The Constitutional Court (CC) noted that by its Tuesday decision, it didn’t restore or legalize the wearing of the black and orange ribbon and other symbols regulated by the challenged laws, as it is presumed. The Court held that the punishment for the use of these symbols is constitutional. However, to punish a person, it should be ascertained that the symbol was used to justify or glorify military aggression, war crimes or crimes again humanity, IPN reports.
The CC expressed its regret at the attacks to which it is subjected following the pronouncing of the decision of April 11, 2023 and at the speculations about this decision. “When it verifies the constitutionality of laws that generate interference in the exercise of particular basic rights, the Court acts based not only on the provisions of the Construction and the case law, but also on the case law of the European Court. The Court cannot decide the case in which the basic rights are discussed based on common feelings,” the CC noted in a press release.
According to the Court, the Contravention Code article that punishes the use of the discussed symbols does not say if these symbols should be used for a particular purpose for their use to be penalized. The obligation for the courts to analyze the context in which the acts punished by this article were committed cannot be deduced either.
The law regarding the counteracting of extremist activity only stipulates an exhaustive list of exceptions from punishment. For example, this list does not stipulate the situation of a person who uses the banned symbols for protesting, not for glorifying the war or war crimes.
The Court decided that the state agents should determine the context in which a symbol was used and to ascertain the goal pursued by the person who used it as not in all the cases, the punishment for the use of a symbol is aimed at achieving a particular legitimate goal. When the pursuing of a legitimate goal is ascertained for imposing the penalty, the courts of law should impose a penalty proportional to the gravity of the deed.
The Court also conducted a comparative analysis of the laws that were recently adopted by particular states, concerning the use of symbols that can be associated with Russia’s invasion of Ukraine. The Court ascertained that in most of the states that banned these symbols, including Ukraine, the law requires to ascertain a goal, for example the use of symbols to justify the military aggression against Ukraine or other hostilities.
The Court noted that the lawmakers are not prevented from applying the guidelines of this decision and from adopting clear, coherent regulations that enable to analyze the specific circumstances of each case when symbols associated with the invasion of Ukraine are banned or when a person is punished for using them.
