Hate speech is speech which attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation.[1] In the law of some countries, hate speech is described as speech, gesture or conduct, writing, or display which is forbidden because it incites violence or prejudicial action against or by a protected group, or individual on the basis of their membership to the group, or because it disparages or intimidates a protected group, or individual on the basis of their membership to the group.[2] The law may identify a protected group by certain characteristics.[3] In the law of other countries, hate speech is not a legal term. In some countries, a victim of hate speech may seek redress under civil law, criminal law, or both. A webseite which uses hate speech may be called a hate site.
Most of these sites contain Internetforum and news briefs that emphasize a particular viewpoint. There has been debate over freedom of speech, hate speech and hate speech legislation. Critics have argued that the term "hate speech" is used to silence critics of social policies that have been poorly implemented. Critics have argued that the term "hate speech" is a contemporary example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically, while others point to a link between violent rhetoric and real world brutality.
Hate law regulations can be divided into two types: those that are designed for public order and those that are designed to protect human dignity. Those designed to protect public order seem to be somewhat ineffective because they are rarely enforced. Communication theory provides some insight into the harms caused by hate speech. According to the ritual model of communication, racist expressions allow minorities to be categorized with negative attributes tied to them, and are directly harmful to them. The repeated use of such expressions cause and reinforce the subordination of these minorities. This has been enough to sway the court in previous cases such as Brown v. Board Education in USA, in which the Court stated that segregation "generates a feeling of inferiority as to their [African Americans'] status in the community that may affect their hearts and minds in a way unlikely ever to be undone." The idea that hate speech is a mechanism of subordination is supported by scholarly evidence.
In accordance with article 6 of the Treaty on European Union, the European Union is founded on the principles of freedom, democracy, observance of human rights and basic freedoms. For this reason, the European Union rejects all theories which attempt to determine the existence of different human races. The commission has repeatedly stated that discrimination on the grounds of race or ethnic origin could endanger achievement of the objectives of the Treaty establishing the EC, in particular achieving a high level of employment and social security, increasing the standard of life and quality of life, economic and social cohesion and solidarity. It could also endanger the objective of developing the European Union as a place of freedom, safety and justice. For this purpose, any form of direct discrimination on the grounds of race or ethnic origin is forbidden in the Community
For this reason, the council adopted Joint action (96/443/JHA) to combat racism and xenophobia on 15 July 1996, in which the member states undertake to ensure effective judicial cooperation in the field of unlawful behaviour based on racist or xenophobic behaviour. In the interests of the fight against racism and xenophobia, each member state undertakes to ensure effective cooperation in the field of justice relating to criminal offences based on the following types of behaviour, and if necessary for the purposes of this cooperation, to either take steps to ascertain whether such behaviour is punishable as a criminal offence, or if this is not the case, to deviate from the principle of dual criminality regarding the following types of behaviour until adoption of the required regulations:
a) public incitement to discrimination, violence or racial hatred towards a group of people or indi-
- 63/64 -
vidual due to their colour of skin, race, religion or national or ethnic origin,
b) public support for acts with a racist or xenophobic subtext against humanity and violation of human rights,
c) public denial of the acts specified in Article 6 of the Charter of the International Military Tribunal in the Annex to the London Agreement of 8 April 1945, including actions which are contemptuous and demeaning towards a group of people or individual due to their colour of skin, race, religion or national or ethnic origin,
d) public dissemination and distribution of printed matter, images or other material with a racist or xenophobic content,
e) participation in the activities of groups, organisations or associations which spread discrimination, violence or racial, ethnic or religious hatred.
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin was then adopted on 29 June 2000. The Directive develops the provisions of art. 13 of the Treaty establishing the European Community as amended by the so-called Amsterdam Treaty, relating to measures to combat discrimination on the grounds of gender, racial or ethnic origin, religion or world view, disability, age or sexual orientation.
The purpose of this Directive is to determine a framework for the fight against discrimination on the grounds of race or ethnic origin with the aim of introducing the principle of equal treatment in the member states. For the purposes of this Directive, the "principle of equal treatment" is understood to mean that no direct or indirect discrimination exists on the grounds of race or ethnic origin. This Directive relates to all people from the public and private sector including public entities, in particular as regards:
a) conditions for access to employment, self-employment or labour relations including selection criteria and recruitment conditions, regardless of the field of activity and level of professional hierarchy including working procedure;
b) access to all types and levels of specialist consultancy, specialist education; improvement of specialist education and retraining including gaining of practical experience;
c) access to goods and services which are available to the public including accommodation and supply of such services.
