2.1 The Social and Historical Background

The Czech Republic (comprising the historic lands of Bohemia, Moravia and Silesia) is a descendant of the Austro-Hungarian Empire, and remained strongly germanised under Habsburg rule for centuries. Peacefully separated from Slovakia, the country has existed de jure within its present borders since 1993. Further historical factors also explain the contemporary national composition of the Czech Republic and the specificities of nationalist discourse. The historically large Jewish and Roma minorities were tragically wiped out during the Nazi occupation, while a significant German minority was either deported or had escaped from the country after the Second World War. In the contemporary Czech Republic and its ten million-strong population, Roma and Germans constitute the largest minority groups. Other ethnic minorities include Poles, Ruthenians (Rusyns) and Hungarians.Footnote ²⁶

2.2 The Legislative Framework

In its 2009 report, the European Commission against Racism and Intolerance noted that ‘there is still no comprehensive anti-discrimination legislation in force in the Czech Republic’.Footnote ²⁷ At the same time, the Commission suggested that the Czech Charter of Fundamental Rights and FreedomsFootnote ²⁸ does not appear to provide effective protection against racial discrimination. On 17 June 2009 the Czech Republic adopted anti-discrimination legislation, which guarantees the right to equal treatment and bans discrimination in such areas as access to employment, business, education, healthcare and social security on the grounds of sex, age, disability, race, ethnic origin, nationality, sexual orientation, religious affiliation and faith or worldview. The last-minute passing of the Anti-Discrimination ActFootnote ²⁹ by the Czech Chamber of Deputies was a necessary step to avoid legal proceedings by the European Commission for failing to implement the obligations contained in the EU ‘Race Equality’ DirectiveFootnote ³⁰ and the ‘Employment Equality’ Directive.Footnote ³¹

The Czech Republic has signed but not ratified Protocol 12 of the European Convention on Human Rights,Footnote ³² an important anti-discrimination instrument of the Council of Europe (as of October 2013, it has 18 parties and 19 signatories), which makes the non-discrimination provision of the Convention free-standing. Similarly, it has neither signed nor ratified the Additional Protocol to the Convention on Cybercrime,Footnote ³³ concerning the criminalisation of acts of a racist or xenophobic nature committed through computer systems. The non-recognition of corporate criminal liability in domestic law prevents ratification of this Convention, without which the Additional Protocol cannot be ratified.

In 2010, a new Criminal Code (Trestní zákoník, enacted in 2009) came into force, strengthening ‘militant’ aspects. The case law described in this article was based on the provisions of the previous 1961 Code, which are essentially similar on the issues of hate speech. Section 42(b) of the new Code details hate crimes explicitly.Footnote ³⁴ Racist motivations remain a specific aggravating circumstance that judges are required to take into account when sentencing offenders (section 42(b)). The additional aggravating circumstances have been added for a number of offences, where the commission of an offence is motivated by real or perceived race, ethnicity, nationality, religious or political convictions, or real or perceived lack of religious belief. Section 352 prohibits violence against a group of inhabitants and individuals.

The clauses on pure hate speech are provided by sections 355 and 356. The former prohibits the defamation of a nation, race, ethnic or other group of persons on grounds, inter alia, of an individual's or group's real or perceived race, or membership of an ethnic group, nationality, or political or religious convictions, or lack thereof. Under the terms of this provision, racist motivations may be considered as an aggravating circumstance only in relation to the media (referring to situations where the offence is committed through the press, film, radio, television, a publicly accessible computer network or other similarly effective means). In contrast, section 356 does not link ‘hateful’ utterances to any particular forum, and prohibits incitement to racial, national, ethnic, class or religious hatred and the promotion of restrictions on human rights and freedoms. The Code provides for a two-year prison term upon conviction. Section 356 of the Czech Criminal Code thus sets an explicit content-based restriction on freedom of expression.

