Legal Protection Of State, National And Community Symbols In Czech Republic Presented by: Dr. Frumarová Date: 27 December 2022 Introduction - Through the state symbols the existence of the state and at the same time the affiliation to this state are embodied and externally symbolized - They serve for the external representation of the Czech state, they are an expression of its existence and sovereignty - They symbolize the history and tradition of the Czech statehood, they are an abstract symbol of the values of the Czech state. - Functions: the representative function, the identification function, the function of integration - The legal grounding of the state symbols corresponds to their meaning and significance: in the Czech Republic, the state symbols are regulated directly in the Constitution of the Czech Republic (Article 14) Short Historical Excursion - The official state symbolism of the CR is very closely connected with the historical development of the Czech state. The state symbols reflect the historical and political events of the Czech lands, the development of its society and traditions. - The Preamble of the current Constitution of the Czech Republic points to the importance of all these values, which are reflected in the state symbols. It states: "We, the citizens of the Czech Republic in Bohemia, Moravia and Silesia, at the time of the renewal of the independent Czech state, faithful to all good traditions of the ancient statehood of the Czech Crown and Czechoslovak statehood, determined to build, protect and develop the Czech Republic...". - Until the beginning of the 20th century and the establishment of the independent Czechoslovak republic, it was mainly the symbolism of the reigning monarch. The first symbols in the Czech lands began to appear in the 12th century. - The new era of national symbolism begins with the establishment of an independent Czechoslovak state in 1918. - State symbols have always been enshrined in the constitutions since that year. These were mainly the constitutions of 1920, 1948 and 1960. However, the constitutional regulation was always very brief. As a rule, it was only a list of the national symbols, exceptionally, there was also their description. - The more detailed legal regulation has always been provided by laws, which regulated, in particular, the appearance (form) of the national symbols and also the rules for their use. - This situation persisted even after the division of the Czechoslovak Republic and the establishment of the independent Czech Republic and the Slovak Republic (on January 1, 1993). Current Czech State Symbols And Their Legal Regulation - At present, the basis of the legal regulation of state symbols is the Constitution of the Czech Republic. - Article 14 of the Czech Constitution stipulates that the state symbols are large and small state coats of arms, state colors, the state flag, the flag of the President of the Republic, the state seal and the state anthem. The order of the state symbols reflects their importance. Furthermore, the Constitution merely states that state symbols and their use are regulated by law. - It can therefore be concluded that the constitutional regulation of state symbols is very brief. - The constitutional regulation of the state symbols is thus logically followed by statutory regulation, namely the Act No. 3/1993 Sb., On the state symbols of the Czech Republic and Act No. 352/2001 Sb., On the use of state symbols of the Czech Republic. - Large and small state coats of arms of the Czech Republic • The oldest Czech (Přemyslid) state coat of arms was a black, flaming eagle in a silver field • From the middle of the 13th century, a silver two-tailed lion in a jump, with a golden crown, in a red shield, became a Czech symbol, other territorial parts of the Czech lands, especially Moravia and Silesia, also had and still have historical symbols • The only and temporary change has come after communism and socialism were established in the Czechoslovak Republic: the traditional golden crown was replaced by a five-pointed star, which was a symbol of a communist ideology. After returning to democracy in 1989, there is a return to the traditional image • Until the disintegration of the Czechoslovak Federal Republic, the state coat of arms included both the coat of arms of the Czech Republic and Slovakia Current Czech State Symbols And Their Legal Regulation - State colors • Since the 13th century, it was white and red • In practice, problems have begun to emerge as the neighboring countries (Austria and Poland) have the same colors • We solved this situation by adding a third color to these two colors, namely blue (the so-called Slavic tricolor) - white, red, blue. - State flag • National flags and banners spread in Bohemia in the 19th century they were formed by the upper white stripe and the lower red stripe. • After the change (extension) of the state colors, when the color of blue was added to the white and red colors = the state flag consisted of a lower red stripe and an upper white stripe, between which a blue wedge was inserted • After the disintegration of Czechoslovakia, the Czech Republic took over this flag as its state flag. Slovakia did not agree with this step - Flag of the President of the Republic • Connected with the establishment of the Czechoslovak Republic in 1918 • Is white, with a border consisting of flamingos alternating white, red and blue. In the middle of the white field is a large state coat of arms. Below it is the motto "Truth wins" on a red ribbon lined with yellow (gold) linden branches - State seal • At present, the use of the state seal is limited, but in the Middle Ages it was of fundamental importance, especially from the point of view of the legal validity of the written documents • Consists of the state coat of arms, linden branches and the inscription "CZECH REPUBLIC", the state seal is kept by the President of the Republic - State anthem • In 1834, at the premiere of the play Fidlovačka, the song "Kde domov můj", composed by František Škroup to the words of Josef Kajetán Tyl, was heard at the Estates Theater in Prague for the first time. It gradually gained popularity and established itself as the Czech national anthem. • The first verse of the song "Kde domov můj" is the Czech anthem to this day Use And Legal Protection Of The Czech State Symbols - The meaning and uniqueness of state symbols is reflected in the need to protect the state symbols by various legal means. - Therefore, the legal order of the Czech Republic not only explicitly enshrines the state symbols, but also lays down rules for their use, as well as the adverse consequences in the event that the statutory