Original scientific paper
Misdemeanor Liability for Promoting Ideologies Contrary to the Constitution of the Republic of Croatia
Ivo Josipović
; Pravni fakultet, Sveučilište u Zagrebu, Zagreb, Hrvatska
Abstract
The phenomenon of promoting the ideology of right-wing radicalism in the form of (affi rmative) reminiscences of the Ustasha movement and its power during the Second World War has long been present in the public. This is especially evident on social networks, in graffi ti, on some electronic media, at sporting events and at the concerts of some musicians. According to the Constitution of the Republic of Croatia and to the position of the Constitutional Court, promoting the Ustasha ideology and displaying its symbols is contrary to the Constitution. However, the use of Ustasha symbols, especially of the salute “Za dom spremni!” (“For the homeland, ready!”) is widespread and has been justifi ed with various reasons, ranging from reasons that have as their basis acceptance of the Ustasha ideology, the understanding that this salute has been emancipated from the Ustasha ideology because it was also used in the symbols and practices of particular legal military formations of the Croatian Armed Forces in the Homeland War, and that this was a salute that was used independently of the Ustasha ideology, to a fad, especially evident in the younger generation who do not make a connection between Ustasha symbolism and the ideology of World War II, which, unfortunately, is still present in our society. Views are emerging from the ranks of the legal profession, without engaging in the political and social aspects of using Ustasha symbols, even by clearly distancing themselves from the Ustasha ideology, that it is not possible to impose misdemeanour sanctions for using the salute “For the homeland, ready!” because such an act has not been proscribed and is not punishable, and that placing it under Article 5 of the Minor Offences against Public Order and Peace Act undermines the constitutional principle of legality. In the jurisprudence of misdemeanour courts, it has gradually been established that the salute “For the homeland, ready!”, and also the use of other Ustasha symbols, is considered a misdemeanour against public order and peace. The Ustasha ideology and symbols are also frequently connected with violence, and thus the question arises of the delimitation of the use of these symbols as misdemeanours on the one hand, or as a criminal offence which is independent or incorporated as part of another criminal offence on the other hand. The established case law concerning the qualifi cation of the salute “For the homeland, ready!” was recently changed with a legal interpretation adopted at a session of all the judges of the High Misdemeanour Court, and which caused confl icting reactions in the general and professional public. In this paper, the author analyses the current jurisprudence of the misdemeanour courts, the existing legal framework for assessing the use of Ustasha symbols in the public space as a misdemeanour, the legal interpretation of the High Misdemeanour Court and its effect on case law, and proposes de lege ferenda solutions which would undoubtedly protect the constitutional legal order of the Republic of Croatia through the misdemeanour and criminal law system.
Keywords
misdemeanour; Ustasha symbols; For the homeland, ready!; High Misdemeanour Court; principle of legality; freedom of speech.
Hrčak ID:
253330
URI
Publication date:
14.12.2020.
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