27 October 2022 – Online conversation
The event was organized by the Department of Law of the Faculty of Criminal Justice and Security of the University of Maribor. It was carried out as a dissemination event on the initiative of Professor Benjamin Flander, member of the Central European Professors’ Network and the research group “Constitutional and legal protection of state and national symbols in Central Europe” coordinated by the University of Miskolc – Central European Academy (CEA). Honouring the day of sovereignty, the Tribune focused on the legal regulation and protection of state, national and community symbols in Slovenia. The opening welcome speeches of Professor Andrej Sotlar,Dean of the Faculty of Criminal Justice and Security, and Mr Aleksander Hribovšek,President of the Heraldica Slovenica association, were followed by Professor Flander’s presentation on the work of the CEA research group and the findings of its research efforts. The Tribune concluded with a discussion in which Professor Flander was joined by two prominent legal experts, Professor Jernej Letnar Černič from the European Faculty of Law of the New University and Professor Ciril Ribičič from the Faculty of Law of the University of Ljubljana, a former judge of the Slovenian Constitutional Court. Other participants were also invited to take part in the discussion. The Tribune was chaired by Assistant Professor Maja Modic from the Faculty of Criminal Justice and Security of the University of Maribor, and attended by around 50 participants.
In his 45-minute presentation, Professor Flander first drew attention to the achievements of the research group, emphasizing the publication of the scientific monograph on the constitutional and legal protection of state and national symbols in Central European countries. He addressed the structure of the monograph, and referred to the comparative analyses in the introductory chapter written by Professor Zoltán Tóth, the leader of the research group. Professor Flander said that his colleague Professor Tóth had contributed a fascinating synthesis of the phenomenological and historical study of state and national symbols, with a comparative analysis of the relevant constitutional and criminal law provisions in the legal systems of 53 states. According to Professor Flander, Professor Tóth’s study revealed that – with a few exceptions – the majority of constitutions regulate state symbols within their fundamental provisions, usually together with provisions regarding the official language, capital city and official state religion (where there is one). However, according to Professor Tóth, language, religion, capital city and so on are not state symbols in the strict sense of the word, unless determined as such by the constitution of the respective state. This also applies to historical personalities, national, cultural and folkloric attractions, mythological creatures, animals, etc., often referred to as national symbols in everyday speech. These identity symbols gain the status of state and/or national symbols only if the constitution specifies them as such. In the introductory part of his presentation, Professor Flander also drew attention to Professor Tóth’s finding that state constitutions usually stipulate three standard symbols – the flag, coat of arms and anthem. Some stipulate all three of these, some only two, some just one. Interestingly, there are ten states (Denmark, Switzerland, Greece and Sweden among them) where the constitutions do not even mention state or national symbols. In contrast, in addition to the three standard symbols, some state constitutions also mention others. While in the constitutions of eleven states such symbols are only enumerated, in those of seven others they are described in great detail. This is typical for the states of Central and Eastern Europe, including Slovenia. The constitutions of 43 states leave the more detailed regulation of state symbols to statutory laws. The constitutions of Slovenia and Serbia are special because they distinguish between the state and national flags. Ukraine has two anthems, as its constitution distinguishes between the state and national anthems. The constitutions of Serbia, Ukraine and the Czech Republic distinguish between a greater and smaller coat of arms. The constitutions of five states also include other state symbols, such as the state seal and day of statehood. France is a special case in the sense that one of its state symbols is the motto of the French Revolution (Liberté, Égalité, Fraternité). Turkey is also unique, because its constitution contains the so-called eternity clause according to which provisions determining state symbols can never be changed.
Professor Flander then proceeded with the presentation of the legal regulation and protection of state, national and community symbols and the legal discourse surrounding the protection of these in Slovenia. He first addressed the history of the state and national symbols and the relevant constitutional provisions and provisions in administrative law, criminal law, minor offense law and civil law, as well as the crucial decisions of the Constitutional Court and the case law of the courts of general jurisdiction. Outlining the historical formation of state and national symbols, Professor Flander pointed out that no evidence has yet been found of the coat of arms or flag of Carantania (first mentioned in 595), the first predecessor of today’s Slovenian state. The first known predecessor of the Slovenian state and national symbols, the white, blue and red Slovenian national flag, appeared in public in 1848, when censorship was abolished after the fall of Metternich’s absolutism. While the Slovenian national flag was banned after the creation of the Kingdom of Yugoslavia under the dictatorship of King Alexander, during World War Two it became the basis for the design of the partisan flag, and after the war’s end for the flag of the People’s Socialist Republic of Slovenia and then the Socialist Republic of Slovenia. Efforts at designing the symbols of the newly born democratic state had already begun before the independence referendum on December 23,1990. On September 27,1989, Amendment XII to the 1974 Constitution affirmed Zdravljica as the official anthem of the Socialist Republic of Slovenia. The fact that the statutory law adopted later stipulated that only its seventh stanza shall be performed as the official anthem is a matter of considerable controversy at present. On June 24, 1991, after harmonizing some of the proposals and considering historical and heraldic principles, the National Assembly of the Republic of Slovenia adopted another amendment to the 1974 Constitution, which determined the flag and coat of arms of the Republic of Slovenia. Adopted on December 23, 1991, six months after Slovenia became a sovereign and independent state, the new Constitution determined the state symbols in Article 6.