rules are violated. - In principle, we can distinguish four levels of legal protection of the state symbols, namely: • Constitutional protection, • Administrative protection, • Criminal protection and • Protection under private law Constitutional Protection - The basic legal regulation of the state symbols is contained directly in the Constitution of the Czech Republic, i.e. in a legal regulation of the highest legal force. - The constitutional regulation of Czech state symbols is very, very brief and does not say much about the state symbols - The Constitution does not define the specific form (description) of these symbols, or at least of the most important - The Constitution does not even provide a closer look at the meaning of the state symbolism - On the other hand, it is possible to outline some basic elements of the protection of state symbols from this minimalist constitutional regulation: - The very fact that the existence of the state symbols is enshrined directly in the Constitution, which takes the form of a constitutional law, is very important this fact increases the strength of the anchoring of state symbols in the Czech legal system, as any change in the constitutional regulation is a difficult procedure - The enshrinement of the state symbols directly in the Constitution emphasizes their importance for the Czech state and society, as well as increases the stability and immutability of their regulation - They are defined in the Constitution in the form of an exhaustive list it is thus clearly stated which symbols have the status of a state symbol with all the legal consequences and which do not. The legal rules governing their use, as well as the norms punishing their misuse or unauthorized use, apply only to such formally defined state symbols. - The Constitution of the Czech Republic provides that the state symbols and their use will be regulated in more detail by law. These laws (the Act on State Symbols of the Czech Republic and the Act on the Use of State Symbols of the Czech Republic) are very closely connected with the Constitution and develops the constitutional regulation. - The Act on State Symbols - a detailed description of the form (appearance) of the state symbols + an appendix, which contains a graphic representation of the state symbols, and a text and music notation for the state anthem = the uniqueness and meaning of the state symbols is therefore also given by the fact that only in such a form can state symbols be depicted and used. It is a manifestation of the so-called official harmonization. - One of the most important ways of protecting the state symbols is the fact that the legislator precisely and clearly defines who can use state symbols and in what way = the Act on the Use of State Symbols of the Czech Republic - setting the rules for their use and regulating the administrative liability for offenses in the event of their violation. - The Constitution in conjunction with the Act on State Symbols of the Czech Republic and the Act on the Use of State Symbols of the Czech Republic represent a close and logical connection between the constitutional and administrative level of protection of the Czech state symbolism. Administrative Protection - The essence of the administrative level of protection are the statutory rules for the use of the state symbols and the related administrative liability for offenses if these statutory rules are violated - The basic and general requirements that apply to the use of all Czech state symbols are the requirement of suitability and a dignified way of using the state symbol. - This means that it is not enough for a person or authority to be legally entitled to use a state symbol. At the same time, the entitled subject must use the relevant state symbol appropriately and with dignity (and always with regard to the given situation or occasion in which the state symbol is used). - These conditions must be carefully weighed in each case and taking into account the specific circumstances of the situation. - the law further defines the category of so-called entitled persons - Institutions, authorities or other entities and persons who may use the state symbols by law - A relatively extensive list, which is also exhaustive - Public authorities, such as the Parliament, the President of the Republic, the government, ministries and other administrative authorities, courts, the Supreme Audit Office or the Czech National Bank. - Territorial self-governing units (i.e. Municipalities and regions) - The armed forces (army) and security forces (e.g. Police officers, customs officers and others). - Schools, state cultural and scientific institutions, state funds, but also athletes representing the Czech Republic, the ambulance service or volunteer firefighters - In the case of public entities, it is often the obligation to identify oneself through these (state) symbols, both internally and externally, from the point of view of private entities, it is usually possible to use them on appropriate occasions. - The Act on the Use of State Symbols regulates in detail which of these authorized persons may use individual state symbols. It is therefore not a "general" power to use all state symbols by all authorized entities - For example, in relation to the small and large state coat of arms, it is specified exactly on which buildings, documents, service uniforms, insignia or other objects (banknotes, ID cards, etc.) these symbols can be depicted. In cases where the law imposes or allows the use of a large state coat of arms, the entitled person may also use a one-color imitation of metal, stone, glass, ceramics or other material. All official stamps can then contain only a small state coat of arms. The imprint of the official stamp is always of one color. - Or the use of the national flag: some eligible entities (especially public authorities) may have a national flag displayed permanently on the buildings in which they are located. In addition, all entitled persons fly the national flag on public holidays or other occasions of national importance (e.g. a day of state mourning). Other persons and authorities may use the national flag in an appropriate and dignified manner at any time. The law also sets out very precise "technical" rules on how the national flag must be flown. - The use of the flag of the President of the Republic is relatively limited. This flag may only be used to indicate the President's seat during his presence in the Czech Republic, or to indicate the means of transport used by the President. - The use of the state seal is no longer as common as it used to be. It is currently used to seal international treaties and instruments of