Direct discrimination is understood to be a case when one person is treated in a less favourable manner on the grounds of race or ethnic original than another person is, was or would be treated.
Indirect discrimination is understood to be the case when a visibly neutral regulation, criterion or practice has given rise to a specific disadvantage for a person of a specific race or ethnic origin in comparison with other persons, unless this regulation, criterion or habit is objectively justified by a legitimate aim and unless the means for achieving this objective are reasonable and essential. Harassment is regarded as discrimination if undesirable behaviour occurs relating to race or ethnic origin, the purpose or consequence of which is violation of a person's dignity and creation of an intimidating, hostile, degrading, humiliating or offensive atmosphere. In relation to this, the term harassment may be determined in accordance with the domestic legislation and practices of the member states. Any behaviour leading towards incitement to discriminate against people on the grounds of race or ethnic origin is regarded as discrimination.
International cooperation between all of the states, including those which do not face problems with racism and xenophobia in their own country, is essential in order to prevent people who commit these crimes taking advantage of the fact that racist and xenophobic behaviour is classified differently in different states and to prevent them moving from one country to another in order to ensure that the culprits do not escape criminal prosecution and do not avoid imprisonment and in order to ensure that they are unable to continue performing their activity with impunity. The differences between certain systems of criminal law relating to punishments for certain types of racist and xenophobic behaviour create obstacles to international cooperation in the field of justice.
For this reason the Framework decision on the fight against racism and xenophobia (2008/943/SVV) was adopted in 2006. According to this framework decision, "racism and xenophobia" are understood to mean a conviction that race, skin colour, origin, religion, belief, national or ethnic origin are a decisive factor for rejection of an individual or group of people. A "racist or xenophobic group" is an association of more than two people which is of a permanent nature and which is focused on committing the acts specified below. In accordance with this proposal, member states undertake to punish the following acts:
a) incitement to racist or xenophobic violence, racial or xenophobic hatred or other racist or xenophobic behaviour which causes significant damage or injury to the affected individual or group;
- 64/65 -
b) publicly insulting or threatening an individual or group with racist or xenophobic intention;
c) publicly tolerating genocide, crimes against humanity or war crimes defined in art. 6, 7 and 8 of the Charter of the International Criminal Court with racist or xenophobic intention;
d) publicly denying or trivialising the crimes defined in article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 April 1945;
e) public dissemination and distribution of printed matter, images or other material with a racist or xenophobic content;
f) management of or support for the activities of racist or xenophobic groups, or participation in such activities, with the intention of contributing towards the criminal behaviour of such an organisation.
States should ensure that the above-mentioned criminal offences are punished with effective, appropriate and deterrent sanctions, whereas for the criminal offences specified in points a) and f) it shall be possible to impose a custodial sentence lasting at least 2 years.
The framework decision also determines that "racist and xenophobic motives" may be regarded as aggravating circumstances in other criminal offences (e.g. physical harm), or such motives may be taken into consideration by the courts when determining the sentence.
There was fierce debate in the EU at the start of 2007 of proposals to ban symbols of Nazism - and possibly also communism - throughout the Union. The initial impetus for this was a scandal which erupted after the British Prince Harry appeared at a party with a swastika on his sleeve. "The twenty-five" did not however come to agreement in the end and the whole affair faded into the background. A proposal by the Minister of Justice of Luxembourg Luc counted on a public ban on "exhibition of symbols inciting hatred and violence" such as the swastika. MPs from Lithuania and Hungary subsequently proposed that any possible ban also relate to communist symbols such as the hammer and sickle. Britain, Italy, Hungary and Denmark were opposed to the proposal because such regulation could restrict freedom of expression.
An important role is also played by the European Monitoring Centre of Racism and Xenophobia. This was established in June 1997 in Vienna and its mission is in particular to monitor the occurrence of racism and xenophobia in the Union and progress in this field, to analyse the causes of this phenomenon and to prepare proposals which are submitted to the institutions of the Community and member states. This monitoring centre is also responsible for introduction and coordination of the European Racism and Xenophobia Information Network (RAXEN). In addition to this, on 21 December 1998, a Cooperation Agreement was concluded between the Centre and the Council of Europe with the aim of deepening cooperation between the Centre and the European Commission against Racism and Intolerance.
