8/10/2018 Penalising the refusal to stand for the national anthem breaches freedom of expression

11/9/2018 Memorial Initiative for victims of 1992 deportation war crime

8/10/2018 Penalising the refusal to stand for the national anthem breaches freedom of expression

Source: Espreso (clipping)

The Government of Montenegro has become the first in the region by proposing to punish citizens, as well as foreigners, who fail to stand during the national anthem.

The Human Rights Action (HRA) appeals to members of the Parliament of Montenegro to protect freedom of expression and not adopt such an anachronistic proposal of amendments to the Law on State Symbols and the Statehood Day of Montenegro.

The Draft Law on Amendments to the Law on State Symbols and the Statehood Day of Montenegro, adopted by the Government on 4th of October, introduces a duty of honouring the anthem “in a manner such that the attendees are obliged to stand” and provides for a fine ranging from 300 to 2.000 euros for those who do not stand during a performance of the anthem (Articles 2 and 4). Exceptionally, people with disabilities are allowed to honour the anthem by “greeting or otherwise”. It has not been defined how they are expected to greet the anthem, but luckily enough, the punishment is not proposed for them.

According to the Minister of Culture of Montenegro, Aleksandar Bogdanovic, the aim of amending the law is for “Montenegro, as well as [any] other country, [to express] respect for its national symbols and its identity”.

HRA warns that none of the countries in the region (Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Macedonia, Kosovo) have a prescribed penalty for failing to stand to for the anthem, nor do probably most other countries in the world. Ordering respect of state symbols in a certain way and intimidation by punishment for the opposite acts is inappropriate for a democratic society that must be open to the expression of different opinion and debate. By passing such law Montenegro would be joining mostly Asian non-democratic and nationalistic regimes such as China and the Philippines, which have recently introduced or aggravated penalties for lack of observance of national anthems. HRA also believes the Orwellian environment in which the police and its informants watch the citizens during performance of the anthem and report on those who were not standing does not make for an atmosphere of a European society in which human rights are respected.

HRA recalls the agreement reached at the international and European levels that the reputation of the state, its institutions and symbols, such as the anthem, should not be protected by criminal or misdemeanor sanctions.

The Human Rights Committee deplored the existence of the offence of defamation of the state and expressed concern regarding laws on, inter alia, disrespect for state symbols, defamation of the head of state and protecting the honour of public officials, stressing that states should not prohibit criticism of state institutions (General Comment 34, paragraph 38).

The Special Rapporteurs on Freedom of Expression of the United Nations, the Organisation for Security and Cooperation in Europe, and the Organisation of American States recommended that “the State, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions” (Joint Declaration 2002).

In two cases against France, the European Court of Human Rights criticized defamation law protecting the honour of the president as a state symbol and concluded that a special protection of heads of State, shielding them from criticism solely on account of their function or status, amounted to ”a special privilege that cannot be reconciled with modern practice and political conceptions” and which ”inhibits freedom of expression without meeting any ‘pressing social need’ capable of justifying such a restriction” (Colombani and others v. France, 2002, Eon v. France, 2013).

The Parliamentary Assembly of the Council of Europe found in 2010 that ”the reputation of a nation, the military, historic figures, or a religion cannot and must not be protected by defamation or insult laws” (Recommendation 1897).

HRA has also advocated since 2010 for the abolition of the Article 198 of the Criminal Code of Montenegro, which penalises insulting the state and its symbols with pecuniary penalty or prison up to one year. Montenegro indeed decriminalised offences of Insult and Defamation in 2011 but not their derivate from the Chapter XVII ”Offences Against Honour and Reputation”, like the mentioned offence Breach of reputation of Montenegro, Exposing personal and family circumstances (art. 197), Breach of reputation of the nation, national minorities and other minority national communities (art. 199) and Breach of reputation of the state or international organization (Art. 200). Contrary to the proposal of small offence in terms of not standing to observe the anthem, the Criminal Code prescribes that the defamation of the state will not be punished if the ”expression is given as a serious criticism”, and ”without an intention of depreciation”. However, those conditions also allow for implementation contrary to the international standards of freedom of expression.