Memory laws enshrine state-approved interpretations of crucial historical events and promote certain narratives about the past. Such laws often prohibit the propagation of certain ideologies (like Nazism or Communism) or criminalize expressions that deny, approve, or justify acts constituting genocide or crimes against humanity, as defined by international law. Banning certain symbols connected with those ideologies and imposing sanctions for their public use is one of the ways of implementing the memory policy.
Since 2014, right after the start of the Russian aggression and trying to protect itself from weaponized Russian information capabilities, Ukraine became one of the states that intensively used various protective policies by banning symbols associated with its colonial past: first with the USSR and then with Russia. While this policy was not unusual, the timing raised an eyebrow: most states experiencing Soviet occupation or Communist rule have adopted similar legislation as early as the 1990s such as Czechoslovakia or Romania.
Displaying symbols and expressing statements in historical debates are the embodiments of the freedom of expression protected by international human rights law. Imposing restrictions on such freedom thus has to be balanced against the legitimate aims pursued. In this regard, this analysis will assess whether it is legitimate to ban the potentially offensive symbols by analyzing the standards developed by the European Court of Human Rights (ECtHR or the Court) and the domestic practice of European states. Analyzing Ukrainian legislation against this background, DSLU will propose subsequent recommendations for potential legislative amendments to enhance the respective provisions’ compliance with the ECHR and ICCPR.
International standards: is there any consensus?
In principle, any situations pertaining to memory laws, historical events, and symbols are covered by the right to freedom of expression prescribed by Article 19 of the ICCPR and Article 10 of the ECHR. One embodiment of this right is symbolic acts or displays of symbols, which represent certain periods of history and express one’s political views. However, freedom of expression, and, in particular, political speech, is not absolute and may be lawfully restricted under certain conditions. To assess the legitimacy of the restriction, international bodies, including the Court, which is the most authoritative body in this sphere in Europe and is therefore relevant for Ukraine, rely on a three-part test to balance freedom of expression against other protected values. Thus, interference with freedom of expression is justified only if such interference is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society.
The ECtHR does not have a universal practice regarding legal restrictions imposed by states since European countries still have no common approach regarding which symbols should remain prohibited. Similarly, the Court does not have a particular stance on using symbols prohibited under national law because symbols are open to various interpretations, and their meaning varies among different societies.
With a single exception. The Court generally recognizes the forbiddance of Nazi symbols compliant with the Convention. In the Nix v Germany admissibility decision concerning the applicant’s publication of Nazi symbolics in his blog, the Court justified the legislative ban on the use of Nazi symbols imposed through the so-called communicative taboo (prohibition of all means of communication). In this context, the Court emphasized the historical experience of Germany and the fact that argued symbols cannot have any other meaning than that of Nazi ideology and found the application manifestly ill-founded. The Court’s stance on Nazi symbolics derives from the case-law on Article 17 of ECHR, which prevents abuse of rights. Thus, the Court posited that justification of Nazi crimes or denial of the Holocaust violates the requirements of Article 17 and cannot be considered acceptable.
The Court’s position regarding the prohibition of symbols connected with other totalitarian or radical ideologies is not as solid. The Court stated that the assessment of the necessity of such restriction must take into account the concrete political, social, and cultural context that includes the specific national “historical role and experience” as well as the current situation and the “real and present danger” that the use of certain symbols may bring about. Moreover, the Court stressed that a blanket ban imposed on symbols that may have various meanings could not be justified by any restriction.
In this regard, the Hungarian legislative practice toward the total prohibition of totalitarian symbols was strongly condemned. In Fratanolo v Hungary, concerning the public display of the red star by the applicant, the Court found a violation of Article 10, not only emphasizing the ambiguous nature of the symbol’s meaning but also stating that “even the potential propagation of Communist ideology could not be the sole reason to limit the display of the red star by way of a criminal sanction”. Further, in Vajnai v Hungary, the facts of which are analogical to the ones in Fratanolo, the Court seemingly disregarded the rational fear arising in the past victims of communist regimes while faced with the totalitarian symbolics. According to the ECtHR, “such sentiments cannot alone set the limits of freedom of expression”. Thus, the Court dismissed the social need for restrictions due to the past trauma of society and encouraged people to “remain reasonable” in their judgments, extensively relying on “assurances which the Republic of Hungary provided … to the victims of communism”. Such a stance towards the state’s past and its citizens’ perception of certain symbols may create a negative tendency towards following judgments where the restrictions might not be recognized as legitimate merely because certain people suffer less than others.
