Hybrid Regimes and Satire: a Love Affair

Mirko Đuković

Central European University

Hybrid regimes – authoritarian in nature, constitutional in form – are particularly sensitive to public criticism. Since they are unable to make the people fond of the political order, hybrid regimes insulate the state from public criticism. In doing so, such regimes often curtail constitutional rights and freedoms by prohibiting unwelcome views and expression. One example of this phenomenon is the novel criminal offence of defamation of state symbols. This post provides a comparative perspective on hybrid regimes and then discusses the example of Montenegro’s criminalization of defamation of the state.

Hybrid Regimes in Comparative Perspective

Hybrid regimes are typically characterized by the presence of external attributes of democracy, formal recognition of constitutional rights and freedoms but low levels of trust in political institutions. For Law and Versteeg such constitutions are “sham constitutions”, and for Tushnet these regimes “embody the normative values associated with constitutionalism in their texts but in operation fall dramatically short of actualizing these values.” One way in which hybrid and legitimate regimes can be distinguished is by the extent to which they permit freedom of speech, particularly speech critical of the state.

The United States might score reasonably well on this metric considering the 1989 case of Texas v. Johnson where the US Supreme Court upheld a ruling stating that burning the national flag so as to convey a political message in protest is protected by the First Amendment. Mexico, by contrast, criminalizes defamatory acts against its national symbols, as US pop singer Miley Cyrus realized after she was accused of defaming the Mexican flag during a performance.

Recent countries to move towards hybrid regimes include Albania, Montenegro, Serbia, Hungary and Turkey. They are usually described as partly free in democracy indexes and have restrictive laws when it comes to defamation of the state. The first four have rather ambiguous provisions on defamation of state symbols. Turkey’s legislation is more specific as to what it means to insult or degrade national symbols, and it provides an exception “for the purpose of criticism” (Criminal Code, Art. 301(3)).

Croatia, a semi-democracy, also criminalizes defamatory acts against the state. Even so, the Zagreb County Attorney’s Office has rejected filing criminal charges against an author who wrote a satirical song that mimics the national anthem, on account of the right to freedom of expression (Art. 38 of the Constitution). Another recent, in fact ongoing, example comes from neighbouring Montenegro.

An Example From Montenegro

Earlier this year, a Montenegrin ship was seized at the port of Hamburg along with 500 kg of cocaine. News of the event echoed throughout the entire region, and Montenegro, yet again, became associated with drug trafficking. The event was the subject of much public discussion on Facebook, with many people commenting on Montenegro’s failure to control the drug trade. Amongst the commentators was Velimir Čabarkapa, a 29-year-old employee of the waterworks company in the city of Pljevlja. On 2 May he published a satirical version of national anthem on his Facebook profile. His version was the story of inefficiency in fighting drug trafficking, something repeatedly stated in the European Union’s Progress Report (p. 39). On 5 May he was arrested and detained for three days for an offence against Article 198 of the Criminal Code. Introduced last year, Article 198 prohibits “mockery” of “Montenegro, its flag, coat of arms, or anthem” and allows for a penalty of up to one year in prison. Article 201 exempts from the offence “serious criticism” in the form of scientific, literary, and artistic works and when undertaken during political activity or journalism etc.

Čabarkapa’s arrest was met with consternation amongst the civil sector which pointed out that freedom of expression is in peril. A month and a half later he was sentenced to two months in prison for defamation of state and state symbols.

The judgment will be appealed and thus it is not publically accessible. However, I contend that the judge did not consider human rights standards nor the freedom of opinion and expression guaranteed by Article 47 of the Constitution. The judge should have invoked Article 54 of the Law on the Constitutional Court of Montenegro, according to which judges may refer a question of conformity of the laws to the Constitutional Court. In what follows, I explain why international standards should have weighed against a conviction in this case.

International Standards

Defamation is defined as damage to the reputation of a person or group based on untrue statements. International human rights standards hold that state symbols and the state itself should never be protected by defamation laws. For instance, the UN Human Rights Committee, in its General Comment 34, states that parties to the Covenant should not prohibit criticism that disrespects flags and symbols or state officials (¶38). Similarly, the Special Rapporteur on freedom of opinion and expression indicates that criminal defamation laws may not be used to protect abstract or subjective notions or concepts, such as the State, national symbols, national identity (¶84). There are numerous Joint Declarations on Freedom of Expression in the last twenty years which called for the decriminalization of defamation policies. As Parmar contends, these declarations have constituted a “distinct body of international soft law on freedom of expression, one whose relevance to policy debates deserves broader recognition.”

The European Court of Human Rights (ECtHR) has emphasized that satire is “a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate” (Vereinigung Bildender Künstler v. Austria, 2007, ¶33). The Court reaffirmed this principle in 2013 in Eon v. France, holding that the conviction of a political activist for insulting the French President by waving a satirical placard violated Article 10 of the Convention. The Court noted that criminal sanctions have a chilling effect on satire. Satire is a form of expression not only for artists, but all citizens. And ideas expressed can be “those that offend, shock or disturb  […] the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes.” For the Court, “style constitutes part of communication” (Tuşalp v. Turkey, 2012, ¶48).

Applying these standards to Čabarkapa’s case should have led to the conclusion that he did not commit a crime.  Čabarkapa’s satirical version of the national anthem was, in the words of the ECtHR, “a form of artistic expression and social commentary”.

Conclusion

The constitutional value of freedom of expression contributes to the overall development of society and the state. Criticism of national symbols has an important role to play in public discourse. Whether the states discussed in this essay will ever recognize this and relax or repeal the law on defamation remains to be seen. If they do not, it is reasonable to think that this is just a further indication of their moves toward becoming hybrid regimes. One thing is for sure, the likes of Charlie Chaplin and other satirists are not welcome in the politically-sensitive world of hybrid regimes.

Mirko Đuković is a Doctoral Candidate at Central European University.

Suggested citation: Mirko Đuković, ‘Hybrid Regimes and Satire: a Love Affair’ IACL-AIDC Blog (24 September 2020) https://blog-iacl-aidc.org/2020-posts/2020/9/24/hybrid-regimes-and-satire-a-love-affair