Authors: Nino Merabishvili and Irakli Lekishvili
After the collapse of the Soviet Union and the socialist camp, many of the former socialist countries adopted legislation that bans public display of communist symbols and agitation for communist ideology. Similar legislation was passed by the Georgian Parliament on May 31, 2011. This Freedom Charter aims to:
• Taking preventive measures against the resurgence of communist totalitarian ideology;
• Ban communist and fascist symbols;
• Eliminate all other means of their propagation.
Such legislation is particularly important in the post-communist space, in order to prevent the spread of communist ideology and restoration of totalitarian regimes. However, such a ban could come in conflict with the freedom of speech and expression. Therefore, it is important to find balance between restricting communist propaganda and safeguarding freedoms of speech and expression. To do this, Georgia must take into account the experience of the European Court of Human Rights (ECtHR), the precedent cases of which hold the answer to the following question: Is it possible for a state to limit the activities of a political party without undue interference with freedom of speech and freedom of expression?
In the case FRATANOLÓ v. Hungary the ECtHR found that the appellant was wrongfully charged with criminal responsibility for displaying communist symbols - a violation of Article 10 (freedom of speech and expression) guaranteed by art.10 of the European Convention on Protection of Human Rights and Basic Freedoms (ECHR).
More specifically, the court observed that the appellant, a member of the strongly left-wing Hungarian Workers' Party, was reprimanded for having publicly worn a five-pointed red star while participating in a demonstration on May 1, 2004 celebrating Hungary’s accession to the European Union and the International Workers’ Day.
The plaintiff's arrest was based on the Hungarian Criminal Code, which prohibits the display of totalitarian symbols, regardless of intent (propaganda). The plaintiff appealed the decision to the Court of Appeals, the Supreme Court, and finally to the ECtHR.
According to the ECtHR, in order to justifiably ban a citizen from carrying a five-pointed star, there must have been a “pressing social need”. In other words, the plaintiff's action must have included a real threat of restoring communist rule. The ECHR explained that banning a citizen for carrying a five-pointed star on the basis of potential communist propaganda is not justifiable, unless the citizen displays their intent to restore the totalitarian regime and agitates for actions against national interests.
The appellant in the case of VONA v. Hungary was the leader of a Hungarian political movement with a declared goal of protecting Hungarian traditions and culture through mass demonstrations. Shortly after its establishment, the party launched demonstrations that included persecution of individuals on the basis of ethnic identity and statements aimed against the democratic order.
In December 2008, the party was abolished based on a court decision. Both the Appeals and the Supreme Courts upheld the lower court decision that the state has the right to take preventive measures in relation to political parties for the purpose of protecting democratic values.
The party was posing a threat to the democratic order of the country and its activities had signs of Nazi ideology. The appellant appealed to the ECtHR and claimed that his freedom of speech and expression had been violated by the state.
Unlike the previous case, the ECtHR found no violation of Article 10 of the Convention. ECHR upheld the decision made by the Hungarian Supreme Court and noted that the state was justified to take action to protect democracy. The demonstrations held by the party had signs of Nazi ideology and other totalitarian regimes, including protests against certain groups of people based on their ethnic and religious identity and harsh criticism of Hungary’s democratic order, which posed a threat to fundamental democratic principles. The court also took into account the country’s past experience with totalitarian regimes and concluded that there was a pressing social need to restrict the activity of the party.
The Court's Reasoning and Criteria for Justified Interference
ECtHR based its decisions on the reasoning that: in order to justifiably restrict the freedom of speech and expression, state interference must be “necessary in a democratic society”, which, in turn, implies the existence of a “pressing social need”.
Signatory states to ECHR have discretionary powers to determine whether there is a pressing social need to restrict a right in each specific case. In addition, interference must also be:
1. Relevant and sufficient - interference is relevant and sufficient, if public interest cannot be protected through a less restrictive measure.
2. Proportionate – interference is proportionate, if the action is proportionate to the aim.
The precedents discusses above show that, in one case (FRANTANOLO v. Hungary), the Court found that the provision of the Hungarian Criminal Code, which prohibits the display of totalitarian symbols, regardless of intent (propaganda), was not relevant and sufficient, while, in the second case (VONA v. Hungary), held that the refusal the registration of a political party did not constitute a violation of Article 10 of the Convention, due to the existence of a pressing social need to restrict party activities.
The precedent cases of ECtHR hold great importance for Georgia, which, like Hungary, has passed legislation restricting the display of totalitarian symbols.
The issue is made more relevant by the upcoming elections in Georgia, when parties with communist ideologies may become especially active. Even though ECHR enables the Georgian state to take preventive measures against the resurgence of communist, totalitarian and fascist ideologies, an unconditional ban on the activities of parties with such ideologies would violate the freedom of speech and freedom of expression.
The precedent cases discussed above emphasize the necessity of maintaining balance between freedom of expression and state security. The case VONA v. Hungary suggests that the freedom of speech and expression is not an absolute right and it may be limited by the state, if the interference is aimed at ensuring order in a democratic society.
Considering Georgia's recent history, the state may have a legitimate interest not to allow the resurgence of a totalitarian regime. However, such interference must be based on legal mechanisms that are based on the rule of law and human rights. If these mechanisms do not meet constitutional requirements, the state itself will become like the regime that it is trying to eradicate.
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