Judgment No.28 of 23.11.2015
Judgment on the control of constitutionality of certain provisions of Article 1 of Law No.54 of 21 February 2003 on fighting extremist activity (use of Nazis symbols) (Complaint no. 29a/2015)
The subject of complaint: Member of the Parliament
Type of judgment: constitutionality review of laws, regulations and decisions of Parliament
Provision: Provisions recognized as unconstitutional
1. The case originated with the complaint submitted to the Constitutional Court on 29 June 2015, by Mr. Ștefan Creangă, Member of Parliament of the Republic of Moldova, according to Article 135 para.(1) p.a) of the Constitution, Article 25 p. g) of the Law on the Constitutional Court and Articles 38 para. (1) p. g) and 39 of the Code of Constitutional Jurisdiction, on the control of constitutionality of certain provisions of Article 1 of Law No.54 of 21 February 2003 on fighting extremist activity.
2. The author of the complaint assumes that the challenged provision which provides prohibiting the use of similar attributes or symbols that can be confounded with the Nazi attributes or symbols infringes Art. 31, 32 and 54 of the Constitution.
3. By the Court decision of 6 October 2015 the complaint was declared admissible, without prejudicing the merits of the case.
4. In the process of examination of the complaint, the Constitutional Court requested the opinions of the President of the Republic of Moldova, of the Parliament and of the Government.
5. In the public hearing of the Court the author of the complaint Mr Ștefan Creangă was represented by Mr Dumitru Roman. The Parliament was represented by Mr Valeriu Kuciuk. The Government was represented by Mr Eduard Serbenco, Deputy Minister of Justice.
A. Domestic legislation
11. Relevant provisions of the Constitution of the Republic of Moldova (M.O., 1994, no.1) are as follows:
Right of Every Person to Be Acknowledged on His/Her Rights and Duties
(2) The State shall ensure the right of every individual to be aware of his/her rights and duties. For this purpose the State shall publish and make accessible all the laws and other normative acts.”
Freedom of Opinion and Expression
“(1) Every citizen shall be guaranteed the freedom of thought and opinion, as well as the freedom of expression in public by way of word, image or any other means possible.
(2) The freedom of expression may not harm the honor, dignity or the rights of other people to have and express their own opinions or judgments.
(3) The law shall forbid and prosecute all actions aimed at denying and slandering of the State and people, instigation to sedition, war of aggression, national, racial or religious hatred, incitement to discrimination, territorial separatism, public violence, or other manifestations encroaching upon the constitutional order.”
Freedom of Assembly
“Meetings, demonstrations, manifestations, processions or any other assembly are free and may be organized and conducted only peacefully and without the use of any kind of weapon.”
Restrictions on the Exercise of Certain Rights or Freedoms
“(1) In the Republic of Moldova no law may be adopted which might curtail or restrict the fundamental rights and freedoms of the individual and citizen.
(2) The exercise of the rights and freedoms may not be subdued to other restrictions unless for those provided by the law, which are in compliance with the unanimously recognized norms of the international law and are requested in such cases as: the defense of national security, territorial integrity, economic welfare of the country, public order aiming at preventing mass riots and crimes, protection of the rights, freedoms and dignity of other persons, prevention of disclosing confidential information or the guarantee of the power and impartiality of justice.
(4) The restriction has to be proportionate to the situation that caused it and shall not affect the existence of the right or freedom.”
12. The relevant provisions of the Law no. 54 of 21 February 2003 on fighting extremist activity (M.O., 2003, no. 56-58, Art. 245) are as follows:
“In the context of the present Law, the principal terms employed have the following meanings:
b) propagation and public display of nazi attributes or symbols, or similar attributes or symbols that can be confounded with the nazi attributes or symbols;
Basic Principles of Combating Extremist Activity
“The combating of extremist activity is based on the following principles:
a) recognition, respect, and protection of the human rights and freedoms, as well as of the legitimate interests of the organizations;
Responsibility of a Public or Religious Association or Other Organization for Conducting Extremist Activity
“(1) The creation and activity of public and religious associations, as well as of other organizations, the objectives of which involve extremist activity, are prohibited in the Republic of Moldova.
(2) In case if actions denoting extremism are ascertained in the activity of a public or religious association or other organization, including in the activity of at least one of its territorial or other subdivisions, the organization shall be warned in written form about the inadmissibility of conducting such actions, with the indication of concrete reasons for the warning, including the violations committed. In case if measures to remove the committed violations are possible, the warning shall also indicate the term for the implementation of such measures, which shall be one month from the date of warning.
