Who Has the Last Word on the Protection of Human Rights in Europe?

• Author: Julia Laffranque
• Position: Judge, European Court of Human Rights, President of International Federation for European Law, Professor of European Law, University of Tartu
• Pages: 117-134

117

JURIDICA INTERNATIONAL XIX/2012

Julia Laffranque

Judge, European Court of Human Rights

President of International Federation for European Law

Professor of European Law, University of Tartu*1

Who Has the Last Word

on the Protection of Human

Rights in Europe?

Nobody today questions the importance of, and the need for, high standards in the protection of human

rights. Political power and its activities in the democratic states of Europe are obliged to respect and observe

fundamental rights and freedoms.

With respect to the question ‘Who has the last word on the protection of human rights in Europe?’, it

is possible to look, on one hand, at international, supranational, and national interaction in jurisprudence

and, on the other, at the legislative, executive, and judicial, and to a certain degree the actions of the media.

In this article, I address the former aspects, while drawing forth some other possible angles.

The question is topical for several reasons: discussion has again emerged in Estonia on the constitu-

tionality of the relationship between the European Union (EU) and Estonia, and the Supreme Court has

recently rendered its judgment on the constitutionality of the treaty establishing the European Stability

Mechanism (Supreme Court judgment of 12 July 2012); the member states of the Council of Europe on

20 April 2012 approved the Brighton Declaration, on the future of the European Court of Human Rights

(ECtHR, or ‘the Court’), which, among other things, addresses the relationships between the Council of

Europe member states’ courts and that of the ECtHR; and at the end of May and beginning of June 2012,

hundreds of well-known jurists from Europe and beyond gathered in Tallinn to discuss at the XXV Congress

of the International Federation of European Law (FIDE) various pertinent topics. These included protec-

tion of fundamental rights after the Lisbon Treaty’s entry into force; the interaction among the Charter of

Fundamental Rights of the European Union (EU Charter), the European Convention on Human Rights

(ECHR, or ‘the Convention’), and the national constitutions; and topics in the areas of freedom, security,

and justice, including information society issues.

1 All views expressed are those of the author alone.

Julia Laffranque

Who Has the Last Word on the Protection of Human Rights in Europe?

118 JURIDICA INTERNATIONAL XIX/2012

1. Examples of international, supranational,

and national legal sources’ interaction in the protection

of human rights in Europe, from court cases

1.1. Hungary’s red fi ve-pointed star in the human rights triangle

Hungary’s criminal code prohibits the distribution and exhibition of the swastika, SS symbols, the ham-

mer and sickle, and the red fi ve-pointed star, except for educational, scientifi c, and artistic purposes.*2

Hungary’s Constitutional Court stated in 2000 that the named article in the criminal code is in compliance

with the Constitution, referring also to the state’s discretionary authority in the Council of Europe and to

Hungary’s historical experience.*3

The deputy chairman of Hungary’s Workers’ Party, Attila Vajnai, was penalised by the fi rst-tier court

for wearing an approx. 5 cm large red fi ve-pointed star—a totalitarian symbol—on a garment at a demon-

stration that took place on 2 February 2003, in Budapest. Vajnai appealed the decision to the second-tier

court, which made Hungary the fi rst among the states that had joined the EU in 2004 to ask the Court of

Justice of the EU (CJEU) for a preliminary ruling. The Hungarian court wanted to know whether Hungary’s

statute is discriminatory in comparison to the other EU member states’ laws, and it asked the CJEU to rule

on whether the prohibition in Hungary’s legislation is contrary to the principles of freedom of expression

and equal treatment. The CJEU replied that making a ruling on this matter is not within its competence and

did not explain its decision.*4 At that time, the EU Charter was not in force, nor did the question pertain to

the free movement of persons and goods across EU borders.

Budapest’s second-tier court then agreed with the fi rst-tier court’s ruling and Vajnai’s sentence

remained in force.

Vajnai took his case to the ECtHR. The latter handed down its decision on 8 June 2008, stating that,

according to Article 10 of the ECHR, Vajnai’s right to freedom of expression had been violated. The Court

stated that, although the prohibition against the fi ve-pointed star was based on law and served a legitimate

aim—to guarantee public order and the safety of others—it was unnecessary in a democratic society.*5 In his

particular case, the red fi ve-pointed star was a multifaceted symbol (that is, a symbol with multiple mean-

ings) that cannot be unequivocally equated only to totalitarian ideas, for it is at the same time the sign for

the international labour movement. In addition, a concrete indication was lacking that would have given

cause to believe that the wearing of the red fi ve-pointed star on clothing would result in violence. Therefore,

a universal prohibition against wearing of the fi ve-pointed star was in confl ict with the Convention.

Only a couple of months before the ECtHR rendered the above judgement, a fi rst-tier court in Hungary

had found another person—Janos Fratanoló—guilty of wearing a red fi ve-pointed star as an act endanger-

ing public order. Later, a higher Hungarian court found that Hungarian justice does not allow the courts

to appeal to ECtHR practices, and it let Fratanoló’s sentence stand. Finally, Fratanoló’s case reached the

ECtHR in Strasbourg, which again found that Article 10 of the Convention had been violated.*6

Apparently, the relevant law in Hungary has still not been changed.

The above example refl ects all those elements presented in this article: the national level (Hungary),

the EU (supranational) level, and the Council of Europe (international/regional) level, and, in addition,

the domestic courts, the CJEU, and the ECtHR. Also illustrative are the confl icts between the Hungarian

legislators and the pan-European*7 judicial authority—even the differences of opinion within the Hungar-

ian judicial authority: the constitutional court’s decision that considered Hungary’s statute to be legitimate

2 Section 269/B of the Criminal Code: ‘The use of totalitarian symbols’.

3 Decision no. 14/2000 (V. 12.) of the Constitutional Court, dealing with the constitutionality of Section 269/B of the Criminal

Code.

4 Order of the CJEU (Fourth Chamber) of 6.10.2005, C-328/04 (‘Vajnai’). – European Court Reports (ECR) 2005, I-08577.

5 Vajnai v. Hungary (Second Section), no. 33629/06, judgement of 8.7.2008.

6 Fratanoló v. Hungary (Second Section), no. 29459/10, judgement of 3.11.2011, with further references to the above-mentioned

national court decisions.

7 Hereinafter, ‘pan-European’ is used as an overall term for the EU Charter and the Convention, as well as for the so-called

Luxembourg (CJEU) and Strasbourg (ECtHR) courts.