Freedom of speech limited

On October 25, Slovak parliament passed a new amendatory act to the Slovak penal code, effective January 1, 2017. Its declared purpose is to tighten up the fight against extremism. What does a closer look at its provisions show?

An Overview of Slovak Anti-Extremist Legislature

The anti-extremist legislature is part of the Slovak penal code. As of now – not taking into account the new amendment – it has the following forms:

  • A total of 9 "extremist crimes" are listed, including the support and propagation of groups leading to suppression of basic human rights and freedoms, denying and approving of the Holocaust, denigration of nation, race and belief, production and dissemination of extremist materials, and others.
  • Extremist group is defined as an association of at least three people with the purpose of committing extremist crimes.
  • Extremist material is defined, roughly speaking, as a written, graphic, audio or film material representing texts or symbols of movements leading to suppression of basic human rights or inciting hatred or discrimination or denying Holocaust or other act the denial of which is forbidden. In order for a material to be considered an extremist material, it has to be produced, disseminated, made public or be in possession with the intention to incite hatred or discrimination.
  • Two specific motives are defined (intent to incite national or racial violence or hatred; and the intent of acting of national, racial, ethnical, religious hatred or hatred against a sexual orientation (the legal definition is somewhat more convoluted)). If somebody commits a crime out of these motives, they can be punished more severely and their act is considered an extremist crime.
  • Extremism as such is not defined.

An overarching legal regulation of extremism was passed in 2009 at the times of minister of justice Štefan Harabin, based on recommendations from the European Union. Before 2009, the word "extremism" was not part of the penal code, although most of the crimes defined as extremist crimes were. In the regulation of 2009, these crimes were united under the header of extremist crimes, and a handful of new crimes were defined, such as production, dissemination and possession of extremist material (the term "extremist material" was also introduced in 2009).

The Point of the Current Amendment

The current amendment to the Slovak penal code does not change the basic conception of anti-extremist legislature. It introduces certain tightening measures. The main changes are:

  1. All extremist crimes will fall within the competence of the Special Criminal Court.
  2. The burden of proof will be reversed in the case of extremist materials: according to the new amendment, it will have to be proven that a certain material serves for educational, collecting or research purposes for it not to be an extremist material (in contrast, before the amendment it had to be proven that the purpose of the perpetrator is to incite hatred or discrimination).
  3. A new crime will be introduced – apartheid and racial segregation.
  4. The propagation of, support of and public demonstration of sympathy of movements leading to the suppression of human rights will be a criminal offence (in contrast, before the amendment, this was only illegal if the movement in question lead to the suppression of human rights by violence, threat of violence or threat of other severe harm).
  5. The definition of extremist material will be widened: it will also be prohibited to deny genocides and war crimes for which the perpetrators were convicted by a Slovak court (before the amendment, it had to be an international court, the authority of which was recognized by Slovak republic).

Let's take a look at the problems the new amendment brings.

Problem 1: Trivial Cases Will Still Be Considered Extremism

The boom of social networks (discussions, photographs, videos on facebook) in the last years has led to the consequence that trivial or absurd cases fall under "extremism" as it is understood by the penal code.

Several cases were publicized in the media: 20-year old David, who issued an advertisement in which he offered to shoot immigrants at the cost of €25 per person. He also denied Holocaust on facebook, using the words "I deny the Holocaust". Five boys, aged from 15 to 18, who drew swastikas into their school notes and into snow and presented them to their classmates, were tried for "propagation of Fascism". The first case resulted in an unconditional prison sentence.

Cases as these should be handled by parents, guidance counsellors or psychologists and reasons should be sought. They definitely do not belong to the courts: their social seriousness is minimal, an official court trial leads to stigmatization and a potential jail sentence can predispose the youngsters to a criminal future.

Problem 2: The Special Criminal Court Will be Flooded by Trivial Cases

According to the new amendment, all cases of extremist crimes will fall under the competence of the Special Criminal Court seated in Pezinok (Bratislava region). It is an institution specifically endowed with powers to effectively combat organized crime and corruption.

While most people don't realize it, the administration of a court case is very expensive. The file passes through the hands many people, the whole proceedings has to be provided for organizationally, technically and professionally. The judges and prosecutors at the Special Criminal Court have higher salaries, an increased security and competences for the whole territory of Slovakia. One case can total thousands to tens of thousands of euros. If appeals are made (which is rather typical), these costs increase further.

