Tőkés v. Romania: the struggle to identify the form and content that objectify a flag within the right to freedom of expression

By Xavier Farré Fabregat, research assistant at IPERG (Universitat de Barcelona)

Introduction

The political articulation of minorities in a centrist and hierarchical State can challenge pre-designed institutional responses, (over)stretching the limits of rights and duties held by citizens and the State. In the present case, the display of two minority flags by former politician Lázló Tőkés provoked an answer by the local Romanian authorities that brought to the fore certain questions about the limits of freedom of expression. Domestic courts ruled the sanction and removal of both flags carried out by local police to be lawful, opening the door of the European Court of Human Rights to Tőkés. The Court crafted a peculiar sentence that concluded that a violation of the right to freedom of expression (as enshrined in article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, also the ‘Convention’ or ‘ECHR’) took place, unchaining a conservative dissenting opinion by judges Motoc and Kucsko-Stadlmayer. In this post I present the legal keys of a case which uses a rather general vocabulary but whose gist is more elusive than what it may seem at first sight. 

Backgrounds and facts

Lázló Tőkés is Romanian politician who was a member of the European Parliament between 2009 and 2019. In the 2009 election, he ran as an independent in Romania and gained a seat in the European chamber. He was also elected in 2014, but this time he chose Hungary as the constituency. One of the reasons that could potentially explain why he represented Hungary in this second election lies in his belonging to a Hungarian minority in Romania. This minority is mainly concentrated in the Székely Land, a region in Eastern Transylvania.

After the 2014 election, Tőkés rented an office in a building in the city of Oradea (Romania). On 18^th June 2014, he flew a Székely flag (measuring two metres by one) outside his office, that is, on the balcony of the building. The local police considered that the flag was of an advertising nature and, since it was being displayed in the public space without the required authorization, Tőkés received a minor sanction on the 20^th of August and was requested to remove the flag. He challenged the sanction before the Oradea Court of First Instance, arguing that the flag is not a commercial product but a historical symbol that is part of a concrete identity; therefore, the authorization that law nº 185/2013 – used by the local police to sanction him – establishes would not be required. The Court of First Instance dismisses the totality of his argument on the grounds that the flag was displayed with the objective of attracting the public’s attention. Tőkés lodges an appeal arguing that the judgment did not have any legal basis. This time he puts (more) emphasis on  a multilateral treaty of the Council of Europe, the Framework Convention for the Protection of National Minorities, and that, by labelling the flag as advertisement, the Court of First Instance is moving away from the meaning that the legislator gave to law nº 185/2013. Finally, he claims that his freedom of expression, protected by Article 10 of the Convention, is being violated and that many of his arguments have not been replied to by the Court of First Instance. In a final judgment, the Bihor County Court upheld the decision of the Court of First Instance and dismissed Tőkés’ appeals. Without bringing any novel points, the Bihor Court clarifies that flying the flag in question is not forbidden by Romanian law: such an action is perfectly legal if carried out by respecting the legal provisions which require an (advertising) authorization.

A similar set of happenings take place when Tőkés decides to display another flag in December 2015. On this occasion, the flag represented the historical territory of Partium in western Romania. He receives another sanction on the same grounds as with the Székely flag. His contest of the police official report before the Court of First Instance – in which he emphasizes that in so far as historical symbols are not forbidden, his action is legally allowed – shares the same fate with the one he presented a year earlier against the same Court. The novelty of this appeal is the emphasis on the lack of predictability as to the behaviour of the law-enforcement agents, for the law does not –he claims– foresee this situation. Once again, the County Court rejects Tőkés’ arguments.

Tőkés lodges two different applications (15976/16 and 50461/17) before the European Court of Human Rights (from now on the Court) and the Court decides to unite them because of their similarity. In the joint application, the (now former) European parliamentarian argues that his right to freedom of expression, as enshrined in Article 10 of the Convention, has been violated because of the sanctions imposed.

Judgment

The Court initiates its assessment of the joint application by clearly stating that, in imposing a sanction, the authorities interfered in Tőkés’ use of the right to freedom of expression (§68). The Court dissects three different elements (predictability, purpose and necessity) so as to identify whether this interference constitutes a violation of Article 10 of the Convention, presenting predictability as the pivotal element that allows the justification of this kind of interference (§54 and §69).

The Court clarifies that a predictable law does not entail an absolute certainty, for the law has to be able to adapt to a change of situation (§71). In other words, a plurality of interpretations of the same law – emanating from certain doubts – does not make it unpredictable (§72); actually, it is in this kind of conjectures where courts acquire prominence. As to the displaying of both flags, the Court argues that the Romanian legal regime (indirectly) confers “un certain pouvoir d’appréciation pour decider quel drapeau pouvait être qualifié de publicitaire” (§78). This margin of appreciation is the result of the broad fashion in which law nº 185/2013 sets the advertising criteria. And when it seems that the Court is about to detail how the exposed theory of predictability has to relate with the facts of the case, it takes an unexpected turn by couching in that the way domestic courts have behaved “dépasse la simple analyse de la qualité et de la prévisibilité de la loi” (§80). Put it differently, more analytical elements have to be used to fully fathom the whole state of affairs. Namely, the exposition of the question of predictability is encompassed within an examination of necessity – which is deployed to test whether the threshold of proportionality has been respected (§80).

