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. 

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Yes, Prime Minister (bis): prosecution for satirical collage criticising Turkish prime minister’s foreign policy violated artist’s freedom of expression

Ronan Ó Fathaigh and Dirk Voorhoof

On 2 February 2021, the European Court of Human Rights (ECtHR) unanimously found that the criminal proceedings against an artist’s satirical collage ‘insulting’ the Turkish Prime Minister violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In an earlier case (Tuşalp v. Turkey) about press articles criticising the then Prime Minister, Mr. Recep Tayyip Erdoğan, the ECtHR also concluded that the Turkish authorities had disproportionately interfered with freedom of political expression, by overprotecting the reputation of the Prime Minister (see our blog entitled ‘Yes Prime Minister!’ here). In its latest judgment in Dickinson v. Turkey the ECtHR confirms that a politician must show a greater tolerance towards criticism, especially when the expression takes the form of satire. Most importantly, the ECtHR found that Article 10 was violated, even where the applicant has ‘only’ been criminally prosecuted, without any sanction being imposed. The ECtHR considers that being prosecuted for insult of a political leader, with a risk of being imprisoned, has a chilling effect on the right to freedom of expression.

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