The Court held a similar opinion and found a violation of Article 10 in Faber v Hungary concerning the conviction of the applicants who raised an Árpád-striped flag (associated with the Hungarian fascist Arrow Cross movement) during a demonstration. Considering the time and location of a symbol display, the Court held that mere display could not disturb public order and intimidate other people even if some of them perceive the flag as fascist. The Court, however, stressed that such a stance does not include situations where a display of vague symbols “at the specific site of mass murders may in certain circumstances express identification with the perpetrators of those crimes”.
However, in the Donaldson v United Kingdom admissibility decision, where the applicant was found guilty of wearing an Easter lily (a symbol that commemorates the 1916 Easter Uprising and Irish Republican Army) in prison, the Court found the application manifestly ill-founded and recognized the interference as proportionate. Particularly, the Court considered the current situation in Northern Ireland and stressed that display of the symbol might have led to community conflict as the use of such symbols itself is “inherently divisive”. Unlike Vajnai, in this decision, the Court established the real danger of disorder that might occur should the inappropriate symbol be displayed.
Summarizing the ECtHR’s approach, it accepts the historical experience of people suffering from the Nazi regime, almost completely neglecting other totalitarian or colonial regimes’ victims who also suffered severe trauma. Evidently, the Court extensively relies on direct violence caused by the symbol’s use in and around armed conflicts in the past when assessing the “real and present danger” test and the assumed reconciliation process in a certain society. In doing so, it disregards the potential of the continuous display of symbols associated with repressions, arbitrary detentions, and mass human rights violations to undermine social cohesion and affect the rights of others. Thus, its approach does not entirely account for the other claimed factors, such as a certain country’s non-war-related historical experience or the risk of tensions in the society at-large emanating from the prolonged use of ambiguous symbols not associated with internal strifes or large-scale conflicts.
National laws and symbols: why do they ban things?
Some European states also introduced legislation aimed at prohibiting various types of symbols to avoid the creation of negative narratives within society and disrupting public order. Considering the horrific circumstances of World War II, 21 EU Member States introduced bans on Nazi symbols. However, no uniform approach exists. The restrictions covering the Nazi symbols include:
- a direct ban of certain Nazi symbols – France, Latvia, and Lithuania;
- prohibition of associations with totalitarian or extremist organizations (Austria, Germany);
- incitement to hatred and hate crimes (Italy, Cyprus, Finland, Luxembourg, etc.).
When it comes to the Communist totalitarian regime symbols, some post-Communist countries like Lithuania and Latvia had also implemented a ban on communist symbols, which still stands to this day. Other states from behind the Iron Curtain had enacted similar laws in the past. Still, those laws were eventually reversed by the respective Constitutional Courts (Czechia, Slovakia, Poland, Hungary, where initially the ban stayed firm after the challenge to the Constitutional Court, and Moldova). Predominantly, these courts cited the lack of precision of those regulations and that the use of objects whose significance may be ambiguous cannot be subject to penal liability as a reason for overturning the restrictions. The third group of states, involving Estonia, Bulgaria, and Georgia, unsuccessfully attempted to introduce a more precise communist symbols ban, facing substantial social tension.
Lastly, some countries have a rather general prohibition of totalitarian organizations. In Germany, the ban covered only symbols related to the Communist Party of Germany and its hammer and sickle. Austria targeted fascist organizations from other states (such as Croatia), terrorist organizations (Al-Qaeda, Islamic State), and other political organizations (Kurdistan Workers Party, Turkish nationalist party Grey Wolves, and the Muslim Brotherhood). In Austria, exemptions to the ban apply to those not using the symbols to endorse the groups they represent, including use for media, films, exhibitions, and academic use.
In the wake of the Russian full-scale military aggression in 2022, Moldova, Latvia, Lithuania, Estonia, and some federal units of Germany have adopted laws banning the use of certain symbols that could be associated with military aggression, including the St George’s ribbon as well as letters “Z” and “V” with legitimate exceptions such as scientific, educational or artistic purposes. The ribbons were allowed if they constituted part of the insignia, medals, or orders granted for participation in WWII. In Latvia, the law also provides for exceptions “where there is no purpose to justify or glorify crimes”, similar to the Austrian approach mentioned above. The Venice Commission recognized that Moldova’s response was consistent with European human rights norms. In Estonia, there was an evident opportunity to apply the newly adopted laws. The Ministry of Interior of Estonia explained the controversial nature of these symbols in detail and the possible actions after noticing them.
