Human Rights Action (HRA) believes that the proposed punishment is contrary to international standards of freedom of expression. We urge the Government to seek the opinion of relevant international organizations before the vote in the Parliament. If Parliament approves the proposal as law, HRA will immediately submit an initiative to review its constitutionality. Furthermore, the proposal for punishment should have undergone a public debate, according to the Law on State Administration, as well as that sufficient reasons were not given to pass the law in a summary procedure, according to the Parliament’s Rules of Procedure.
The Draft Law on Amendments to the Law on Public Order and Peace, which the Government adopted on 5 December 2019, envisages adding paragraph 4 in Article 21 of the Law on Public Order and Peace:
“Anyone who, while performing the national anthem, in cases prescribed by regulations, by sitting, whistling, making noise or otherwise fails to pay honor, shall be punished by a fine of EUR 700 to EUR 2,000.”
The proposed ban on belittling the anthem is absolute, i.e. stricter than the one prescribed by the Criminal Code. Namely, the Art. 198 of the Criminal Code of Montenegro, Tarnishing Reputation of Montenegro, which also provides for a fine or prison term of up to one year for publicly exposes the state and its symbols, stipulates that a state’s offense will not be punished “where the presentation was given with a serious criticism” and “without the intention to discredit”, which is not the case with the proposed amendments to the Law on Public Order and Peace, which does not contain any exemption from punishment.
In the explanation of the Draft Law reasons for imposing punishment were not given, especially not for failing to publicly debate such a proposal or for passing the law in summary procedure.
The explanation of the Draft Law is as follows: Bearing in mind that the provisions of the current Law on Public Order and Peace should be harmonized with the proposed solutions in the Draft Law on Selection, Use and Public Display of National Symbols, and that it is necessary to regulate as soon as possible the current problems in practice that have arisen in the implementation of the current Law on Public Order and Peace, the proposer is of the opinion that the Draft Law on Amendments to the Law on Public Order and Peace should be adopted in a summary procedure.
The Ministry is obliged to carry out a public hearing procedure in preparation of the law according to Art. 52 of the Law on State Administration (Official Gazette of Montenegro 078/18 of 4 December 2018), other than in exceptional circumstances in which this was not the case. In any case, when the ministry decides not to hold a public hearing, it is obliged to state the reasons for it in addition to the draft law (Article 52, paragraph 3), and such reasons are not stated in the explanation of the Draft Law.
The Government stated in the explanation of the Drat Law that “there are no provisions of primary and secondary sources of European Union law, or ratified international conventions with which it is necessary to harmonize”.
Also, by amending Article 21 of the Law on Public Order and Peace and introducing a penal provision for not honoring the anthem, does not come up with any harmonization of the said Law with the Draft Law on Selection, Use and Public Display of National Symbols, since that Draft Law on Selection, Use and Public Display of National Symbols does not deal with the anthem of Montenegro at all. Also, this provision does not harmonize the Law on Public Order and Peace with the Law on State Symbols and the Statehood Day of Montenegro, because the said law, despite prescribing the manner in which the anthem is honored, does not provide punishment for failure to comply with it.
It has not been explained what problems have appeared with the implementation of the current Law on Public Order and Peace regarding the failure to honor anthems, since the penal provision for such conduct has not existed so far. It also remains unclear what damaging consequences would produce failure to pass the law, especially in an emergency procedure.
Therefore, we consider that there is no justification for establishing this Draft law without holding a public hearing and that there is no reason to decide on it in the short procedure.
If, however, the Government insists that the Parliament soon votes on the Draft Law on Amendments to the Law on public Order and Peace, we appeal to the deputies of the Parliament of Montenegro to protect freedom of expression and not to adopt that anachronistic proposal. If the provision on the punishment of persons who do not behave in a particular manner when performing the anthem would be adopted, HRA will submit an initiative to review its constitutionality. And on this occasion, HRA regrets that the Constitutional Court of Montenegro has no jurisdiction to give an opinion on the constitutionality of draft laws on which Parliament has to decide, or on enacted laws prior to their entry into force, which is a jurisdiction (“abstract examination of constitutionality”) that the constitutional courts in some other countries have (France, Portugal, Serbia).
We would like to remind the public that none of the countries in the region (Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Macedonia, Kosovo) have a prescribed penalty for not honoring the national anthem, neither in the laws on the state symbols nor in the laws on public order and peace, as well as the majority country in the world. 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 believes that requiring to show respect for the national symbol by law and intimidation by punishment for different treatment is not appropriate to a democratic society, which must be open for the expression of different views and the discussion on those views. The Orwellian environment in which the police and its informants watch the citizens during performance of the anthem and report on those who do not pay their respects in the prescribed manner (e.g. sitting) does not make for an atmosphere of a European society in which human rights are respected.
HRA recalls on 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 honor 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 honor of the president as a state symbol and concluded that special protection of the heads of the 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 considers that the stated views of international human rights bodies provide sufficient justification for the Government to seek the opinion of international organizations such as the Council of Europe or the European Union before the Montenegrin Parliament votes on the Draft law.
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