In accordance with Council Regulation (EC) no. 168/2007 of 15 February 2007, the European Monitoring Centre on Racism and Xenophobia is transformed to the European Union Agency for Fundamental Rights. The main task of the Agency will be to provide help and specialist knowledge to the institutions and other bodies of the EU, as well as to member states in relation to implementation of EU law. The Agency will thus above all be a consultative authority and will not have a mandate to investigate individual complaints, or any regulatory or decision-making powers. The structure of the Agency is made up of a Director, Management Board, Executive Board and Scientific Committee. Apart from this, the Agency will, similarly to the Centre, use a network of national liaison officers. The so-called Fundamental Rights Platform will become a means for cooperation between the Agency and civil society - this concerns a network of cooperating organisations and institutions in the non-governmental sector, e.g. non-governmental organisations, church or academic centres.
The requirements of EU legislation for introduction of the punishability of racist and xenophobic behaviour is enshrined in Act no. 40/2009 Coll., Criminal Code (hereinafter referred to only as "CC"). Criminal offences where the motive consisting in racial, national, religious and other hatred is a characteristic of the basic or qualified facts of the case are the criminal offences of murder (Section 140 para. 1,3 g) CC), grievous bodily harm in accordance with Section 145, 1,2 f) CC, assault in accordance with Section 1,2 e) CC, extortion (Section 175 para.1,2 písm.f) CC), violence against a group of citizens and against individuals (Section 352 para. 2 CC), defamation of a nation, race, ethnic or other group of people (Section 355 CC), incitement to hatred against a group of people or to restrict their rights and freedoms (Section 356 CC), genocide (Section 400 CC), attacks on humanity
- 65/66 -
(Section 401 CC), apartheid a discrimination of a group of people (Section 402 CC), establishment, support and promotion of a movement aimed at suppressing human rights and freedoms (Section 403 CC), expression of sympathy towards a movement aimed at suppressing the human rights and freedoms (Section 404 CC), denial, disputing, approval and justification of genocide (Section 405 CC).
European legislation also requires the criminal liability of legal entities. According to Act no. 418/2011 Coll., on Corporate Criminal Liability and Related Proceedings, a legal entity is criminally liable for the exhaustively determined criminal offences, which include the fundamental facts of the case relating to criminal offences penalising racism and xenophobia: extortion (Section 175 CC), violence against a group of citizens and against individuals (Section 352 CC), defamation of a nation, race, ethnic or other group of people (Section 355 CC), incitement to hatred against a group of people or to restrict their rights and freedoms (Section 356 CC), expression of sympathy towards a movement aimed at suppressing human rights and freedoms (Section 404 CC) and a denial, disputing, approval and justification of genocide (Section 405 CC).
The criminal offence of violence against a group of citizens and against individuals in accordance with Section 352 para. 2 CC is committed by a person who employs violence against a group of citizens or individuals or threatens to kill them, hurt them or cause them large-scale damage due to their actual or supposed race, ethnicity, nationality, political convictions, faith or because they are actually or supposedly without faith. A prison sentence of six months to three years may be imposed for this behaviour. Any party which conspires or gathers to commit such an act will be punished in the same way.
The object of this criminal offence is peaceful civil coexistence and in particular a ban on any discrimination of a specific group of people, i.e. violation of the principle of equality as guaranteed in art. 3 para. 1 of the Charter: "Basic rights and freedoms are guaranteed to all regardless of gender, race, colour of skin, language, faith or religion, political or other opinions, national or social origin, pertinence to a national or ethnic minority, property, family or other standing." These values are also protected by several international conventions.[4] In the above-mentioned provisions, the Criminal Code does however only provide them with protection against attacks motivated by political conviction, nationality, race, ethnicity, faith or lack of faith of the people who are attacked.