(3) The warning of the public or religious association or other organization shall be issued by the General Prosecutor or by the respective prosecutor from his subordination or by the Ministry of Justice or the State Agency on Religious Denominations.
(4) The warning may be challenged in court, according to the established procedure.
(5) If the warning has not been challenged in court, according to the established procedures, or has not been ruled as illegal by the court, and if the respective public or religious association or organization or one of its territorial or other subdivisions has not removed the irregularities which generated the warning in the term provided, or if in the course of 12 months from the date of the warning new actions denoting the existence of signs of extremism have been ascertained, on the basis of the claim of the General Prosecutor or the respective prosecutor from his subordination or of the Ministry of Justice or the State Agency on Religious Denominations, the court shall issue the ruling on the cessation or suspension for a period of up to one year of the activity of the public or religious association or organization.
(6) In case if the court ruled, on the basis of the present Law, for the cessation or suspension of activity of the public or religious association or organization, the activity of its territorial or other subdivisions shall be terminated or suspended as well.”
The Record of Materials of Extremist Nature
“(1) The Ministry of Justice keeps a record of materials of extremist nature.
(2) The copy of the final court decision on the extremist nature of the information material shall be sent to the Ministry of Justice, which shall issue an order on including the respective material indicated in the court decision in the record of materials of extremist nature.
(3) The order concerning the introduction of the material into the record of materials of extremist nature shall be published in the Official Monitor of the Republic of Moldova and in the national mass media.
(4) The order concerning the introduction of the material into the record of materials of extremist nature may be challenged in court, according to the established procedure.
(5) Dissemination of the materials included in the record of materials of extremist nature on the territory of the Republic of Moldova is prohibited.
(6) The persons responsible for the preparation, dissemination or illegal storage with the purpose of subsequent dissemination of the aforementioned materials shall be punished under administrative or criminal law.”
B. International legislation
13. Relevant provisions of the Universal Declaration of Human Rights (adopted in New York on 10 December 1948 and ratified by the Republic of Moldova by the Parliament Decision no. 217 of 28 July 1990) are the following:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
14. Relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature in Rome on 4 November 1950 and ratified by the Republic of Moldova by the Parliament Decision no. 1298 of 24 July 1997) are the following:
Freedom of expression
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Freedom of assembly and association
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
1. To admit the complaint submitted by the Member of Parliament Ștefan Creangă on the control of constitutionality of certain provisions of the Law 54 of 21 February 2003 on fighting extremist activity.
2. To declare as unconstitutional let. b) Article 1 of Law no. 54 of 21 February 2003 on fighting extremist activity.
3. This Judgment is final, cannot be appealed, shall enter into force on the date of adoption and shall be published in the Official Gazette of the Republic of Moldova
34. The Court notes that the challenged provision is aimed at limiting the freedom of association of organizations using "attributes or symbols that can be confounded with the Nazi attributes or symbols". Given that the use of these attributes or symbols amounts to expressing an opinion in the form of symbolic speech, the prohibition directly refers to the freedom of expression. Therefore, freedom of association is indirectly affected by limiting the freedom of expression.
35. Given the similarity of facts and legal circumstances in the present case while examining this case the Court will follow the rationales exposed in Judgment no. 12 of 4 June 2013 on the control of constitutionality of some provisions regarding the prohibition of Communist symbols and promotion of totalitarian ideologies.
3.1. General principles
3.1.1. International standards and practice condemning totalitarian regimes
36. Resolution no.213 (2009) European Parliament on European conscience and totalitarianism condemned all totalitarian and undemocratic regimes, but does not address the use of their symbolism.
37. In June-July 2009, at the 18th session of the Parliamentary Assembly, the OSCE adopted the Vilnius Declaration, which stated that "in the twentieth century European countries experienced two major totalitarian regimes, Nazi and Stalinist, which brought about genocide, violations of human rights and freedoms, war crimes and crimes against humanity", the participating States of the OSCE were urged "to show its united stand against all totalitarian rule from whatever ideological background" and to condemn "the glorification of the totalitarian regimes, including the holding of public demonstrations glorifying the Nazi or Stalinist past".
38. On 18 December 2014, the UN General Assembly adopted the Resolution against the Glorification of Nazism, neo-Nazism and other practices that contribute to fueling contemporary forms of racism, racial discrimination, xenophobia and related intolerance. The UN resolution condemns all organizations and all propaganda based on ideas of superiority of a nation, as well as justification or promotion of racial hatred and discrimination.
