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The phrase "Nazi symbols or those near to closely resembling them" does not meet the clarity requirements of a law
23 November 2015 - the Constitutional Court ruled on the constitutionality of several provisions of Law no. 54 of 21 February 2003 on fighting extremist activity.
Circumstances of the case
The case originated in the complaint lodged with the Constitutional Court on 29 June 2015, by the MP Ștefan Creangă.
Article 1.b of Law no. 54 on fighting extremist activity defines the notion and forms of extremist activities, one of which is public propagation and demonstration of Nazi attributes or symbols, similar to Nazi ones that could amount to confusion.
The author claims that the phrase "of Nazi attributes or those near to closely resembling them" in Article 1.b of the aforementioned law is not sufficiently clear, predictable and undermines the freedom of expression, thus violating Articles 23, 32 and 54 of the Constitution.
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Tudor PANȚÎRU,
Mr Victor POPA, judges
Conclusions of the Court
Hearing the reasoning of the parties and examining the files of the case, the Court held that under Article 32 of the Constitution every citizen shall be guaranteed the freedom of thought and opinion, as well as the freedom of expression in public by way of word, image or any other means possible.
In its caselaw, the Court noted that freedom of expression is not an absolute right, may be susceptible to restrictions to be provided for under the law, shall pursue a legitimate aim and shall not affect the very essence of freedom of expression.
The Court found that under the law, public propagation and demonstration of Nazi attributes or symbols, similar to Nazi ones that could amount to confusion is qualified as extremist activity.
Examining the entire wording of Article 1.b of Law no. 54 of 21 February 2003 on fighting extremist activity, the Court noted a lack of a clear legal definition of Nazi attributes and symbolistic.
The Court noted that both Article 23 of the Constitution and the ECtHR case law impose that norms adopted by public authorities must be sufficiently accessible, clear and predictable.
According to the ECtHR caselaw, a norm is accessible and predictable when it is formulated with sufficient precision to enable the citizen to regulate his conduct and be able, with appropriate advice, to foresee the consequences that may arise from the norm.
The Court underscored that given Article 1.b of Law no. 54 of 21 February 2003 lacks a precise indication of the list or notion that constitutes Nazi attributes and symbols, the provisions of the aforementioned law are imprecise and unclear, this not allowing citizens to understand which symbols are forbidden, which are similar to the Nazi ones; at the same time, this grants to the courts of law an extremely broad discretion in their application.
In this respect, the Court noted the existence of court judgments with diametrically opposed interpretations of the provisions of Article 1.b of Law no. 54 of 21 February 2003 on counteracting extremist activity.
In light of the above considerations, the Court held that the absence of clarity regarding Nazi attributes and symbolistic, the attributes and symbolistic similar to Nazi ones that could amount to confusion, constitutes a restriction of freedom of expression, which is contrary to Articles 23, 32 and 54 of the Constitution.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court:
- declared the complaint admissible and declared unconstitutional Article 1.b of Law no. 54 of 21 February 2003 on fighting extremist activity.
The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.
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