Possible Future Legislative and Social Trend in the Protection of State, National and Community Symbols in Slovakia

Possible Future Legislative and Social Trend in the Protection of State, National and Community Symbols in Slovakia Presented by: Prof. Dr. Škrobák Date: 13 November 2023 Introduction - This contribution builds on my chapter in the monograph - Ideas for changing or improving the respective regulation De Constitution Ferenda (State Symbols) - De constitution ferenda there is no need to change the regulation of state symbols contained in the Slovak Constitution... - Constitutional regulation of this matter in Slovakia is rather minimalist - No non-functional elements in this regulation - It provides sufficient constitutional protection to the Slovak state symbols, ensuring enough esteem and respect for them - The rigidity of (any) Constitution: an extremely sensitive and complex constitutional, political and social issue - it goes far beyond the dimension of the state symbols themselves - Increasing the rigidity of the Constitution only just to ensure greater stability of constitutional protection of state an 'overkill' - If the fundamental social and value paradigm of Slovak society was to change, not even an extremely rigid constitution could prevent a change of state symbols - In case of such an events the question of state symbols would be quite secondary in the context of an overall political, legal and societal change - The nature of State symbols is by nature a posteriori - they always reflect a certain social and political reality - If social and political realities change fundamentally, not even a very rigid constitution will be able to prevent constitutional changes to state symbols - The importance of the constitutional regulation of state symbols is not on par with the material core of the constitutional order - It would be much more important to protect other values, in particular the fundamental rights and freedoms De Constitution Ferenda (Self-Government Symbols) - No regulation of the symbols of self-governing regions / municipalities in the Slovak Constitution - Constitutional regulation of the right of municipalities, towns and self-governing regions to have and to use their symbols would strengthen their self-governing position - only symbolically - The absence of constitutional regulation of the symbols of local and regional selfgoverning bodies zero problems in practice - Explicit constitutional regulation of the right to self-government would be more important and beneficial for local and regional self-government entities De Constitution Ferenda (Community Symbols) - No regulation of the symbols of communities / minorities in the Slovak Constitution - Need / space for such constitutional regulation? it should be assessed in the context of the existing constitutional regulation of the rights of persons belonging to national minorities - Individual rights of subjective nature entities of those rights are natural persons and not associations of natural persons - Abstract constitutional regulation of the protection of national community symbols would interfere with this concept of 'minority' rights to some extent - It is a highly sensitive political issue an amendment to the Constitution aimed at constitutionally regulating the protection of national minority symbols would be hardly politically feasible - The principal legal risk - national minority symbols are (at least in some cases) also state - Symbols of third countries - If the Slovak Constitution expressly provided protection for national minority symbols, it would via fact also provide protection to foreign state symbols - rather peculiar - It could interfere • With the legal regulation of state symbols of the Slovak Republic (preferential regime) • - With the current legal regulation of the use of foreign state symbols It is legitimate if the state and the law protect and prefer their own symbols over foreign ones - The expression of the sovereignty of other states in the territory of the Slovak Republic is acceptable only in a very limited extent Proposed Amendment To The State Symbols Act - Use of the Coat of arms of the Slovak Republic on sports clothing of the official sports representations - the approach introduced here by amendment to the State symbols Act introduced by Act No 126/2019 is unreasonably strict - Proposed change Amendments To The Criminal Code And/ Or The Infringements Act? - Infringement under Section 42(1)(a) of the Infringements Act: ,,...a person who intentionally damages, abuses or derogates a State symbol or other symbol protected by a generally binding legal act commits an infringement in the field of general internal administration." - Criminal offence of disorderly conduct under Section 364(1)(b) of the Slovak Criminal Code /inter alia/: ,,...any person who commits, in words or physically, publicly or in a place accessible to the public, gross indecency or disorder by defamation of a state symbol (Section 364(1)(b) of the Criminal Code) - Problems: • Unclear dividing line between infringements and criminal offences: defamation vs. abuse, damage or derogation reduction of the level of legal certainty (nullum crimen sine lege certa?) • No specific crime aimed specifically at protection of state symbols - Distinction between misdemeanors and infringements - „substantive corrective" (Paragraph 10(2) of the Criminal Code) - there is no misdemeanor if, having regard to the manner, in which the act was carried out and its consequences, the circumstances in which the act was committed, the degree of fault and the motivation of the offender, the seriousness of the conduct is negligible - The relationship between the two offences in question is not dysfunctional, the ne bis in idem principle will therefore not be infringed - Still - unclear relationship between the merits of the criminal offence and of the infringement, doubts concerning compliance with the requirement of legal certainty and with the requirements arising from the principle of nullum crimen sine lege certa - Some legislative changes examined - I found no better solution Proposed Amendment To The Criminal Code - The status quo, when criminal law protection is provided to state symbols by means of the crime of disorderly conduct, it is not appropriate - Reasons: values protected by the different sub-types of the crime of disorderly conduct - public order and decency in public space - In the case of state symbols, their dignity must be seen as a value per se - This value deserves special protection under criminal law - A separate criminal offence, the object of which is not public order or decency, but the dignity of a Slovak state symbol - Another reason under the present rules, the same criminal law protection is provided to the Slovak state symbols and to foreign state symbols Proposed Amendment To The Act On Sports Events - New proposed obligation of the organizer of a risk sports event - not only have the obligation to ensure, that participants do not bear the state symbols of other states or their predecessors in domestic events, it should apply to any objects resembling such state symbols, and to objects, which can be arranged to form shapes of such symbols - Prohibitions on the introduction of such objects should also be explicitly provided for in relation to participants in such events - The organizer of a risk sports event should have an explicit obligation to ensure, that prohibited items are not only not brought by participants, but by anyone