The motive for this criminal offence is however more narrowly determined than the guarantees provided by the Charter and the international documents (e.g. the International Pact on Civil and Political Rights), this for example lacking gender or colour of skin. Thus a violent attack on a homosexual due to his sexual orientation (subject to this not resulting in physical injury and this not taking place publicly or in a place which is open to the public) will be classified only as a minor offence. There is no good reason for such differentiation and this is why I propose supplementing the motive in such a way that it corresponds with the wording of the Charter and the international conventions.
The criminal offence of defamation of a nation, race, ethnic or other group of people pursuant to Section 355 CC para. 1 is committed by a person who publicly defames a) any nation, its language, any race or ethnic group, or b) a group of people due to their actual or supposed race, ethnicity, nationality, political conviction, faith or because they are actually or supposedly without faith. According to the Criminal Code, a prison sentence of up to two years can be imposed for this act. The perpetrator will be punished with a prison sentence of up to three years if he commits such an act with at least two people, or via the press, through film, radio, television, a publicly accessible computer network or other similar effective method.
Defamation is any intentional decreasing of worthiness; it may exhibit itself in any form and also includes insult.[5] This concerns a subjective, grossly offensive expression leading towards belittlement of any nation, its language, any ethnic group or race or group of citizens of the republic due to their political conviction, faith or because they are without faith. This thus concerns gross belittlement, abuse or ridicule which may be expressed in spoken words, written words, the press, in an image or in another manner (e.g. via a public computer network).
Defamation is not concerned if an objectively existing fact which could give rise to negative assessment is merely stated (e.g. about a nation, that it has no democratic tradition or about language, that it is primitive).[6] The offensive nature of expression may ensue either already from the content and method of its delivery, or from its execution or other circumstances subject to which such an expression was made. The public reception garnered by the defamatory expression is not important.[7] Defama-
- 66/67 -
tion must occur publicly. A criminal offence is, in accordance with Section 122 CC, committed publicly if it is committed a) via the content of printed matter or a distributed document, by film, radio, television, a publicly accessible computer network or other similarly effective method, or b) in front of at least three persons who are present at the same time.
This concerns a verbal criminal offence, and for this reason when judging criminal liability, consideration must be taken of the constitutionally guaranteed freedom of expression (conflict with the right to freedom of expression). The Constitutional Court of the Czech Republic also dealt with the constitutionality of the criminal offences of defamation of a nation, ethnic group, race and conviction in accordance with Section 196 CC and incitement to hatred against a group of people or to restriction of their rights and freedoms in accordance with Section 196a CC according to the Criminal Code no. 140/1991 valid at that time.
Factually, this concerned the case of the editor in chief and publisher of the "©pígl" daily who was convicted of crimes in accordance with Section 196 CC and Section 196a CC. After having exhausted his courses of appeal, the complainant turned with his complaint to the Constitutional Court of the Czech Republic, where his objection was that his actions do not constitute a criminal offence, this in particular being with a view to the established practice of the European Court of Human Rights regarding art. 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms, according to which the right to freedom of expression also relates to information and ideas which offend, shock or disturb or concern the state or part of its inhabitants. Prosecution can thus be regarded as disproportionate infringement of the right to freedom of expression which is guaranteed in art. 17 of the Charter.
The Constitutional Court rejected the complaint and stated that the facts of the case of the criminal acts pursuant to Section 196 and Section 196a CC fully correspond to the international standards and commitments of the Czech Republic in the field of protection of fundamental human rights and freedoms. The Constitutional Court emphasised that although it agrees with the legal conclusions of the European Court of Human Rights which emphasise the irreplaceable role of the press in democratic society as a "watchdog", it at the same time warns of the liability of the journalist for overstepping above all the ethical and moral standards of his profession. In such a case, a legal sanction must exist which corresponds to legitimate goal pursued in terms of its appropriateness and also urgent social need. The right to information, as well as the right to freely communicate this information, is a clear combination of the right and the simultaneous obligation of the press to provide information about issues of important public interest in a truthful, balanced and correct manner.
The criminal offence of incitement to hatred against a group of people or to restriction of their rights and freedoms in accordance with Section 356 para. 1 CC is committed by a person who publicly incites others to hatred against any nation, race, ethnic group, religion, class or other group of people or to restriction of the rights and freedoms of their members. According to the Criminal Code, a prison sentence of up to two years can be imposed for this act. Any party which conspires or gathers to commit such an act will be punished in the same way. The perpetrator will be punished with a prison sentence of six months to three years a) if he commits the act specified in paragraph 1 via the press, by film, radio, television, a publicly accessible computer network or other similarly effective method, or b) if with this act he actively participates in the activity of a group, organisation or association which advocates discrimination, violence or racial, ethnic, class, religious or other hatred.
