Hate speech case law: evolution in Europe, deadlock in Bulgaria

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Xenophobia“…tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance…”
(Erbakan v. Turkey, ECHR, Decision of 6 July 2006, § 56)

Freedom of expression vs. hate speech

The European Court of Human Rights (ECHR) has identified a number of forms of expression which are to be considered offensive and contrary to the European Convention on Human Rights (the Convention) in its practice. Although there is no internationally recognized definition of hate speech, through its case-law the ECHR establishes the criteria that enables us to set a definitive line between hate speech on one hand and freedom of expression which is guaranteed in Art. 10 of the Convention on the other:
„Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.“
According to Art. 10 of the Convention, art. 19 of the International Covenant on Civil and Political Rights and art. 41 of the Constitution of Bulgaria, citizens have the right to receive and disseminate freely information and ideas. Such right is valid not only in cases of harmless or well accepted ideas and information but also if the ideas “shock or disturb the state or any other part of the population” (Handyside v. the United Kingdom, ECHR; Constitutional court of Bulgaria, Decision 7/04.06.1996, case number 1/1996). This principle is even of a greater value when it comes to media as their nature lies in the dissemination of information and ideas which corresponds to the right of the society to receive that information, to be informed (Lingens and Others v. Austria, ECHR).
In the same time the freedom of expression is not absolute in the European law. According to the Convention and specifically according to art.10, para 2, the freedom of expression can be restricted by the national legislation in order the “reputation and rights of others” as well as the “national security, territorial integrity and public safety” to be preserved.
In its case-law the Strasbourg Court (ECHR) persistently excludes hate speech from the freedom of expression protection under the Convention by

two separate approaches:

By applying Art. 17 of the Convention – declaring the applications of people who incite to hatred or discrimination against the decisions of national authorities for restriction of their freedom of expression inadmissible due to abuse of rights. This approach is visible in the earliest decisions of the Strasbourg institutions and is explicitly labeling hate speech as inadmissible with the provisions of Art. 17 of the Convention:
“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
By applying the limitations provided for in the second paragraph of Art. 10 and Art. 11 of the Convention:
“No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

Here are some of the well-known cases of the ECHR on the topic:

