction had been considered. The fact that the sanction was insignificant did not compensate for the absence of relevant and sufficient grounds for restricting the applicant's right to freedom of expression.
In any case, taking into account the above and, in particular, the fact that the Romanian courts did not take due account of the criteria developed in the case-law of the European Court, these courts did not provide relevant and sufficient grounds to justify interference with the applicant's right to freedom of expression. Consequently, the interference complained of was not "necessary in a democratic society".
The case involved a violation of the requirements of article 10 of the Convention (adopted by five votes in favor, with two against).
In the application of article 41 of the Convention. The European Court decided that the finding of a violation of the Convention in itself would be sufficient just compensation for moral damage.