Moreover, under section 403 the establishment, support, promotion or publicising of a movement that aims to suppress the rights and freedoms of individuals is prohibited. The commission of this offence through a publicly accessible computer network has been added as an aggravating circumstance (přitěžující okolnost). In addition, section 404 prohibits demonstrations of sympathy with such movements.

The 2009 Report of the European Commission against Racism and Intolerance includes reference to the Right of Assembly Act No 84/1990, which enables the authorities to stop an otherwise lawful demonstration immediately if illegal activities occur. From the strict standpoint of censorship and the right to free association, this is a fairly contestable measure. The rule has been applied successfully in the past to disperse a neo-Nazi parade at which racist slogans were chanted. However, this Act has not avoided the scrutiny of the Constitutional Court. Previously, the Act left a wide margin of action for officials, envisaging that a planned event should be prohibited within three days of receiving notification of the event. The Supreme Administrative Court (Nejvyšší správní soud) has examined the banning by the Mayor of Plzeň of a march that had been approved by a lower authority a month earlier.Footnote ³⁵

2.3 The Constitutional Court

Interestingly, the first and only decision on freedom of speech in the brief history of the Czechoslovak Constitutional Court (which had existed for less than a year in 1992 when it was succeeded by the Czech and Slovak Constitutional Courts) addressed the problem of hate speech, stemming from sections 260 and 261 of the Criminal Code 1961.Footnote ³⁶ In the recent Criminal Code of 2009, these clauses correspond to the somewhat modified formulations in sections 355 and 356, described above (see Section 2.2). The earlier Criminal Code embraced those clauses under the reference of ‘support and promotion aimed at suppressing human rights and freedoms’ (podpora a propagace hnutí směřujících k potlačení práv a svobod člověka).

The 1992 case started as a petition by a group of 52 members of parliament who challenged the conformity of sections 260 and 261 of the Criminal Code (amended in 1991) with constitutional texts and international instruments. The amendment brought communist propaganda within the scope of hate speech.Footnote ³⁷ The petitioners claimed first that the clauses were incompatible with the principle of nullum crimen sine lege. On the one hand, the term ‘communism’ was not precisely defined in the Code or elsewhere; on the other hand, such definition constitutes an absolute prerequisite for the criminalisation of conduct consisting of the support or propagation of communism. Consequently, the restriction of the freedom of expression in question exceeded the bounds of permissible limitations. Furthermore, the petitioners claimed that it was impossible for other state and public bodies or public law institutions to apply this criminal law prohibition.

The Constitutional Court did not support the petitioners' claim that, by adopting sections 260 and 261, the state had bound itself to an exclusive ideology. It saw no reason to conclude that only a certain ideology was being allowed to express itself merely because the law criminalised fascist and communist movements that were explicitly directed at the suppression of civil rights or at the declaration of hatred designated by the concept of malicious intent. The support for such ideologies, which satisfy the material elements of section 260, was declared to be both impermissible and criminal, while all other ideologies were allowed unrestricted dissemination.

Within a few years after the dissolution of Czechoslovakia, the Czech Constitutional Court was snowed under with the review of substantially similar hate speech cases.Footnote ³⁸ These numerous judgments from the 1990s concerned local authority ordinances from various cities and small towns (Ústí nad Labem, Brno, Jičín, Hořice v Podkrkonoší, Nová Paka, Pardubice, Vysoké nad Jizerou, Náchod, Červený Kostelec). The ordinances outlawed the promotion of movements that spread national, racial, religious or class hatred. In all of these judgments, the Court pointed out the incompatibility of the local specification of the hate speech provisions stemming from the Criminal Code (sections 260 and 261) with Article 39 of the Charter of Fundamental Rights and Freedoms,Footnote ³⁹ and annulled the ordinances. The local instruments were struck down because they could not define the substance of the crime, even though they were simply paraphrasing the provisions of the Criminal Code. According to the Court, it is only the law (jen zákon) and not local ordinances that may determine which acts constitute a crime and the penalties or other detriments to rights or property that may be imposed (nullum crimen, nulla poena sine lege).