Nevertheless, before grappling with necessity, the Court factors in the motivation of the action of the police and the posterior endorsement of domestic courts. It accepts –albeit timidly– that the protection of the rights of others, as Romania defends, is behind the action of the police. It invests a rather short paragraph (§81) justifying this stance in so far as fleshing out necessity entails, by ricochet, touching upon the aim pursued. This relation (purpose-necessity) pops up by looking at the second paragraph of Article 10 of the Convention, that is, the test of necessity –underlying any aim– lies on the “besoin social impérieux” (§82, citing Mouvement raëlien c. Suisse, nº 16354/06, §48) to protect. And to identify what is at stake for society, the Court does not frontally tackle the desirability of the advertising rationale of law nº 185/2013 in adjudging Tőkés’ actions, for it criticizes the commercial provisions that Romanian domestic courts mobilize in order to establish a context that tilts their margin of appreciation in favour of qualifying the displaying as advertising (§85).

It is at this precise point where the Court introduces a pivotal distinction between the just mentioned advertising carried out for commercial purposes and the one that places a question of general interest in the public debate (§88). To differentiate them, the Court presents a binomial form-content: to display a flag seeking a commercial benefit can be assessed, to some extent, in isolation from the context in which it is exhibited, whereas the second type of advertising is not autonomous from the content of the context in which it is shown. In other words, the analysis of the two flags flown by Tőkés (form) depends on subject-matters (contextual content) such as taking into account that, at that moment, he was representing “sur la scène politique la majorité des Hongrois de Hongrie et non pas la minorité hongroise de Roumanie” (§91) or analysing whether he was “homme politique porteur d’un programme politique” (§90). This way, displaying the mentioned flags is not a form void of content; it amounts to uttering a message within certain contextual coordinates (strengthening them).

The appeals of Tőkés before the domestic courts placed the freedom of expression along this theoretical framework, but Romanian courts simply failed to address them (§84). In doing so, the courts did not “fourni des raisons pertinentes et suffisantes pour justifier l’attente portée au droit à la liberté d’expression du requérant“ (§99) to the point that their justifications “sont très laconiques quant à la nécessité de l’ingérence” (§94). All this complex analysis induced the Court to conclude that the domestic courts did not carry out a proper test of proportionality and that Article 10 of the Convention had been violated.

Dissenting opinion

Judges Motoc and Kuckso-Stadleymar do not just disagree in certain concrete aspects that can provide a different nuance to the sentence crafted by the majority of the Court, for they call into question the foundations whereby a conclusion is reached. They set the tone by opposing the selection of the information appearing in Tőkés’ application before the Court as well as in his appeals before domestic courts in Romania, to the extent that –in their opinion– the majority of the Court “donné à l’affaire une dimension que lui-même ne souhaitati pas donner” (§4). But it is not only this information what they believe to be incorrect, the reasoning whereby these facts are – in their regard – processed and selected are also incoherent (§7). 

As to the selection of the information, the dissenting opinion does not think that Tőkés displayed the flags with the intention to send a political message or to bring to the table a topic of public interest. Therefore, it does not share the existence of a concrete context that already gives meaning to both flags. And in relation to the rationale that leads the interpretation, both judges point to two issues that underlie the heart of the Court’s sentence. First, the majority of the Court uses a report from the European Commission against Racism and Intolerance (ECRI) about Romania that underscores current affairs that provoke certain tensions between State authorities and national or ethnic minorities. This report sheds some light over the legal logic that should have guided the political and judiciary response against the displaying of another flag from Székely Land in a case similar to this one. The dissenting judges believe that the legal logic presented by ECRI is tailored for public buildings and not private ones; thereby, the Court could not simply apply it to the private building where the applicant had the office. And second, they explicitly expose that they were surprised to notice that whereas the Court does not use the Framework Convention for the Protection of Minorities, it still identifies the rights of others – one of its main tenets – as the duty that the applicant is seeking respect for. They contend that it is precisely this protection which justified the interference by the local police and the posterior judiciary stance by domestic courts (§9).

Then they expose why the domestic courts used the law in a predictable and necessary manner, bestowing legal purview to the interference carried out by local police. They are of the opinion that the existent margin of appreciation in law nº 185/2013 enabled the interpretation by Romanian authorities. It should have been Tőkés who “aurait dû, avant d’agir, s’entourer de conseils éclaires”(§14). They agree with the majority of the Court in that the domestic courts labelled both flags as an advertisement, but they immediately clarify that a commercial publicity is not at all invoked. In this sense, the publicity that places a question of general-political interest in the public debate is behind the position of domestic courts.