Expend valuable resources to solve "crimes" such as adolescents commenting on facebook is not only nonsensical, but directly sabotages the efforts of the Special Criminal Court judges, because it takes away their time and energy to fight in more serious cases. Also because of this, a new regulation was passed in 2014 according to which minor extremist displays were considered finable offences, but not criminal acts.

The regulation about extremist finable offences is still in effect. Despite this, inconsequential cases are solved by courts, such as the aforementioned David, who denied Holocaust on facebook and was convicted in 2016. According to the new amendment, David would be tried by the Special Criminal Court. Moreover, minister of justice Lucia Žitňanská has stated this year that extremist finable offences will perhaps be abolished.

Another serious limiting factor of courts is their capacity. Courts are flooded and don't have enough time to solve cases they already have to. People who are seeking justice in civic and commercial cases live under long-term stress, the proceedings often take years. If the aforementioned banalities will be addressed by the courts as criminal offences, the situation will be worsened.

Both of these problems are exacerbated by the fact that extremist case proceedings will be conducted by the Special Criminal Court, which is more expensive and should deal with much more serious crimes. Practical results have shown that, despite best efforts of special prosecutors and judges, the results of corruption cases were not very promising. No political elites were sentenced or even tried. By further flooding of the Special Criminal Court, its hands will be tied even more.

The aforementioned David, after his sentence for extremism, stated aptly: "I was sentenced for making a practical joke. But I haven't seen any people from Váhostav [a huge construction company], who didn't pay 85 per cent of their small subcontractors, tried at the courts... they are responsible to no one.“

If we proceed fairly and systematically and address each racist discussion post at a social network as a criminal offence, the activity of the Special Criminal Court will be practically paralyzed.

Problem 3: Reversed Burden of Proof Regarding Extremist Materials

Up until the current amendment, it was required to prove that an extremist material is made, published or kept in possession with the intention of inciting hatred, violence or discrimination on the grounds of race, nation, religion, etc. Otherwise, the material in question was not considered an extremist material. The amendment turns this around. In order for a material not to be an extremist material, it has to be proven that it is made, published or kept in possession for educational, collecting or research activities.

But who should prove it? According to the current regulation, it was necessary to prove an extremist intent which is quite difficult. It is the job of the prosecutor, who prepares the arguments for the prosecution. But who will, in practice, prove that a material is not an extremist material? We can hardly expect this from the procurator, who is representing the prosecution and has a lot of other cases. It will thus be left to the defense, on the defendant, to prove their innocence. This contradicts common sense as well as presumption of innocence, a basic principle of penal law.

Apart from this, it is questionable from where one should know that they are buying an extremist material. Books such as Mein Kampf or The Communist Manifesto are freely available in bookshops. Or when purchasing online – how should the buyer know that a book contains extremist statements until they read it to the end? And even after they have read it, it is often difficult to consider, as expert opinions are made on what is extremist and what is not. Practice shows that expert opinions presented to court often contradict in matters even more unambiguous.

If a person bought a book 10 years ago, when keeping possession of extremist materials was not forbidden, and has it on a bookshelf, can this be considered an educational, collecting or research activity?

We can assume that police and courts will interpret such cases favorably and according to common sense. But if a certain case is under political pressure, it can easily turn around.

Problem 4: All the Problems of the Previous Regulations Remain Unchanged

The main problems of the anti-extremist legislature in Slovakia are crimes of denial and a progressive broadening of what is considered "extremist".

Extremism Defined too Broadly

A constant broadening of the term "extremism" can be seen in the newest amendment – for example, the burden of proof in the case of extremist materials will be turned around, as we mentioned earlier. Another example is that according to the newest amendment, it will be illegal to support and demonstrate sympathy to a movement which leading to the suppression of basic rights. Before, this was illegal only if the movement lead to suppression of basic rights by means of violence.

Practically every statute in some way restricts a certain basic right. Basic rights, according to the Slovak constitution, include not only basic human rights such as the right to life and health, but also political, economic and social rights (the second generation of human rights) and rights such as the right to a clean environment and cultural heritage (the third generation of human rights).

For example, the ban on double citizenship (the fact that Slovak citizens who acquire Hungarian citizenship automatically lose the Slovak citizenship) is surely a suppression of a basic right. So are heightened security measures on airports restrictions on the right to privacy, expropriation of land when building a highway limits the right to property, and so on.