Finally, the most recent hate speech judgment of the Constitutional Court (in 2009) dealt with anti-Romani expression.Footnote ⁴⁰ In 2001, the applicant, František Kroščen, brought a claim before an ordinary court against a restaurant owner. For some time, the restaurant premises had displayed a statue of a Greek goddess of antiquity holding a baseball bat in her hand with a visible inscription ‘Na cikány’ (a rough translation being ‘Get the gypsies!’). During the 1990s, members of the skinhead subculture often used baseball bats as a symbol to represent the intimidation of Romani communities. Both a regional and the High (vrchní) Court rejected this claim. Despite the fact that both found the defendant's action to be ‘inappropriate’, they refused to hold the defendant liable for infringement of personality protection rights. According to established case law, the scope of the provision on personality protection did not cover harassment. The claimant appealed repeatedly against the decisions of the lower courts until he reached the Supreme Court.Footnote ⁴¹ The Court had to reverse the appeal judgments of the lower courts twice, ordering them to decide on the merits again. After the third unsuccessful appeal to the Supreme Court against the decision of the lower courts, the applicant submitted a complaint to the Constitutional Court. Of crucial significance in coming to its decision was that the Constitutional Court referred to the EU Race Directive,Footnote ⁴² thus adding the available framework of EU non-discrimination law to reinforce the militant judicial narrative beyond national law and the Council of Europe. Applying the Race Directive, the Court cancelled the judgment of the Supreme and High Courts and referred the case back to the High Court for a rehearing. In this respect, it is important to mention that in 2008 the Court of Justice of the European Union (CJEU) used the Race Directive to frame the militant vision of hate speech into EU non-discrimination law.Footnote ⁴³

2.4 The Supreme Court

One of the most important judgments on hate speech in the Czech Republic was given by the Supreme Court (Nejvyšší soud).Footnote ⁴⁴ The Court considered the appeal of a publisher, Michal Zítko, who had been convicted of releasing a Czech translation of Adolf Hitler's Mein Kampf. The book combines elements of autobiography with an exposition of Hitler's political ideology, and remains banned in a number of European countries. The Czech translation (Můj boj) was released by the publishing house, Otakar, in March 2000 without any additional comments or annotation. It did, however, contain an explicit anti-racist disclaimer.

The Supreme Court annulled Zítko's conviction and returned the matter to the police for further investigation. The lower courts had viewed the distribution of the Czech version of the book under provisions that prohibited support for fascism or anti-Semitism. Zítko was originally given a three-year suspended prison sentence and fined CZK 2,000,000 (approximately €50,000). Failure to pay the fine would have resulted in a one-year prison term. The Supreme Court found this interpretation of section 260 of the Criminal Code to be overly broad, and held that it was necessary within the meaning of the crime to prove the promotion of an actual movement and an action at the time of the crime. This means that there should be a specific movement to some extent organised and structured (organizovaná a strukturovaná skupina osob), with an explicit common position and malicious purposes as listed in section 260. Anti-Semitism is not a movement but an ideology that promotes hatred of Jews, which can serve as an intellectual resource for various movements. Moreover, it was necessary, according to the Supreme Court, to demonstrate that the conduct of the accused (in this case, the release of Mein Kampf) was designed to encourage and promote this movement.