Norwood v. The United Kingdom
In the light of the extreme attitudes against refugees and migrants in Bulgaria during the last months it is very important to stress the validity of ECHR’s decision on the case Norwood v. The United Kingdom. The main nationalistic parties in Bulgaria used the mainstream media for the past few months to incite hatred and fear of people seeking asylum in Bulgaria predominantly exploiting their different religion and origin. Asylum seekers were generalized by authorities and media which were labeling them as criminals and describing crime as instinctive, innate to them.
Norwood v. The United Kingdom is an example of a decision on hate speech case through the application of the principles of Art. 17 of the Convention as described above.
The applicant is a regional administrator of the British National Party – far-right political formation, successor of the National Front. Between November 2001 and January 2002 Mr. Norwood displayed a large poster in the window of his first-floor flat depicting the Twin Towers in flame, a caption containing the words “Islam out of Britain – Protect the British people” and a symbol of the crescent and star in a prohibition sign. The poster was removed by the police authorities after a signal received by some of his neighbors.
As a result Mr. Norwood was charged with an aggravated offense under the Public Order Act, of displaying, with hostility towards a racial or religious group, any writing, sign or other visible representation which is threatening, abusive or insulting. Mr. Norwood claimed to ECHR that his right of freedom of expression was violated by the authorities in the United Kingdom. He pointed out that the freedom of expression includes provocative, offensive, rebellious speech as long as it does incite to hatred and violence. Furthermore Mr. Norwood insisted that he lives in a distant region and it is highly possible that not a single Muslim person saw the poster.
The ECHR based on Art. 17 of the Convention held that nothing in the Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth or at their limitation to a greater extent than is provided for in the Convention. The main purpose of that article according to the court is to prevent people or groups of peoples with totalitarian aims to exploit in their own interest the principles and freedoms of the Convention. ECHR agreed with the statements of the national authorities that the images shown and the words used constitute a public attack and insult to all Muslims. These images and words also generalized by claiming that all Muslims in Great Britain were participants in a terrorist group. In the court’s view such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, was incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination.
Jersild v. Denmark
Jersild v. Denmark is a landmark decision for journalists. The Court sets the standards for journalism ethics in covering hate speech. Jens Olaf Jersild was a journalist in the Danish Broadcasting Corporation. He was hosting a Sunday show focusing on a wide scale of topics including social and political issues as xenophobia, migration, asylum seekers. Mr. Jersild was sentenced by the national authorities due to the broadcast of an interview with members of a local band calling itself the “Green jackets” (gronjakkerne) – a skinhead organization popular by its racist speech and assaults on migrants. During the interview the three boys from the “Green jackets” were repeatedly verbally insulting and humiliating different ethnic groups in Denmark. They considered African people to be “animals”, not different than “monkeys”; foreigners to be predominantly drug dealers and not worthy to be reckoned as human beings.
Mr. Jersild was sentenced by the national authorities for dissemination of hate speech and defamation although he invited in the studio a social worker in order to trace the roots of a movement such as the “Green jackets” by discussing the social background the three of them had. Jens Jersild traced the criminal past of the boys, presented counter-arguments to their own and pointed the big number of African people holding important positions that can hardly be labeled as “animals” and etc.
The three boys from the “Green jackets” were sentenced together with Jens Olaf Jersild as was the director of the News department of the media. In the opinion of the different courts in Denmark that the case went through Mr. Jersild had aided the dissemination of hate speech by the “Green jackets” without the required critical approach and without putting the necessary balance via the introduction of countering opinions and thesis to the dialogue.
Mr. Jersild submitted an application to the ECHR claiming violation of his freedom of expression under Art. 10. In the decision on the case the ECHR yet again repeated the well-established view in the court’s case-law that the freedom of expression resembles on the foundations of a democratic society and its preservation is of an extreme importance. While media should not step over some boundaries, inter alia, the preservation of “the reputation and rights of others”, they are allowed to convey information and ideas of high public interest which is directly interrelated to the right of the society to receive. Otherwise media would not be in a position to exercise their vital role of a “public watchdog”.
The court held that Mr. Jersild had clearly announced that the broadcast would deal with racism in Denmark by displaying the racist attitudes of a group of boys and carefully discussing their roots and background. The judges held that taken in a whole the broadcast cannot be blamed for propaganda of racism. ECHR is dissenting with the opinion of the national authorities that the broadcast was aired without balance and countering opinions. In the view of the Strasbourg judges Mr. Jersild was clearly distancing himself from the opinions of the “Green jackets” by describing them as a “group of extremists”, “Ku Klux Klan supporters”. Furthermore – the journalist underlined the various criminal acts of the “Green jacket” representatives, the fact that they were living on welfare and were incapable to contribute to the society in a meaningful way thus building a connection between those facts and their opinions.
ECHR held that the right of freedom of expression of Mr. Jersild is violated. The imposed penalty on him was not “necessary in a democratic society” and was disproportionate to the principle for “preservation of the reputation of others”.
Gunduz v. Turkey
Another landmark decision of the ECHR dealing with hate speech and freedom of expression in a public debate is Gunduz v. Turkey. Mr. Gunduz acting as a leader of an Islamic sect expressed his utter dissatisfaction with the modern secular democratic institutions in Turkey during a TV debate and described them as “wicked”. During the broadcast he openly defended the introduction of a system based on Sharia law. Based on those statements the national authorities sentenced Mr. Gunduz to imprisonment for the term of 2 years for incitement of hatred and hostility on religious grounds.
In its decision from 2003 ECHR held that the intervention of the Turkish authorities in the freedom of expression of the applicant amounted to a violation of Art. 10 of the Convention. ECHR did no consider the imposed restrictions on Mr. Gunduz were in line with the principle for “necessity in a democratic society”. Once again the court held that Art. 10 should be read as also protecting speech that might shock, insult or disturb other people. Based on that Mr. Gunduz’s delivery of his opinion in a TV debate in the wake of a wide public dispute and when such an opinion are well-balanced by counter arguments did not invoke a sanction by the state. With a six to one vote ECHR held that the freedom of expression of Mr. Gunduz was violated. In its dissenting opinion the Turkish judge Mr. Turkmen reckoned that the ideas spread through the TV debate constitute hate speech and were insulting for the majority of the Turkish people who chosen to live in a secular society.
Vejdeland and others v. Sweden
This is the first decision of the ECHR on hate speech based on the grounds of sexual orientation. According to the ECHR such speech is a breach of the Convention as serious as one that is based on race, origin and religion thus establishing a new ground on which hate speech is forbidden.
The applicants in this case spread around 100 leaflets in school lockers in a Swedish high school. In the leaflets homosexuality was described as abnormal sexual orientation that has “morally degrading effect on the society”. The text on the leaflets was also blaming the promiscuous lifestyle of homosexual people for the dissemination of the “modern plague – HIV/AIDS”.
In its decision the ECHR held that the leaflets contain serious prejudice towards the LGBT society. The decision reaffirmed the established practice (See Feret v. Belgium, ECHR) that hate speech towards a specific group is not necessary to include an invocation to violence in order to be sanctioned. The mere fact that there are insulting, degrading or dehumanizing acts pointed to a group of the population can be sufficient for the authorities to apply restriction in the freedom of speech. In support of the decision the court highlights the fact that the leaflets had been left in the lockers of high school students. Furthermore the target group was at age where they were getting easily impressed and lacked critical thinking nor did they have the capabilities to qualify the information presented as discriminative.
Judges Spielmann and Nussberger in their dissenting opinion further acknowledge the fact that according to official surveys in member states of the Council of Europe, LGBT students from all ages suffered from widespread harassment by both their teachers and schoolmates based on their sexual orientation. This established fact required further restriction of the freedom of speech of homophobic opinions specifically in educational facilities.
In the area of hate speech practiced by political actors it is extremely important for the Vona v. Hungary case to be discussed. It was the first time when the ECHR based on the provisions in Art. 11 of the Convention, held for the dissolution of a political organization.
The applicant, Gábor Vona, was the chairman of the Magyar Gárda Egyesület (Hungarian Guard Association) (‘Association’), founded by members of the political party Jobbik Magyarországért Mozgalom (Movement for a Better Hungary). The Association, soon after it was founded in May 2007 founded the Magyar Gárda Mozgalom (Hungarian Guard Movement) (‘Movement’). Guardsmen of the Movement wore military uniforms, including armbands similar to those of Arrow Cross officers responsible for Hungary’s ‘reign of terror’ of 1944-1945. Guardsmen held intimidating military-style rallies throughout Hungary, particularly targeting villages with large Romani populations. Much of their rhetoric was centred around protecting ethnic Hungarians from so-called ‘Gypsy criminality’.
Responding to these activities, in December 2007, the Budapest Chief Prosecutor’s Office initiated proceedings for the dissolution of the Association which led to the dissolution of the organization by the Hungarian courts due to paramilitary parading in uniforms and military formations, intimidating the Romani population of small villages throughout Hungary.
In its judgment delivered in July 2013, the Court found that the dissolution of the Hungarian Guard Association (Magyar Gárda) by domestic courts was a lawful restriction of the applicant’s rights under Article 11 of the Convention. The court made the ruling on the basis that the activities of the Movement, which was part of the Association, included a series of paramilitary rallies in several villages with large Romani populations across Hungary and advocacy for racially-motivated policies, which intimidated the Romani population and violated their fundamental rights. The Court found that the Hungarian authorities were therefore entitled to take preventive measures to protect democracy and ban the Association.
The Court specifically stated that a state party to the Convention cannot be required to wait until a political movement takes action to undermine democracy, or has recourse to violence, before it intervenes. In particular, it ruled that states are entitled to take preventive measures to protect democracy if a sufficiently imminent prejudice to the rights of others such as the members of the Roma minority undermines the fundamental values upon which a democratic society rests and functions. One of such values is the cohabitation of members of society without racial segregation, without which a democratic society is inconceivable.
Yet again in the sphere of political usage of hate speech – a popular approach by nationalistic and populist movements, it is interesting to examine the case Le Pen v. France. Jean-Marie Le Pen is a popular politician, president of the French “National front”. He was sentenced to a fine of 10,000 Euro by the local authorities. The penalty was imposed due to an interview that Mr. Le Pen gave to the Le Monde newspaper. In that interview Mr. Le Pen said that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge”. Consequently he was sentenced to another fine, of the same amount, in 2008 after he commented on the initial fine, in the following terms: “When I tell people that when we have 25 million Muslims in France we French will have to watch our step, they often reply: ‘But Mr. Le Pen, that is already the case now!’ – and they are right.”
Mr. Le Pen sent an application to the ECHR claiming his right of freedom of expression was violated. The ECHR found his claim unfounded and therefore inadmissible. The ECHR held that the French authorities’ interference with Mr. Le Pen’s freedom of expression, in the form of a criminal conviction, had been prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others. In the court’s view Mr. Le Pen’s statements were presenting the Muslim community as a whole as menace which was capable to motivate hatred and rejection by the French society.
 

