Background

By a letter dated 15 November 2012, Mr Alexandru Tănase, the President of the Constitutional Court of the Republic of Moldova requested an amicus curiae brief relating to Law No. 192 of 12 July 2012, banning the use of communist symbols (the hammer and sickle and any carrier of it) in the Republic of Moldova through the amendment of three laws: the law on political parties (CDL-REF(2013)007); the code of contraventions (CDL-REF(2013)008) and the law on freedom of expression (CDL-REF(2013)009). On the same day, the Constitutional Court of Moldova sent a similar request to the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), asking for its opinion on the compliance of the above-mentioned amendments with relevant international standards and OSCE human dimension commitments.

As per standard procedure in cases where similar requests are received, the Venice Commission and the OSCE/ODIHR decided to prepare a joint opinion on the subject matter, of which they informed the Constitutional Court of Moldova.

As this is an amicus curiae brief for the Constitutional Court of Moldova, the intention is not to take a final stand on the issue of the constitutionality of Law No. 192 of 12 July 2012, but to provide the Court with material as to the compatibility of this Law with the applicable European standards as well as with elements from comparative constitutional law in order to facilitate its own consideration under the Constitution of Moldova. It is the Constitutional Court of Moldova that has the final say as regards the binding interpretation of the Constitution and the compatibility of national legislation with it.

The symbol of the hammer and sickle, replacing the original hammer on a plough, was introduced in Russia in 1917/1918, as an expression of the unity of peasants and workers, two main social classes seen as progressive under the Marxist ideology.[1] In 1922, the hammer and sickle became the symbol of the USSR and in 1924, it was officially incorporated into the USSR flag and the coats of arms (1924 Constitution). During the Cold War, the symbol was used in other communist countries in Central and Eastern Europe and on other continents as well.

The use of the hammer and sickle declined significantly after the fall of communism. Yet, the symbol is still featured on flags or coat of arms of several federal entities of the Russian Federation (the flag of the Vladimir region and the coat of arms of the Bryansk region). It is also used by some private companies, for instance the Russian airlines company Aeroflot. Finally, it should be noted that a hammer and sickle is incorporated into the flag and coats of arms of the Moldovan separatist region of Transnistria.

Conclusions

States are not prevented from banning, or even criminalising, the use of certain symbols and the propaganda of certain ideologies. Yet, such ban or criminalisation needs to comply with several requirements, in order to satisfy the European standards on freedom of expression and freedom of association, as developed in the case-law of the European Court on Human Rights and in the works of the Venice Commission and the OSCE/ODIHR.

• First, the ban needs to be provided by a law that is accessible and formulated with sufficient precision. The law has to specify which symbols and which ideologies are banned and what the consequences of the breach of the ban are.
• Secondly, the ban must pursue exclusively the legitimate aims enumerated in Articles 10 and 11 ECHR.
• Thirdly, the ban needs to be necessary in a democratic society. It has to respond to “a pressing social need” and to be proportionate to the legitimate aims pursued.

Law No. 192 of 12 July 2012 appears to fail to meet these requirements on several grounds.

• First, by banning the propaganda of “totalitarian ideologies” without defining this term, the law does not satisfy the principle of specificity, making it difficult for people to adjust their conduct to the requirements of the legal regulation and, consequently, posing serious threats to free political debate within the Moldovan society.
• Secondly, it remains uncertain whether, and to what extent, the prohibition responds to “a pressing social need”.
• Thirdly, the risk of automatic termination of the existence of political parties that have been fined for repeated violations of the Contravention Code is clearly beyond any proportion to the legitimate aims pursued by the law and to the urgency of the situation.
• Fourthly, the Moldovan Communist Party may not be exposed to the cessation of its activities if it continues to use its symbol and its candidates may not be prevented from running in elections with the party symbol; if the use of the hammer and sickle by the Moldovan Communist Party is not acceptable any more, this party should be given a reasonable opportunity to proceed with the required changes and in the meantime its candidates should be allowed to run in elections with the official symbol.
• Fifthly, fines may not be imposed on account of the mere display of the hammer and sickle and should only be applicable when the display has been proven to have represented dangerous propaganda.

The Venice Commission and the OSCE/ODIHR remain at the disposal of the Constitutional Court or other authorities of the Republic of Moldova for any further assistance that they may need.

 

 

 

Conclusions

 Text of the opinion CDL-AD(2013)004