Professor Flander paid special attention to the statutory regulations on state and national symbols in administrative, criminal, minor offense and civil law. He referred to the fact that the central piece of legislation related to the state and national symbols is the Act Regulating the Coat of Arms, Flag, and Anthem of the Republic of Slovenia and the Flag of the Slovenian Nation (ARCFA), and that specific administrative legal provisions explicitly related to the state symbols are contained in the sub-statutory acts which regulate, inter alia, the use of the European Union’s flag and anthem.
Drawing attention to the criminal law provisions, he pointed out that pursuant to Article 163 of the Criminal Code, anyone who has publicly desecrated the flag, coat of arms or national anthem of the Republic of Slovenia or the flag, coat of arms, or national anthem of a foreign country shall be punished with a fine or sentenced to imprisonment for not more than one year. Professor Flander explained that according to these provisions the state symbols are subject to penal legal protection only to the extent that they basically define and symbolize the Republic of Slovenia. However, the Slovenian national flag, the core national symbol which has not attained the status of a state symbol, does not seem to be covered by this article. The criminal law related to state and national as well as ethnic and religious symbols can also be found in the Criminal Code’s provisions on Public Incitement to Hatred, Violence or Intolerance. With regard to the Slovenian law on minor offenses, Professor Flander pointed out that legal persons, their responsible persons and private citizens shall be fined for using the coat of arms, flag, flag of the Slovenian nation and anthem in contravention of the provisions of the Constitution or ARCFA, i.e., as a trademark, model or pattern or for labelling goods or services. He explained that relevant minor offense law provisions prohibiting and sanctioning the destruction of state symbols can be found in the Protection of Public Order Act. Finally, he also discussed the legal protection of state and national symbols in civil law.
According to Professor Flander, the Slovenian Constitutional Court has issued several decisions while reviewing the constitutionality of administrative law provisions on state and national symbols. For example, it was asked by a petitioner to review the constitutionality of Article 5 of ARCFA. This act stipulates the exact stanza of Zdravljica to be used as a national anthem, although there is no such detailed provision in the Constitution. The petitioner claimed that he had a legitimate interest as a citizen of the Republic of Slovenia to listen the Slovenian anthem in its entirety, not the shortened version as stipulated by allegedly unconstitutional provision of ARCFA. Finding that the challenged provision did not directly interfere with his rights, legal interests, or legal position, the Constitutional Court rejected his petition. Professor Flander also drew attention to the case law of courts of general jurisdiction. In publicly available case law, the only judgement of criminal courts issued in relation to the crimes against state and national symbols is the judgement of the Supreme Court of the Republic of Slovenia which refers to the annulment of a conviction for a crime against public order by desecrating the flag of the former Socialist Republic of Slovenia half a century ago. Professor Flander maintained that this is somewhat surprising, because in the aftermath of 1991, when the nation gained independence, Slovenia witnessed several cases involving desecrating a flag that received a great deal of public and media attention.
At the end of his presentation, Professor Flander spoke about the symbols of the Italian and Hungarian national communities. In particular, he drew attention to the case where, on the request of the National Council and the petition of the Slovenian National Party, the Constitutional Court answered the question as to whether the Constitution allows the symbols of national communities to be identical to those of another state, and whether national communities are allowed to use such symbols on the territory of the Republic of Slovenia. The constitutional judges ruled that national communities and their members have the right to use symbols formed in the history of the Italian and Hungarian nations, regardless of their possible identity with the official state symbols of the Italian and Hungarian states.