The object of the criminal offence is one of the fundamental human rights, this being equality of people irrespective of nationality, ethnicity, race, religion, class or other group of people. The purpose of criminal legislation is to protect any nation or any race and its members against attacks which are made with the aim of arousing hatred towards them or restriction of their rights and freedoms. The valid legislation thus fully meets the requirements of the international conventions which the Czech Republic is bound by in this field.
Incitement is understood to mean an expression by means of which the perpetrator intends to arouse hatred among other people towards a nation, race, religion, class or other group of people or causing action by other persons leading towards restriction of the rights and freedoms of their members. Hatred must be understood to mean an especially strong negative emotional relationship towards any nation or race.[8]
The form of expression is not important. It may be expressed in spoken words, written words, the press, in an image or in another manner (e.g. symbolic burning of a flag).[8] Incitement may be made directly or indirectly, overtly or covertly (e.g. by
- 67/68 -
using irony against a specific group of people), whereas the criminal offence is already committed through an expression the content of which is incitement. Incitement may be directed at an indefinite sphere and number of people, but this also includes actions towards individually determined persons or types of persons.
The most serious of criminal offences which punish racism is the crime of genocide in accordance with Section 400 para. 1 CC, which is committed by a person who, with the intention of completely or partially destroying any racial, ethnic, national, religious, class or other similar group of people
a) puts the members of such a group into such living conditions which are supposed to cause their complete or partial physical destruction,
b) implements measures leading towards prevention of children being born in such a group,
c) forcibly moves children from one such group to another, or
d) causes serious injury to the health of members of such a group or their death,
For this act, the perpetrator will be punished with a prison sentence of twelve to twenty years or exceptional punishment, whereas preparation of genocide is in itself punishable. Anyone who publicly incites others to commit such an act will also be punished.
Genocide was declared a crime under international law by the General Assembly of the United Nations (resolution no. 96/I of 11.12.1946). It became so under the pressure of Nazi crimes, the scope of which were unprecedented. According to the Convention, genocide is understood to mean any of the acts specified below committed with the intent to completely or partially destroy any national, ethnic, racial or religious group.
This is an intentional crime. The crime of genocide must be committed with the intent to completely or partially destroy any national, ethnic, racial or religious group. This concerns specific intent (intent exceeding the objective side of things) expressed as a characteristic of the facts of the case of the specified criminal offence.[9] The subject is general (every criminally liable perpetrator). No specific or special subject is required here.
The punishability of genocide does not expire on expiry of the period of limitation and the prison sentence is also not subject to a period of limitation and is also judged according to the Czech Criminal Code if such a crime was commmitted abroad by a foreign national or person with no nationality who does not have a permanent residence permit for the territory of the Czech Republic. Support for a movement which advocates genocide is punishable just like the crime of establishment, support and promotion of a movement aimed at suppressing human rights and freedoms in accordance with Section 403 para. 1 CC.
The criminal offence of an attack on humanity in accordance with Section 401 para.1 CC is committed by a person who, in terms of an extensive or systematic attack aimed at the civilian population, is guilty of a) extermination of people, b) slavery, c) deportation or forcible movement of a group of the citizens, d) rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation or other similar forms of sexual violence, e) persecution of a group of citizens on a political, racial, national, ethnic, cultural or religious basis on the grounds of gender or other similar reason, f) apartheid or other similar segregation or discrimination, g) deprivation of personal freedom, movement to an unknown location or any other restriction of personal freedom with subsequent involuntary disappearance of people, h) torture, i) murder or j) other inhuman act of a similar nature. A prison sentence of twelve to twenty years or exceptional punishment may be imposed for this act. Preparation of this crime is punishable.
The criminal offence of apartheid and discrimination of a group of people is committed by a person who enforces apartheid or racial, ethnic, national, religious or class segregation or other similar discrimination of a group of people. A prison sentence of five to twelve years may be imposed on the perpetrator for this act. The perpetrator will be punished with a prison sentence of ten to twelve years or exceptional punishment a) if by means of such an act, he reduces the above-mentioned group of people into hardship or b) if by means of such an act, he exposes such a group of people to inhuman or degrading treatment. Preparation of apartheid is punishable.