In the sphere of necessity, the rationale does not continue along the same lines. Both judges believe that “le requérant n’a soutenu ni dans ses contestations devant les juridictions nationals ni devant la Cour que le déploiement des drapeaux en cause fût l’expression d’un projet politique“ (§23), making a more cultural or historical advertising – linked to certain (but not defined) activities and purposes. Moreover, both judges also deem that the application of Tőkés does not provide factual arguments watering down the besoin social impérieux enabling the behaviour of the local police (§27). And since the sanction is very light – given that Tőkés did not remove any of the flags– (§29), the behaviour of the local police is a response to the display of a flag that was necessary due to the lack of previous authorization and, therefore, was proportionate within the exceptions that Article 10 of the Convention allows.

Comment

The judgment and the dissenting opinion do not solely articulate a diverging usage of the same legal principles (predictability, purpose and necessity), they also chalk out substantive and normative schemes of what is (the role of freedom of expression in) a democratic society. These opposing guidelines inspire the posterior application of these principles. Resorting to assertions that provide a(n indirect) meta-political orientation so as to underpin legal argumentation is practiced by both parts. In the following part, I will not directly critically scrutinize this interesting topic (leaving this for the conclusion) because, otherwise, I would leave almost no space for some concrete inconsistencies (with)in (and between) the majority of the Court and the dissenting opinion’s explanations.

First of all, I would like to emphasize that the Court, as I think that judges Motoc and Kucsko-Stadlmayer rightly point out (§18 of the dissenting opinion), refers to an automatic link between predictability and necessity – and later proportionality– which is not justified. Its importance can be inferred, but the Court does not make any effort to explain why such connection matters and how the facts of the case oblige for such avenue. In this sense, the idea of proportionality and the weight acquired by necessity appear a bit out of the blue.

Second, the judgment of the Court is rather tautological given that, even though clearly stating that the local courts failed to properly examine the facts and to address all the issues raised by the applicant, also suffers from a similar lack of depth in not relating the non-addressed arguments elaborated by Tokés with the general (but at the same time very narrow) framework –created by the principles of predictability, purpose and necessity– whereby any problem as to the freedom of expression has to be assessed. It is true that this is not the job of the Court, for its main function that it is legally obliged to follow is to, merely, judge whether domestic courts’ rulings respect (procedurally) the Convention. However, at the same time, the Court could have shed light in obiter how to narrow down within such a framework.

Finally, in order to justify its stance about the predictability of local courts and police, the separate opinion makes both flags fall under the scope of political or general interest advertising, but in relation to necessity it explicitly does not deem this type of advertising fit for the purpose Tőkés was seeking –ending up creating a third type the frontiers of which are blurred. A more methodological issue also pops up by the absence of the form-content assessment by both judges. Since this binomial is pivotal to fathom what the majority of the Court understands by necessity, the dissenting opinion should exploit an immanent approach consisting in criticizing the distinction by the Court in its very own terms and highlighting its contradictions. Since this does not take place, an interested image of what the latter understands by necessity can be easily portrayed so as to fit an already preset conclusion. Finally, given that the dissenting opinion believes that “le caractère de symbole que revêt une ethnie n’empêche pas que le drapeau puisse être déployé aussi dans d’autres buts que celui de manifester une certain identité“(§16), how does the Court know that Tőkés was sending a historical or cultural message (third sui generis category) and not a political one?

Conclusion

Adjudging about the right to freedom of expression can hardly be done without entering the swampy terrain where legal and (meta)political arguments get mixed. While the Court holds that Tokés’ right was violated because of the laconic explanations provided by domestic courts, its underpinning arguments ((un)avoidably)) make use of and foster the wide margin of appreciation enjoyed by the authorities in the qualification of any form (of flag). Namely, both conceptions (majority of the court and dissenting opinion) about the freedom of expression implicitly reify a utilitarian understanding of what it means to exhibit a flag which constrains how the problematic is analyzed. While it is rather difficult to hold that in an inter-subjective context the exposition of a flag does not express any concrete message, the identification of an audience to be reached frames the flag as a commodity the value of which has to be gauged by a third (collective) part. Is it possible that the flag has an inherent value which does not depend on an audience and which can imply a (particular) different meaning from the very same flag displayed by another citizen? Or, is it possible that someone displays it without being aware of its concrete (self)meaning and without aiming for an audience? This reasoning can be considered (may be rightly) too relativist, but with the identification of some general but strict boundaries (such as the apology of fascism, Nazism, racism or transphobia) it can constitute a rather wider and tolerant perspective.