39. In some European countries there exists a consensus on the fact that totalitarian regimes have committed massive human rights violations and there were adopted laws in this respect that on the prohibition thereof.
40. In 1991 Czechoslovakia imposed in the Criminal Code criminal penalties on people "supporting and promoting movements which openly aim at suppressing the rights and freedoms of citizen or demonstration or spreading national, racial, class or religious enmity". The Czech Constitutional Court declared this rule unconstitutional given that "outstanding prohibition of any support or promotion of fascism or communism would be incompatible with the principle of specificative regulation of the criminal law" given that "in such a case a fascist or communist movement would not be properly defined."
41. In 2000, under the Criminal Code Hungary has incriminated both the use of fascist and communist symbols such as sickle, hammer or the red star. Being referred to in the same year, the Constitutional Court of Hungary has declared this prohibition as constitutional due to the fact that "these symbols (hammer, sickle and the red star) bear a single meaning, fixed for the population of Hungary, as well as due to the fact that they were linked to communist ideology and communist regime and the fact that communist ideology was an ideology of hatred and aggression; and accordingly that the symbols were symbols of the dictatorship".
42. Subsequently, by the Judgment of the European Court of 2008, Hungary was condemned for violation of freedom of expression in the case Vajnai vs. Hungary in connection with criminal conviction of a member of a political party for wearing on the vest a communist symbol during a public event. Having determined that the only reliable evidence underlying conviction were also the ways of exercising freedom of expression, the European Court found that there existed interference in the exercise of these rights. In the view of the European Court, even if the interference admitted by national authorities to applicants` right to freedom of expression could be justified by the attempts to protect public order, criminal sanctions applied to interested persons, i.e. almost four years of imprisonment, were manifestly disproportionate given its nature and severity, in relation to the legitimate aim pursued by the application of the sanction. The European Court established that the domestic courts went beyond what would constitute a required restriction of freedom of speech of the applicants.
43. In November 2011, the European Court found another violation of Article 10 of the Convention, under this law, if Fratanolo vs. Hungary, which also concerned the public display of a red stars by a member of a left-wing party in Hungary.
44. On 19 February 2013, the Constitutional Court recognized unconstitutional ban of fascist and communist totalitarian regimes symbols, finding a violation of the principle of legal certainty and freedom of expression.
45. Based on this judgment in April 2013, the Hungarian Parliament passed a law in another editorial, operating technical changes to correspond with the principle of regulation specification.
46. In 2009 Poland introduced criminal penalties for the public promotion of fascist or totalitarian system. These regulations have been challenged in criminal Polish Constitutional Court, which in 2011 declared them unconstitutional. In substantiating its judgment, the Court found that the provision of the Criminal Code does not meet the applicability of the rules of criminal law is formulated in an incorrect, imprecise and unclear, leading to violation of freedom of expression.
3.1.2. Limits of restriction of the freedom of expression and association
47. The Court underlines that the freedom of expression is one of the fundamental elements of a democratic society and a condition for progress and personal fulfilment.
48. The Constitution guarantees to every person, by Article 32, the right to freely express themselves in public through words, images or any other means possible.
49. Freedom of expression is not an absolute right, it may be susceptible to restrictions provided by Article 54 of the Constitution.
50. Freedom of expression may be susceptible to restrictions based on special provisions imposed by Art.32 para.(2) and (3) of the Constitution. In this connection, the constitutional rule stipulates that exercising the freedom of expression may not harm the honor, dignity or the rights of other people to have and express their own opinions or judgments. Also, the constitutional rule allows public authorities to forbid and prosecute all actions aimed at denying and slandering of the State and people, instigation to sedition, war of aggression, national, racial or religious hatred, incitement to discrimination, territorial separatism, public violence, or other manifestations encroaching upon the constitutional order.
51. In its case-law, the European Court established that although the freedom of expression may be subject to some exceptions, these `should be interpreted as restraining`, and `the necessity for any restrictions must be convincingly established` (see, Observer and Guardian v. United Kingdom, of 26 November 1991, § 59, series A No. 216).
52. Also, the European Court established that measures that restrict the freedom of expression, other than those applied in cases of incitement to violence or rejection of democratic principles – as shocking and inacceptable they are, may be seen as different opinions by the authorities – do not in fact serve the democracy and often may even endanger it (Sergey Kuznetsov v. Russia, 23 October 2008, § 45; Alekseyev v. Russia, 21 October 2010, § 80).