The criminal offence of establishment, support and promotion of a movement aimed at suppressing human rights and freedoms in accordance with Section 403 para. 1 CC is committed by a person who establishes supports or promotes a movement which is demonstrably aimed at suppressing human rights and freedoms, or which advocates racial, ethnic, national, religious or class hatred or hatred towards another group of people. A prison sentence of one to five years may be imposed on the perpetrator for this act. Preparation of this crime is in itself punishable. The perpetrator will
- 68/69 -
be punished with a prison sentence of three to ten years
a) if he commits the act specified in paragraph 1 via the press, by film, radio, television, a publicly accessible computer network or other similarly effective method,
b) if he commits such an act as a member of an organised group,
c) if he commits such an act as a soldier, or
d) if he commits such an act under a state of emergency or state of war.
This provision implements the commitment resulting from the Common procedure approved by the Council of the European Union on the basis of article K 3 of the Treaty on European Union relating to the fight against racism and xenophobia.[10] According to this provision, each member state undertakes, in the interest of combating racism and xenophobia, to implement such measures as to ensure that participation in active groups, organisations or associations which advocate discrimination, violence or racial, ethnic or religious hatred is punishable as a criminal offence.
The legislative framework should in general punish any expressions the aim of which is hatred and which are aimed at restriction of human rights and freedoms, i.e. not only fascism and communism, but also any possible expressions of religious fundamentalism or racism in any form. In this sense, the legislator placed both discrimination based on teaching of the Aryan race being superior to other nations, in particular to the Jews (racial discrimination) and also discrimination based on an uncompromising class war in the name of which whole social groups were persecuted and liquidated (class discrimination) on the same level.
Support for a movement aiming to suppress rights and freedoms may take a material or moral form. Direct financial support will for example be constituted by remittance of funds to the account of such a movement, donating cash, holding collections etc. Indirect financial support is for example constituted by an entrance fee for concerts from the extremist musical scene which are usually held for the benefit of one of the movements specified in Section 403 CC. Promotion of a movement specified in Section 403 CC can be defined as action by means of which the perpetrator (either alone or with participation by other people) attempts to make this movement known or to spread its ideology among people. This may be performed directly (public celebration and extolling of the movement, advocacy of its ideology, theses or objectives) or indirectly (via publication or other making public of the opinions, objectives or ideology of such a movement, but also via films, books, pictures or other works of art).
As opposed to a mere expression of sympathy, punished in accordance with the subsidiary provisions of Section 404 CC, the intention of the perpetrator must exist here to influence others by means of such action. However, in its list of characteristics of the facts of the case of the crime pursuant to Section 404 CC, the Criminal Code does not require determination of specific influence of any of the existing extremist movements as a result of the criminal actions of the perpetrator. It already punishes the mere fact of establishment, support and promotion of movements which are demonstrably aimed at suppressing the rights and freedoms of citizens or which advocate national, racial, class or religious hatred.
A "movement" within the meaning of Section § 404 para. 1 CC is regarded as a group of people who are at least partially organised, even if not formally registered, aimed at suppressing human rights and freedoms or which advocate national, racial, religious or class hatred against another group of people. If this concept is taken strictly as defined, even three people whose activity is aimed at the objectives specified in the Criminal Code may be called a movement. This thus concerns a group of people organised and structured to a certain extent which has at least a clear outline, common attitude and orientation focused on achieving any of the objectives specified in Section 404 para. 1 CC. This does not however mean that the specific organisational structure of such a movement would have to be proven in terms of criminal proceedings, or the number of members, leading representatives or other detailed characteristics of the movement, as such an approach would exceed the framework of the characteristics of the facts of the case. Specification of such a movement is sufficient in its rough outline, in particular from the point of view of its aim to suppress human rights and freedoms or advocacy of national, racial, religious or class hatred or hatred towards another group of people.
The criminal offence of expressing sympathy for a movement aimed at suppressing human rights and freedoms in accordance with Section 404 CC is committed by a person who publicly expresses sympathy for a movement aimed at suppressing human rights and freedoms (Section 403 para.1 CC). A prison sentence of six months to three years may be imposed on the perpetrator for this act.
