Legal Protection Of State, National And Community Symbols In Slovenia Presented by: Dr. Flander Date: 23 December 2022 Introductory Remark - Summary of my research findings on the legal regulation and protection of state, national and community symbols in Slovenia - Extremely wide topic (!!) - Three segments → state & national symbols, symbols of national communities, symbols of réligious commuities - Following the research concept → • Relevant provisions in constitutional, administrative criminal law, minor offence land civil law • Constitutional Court's decisions and case-law of the courts of general jurisdiction • Disagreements about and conflicting views on the current occurrence and legal regulation of the Slovenian state symbols • Examples of public expression of political views by interfering with the physical integrity of state/national symbols  See the book chapter for more detailed analyses LEGAL PROTECTION OF STATE AND NATIONAL SYMBOLS Presentation of the state and national symbols - Coat-of-arms and flag of the Republic of Slovenia - National anthem (A Toast) • God's blessing on all nations, Who long and work for that bright day, When o'er earth's habitations No war, no strife shall hold its sway; Who long to see That all men free No more shall foes, but neighbors be. Historic background - European Spring of Nations in 1848 → Advent of the first (unofficial) flag of the Slovenian nation - **Created within the Habsburg Monarchy, it was/is also called the Slovenian national flag - It was never legally recognized as a state symbol - 24 June 1991 → an amendment to the Constitution of 1974 • determined the flag of the Republic of Slovenia **created on a basis of the Slovenian national flag with the addition of the coat of- arms in the left upper side - The same amendment fixed the national coat-of-arms with mount Triglav, stars of Celje and waving lines - 27 September 1989 → the Amendement XII to the Constitution of - 1974 introduced Zdravljica [A Toast] as the anthem of the Socialist Republic of Slovenia **29 March 1990 → Slovenian Anthem Act stipulated the seventh stanza of Zdravljica as the official anthem - The new state/national symbols were adopted before the declaration of the independence → their adoption was considered as one of many symbolic acts which lead the process of creating an independent and sovereign Republic of Slovenia **Still a matter of controversy (!!) Constitutional regulation and protection - 25th of June 1991 → Slovenia became a sovereign and independent state by the adoption of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia - 23rd of December 1991 → the new Constitution of the Republic of Slovenia was adopted (It followed and replaced the former Constitution from 1974) - Slovenian state symbols (as the most important national symbols) are regulated in Art. 6 of the General provisions - This article contains the description of the coat-of-arms and the flag of the Republic of Slovenia and determines that the national anthem of Republic of Slovenia is Zdravljica (A Toast) - It also stipulates that the use of the coat-of-arms, flag and national anthem shall be provided/determined by (statutory) law - For some strange reason, in the Constitution there is no reference to the Slovenian national flag - **This national symbol (which does not have a status of a state symbol) is determined as such and regulated by the statutory law Statutory and sub- statutory regulation and protection - Act Regulating the Coat-of-Arms, Flag and Anthem of the Republic of Slovenia and the Flag of the Slovenian Nation → the central piece of legislation related to state and national symbols - Legal provisions explicitly related to the state and national symbols → also contained in the Criminal Code, Protection of Public Order Act and Maritime Code - More specific legal provisions, explicitly related to the state and national symbols, are contained in the following sub-statutory acts → - Regulations on Hoisting the Flag of the Republic of Slovenia in Educational Institutions - Regulations on the use of the European Union's flag and anthem in the Republic of Slovenia - Rules on the flying on the flag of the merchant marine and the signs on ships of the merchant marine of the Republic of Slovenia - Rules on the Registration and Marking of Vehicles, Aircraft and Vessels of Ministry of Defense Relevant provisions in administrtive law - Act Regulating the Coat-of-Arms, Flag and Anthem of the Republic of Slovenia and the Flag of the Slovenian Nation (ZGZH) → • The most relevant statutory provisions in administrative (and minor offence) law • Summarizes the description of the coat-of-arms, flag and anthem, originally contained in Article 6 of the Constitution • Determines geometric, graphic and color rules regarding the form of the coatof- arms and flag and the text and notation of the anthem ** seventh stanza... • Also regulated by this act is the flag