STA, 8 August 2019 - The Supreme Court has set an important legal precedent in a case involving hate speech against the Roma by holding that public incitement to hatred, violence or intolerance is a crime not only when it threatens public peace and order but also in case of threats, abusive language or insults.
The case involves a comment posted by a Dolenjsko man in February 2011 on the web portal of a local radio station in the comment section below an article about a spate of break-ins and thefts targeting a local businessman.
"A couple of ammonal sticks, a couple of M75 grenades and a couple of AK-47s just in case, I don't think it can be done any other way. Or one by one... Can I have a music request: Where did all the gypsies go by Korado & Brendi," wrote the accused, according to the newspaper Dnevnik.
The man was initially given a suspended sentence of one month by the Novo Mesto Local Court in early 2013, but he was acquitted by a higher court which agreed with the defence's appeal.
The higher judges held that the comment did not amount to a crime because the amended Article 297 of the Penal Code meant that only acts that may be a threat to public order and peace in concrete circumstances qualify as a crime of public incitement to hatred, violence or intolerance.
Dnevnik reports that such an interpretation of hate speech has often been cited in the past as the reason why intolerant and hateful incitement cannot be prosecuted.
However, five years after the Dolenjsko man was acquitted, the Office of the State Prosecutor General filed an appeal on a point of law, and the Supreme Court recently upheld the prosecution's interpretation. Although the ruling does not affect the acquittal it is seen as an important legal precedent.
The Supreme Court held that in cases when the act is committed by means of a threat, abusive language or insult, with other legal indications of a crime, the act does not necessarily need to potentially jeopardise public order and peace in order to be treated as crime.
The comment, which was one of many at the time calling for use of arms against the Roma, is "threat per se", the court said, adding that the comment had all the elements of crime, so it did not need to meet an additional condition that the act could lead to a disturbance of public order and peace.
The court said that prosecution of public incitement to hatred, violence or intolerance did not protect only public peace and order but also human dignity. It also noted that the Constitution guarantees the Roma additional protection and positive discrimination.
While the Office of the State Prosecutor General - whose expert council had only last November opted against changing the 2013 guidelines of hate speech prosecution that were also applied in the Dolenjsko man ruling - has not yet commented, the Justice Ministry as well as human rights groups have welcomed the development.
The Justice Ministry said it "is constantly stressing the role of courts in the interpretation of laws" and highlighted the importance of the decision as a precedent that does away with the narrow interpretation of Article 297 and can help form case law.
"We are aware of the increasingly severe problem of hate speech, which has an extremely negative effect on society and social discourse," it wrote.
The ministry also pointed to warnings by the Council of Europe's anti-racism commission regarding problems in Slovenia "with the understanding of legal issues pertaining to hate speech and problems with the social response to the spreading of hate speech".
Equal Opportunities Ombudsman Miha Lobnik also pointed to warnings from abroad and spoke of "an important turning point". He noted the prosecution of hate speech had been on the decline even though the phenomenon had been spreading in the public.
Andrej Motl of the online watchdog Spletno Oko (Online Eye) said the decision would significantly affect the prosecution of public incitement of hate, violence and intolerance, while Spletno Oko also expects the Office of the State Prosecutor General will change its guidelines accordingly.
Motl, who said hate speech had moved into the realm of the normal in recent years, also highlighted the report of the CoE's European Commission against Racism and Intolerance (ECRI).
The report was released two months ago and spoke of the need to bridge, as a matter of priority, the "impunity gap in hate speech cases" in Slovenia that has resulted from an excessively strict interpretation of relevant legal provisions.