- 69/70 -
The criminal offence of denial, disputing, approval and justification of genocide in accordance with Section 405 CC is committed by a person who publicly denies, disputes, approves or tries to justify Nazi, communist or other genocide or other crimes of the Nazis and communists against humanity. A prison sentence of six months to three years may be imposed on the perpetrator for this behaviour.
Tolerance and respect for the equal dignity of all human beings represent the foundations of democratic plural society. For this reason, it is essential to penalise all forms of expressions which spread, incite, support or justify hatred based on intolerance. Each such restriction must at the same time correspond to urgent social requirement, be appropriate to the purpose being pursued and be based on sufficient and relevant reasons.[11] This concerns the concept of so-called "democracy capable of defending itself" (wehrhafte Demokratie, démocratie aapte se défendre). Its implementation is a "legitimate objective", fulfilment of which allows states to limit the rights guaranteed in the Convention within reasonable bounds.[12]
The doctrine of active intolerance thus means that in the name of tolerance, we must also demand the right to not tolerate intolerance. The Constitutional Court confirm this doctrine of active intolerance in 1992 when it ruled that movements which are demonstrably aimed at suppression of civil rights or advocating defined hatred, however they may be called and whatever ideals or objectives they may be justified with, are movements which endanger the democratic state, its safety and the safety of its citizens; a statutory ban on them is thus an essential measure to limit freedom of expression and freedom of association within the meaning of art. 17 para. 4 and art. 20 para. 3 Charter of Fundamental Rights and Freedoms. Criminal prohibition of support and promotion of certain ideologies, which through their doctrine and practical procedure have excluded and exclude spreading of other ideologies, contributes towards ensuring plurality of opinions, ideologies, political and other movements and towards the real possibility of their spread; this limitation does not only protect human rights and freedoms, but also the democratic foundations of the state.8.[13]
Human rights are based on the universal identity of human beings, on the equality of all people and on their dignities and rights. Racism is an attack on the human dignity of each individual and endangers the cohesion of society and its democratic foundations. The right to not be discriminated against on racial grounds and the right to protection from expressions of racial hatred thus belong to the list of basic human rights.
Racism is anti-democratic in essence, opposing other fundamental rights and freedoms. Expressions of racism are an evil, they are emotional preparation for future violence.[14] Racist ideology was invented to justify violence. Racist pseudo-philosophy and pseudo-science provide explanations and a reason for such violent acts, as they regard people with a different colour of skin, people of a different nationality or ethnicity as inferior, as subhuman. All racist propaganda is pregnant with violence. We cannot thus wait until this threat is fulfilled with violence. The verbal and graphic precursors of violent racist crimes must already be punished.
Xenophobia, prejudices and racism will evidently also accompany human society in the future. Despite this and precisely because of this, it is necessary to use all legal means in the fight against racial and ethnic violence. The valid legislation used to punish hate crimes sufficiently allows for punishment of all expressions of hatred, racism or xenophobia. The problem of criminal offences committed out of hate is not the wording of the facts of the case for them, but their application in practice, when penalties are often focused on marginal problems. An example of this may be uncompromising prosecution of skinheads for various cult badges, whereas actual racially motivated attacks often remain unpunished. I see this inconsistent application of all of the provisions of the Criminal Code which come into consideration as the greatest failing of current application practice of the criminal prosecution authorities. This is closely related to proving the subjective side of the matter. The issue of proving a possible racial motive in terms of commission of a criminal offence is without a doubt a very complicated one, but on the other hand this is a very important field in which certain problems persist in practice.
De lege ferenda the following changes to the valid legislation can for this reason be recommended
- hatred on the grounds of colour of skin should be explicitly enshrined as a characteristic of the facts of the case of the criminal offences specified in Section 352 para. 2, Section 355 and 356 CC;
- add the standing of the perpetrator as an official to the list of circumstances which are conditions for use of higher levels of punishment for the
- 70/71 -
criminal offences specified in Section 355, Section 356 and Section 404 CC;
- introduce the punishability of public use and distribution of the symbols of the movements specified in Section 404 CC, regardless whether the perpetrator is expressing sympathy for such a movement in doing so.