of the Slovenian nation • Determines when and where the flag and coat-of-arms SHALL and MAY be used • Stipulates that the coat-of. Arms and flag of the RS shall occupy the place of honor when placed or displayed alongside state symbols of other countries • Prohibits and sanctions (!) the use of the state/national symbols if they are damaged or their appearance is unsuitable for use (also prohibited and sanctioned is the use in contravention of public order or in such a manner that the reputation of the Republic of Slovenia is damaged) • The state and national symbols MAY NOT BE PROTECTED OR USED AS A TRADEMARK, MODEL OR PATTERN, or used to label goods or services Relevant provisions in criminal law - Criminal Code (CC-1) → contains two provisions which explicitly refer to the state and national symbols • Insult to the Republic of Slovenia (CC-1, Art. 163 § 2)  "Whoever publicly desecrated the flag, coat-of-arms or national anthem of the Republic of Slovenia shall be punished by a fine or sentenced to imprisonment for not more than one year."  Official statistics 2012 to 2021 → the police investigated the suspicion of committing this crime on several occasion; no charges or final convictions followed!  Slovenian national flag (the paramount national symbol without the status of a state symbol) → does not seem to be covered with this provision (!!)  **The question arises whether the criminal law protection is provided by the provision incriminating Adult, Slander and Defamation against the Republic of Slovenia and against the Slovenian people?  If the above offence is committed by public notice the editor or the person acting in his place shall be punished within the limits of the penalty prescribed for the offense • Public Incitement to Hatred, Violence or Intolerance (CC-1, Art. 297)  "[...] If these acts are committed by desecrating national or ethnic symbols, the perpetrator shall be punished by imprisonment for up to three years." • "Whoever publicly desecrated the flag, coat-of-arms or national anthem of the Republic of Slovenia shall be punished by a fine or sentenced to imprisonment for not more than one year." (CC-1, Art. 163 § 2) • Commentary to the CC-1 and expert's comments on this provision → • INCRIMINATED ACTS (such as removal of a hoisted flag or destruction, damaging or painting of a flag) must be directed towards the object which is being implied by the state symbols, i.e. the state itself (or the state authority) • ONLY physically destroying state symbols (coat-of-arms or flag) as tangible property is considered, according to Art. 15 of the Protection of Public Order Act a MINOR OFFENCE AGAINST PUBLIC ORDER • ** Sharp political (or artistic) criticism which is expressed with such acts → under certain conditions cannot be regarded as the CRIMINAL OFFENCE of desecration of the Slovenian state symbols • ** Conflict of constitutional values → great respect must be given to the • special importance of freedom of speech (and other forms of expression) and "to protection of saying truth to power and criticizing the state" an attribute of OPENED AND TRULLY DEMOCRATIC SOCIETY (see Teršek, 2003 and 2008) Relevant provisions in minor offence law - Most (but not all) minor offence penalty provisions related to protection of state and national symbols are contained in the Act Regulating the coat-of-arms, flag and national anthem and of... - Legal persons, their responsible persons and private citizens shall be fined for → - Using the symbols which are damaged or whose appearance is unsuitable for use and using them in contravention of public order or in such a manner that damages the reputation of the Republic of Slovenia - Using the symbols as a trademark, model or pattern or to label goods or services - Performing the anthem for purposes of market advertising or labelling of services - Relevant provisions can also be found in the Protection of Public Order Act (ZJRM-1, Art. 15) → - "Whoever in a public place intentionally burns or in some other way damages or destroys the flag of the Republic of Slovenia or its coat-of-arms (or the flag of the European Union or a flag of a foreign country) shall be punished by fine" - **This provision does not (explicitly) protect the Slovenian national flag (!!) - The police have the power to control and enforce the ZJRM-1 and to decide upon potential minor offences related to state symbols Relevant provisions in civil law - Obligations Code (OC) → any person that inflicts damage on another shall be obliged to reimburse it, unless it is proved that the damage was incurred without that person's culpability ** Damage comprises the diminution of property, lost profits, the infliction of physical or mental distress or fear on another person (i.e. violation of personal rights) and encroachment upon the reputation of a legal person - It follows... a person who would commit a crime of Insult to the Republic of Slovenia or