JURIDICA INTERNATIONAL XIX/2012
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.
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
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.