A lively discussion that followed Professor Flander’s introductory presentation was opened by Professor Ribičič from the Ljubljana Faculty of Law. He begun by recalling the late 1980s when he was active among the reformist politicians in the Communist Party. This was the time when the Party realized that it was impossible to continue with the old ways, and started to reform itself. He explained that he was leading a group which prepared materials for the Party congress under the title “For the European quality of life!”. The experts who were asked by the group to prepare appropriate graphic symbols to accompany the congress materials proposed using some European symbols, i.e. the European flag, anthem and so on. When the members of the group presented these proposals to the old leadership of the Party – Professor Ribičič once noted that their faces were as pale as ghosts – they asked: Where’s the red star? In fact, where’s the colour red? Professor Ribičič explained that for him this was a kind of symbolic transition from the former regime into a reforming organization that he led for some time after. He stated that he is not impressed by the fact that today the Social Democrats – as successors of the Communist Party – remain almost completely attached to the colour red. According to Professor Ribičič, symbols do carry a lot of meaning.
Professor Letnar Černič said that Professor Flander’s lecture raised many issues, and that each of them would deserve a separate discussion. He agreed with Professor Ribičič that symbols are extremely important, not only state symbols but also other ones. He recalled a recent family trip to watch a basketball game between Ljubljana’s team and one from Catalonia, where he saw a group of Erasmus students who proudly held the Spanish flag. He asked himself why they did not use the Catalonian flag, since that was where the team they were supporting came from. According to Professor Letnar Černič, the Slovenian symbols, i.e. the flag, coat of arms and anthem, are very important too, although they are perhaps not generally accepted in Slovenian society. He noted that in Republic Square the beautiful flag flies in front of the Parliament building, where on the 25th of June 1991 the independent and sovereign Republic of Slovenia was declared. However, under the flag there is no inscription, no explanation of what this flag signifies. According to Professor Letnar Černič, there will always be a controversy about how to understand symbols and how to integrate them in Slovenian state institutions and society. Everybody likes to wear Slovenian colours when it comes to a football match or basketball game, but outside of sporting events such symbols seem to be more or less a necessary evil. Professor Letnar Černič pointed to a huge difference between Slovenia and some other countries in this regard. If one drives around Ohio or Michigan, for example, then it’s soon clear that most houses have a flagpole with an American flag in the garden all year round. However, in Slovenia this would be considered strange.
Regarding the burning of flags and other ways of desecrating national symbols, Professor Letnar Černič noted that Spain is being sued in quite a few cases at the European Court of Human Rights (ECHR), because Catalonian independence advocates burn the Spanish flag all the time. According to him, the ECHR still hasn’t given a good answer to the question of how this should be treated. It’s not always the case that burning the flag is protected by the freedom of expression. It depends on the context. He raised the a landmark case of Johnson vs. Texas, where a member of the Republican Party burned an American flag at a party congress. The American Supreme Court ruled that his act was a form of political speech, which was legally protected. According to Professor Letnar Černič, however, the legal frameworks with regard to freedom of speech differ significantly in the US and Europe.
As the discussion raised a variety of different topics related to state, national and community symbols, in this summary we cannot address all of them. The issue discussed towards the end of the event was the constitutional and legal protection of symbols of the Italian and Hungarian national communities. Six members of the Heraldica Slovenica association who expressed strong interest in participating in the Tribune also joined the discussion. One of them was interested in the opinions of the speakers on the differences in the implementation of the right to use national symbols by the Slovenian communities in the neighbouring countries on the one hand, and the rights enjoyed by national communities in Slovenia on the other. He noted that the Hungarian community in Slovenia flies the state flag of Hungary, which is not the case in Hungary and Austria, where the Slovenian communities must have their own special flag. He asked whether Slovenia should apply the principle of reciprocity, thereby restricting national communities from raising the state flags of their countries and ordering them to use their own specific symbols. Professor Ribičič replied that reciprocity is surely the wrong path. He acknowledged that the time after Slovenia’s declaration of independence was a sensitive one, and that it was entirely possible to agree with the principle of reciprocity in this regard. Nevertheless, the Constitutional Court addressed this issue and ruled that if such symbols appear together at official events, their sequence is important, i.e. the Slovenian state and national symbols must be placed in the positions with the highest honour. However, according to Professor Ribičič, the essential question raised before the Constitutional Court was whether a national community can choose the symbols it wants, even if these are the same as the symbols of a neighbouring state. The Court replied positively, and issued its decision unanimously. According to Professor Ribičič, in this case the Constitutional Court showed a tolerant attitude and high level of recognition of the rights of national minorities, something that in his opinion every democratic country should follow.