Public Incitement to Hatred, Violence or Intolerance by publicly desecrating the flag, coat-of-arms or national anthem of the RS, could encroach upon the reputation of the Republic of Slovenia and would be obliged to reimburse immaterial damage caused, unless it is proved that the damage was incurred without his/her/its culpability * - **A civil lawsuit seeking COMPENSATORY DAMAGES could be filed by the Republic of Slovenia (i.e. by the State Attorney's Office) - ** Regarding reimbursement of the immaterial damage the court may order, in addition to the monetary compensation, the publication of the judgement and/or an apology of the injurer or order that the injurer must retract the statement by which the infringement was committed - These provisions also apply if a person would commit a minor offence Relevant case-law - In Slovenia there are very few court cases regarding the legal protection of state and national symbols - → he question regarding the nature, scope and limits of constitutional and legal protection of state and national symbols has not yet been fully answered (!!) - CC Decision No. U-I-296/94 (28 January 1999) → Reviewed at the request of the National Council and upon the petition of the Slovenian National Party constitutionality of several provisions of the Act regulating the Coat-of-Arms, Flag and National Anthem of the Republic of Slovenia and the... (ZGZH) - **The key question → whether the Constitution allows the symbols of national communities to be identical to the symbols of another state - CC Decision No. U-I-320/12 (13 June 2013) → CC refused to take into consideration the petition of a person who claimed that he has the right to listen to the anthem, as stipulated by the Constitution, i.e. in its entirety, not its shortened version as it was stipulated by allegedly unconstitutional provision of the ZGHZ - Case law of the courts of general jurisdiction → unable to find any court decisions directly related to the state and national symbols of the RS - **Supreme Court judgement No. I Ips 129/97 (23 March 2000) → SC annulled the conviction of a defendant who filled an extraordinary Lega remedy against the final decision of the court of the Socialist RS (he was convicted because in 1950 he mocked the Slovenian flag by carrying it to a road, dirtied it on the ground and then throwing it into a brook nearby) National communities Relevant constitutional and statutory provisions - Slovenian Constitution → guarantees a special protection to autochthonous national communities (i.e. the Italian and the Hungarian national community) - Both national communities and their members → entitled to general constitutional rights and special rights which belong only to them (Constitution Art. 64) - Among the special (collective and individual) rights of national communities - the right to freely use their national symbols - Act Regulating the Coat-of-Arms, Flag and Anthem of the Republic of Slovenia and the Flag of the Slovenian Nation (ZGZH) → "the flag shall be used and the anthem shall be performed beside the Slovenian flag and anthem" - CC-1 → Insult to Foreign Country or International Organization (Art. 164) → - Whoever publicly desecrates the flag, coat-of-arms or national anthem of a foreign - country shall be punished by a fine or sentenced to prison for not more than 1 year" - **In practice the symbols of the Italian and the Hungarian national community are the symbols of the Republic of Italy and the Republic of Hungary - **Public incitement of hatred, violence or intolerance (Art. 279) → could be grounded on ethnic grounds and directed against national communities → if committed by desecrating ethnic or national symbols prison up to three years - Protection of Public Order Act (Arts. 4, 14 and 15) → acts of burning, damaging, destroying of a flag of a foreign state AND hoisting a damaged or in some other way inappropriate flag of a foreign state (!??) are determined as MINOR OFFENCES - Obligations Code → general provisions on civil liability apply Relevant case-law - CC Decision No. U-I-296/94 → the only court decision directly related to the legal protection of symbols of national communities - CC reviewed upon the petition of the Slovenian National Party the constitutionality of several provisions of the Act regulating the Coat-of-Arms, Flag and National - Anthem of the Republic of Slovenia and on the Flag of the Slovenian Nation (ZGZH) - The petitioners claimed that using the symbols of another State on the territory of the Republic of Slovenia represents an encroachment on the sovereignty of the Republic of Slovenia - and that the regulation, which allows the symbols of the Italian and Hungarian national communities to be identical with the symbols of other sovereign states, is unconstitutional - Essentially, the CC was asked to decide on whether the symbols of the autochthonous Italian and Hungarian national communities may be identical