Bulgaria – the current situation and judicial practice

  • The ECHR decisions in the cases Vona v. Hungary and Le Pen v. France are extremely relevant to the Bulgarian political scene where there are a couple of political actors using hate speech or even committing hate crimes:20 May 2011 – as a result of a provocation by a group of nationalists from the political party “Ataka” (Attack), huge clashes occurred in front of the mosque in Sofia that reached even innocent people. Among the slogans of the provocateurs are: “Get out of Bulgaria”; “Terrorists”; “Turkish liers”. A prayer rug was led on fire;
  • 17 April 2011 – a group of VMRO supporters, accompanied by football fans from the city of Burgas assaulted the house of prayers for the “Jehovah’s Witnesses”;
  • September 2011 – a criminal case in the village of Katunitsa led to anti-Roma protests in the whole country. “Ataka” spread the far-right leaflet “Gipsy criminality – a threat to the whole country”;
  • 03 November 2013 – “Ataka” supporters organized a protest in front of the National Palace of Culture in the capital city Sofia against the “illegal immigrants”. They were carrying hate speech posters;
  • 03 November 2013 – simultaneously with the protest of “Ataka” there was a march of nationalistic formations such as VMRO, BNS and the organization of football fans in the country which led to publicly announced ultimatum to the authorities to “to restore the order” or “if this time yet again the authorities do not take the necessary measures, VMRO would deal with the problem in their own way.”;
  • 14 February 2014 – football hooligans attacked the Djumaya mosque in Plovdiv. Nearby passing Roma people are attacked as well. The protesters headed to the Turkish consulate in the city.