The battle with racially motivated extremism cannot however only go the way of repressive intervention against adolescents giving the Nazi salute. In particular in the case of young people, prevention must be prioritised, education towards correct citizenship, towards democratic and humanist values and towards tolerance. Democracy simply must not manifest itself as a value vacuum, as a void which is filled by racist and xenophobic ideology. For this reason, it is necessary to look for and offer fully-fledged preventative programmes which correspond to the requirements of young people from diverse social groups.
Declaring freedom of expression absolute face to face with expressions of racism is not the path the Czech Republic should take. The Czech Republic cannot opt out of the whole network of international commitments focused against racism without detaching itself from the family of democratic European states. The American model of freedom of expression cannot for this reason be the template for Europe which has different historical experience and a different legal tradition. Europe entered the 21[st] century, not divided by the Iron Curtain, bursting with effort to create a tolerant, multicultural climate. The very same Europe does however have to carry with it the residue of its own past. The European continent gave rise to two wars in the last century. As a result of the second of these, increased sensitivity to projection of certain negative phenomena in society given by historical experience persists to this very day in Europe. It is precisely due to its immediate historical experience that Europe is in its own particular way more wary and much less benevolent in perception of the spawning of such phenomena than is for example the case in the USA. ■
NOTE
[1] Definitions for "hate speech", https://Dictionary.com. Retrieved 25 June 2011.
[2] Nockleby, J. T. (2000), "Hate Speech" in Encyclopedia of the American Constitution, ed. Leonard W. Levy and Kenneth L. Karst, vol. 3. (2nd ed.), Detroit: Macmillan Reference US, pp. 1277-79. Cited in "Library 2.0 and the Problem of Hate Speech," by Margaret Brown-Sica and Jeffrey Beall, Electronic Journal of Academic and Special Librarianship, vol. 9 no. 2 (Summer 2006).
[3] Herz, M., Molnar, P. (eds.) The content and context of hate speech. Cambridge University Press, 2012.
[4] Convention on Human Rights and Basic Freedoms (no. 209/1992 Coll.), International Pact on Civil and Political Rights (no. 120/1976 Coll.), International Convention on the Elimination of all Forms of Racial Discrimination (no. 95/1974 Coll.), International Convention on the Suppression and Punishment of the Crime of Apartheid (no.116/1976 Coll.), Framework Convention for the protection of National Minorities (no.96/96 Sb.), Council Directive 2000/43/EC of 29 June 2000 implementing the principal of equal treatment between persons irrespective of racial or ethnic origin.
[5] Ruling of the Supreme Court of the Czechoslovak Republic of 20.10.1927, file ref. Zm I 261/27, ASPI.
[6] Novotný, O., Dolenský, A., Púry, F., Rizman, S., Teryngel, J. Criminal material law -II. special section. 3rd edition, Codex, Prague 1997, p. 116.
[7] ©ámal, P., Púry, F., Rizman, S. Criminal Code. Comment. Part II. 6., supplemented and reworked edition. Prague: C. H. Beck 2004, p. 1166.
[8] Ruling of the Supreme Court of the Czech Republic of 11.12.2002, file ref. 7 Tdo 969/2002, ASPI.
[9] Ruling of the Supreme Court of the Czechoslovak Republic of 26.3.1935, Zm III 629/34, Rt 5259, ASPI.
[10] Ruling of the Supreme Court of 26.6.2002, file ref. 4 Tz 24/2002. ASPI.
[11] Art. I (A) point d) and e) of the Common procedure of 15.7.1996 approved by the Council of the on the basis of article K (3) of the Treaty on European Union relating to the fight against racism and xenophobia.
[12] E.g. Ruling of the European Court of Human Rights of 27.3.1996 in the case of Goodwin versus the United Kingdom.
[13] E.g. Ruling of the European Court of Human Rights of 26.9.1995 in the case of Vogt versus Germany.
[14] Award of the Constitutional Court of the Czechoslovak Federal Republic of 4.9.1992, file ref. Pl. ÚS 5/92, Coll. award and ruling of the Constitutional Court of the Czechoslovak Federal Republic, 1992, p. 25.
Lábjegyzetek:
[1] The Author is lecturer at the Department of Criminal Law, Faculty of Law at Charles University in Prague and is an attorney-at-law in Prague.
Visszaugrás