Of course, if such measures are taken by a government basically in accordance to the mainstream paradigm, few would call this extremism. But if the same measures are taken by members of a rather non-mainstream party (anti-globalist, communist, nationalist), we can expect accusations of extremism.

Risk of Abuse

It is also absurd that all public denigration of a nation is considered extremism. If someone bashes Roma on a social network, it is rather an expression of anger and frustration about the injustice of the system than a sign of racism or extremism. An example is the young anchorwoman of the Slovak television who published a status about "smelly Gypsies" on Facebook after a gutter from her house was stolen in the middle of the night. She was fired from her job afterwards, even despite the fact that she publicly apologized.

Of course, in the case of a young sports presenter with no racist, extremist or nationalist history, few would use the term extremist. But in the case of a politically "inconvenient" person, with previously created negative media image, discreditation and potential conviction for extremism would be much easier.

If we imagine a politician legally fighting against Islamization, who in the past met or is still meeting more radical activists, appearances could be arranged so that his conviction or at least prosecution for extremism would be damaging to him. Two years later, when he is acquitted on all charges, this will do little to repair his damaged reputation.

Today It Is Forbidden to Deny What Happened Yesterday

In the case of denial crimes, the problem is the restriction of freedom of speech. In principle, it is not right to limit discussion about historical events, especially those who have an important political connection to today's happenings. The new amendment does not even contain an exception for scientific research. Theoretically, general measures included in the penal code are applicable (material correction, permissible risk), but the indicted is dependant on the benevolence of the judge and the interpretation of these general instruments can be quite subjective. Naturally, this can lead to auto-censorship, a phenomenon much undesired in science and elsewhere.

Another problem is an ever growing list of events falling under the prohibition of denial. Currently, it is illegal to keep in possession a material denying or vastly downplaying an act which was deemed a war crime by, for example, the tribunal in Nuremberg after the second world war. But mainstream historiography has already shown that this court has admitted some exaggerated claims. For example, the ruling of the International Military Tribunal accepted without questioning the confession of Auschwitz commander Rudolfa Hoess, who claimed that only during 1940 – 1943, 3 million people have died. Today, the official commemorative plaque of Auschwitz speaks about 1,5 million during the whole time of the existence of the camp.

Also, many international tribunals the authority of which was accepted by Slovak republic (a condition for the act in question to fall under the prohibition of denial) dealt with relatively recent events, such as the Yugoslav war. Dozens of people have been sentenced in these trials. According to the current legislature, it is forbidden to keep in possession a material denying their crimes. According to the new amendment, it will also be forbidden to publicly state it.

If there were political willingness, it would be no problem to establish an international tribunal for the investigation of aggressive wars waged by USA, USSR and other countries after the second world war. Donald Rumsfeld, Secretary of Defense of the USA at the time when the USA invaded Iraq, based on the false claim of mass destruction weapons ownership by Iraq, could for example be convicted for perpetrating a war of aggression without the mandate of UN.

In such recent events, it is hard to distinguish between law and politics. The Yugoslav war ended only a few years ago, many survivors remain on all sides, some convicted perpetrators were already released and the acts committed have a strong influence on today's political climate. It is absurd to limit discussion in such a situation.

Why should we grant infallibility to internations courts and why should a disagreement with even an infallible court be considered a criminal act?

In the application practice, we can expect a rather careful approach from the courts. A judge would probably not convict a legal scientist researching into and questioning the rulings of an international military court. It could be worse in the case of more politically exposed people – a Pan-Slavic activist defending Miloševič and questioning the objectivity of the court in Haag – should they be punished or not? A pro-Russian reporter in a "conspirative" medium? Is this already an act worth punishing? Would it be punished, according to the new regulation? Hard to say, even harder to prove; but, under the right conditions, easy to misuse.

Conclusion

The current Slovak penal law amendment does not substantially alter the anti-extremist legislature, but makes its provisions more stringent. It is in accord with the trend of "curbing extremism", which is coordinated at the European level.

The main problem of the current amendment is that it still considers trivial acts as "extremist" and moreover relegates them all to the Special Criminal Court. This distracts resources and attention from real, much more serious crimes: government corruption and organized crime.

Image source: HDImageLib




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