53. In the same context, according to art. 11 of the European Convention, the freedom of assembly or association may also be subject to restrictions necessary for national security, public safety, protection of public order and prevention of crimes, protection of health, morals or the rights and freedoms of others, to the extent that these limitations do not affect the very existence of the law.
3.1.3. Quality of law
54. The Court points out that, under Article 4 of the Constitution, constitutional provisions regarding the rights and freedoms are construed and applied in accordance with the covenants and treaties to which the Republic of Moldova is party.
55. In this respect, the provisions of Articles 23 para. (2) and 54 of the Constitution, requiring the state to publish and to make accessible all laws and to guarantee that the exercise of the rights and freedoms is not subject to any restrictions other than those prescribed by law must be construed in light of the criteria imposed by the European Court.
56. The concept of "law" is an autonomous concept (Bosphorus Airways v. Ireland, Grand Chamber Judgment of 30 June 2005, § 143). This notion implies absence of any arbitrariness, while lack of arbitrariness is an essential element of the principle of Rule of Law, mentioned in the Preamble of the European Convention, and of principle of the Rule of Law, mentioned in Article 1 para. (3) of the Constitution.
57. The concept of "law" may contain such sources of law as primary or delegated legislation of a state, as well as the case law (Kafkaris v. Cyprus, Grand Chamber Judgment of 12 February 2008, §§ 118-121). It does not include "state practice" inconsistent with the written law of the states or with the court decisions and international obligations of states in the field of human rights (Streletz, Kessler and Krenz v. Germany, Grand Chamber judgment of 22 March 2001, § 91).
58. To determine the character of "law" of a legal provision within the meaning of the Convention and of the Constitution, it is necessary to conduct a test of its ”sufficiency” with a view to verify whether the provision is accessible, clear and predictable and whether it offers safeguards against any abuse.
59. The condition of accessibility imposes a requirement that legal texts are accessed to the applicant (Silver and Others v. The United Kingdom, judgment of 25 March 1983, §§ 87-88). If invoking texts and rules supplementing the broad language of a primary and public norm, these shall be accessed by the applicant. In the case of Silver and Others v. The United Kingdom (cited above) it was accepted that restrictions imposed on prisoners` correspondence on the basis of unpublished orders and rules, which supplemented the relevant delegated legislation, could not be used to determine the interference "prescribed by law".
60. The condition of sufficient precision or predictability implies the existence of a detailed legal provision referring to the subject under discussion (Kruslin v. France, judgment of 24 April 1990, § 27). It requires a more rigorous analysis of the rule of law. The European Court ruled that the level of precision required of the domestic legislation ”depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed” (Chorherr v. Austria judgment of 25 August, 1993, § 25). The accuracy test requires that a law which confers a discretion must indicate the scope of that discretion (Silver and Others v. The United Kingdom (§ 88). In Al-Nashif v. Bulgaria (judgment of 20 June 2002, §§ 119-123) - a case that concerned the expulsion of a person on grounds of national security - the European Court held that "the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference".
61. A discretion that is bounded, even if subject to judicial review in formal terms, does not pass the test of foreseeability (Ostrovar v. Moldova, judgment of 13 September 2005, § 98, §§ 105-108). The same applies for unlimited discretion of the courts.
3.2. Application of principles in the present case
62. Referring to the challenged provision, the Court held that restrictions regarding freedom of conscience and of expression are laid down in the context of public propagation and demonstration of some attributes/symbols that are so similar that one could amount to confusion with Nazi attributes or symbols.
63. The Court finds that the challenged provision is accessible to the general public, given that the Law no. 54 of 21 February 2003 was published in the Official Gazette no. 56-58 of 28 March 2003. This finding is motivated by the presumption of ascertainment of the law, which stems from the general legal principle Nemo censetur ignore legem.
64. At the same time, the Court cannot ignore that in the event of non-compliance with the challenged provision, Article 6 para. (6) of Law no. 54 of 21 February 2003 creates the possibility for the court to deliver an order on cessation or suspension of activity of public or religious associations or of another organization. Application of these provisions in essence amounts to a criminal sanction, under the Convention, given the nature, purpose and severity of the penalties provided for therein.
65. The Court notes that the legislature must be particularly accurate, clear and correct with regard to criminal matters, as required by the principle of nulla poena sine lege enshrined in Article 7 of the European Convention on Human Rights.