Ukraine: some moves ahead of time?
Considering the occupation of the Crimean Peninsula in 2014 and the full-scale invasion by the Russian Federation in 2022, Ukraine has resorted to prohibiting any symbols, which in one way or another, propagate Russian policies, justify the invasion of Ukraine or undermine its territorial integrity. Ukraine’s response was a reaction to the real and present danger the Russian aggression posed to the existence of the entire nation. In this light, the following symbols were prohibited:
- symbols of the Communist regime (introduced in 2015);
- symbols of the Nazi regime (introduced in 2015 together with the previous ban);
- St George’s ribbon (introduced in 2017);
- symbols of Russian military invasion, including letters “Z”, “V” and Russian military units’ insignia (introduced in 2022);
- symbols of Russian imperial policy, including the Russian flag, images, memorial signs, and monuments of Russian political figures that implemented such a policy and supported it in literature and artistic expressions (introduced in 2023).
Respective laws also provide an exhaustive list of exceptions when the usage of prohibited symbolics is considered legal. Exceptions include displays to condemn Russian aggression or totalitarian regimes, in textbooks and other educational materials, during academic research or reconstruction of historical events, in museums, archives, works of art, library funds, memorials, etc.
In terms of liability, the sanctions depend on the prohibited symbol which was displayed. Production and dissemination of Communist and Nazi symbols result in imprisonment for up to 5 years; the sanction extends to 8 years if the symbols are disseminated in the media. An administrative fine between 850-2550 UAH (around 22-57 EUR as of March 2023) and the symbol’s confiscation is imposed for a public demonstration of the St George Ribbon.
The usage of symbols representing Russian military invasion is not covered by any specific Criminal Code provision, though Draft Law № 7215 suggests the respective amendments, penalizing the display of symbols with the penalty of imprisonment for up to 5 years. However, the cases of its display and propaganda of the Russian invasion may fall within the provisions banning collaborationism or justification and denial of the Russian armed aggression and glorifying its participants. Their application may result in deprivation of the right to hold official positions between 10-15 years in the first case or imprisonment for up to 3 years in the second case (rises to 5 years when the media is used for dissemination). The usage of symbols of Russian imperial policy does not entail any liability as of June 2023.
A necessary and proportionate way forward: which one?
The Court and the international community have rarely debated the legitimate aims put forward by the states to justify the ban on certain symbols. Therefore, it is generally accepted that such bans, depending on the context, aim to protect national security and territorial integrity, public order, and the rights of others. The main issue has always been the necessity of the ban.
In this regard, the restrictions imposed by Ukrainian authorities were necessary in the democratic society. Since the symbols of the Russian invasion, such as “Z” and “V”, are used throughout the war in Ukraine, it is obvious that they represent the opposing belligerent party and its atrocities. Thus, the feeling of potential threat may trigger Ukrainian citizens if the said symbols are displayed in other contexts. This view was also confirmed by the Venice Commission, which stressed, albeit in the context of the Republic of Moldova, that “the display of such symbols could lead to unrest, threaten national security and the rights of others, including Ukrainian refugees in the country”. Moreover, prohibited symbols are generally known as being connected to the commission of international crimes since they clearly symbolize Russian military aggression.
In turn, Soviet and Russian imperial and modern symbols became of grave concern due to evolving aggressive Russian policy. Between 2014 and 2022, violence occurred at the events around Victory Day, when the rally under the St George’s ribbon and related Soviet symbols led to clashes between people on the streets of Ukrainian cities. The Constitutional Court of Ukraine argued that both Nazi and Communist regimes have led to a total disregard for the democratic rights of Ukrainians, shocking crimes, and were aggressors (including the Soviet state’s role as an enabler of Nazi Germany). It additionally underlined that the Communist crimes, like Holodomor, were never condemned properly in contrast to the Nazi crimes.
The main reason that contrasts with the logic adopted in the Vajnai case was the issue that the Russian government widely used Soviet symbols on temporarily occupied territories since 2014, and it employed the symbols extensively. For example, during the 2022 full-scale invasion, Russia exploited the image of an elderly Ukrainian woman supposedly greeting Russian forces with the Soviet flag to justify their invasion to protect the Soviet legacy. In Melitopol, the occupiers placed Soviet flags around the city and returned the monuments to Soviet “heroes”.