ratification, credentials of diplomatic agents, or in other cases where an international treaty or law so provides. - The use of the state anthem is regulated most generally and also briefly. The law only stipulates that the national anthem can be played and sung on public holidays and other occasions, if usual. - It is remarkable that the use of the state colors is not regulated by law at all. - If the legal rules governing the state symbols and their use are violated, the relevant person is liable for the administrative offense. - If we generalize them, two groups of infringements can be distinguished. The first group represents abuse, gross insult, destruction, damage or theft of the state symbol of the Czech Republic. The second group includes infringements consisting in the use of a state symbol in violation of the rules laid down by law (e.g. the symbol is used by an unauthorized person, or the symbol is depicted on a document or object on which the law does not allow it). - Both natural and legal persons may commit these offenses. If the perpetrator of the offense is a natural person, fault must always be examined, as this is a subjective responsibility. In the case of a legal person, on the other hand, no fault is assumed, this is an objective liability. However, the reasons for liberation are set. - The offenses in the area of protection of the state symbols are dealt with by municipal authorities of municipalities with extended powers. Infringement proceedings are always initiated ex officio. - A typical administrative penalty that can be imposed for these offenses is a fine. Depending on the specific type of the offense, a fine of up to CZK 10,000 or to CZK 30,000 can be imposed. Criminal Law Protection - The protection under the criminal law is rather complementary and not very extensive - The protection under the Criminal Code is provided only to certain state symbols the criminal offense of the Illegal Production and Possession of State Seal and Official Stamp. Anyone who unauthorizedly manufactures, provides or keeps a state seal or stamp of a public authority with the depiction of a state coat of arms or a stamp, the imprint of which is a mandatory part of public documents, or an object capable of fulfilling their function, is criminally liable. Legal and natural persons can commit this crime. It is an intentional crime and can be punishable by up to 1 year 's imprisonment or a ban on an activity. - It is also possible to draw attention to the criminal offenses of Abuse of Internationally Recognized and State Symbols and Abuse of Flags and Armistice. The first of these crimes affects, among other things, conduct where the flag or symbol of a neutral state or a state that is not a party to the conflict is misused during the war. The second offense, on the other hand, concerns the misuse of the flag or coat of arms of a state which is a party of an armed conflict. In both cases, therefore, these are war crimes that protect against the misuse of state symbols during a war. - The best-known case in this area is the Case of "hanging red shorts at Prague Castle" (the seat of the President of the Republic). - In September 2015, several members of the art group "Ztohoven" exchanged the presidential flag at Prague Castle for huge red shorts. It was a protest against the Czech president. - The police of the Czech Republic and the Public Prosecutor's Office accused the members of the group of the criminal offenses of theft, rioting and damage to another's property. The court first acquitted the accused in the proceedings, based its conclusions on the exercise of political rights, which are guaranteed by the Charter of Fundamental Rights and Freedoms. Specifically, there was to be the freedom of expression. - The Court of Appeal overturned the verdict, stating that the right to freely express opinions could not take precedence over the protection of property (the roof was damaged and the presidential flag was taken away when the flag was changed). The case was re-discussed and the members of the group were sentenced to suspended sentences (six months' suspended sentence of 1 year). At the same time, they had to pay over CZK 60,000 in damage (for the stolen flag and for the damage to the roof). Private law protection - The protection of the state symbols from the point of view of copyright (the Copyright Act) - If we look at the state symbols, it is clear that they could potentially fulfil the characteristics of a "copyright work" in the sense of the Copyright Act - But: Section 3 of the Copyright Act, which regulates exceptions to the protection under copyright, is essential. This provision provides for exhaustive exclusions from the substantive scope of the Copyright Act for certain objects for which there is a public interest in their free distribution and public access to them. - The provisions of Section 3 of the Copyright Act specifically stipulate that protection under copyright does not apply to so- called "official works". The legislator demonstratively calculates what these official works belong to, and the list also includes the state symbols. This means that all state symbols of the Czech Republic are subject to this exclusion. The consequence of this exclusion is the fact that the use of these works (including the state symbols) does not require the permission of the author, nor is it necessary to provide a reward. - The Copyright Act does not address in practice the frequent situation where a work is not created by the author as an official work (i.e. primarily for the public interest) and it becomes an "official work" later. This leads to a conflict of public interest and private copyright protection. The moment an "ordinary" work becomes "an official work", the existing copyright protection ceases ex Nunc, and the work thus becomes copyright free. - Within the meaning of Article 11 of the Charter, this can only happen if the competent entity (i.e. in the case of state symbols the state) has acquired the right to dispose of the work in this this way v (i.e. to officialize it). This may happen primarily on the basis of the express or implied consent of the copyright owner. - But: the exclusion does not affect the copyright to certain ways of depicting or creative processing the state symbols. For example, in a situation where it is an artistic representation of a large state coat of arms in the form of a sculpture, the copyright of the artist will be preserved. As for the national anthem, the subject of copyright and protection is not its text and music notation. However, this again does not mean that there are no copyrights of, for example, the performers of the Czech national anthem