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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