66. Persons affected by the rules of criminal law must be able to establish the essential characteristics of a prohibited act only on the basis of legal provisions that specify that act, i.e. by applying simple rules of linguistic interpretation.
67.The Court noted that the entire wording of Art. 1 let. b) of Law No. 54 of 21 February 2003 on fighting extremist activity is formulated in an imprecise and unclear manner, granting the courts extremely grand discretion, a fact that generates the existence of court judgments with diametrically opposed interpretations (see in this respect § 10 of the Judgment). In those circumstance, the uncertainty of legal situation begins for people – who from different reasons – want to use attributes or symbols similar to Nazi ones that could amount to confusion.
68. Inexistence of an exhaustive list of Nazi attributes and symbols in the law, as well as attributes and symbols that are similar to these make the challenged normative provisions a regulation that lacks sufficient specification.
69. Thus, the formulation `attributes or symbols similar to Nazi ones that could amount to confusion` creates a state of incertitude under the following aspects:
(1) inexistence of some definitions or descriptions of Nazi attributes and symbols in the law;
(2) lack of margin of appreciation delimitation regarding the `similarity that could amount to confusion` with Nazi attributes or symbolic.
70. The Court points out that identification of "attributes and symbols similar to confusion with the Nazi attributes and symbols" is contrary to the principle of prohibition of the analogy or extensive interpretation in criminal matters if this is a disadvantage for the accused person. These attributes or symbols may be determined in an arbitrar manner ad casu.
71. The Court resumes here stated by the European Court in Case Karademirci v. Turkey: "failure to comply with a formal procedure constitutes a criminal offence, Article 10 combined with Article 7 of the Convention impose that the law must clearly define the circumstances in which it will apply, while the scope of a restriction must not be extended to an accused`s detriment, for instance by analogy” (§ 40).
72. Based on the above, the Court noted that in the absence of a precise list or definition of Nazi attributes and symbols in Article 1 let.b) of Law No. 54 of 21 February 2003, its provisions become imprecise and unclear, thus, not allowing citizens to understand which symbols are forbidden, which are similar to the Nazi ones; at the same time, this grants an extremely broad margin of discretion to the courts.
73. At the same time, the Court noted that Article 1 let. b) of Law No. 54 of 21 February 2003, read together with Article 10 para. (6) of the same law may be interpreted, given the ambiguity of the phrase `public propagation and demonstration of Nazi attributes or symbols, of attributes and symbols that can amount to confusion with Nazi attributes or symbols`, that mere use or demonstration of symbols brings in criminal liability. As a matter of fact, according to Art. 10 para. (6), persons guilty of illegal preparation, spreading or storing for further broadcasting of abovementioned materials shall be held criminally liable or subject to contravention/administrative liability.
74. In its Judgment no. 12 of 4 June 2013 on the control of constitutionality of provisions on banning communist symbols and the promotion of totalitarian ideologies, the Constitutional Court said, referring to the European Court`s judgment in Vajnai v. Hungary, that "[...] promoting potential communist totalitarian ideology [...] cannot be the sole reason to limit the use of a symbol, especially one with multiple meanings through criminal sanction. Simple display or use the symbol [...] without being known to the totalitarian ambitions cannot be equated with dangerous propaganda. "
75. In the same context, the European Court established that to justify the interference with the defendant`s rights, the Government has to prove that the sign used by the defendant is identified exclusively with totalitarian ideas (Fratanoló v. Hungary, No. 29459/10, Judgement of 3 November 2011, § 27).
76. In case Faber v. Hungary, the European Court mentioned that assuming that the displayed symbol by the defendant has multiple meanings – i.e. may be viewed as a historic symbol and, at the same time, as reminiscent symbol of Nazi party of Hungary – only in a thorough examination of the context when these offending expressions are used, an essential distinction may be traced between shocking and abusive expressions protected by Article 10, and those that lose the right to be tolerated in a democratic society. Showing negative emotions or feelings of resentment in the absence of intimidation cannot represent an imperious social necessity in the light of the provisions of Art.10 § 2 of the Convention.
77. In light of the European Court, the Court finds that the public display of symbols prohibited by national law, in the absence of other actions that show support for totalitarian ideas cannot be equated with a totalitarian ideologies promoting dangerous for society.
78. In conclusion, the Court notes that Article 1, letter b) of Law no. 54 of 21 February 2003 did not satisfy the conditions of Articles 32 and 40 in conjunction with Articles 23 and 54 of the Constitution and represents a restriction of freedom of expression and freedom of association.