This list does not pretend to exhaustive. Racist, homophobic and xenophobic speech is not something new not only for Bulgarian politicians but for the media too. Meanwhile according to the Ministry of Interior (MoI) and the Prosecutor’s Office calling human beings “animals”, “piece of trash”, “subman”, actively persuading the society to acknowledge them as “enemies” from the pages of mainstream newspaper is not raising to the definition of crime under art. 162 (1) of the Bulgarian Criminal Code. This thing became clear from a response of March 2013 of MoI to a signal from the Association of European Journalists – Bulgaria to the Sofia District Prosecutor’s office. This signal was submitted due to an article by Kevork Kevorkian named “Garbage” and published in the print and online versions of Standard newspaper. The article was addressing Roma people in the country.
Based on data from the European Commission against Racism and Intolerance (ECRI), supplied by the Bulgarian authorities, from January 2008 to September 2013, 55 pre-trial proceedings were initiated under Article 162 of the Criminal Code (including both paragraph 1 on incitement and paragraph 2 on the use of violence or damage to property). Eleven of these went on to trial and ten persons were convicted. Under Article 164, out of a total of 56 pre-trial proceedings which were initiated, none resulted in a conviction.
“ECRI is astonished that so few cases of hate speech have reached court and that the conviction rate is so low. It regrets that the criminal law provisions in force to combat hate speech are rarely invoked and hardly ever successfully. This sends a strong message to the public that hate speech is not serious and can be engaged in with impunity.” is written in the last report of ECRI on Bulgaria, published on 16 September 2014.
ECRI also criticizes the media regulations concluding that “ECRI concludes that the system in place for sanctioning violations of the relevant legislation relating to media services is ineffective.” In view of the scale of hate speech in the media in Bulgaria, ECRI considers that the Council on Electronic Media should play a far greater role in punishing media service providers who disseminate hate speech. ECRI also considers that the fines are too low to act as a deterrent.
According to the Chairman of the Bulgarian Helsinki Committee, Mr. Krasimir Kanev, the cause for such behavior of the Bulgarian authorities is the widespread prejudice in the society towards minority groups which are largely shared by the Prosecutor’s Office and the courts. “In contrast with other countries in Bulgaria the public expression of strongly negative feelings against minorities is reckoned completely normal. The other cause is the lack of access to justice of those essentially poor and marginalized people”, he adds.
Currently there are several applications from Bulgaria to the ECHR based on inactivity by the authorities to enforce the law in cases of hate speech. Here are some of them:
 

  • Karaahmed v. Bulgaria – concerning the incident in front of the Sofia mosque in May 2011 described above;
  • Rusinov and others v. Bulgaria – concerning the pre-election brochure “Gipsy criminality – a threat to the whole country” by the political party “Ataka” from 2011 – described above;
  • Budinova and Chaprazov v. Bulgaria – filed against Volen Siderov for his numerous public appearances involving hate speech against Roma and other minorities in Bulgaria. The initial claim to the local authorities was submitted on behalf of more than 80 people – Roma, Jews, Turkish, Armenians, LGBT;
  • Stoyanov v. Bulgaria – concerning homophobic speech and calls for violence around the fifth “Sofia pride” in 2012.

 
Answering a question by the Association of European Journalists if the failings in the prosecution of hate crimes is due to insufficient provisions in the Criminal Code or possibly due to unawareness of the international case-law, Krasimir Kanev answers: “In the provisions of the current Criminal Code and particularly in art. 162 and 164 there is nothing unclear. There are not new. It is not also that the authorities need that much of preparation. However it is true that they are not aware of the international case-law, but that is not the main reason why. The main reason is the unwillingness of the authorities to implement the law when it comes to hate speech against ethnical and religious minorities. Nevertheless it is not the same case when there is hate speech coming from minorities and directed to the majority. There and only there we can observe a capacity and desire for the law to be implemented.”
 
Important steps were made in the new Criminal Code where the definition of hate speech was upgraded by new protected grounds. The main issue however remains the law enforcement and not that much the definitions.
 
Borislav Dimitrov