All this additionally necessitates any potential future restrictions implemented by the states in danger of being attacked by Russia, as confirmed by the Venice Commission in its 2022 opinion for Moldova’s legislation banning the symbols of Russian aggression. Since Russia uses the Communist symbols to mark its presence and justify its international crimes by defending the said symbols, their evaporation from public spaces may significantly mitigate the risks of future armed attacks for the Baltic states, Georgia, Poland, and others possessing the territories allegedly belonging to Russian “historic” domain.
Arguing for the imposed restrictions’ necessity, one should account for the proportionality of the restrictions. Criminal penalties for non-violent speech should be permitted only in exceptional circumstances, such as its use to undermine wider public order or territorial integrity. First, Ukrainian legislation does not impose blanket bans on the symbols’ display and defines the legitimate purposes of their use regarding each specific set of symbols. This points to the legislator’s understanding of the need to carefully design the norms without harming legitimate interests.
The situation is slightly worse regarding the penalties for breaching the ban. While almost all Ukrainian prohibitions allow imprisoning a person for merely demonstrating a certain symbol, the domestic court’s practice demonstrates that judges mostly resort to the least strict sanctions, which is an argument for the restrictions’ proportionate nature.
Some of the penalties, however, are intrinsically excessive and lead to the qualification of certain crimes as severe under the Criminal Code, thus, eliminating any opportunity for probation or the application of less severe alternative sanctions. A good example is the ban on Communist symbols, criticized for that aspect by both the Venice Commission and civil society. It is thus essential to eliminate to the maximum extent possible the practice of applying custodial penalties for displaying symbols without any aggravating circumstances, such as the commission of a repeated offense or its connection with the occurring violence. At the same time, the use of media as an aggravating circumstance of the crime of displaying particular symbols should be removed from the Criminal Code. In the modern world, the harm from the dissemination of any prohibited symbols by social media users might well exceed the harm from publishing an article containing the symbol in a local newspaper with low circulation. An additional problem is a double jeopardy. Since many recent provisions were adopted in a rush and without proper consultations, the restrictions occasionally duplicate, which creates a risk of improper application of the law, as in the case of the so-called Russian Nazi totalitarian symbols or the ban on display of Russian imperial policy symbols. Such jeopardy has to be abolished.
Conclusions
The earlier failures of the ECtHR to outright condemn atrocities by certain actors provide states with the opportunity to use the Court’s case law to shield themselves while supporting other mass-scale crimes. While the approach toward supporting the ban of Nazi symbols is understandable, one can hardly accept the Court’s attempt to justify the public use of other totalitarian regimes’ symbols due to their purported double meaning.
Thus, we firmly believe that the ECtHR has to consider the historical peculiarities of each country better, making the level of attention comparable to the association of certain symbols with armed activities. It should also attach less weight to the alleged reconciliation since the older Communist symbols, for instance, may be weaponized in the new contexts and by new players. Sometimes, the lessons of the past remain badly learned.
As to the Ukrainian legislation, while it indeed pursues the legitimate aim of national security and answers the pressing social need, it still demands better balancing to ensure the proportionality between freedom of expression and national security and public order protection, as well as the rights of others. Thus, to improve the Ukrainian legal framework in the area of combatting the use of dangerous symbols, we recommend:
- to clarify the definition of prohibited symbols in already adopted legislation and ensure the exhaustive character of any lists of restricted symbols;
- to eliminate the possibility of penalizing individuals for non-intentional display of prohibited symbols;
- to abolish the custodial penalties or provide the opportunity to impose alternative monetary penalties for the intentional display of symbols without aggravating circumstances;
- to eliminate any duplicating norms and avoid such double jeopardy in the future to ensure coherent and proportionate application of the existing restrictions on public display of certain symbols;
- to carefully craft the exceptions allowing the legitimate use of symbols in case of introducing any limitations of a kind in the future;
- to review the necessity of preserving the imposed restrictions on the public use of certain symbols in the legislation after the cessation of Russian aggression and the subsequent transitional period.
Anna Liudva, DSLU Legal Counsel
Oleksii Voloshyn, DSLU Legal Counsel