with the symbols of Italy and Hungary - CC: The NATURE and FORM of the symbols of the Italian and Hungarian national communities are not regulated by statute - CC: Ruled that the challenged provisions ARE NOT unconstitutional → while the Constitution does not prohibit the symbols of the national communities to be identical with the state symbols of Italy and Hungary, they may on official occasions only be used together with the symbols of the Republic of Slovenia, in such a manner that the latter have priority → sufficient protection to the... Religious communities Relevant constitutional and statutory provisions - There are not many provisions in the legal order of the Republic of Slovenia that explicitly refer to the protection of religious symbols (only criminal law provisions) - **Of a paramount importance in this segment is the case-law of the CC - Constitution, Art. 7 → "The state and religious communities in the Republic of Slovenia are separate. Religious communities enjoy equal rights and pursue their activities freely"; Art. 41 The right of the members of religious communities to freely profess their religious and other beliefs in private and public life - **Art. 16 prohibits the suspension of this right in a state of war or emergency - **No explicit reference to the use and legal protection of religious symbols - Religious Freedom Act (2007) → the central piece of statutory law - **This act too does not contain a reference to the legal protection of religious symbol. **Art. 3 "incitement to religious discrimination hatred or intolerance is prohibited" - Criminal Code, Art. 297 on Public Incitement to hatred, violence or intolerance → if these acts are committed by desecrating RELIGIOUS (as well as ethnic & national) symbols, the perpetrator is punishable by imprisonment for up to 3 years - Protection of Public Order Act, Art. 16 on Vandalism → A fine is imposed on anyone who intentionally damages, overturns, removes or otherwise, contrary to the purpose of use, handles memorials and public infrastructure facilities - Obligations Code → general provisions on civil liability apply Relevant case-law - CC Decision No. U-I-92/07 (15 April 2010) - CC abrogated several provisions of the Freedom of Religion Act, while finding certain other provisions of this act consistent with the Constitution - **It also provided the interpretation of the meaning of Art. 7 and 41 (!!) - CC clarified that the positive aspect of religious freedom (Art. 41 §1) includes, inter alia, freedom of action in the form of the use of religious symbols in public sphere - ❖ CC Decision No. U-I-68/98 (November 2001) → - CC reviewed the constitutionality of the provisions of the Organization and Financing of Education Act - CC took a position on the issue of confessional education and presence of crucifixes in public schools - "both would INTERFERE with the principle of the separation between the state and religious communities and with the negative aspect of religious freedom" On the on-going public discussion about the freedom of reigion - CC → In Slovenia the inclusion of religious confessional content (i.e. confessional religious teaching) and placing crucifixes and other religious symbols in public educational institutions is NOT PERMITTED - →CC: Negative aspect of freedom of religion → "in public educational institutions, it imposes on the state the duty to ensure religious neutrality" - →CC referred to the decision of the German Federal Constitutional Court - In Slovenia the principle of separation of state and religious communities is exercised relatively strictly **It echoes to the original ECtHR ruling in the Lautsi case - CC introduced the principle of a moderate CONSTITUTIONAL SECULARISM - The ECtHR's FINAL RULING in the Lautsi case had no legal or practical implications on the legal regime regarding the presence of religious symbols in the premises of public institutions in Slovenia **They were removed from the walls of Slovenian public schools after the WW2 - Critics (Letnar Čerič) → "Absence of religious symbols in public schools could be justified on the basis of equality (of religion), not on the basis of religious freedom"; "empty walls do not show the plurality and neutrality of a society, but only intolerance towards the pillars of its historical and cultural development"; - CONSTITUTIONAL SECULARISM represents a step beyond the principle of separation of state and religious communities, because it follows the French laïcité, which aims at complete exclusion of religion from public space → as such it is not the right answer to solving the dilemma of the legal position of religion in the public sphere National symbols - Regulated by Law vs. not regulated by Law Formally acknowledged by Law as national - Symbols: - • Emblem of coat of arms • National symbol • The city of Martin Other regulated symbols: • e.g. the flag of the President, national holidays, state orders...