2.5 An Overview of the Current Hate Speech Issues

This reconstruction of the Mein Kampf case before the Supreme Court is incomplete without insight into some sensitive aspects of the neo-Nazi movement in the Czech Republic. The latest ECRI Report on the Czech Republic, from 2009, focuses particular attention on the disturbing evidence of intensification of the activities of extreme right wing groups, whose repeated demonstrations have led to escalating tensions and at times violent acts, especially towards the Roma community.Footnote ⁴⁵ In 2008, the Národní strana (National Party, in existence since 2002) published sweeping attacks on Muslims on its website, following the death of the Czech ambassador to Pakistan in a terrorist bombing. However, the legal proceedings against the party were dismissed by the relevant court, which did not find that any law had been violated. With similarities to the analogous Polish and Hungarian organisations, the National Party strongly opposes Czech membership of the EU. In 2007 the party established a paramilitary group, Národní garda (National Guard). Racism and homophobia have been central to the populism advanced by the organisation. The ECRI noted, among other issues, that the group attracted attention by organising patrols outside a school in mid-2008, ostensibly to protect local schoolchildren from assaults by Roma children, as well as attacking the participants of Gay Pride in Brno in June 2008.Footnote ⁴⁶ Marches with hate speech slogans have been organised with increasing frequency and publicity by the Workers' PartyFootnote ⁴⁷ and well-known neo-Nazi groups such as the National Resistance and the Autonomous Nationalists. Nazi groups have tried to organise patrol groups to ‘monitor’ the situation between the majority and the so-called ‘inadaptable’ (nepřizpůsobivý) minority (a derogatory term referring to the Roma).

Another judgment from a lower local court illustrates the application of the hate speech provisions in the Criminal Code. In July 2009, a Czech singer, Michal Moravec from the neo-Nazi band Imperium, was sentenced by a court in the southern city of České Budějovice to a three-year prison term for the promotion of fascism in his song lyrics. An appeal court upheld the conviction. The subject of the case was Imperium's album Triumf vůle (Triumph of the Will), the title of which echoed the Nazi propaganda film, Triumph des Willens, shot in the 1930s by Leni Riefestahl. The infamous film chronicled the 1934 Nazi Party Congress in Nuremberg. The Court found evidence of hateful propaganda in the lyrics of this album. One of the songs, for example, contained the phrase ‘chceš odplatu, chceš řešení, chceš bílou revoluci’ (‘you want revenge, want a solution, you want a white revolution’). The defence argued that, taken abstractly, such wording does not contain any explicit promotion of hatred. Following the American test of content-based restriction with no clear present danger or hate crimeFootnote ⁴⁸ the case would have failed. However, the Czech court followed the Strasbourg model of contextualised reading, under which a speech act is not complete without a contextual affirmation (such as historical references, evidence of group persecution or racial tensions, presence of a disclaimer or lack thereof, the audience and the nature of the source of expression, visual background). Michal Moravec was a member of the militant neo-Nazi movement Národní odpor (National Resistance), and was invited to perform his songs during its meetings. In addition, Ivo Svoboda, a court expert on extremism from a public university (Univerzita obrany, the University of Defence), confirmed that the cover design of the album contained the traditional symbolic elements of racist propaganda; this led to the criminal conviction of Moravec.Footnote ⁴⁹

Under the Broadcasting Act and the Czech Television Act, the broadcast media are subject to a duty to strike the right balance and, in particular, not to promote intolerance. However, civil society actors report that, while some journalists are sympathetic to minority issues and are willing to cover positive stories, feedback on such stories is generally negative. The tabloid press frequently typecasts members of the Romani community by definition as people who steal, who fail to pay their rent, who are violent and who refuse to work.Footnote ⁵⁰

Under this atmosphere of constant ostracism and theatrical demonisation, many Czech Roma prefer to hide their identity. In the 2001 census, for example, only 11,716 people identified themselves as Roma, while informal estimates suggest that the actual number is between 15 to 30 times higher. In the course of the ‘Velvet divorce’ from Slovakia, a new law on citizenship was enacted, which arguably was designed to prevent Roma from obtaining the new Czech citizenship. This law was eventually amended in 1999.Footnote ⁵¹ The historic prejudices, the caricaturing of the Roma minority in the media and the climate of radical racist slurs create an atmosphere of constant intimidation for Czech Romani communities. An exemplary episode of this hateful climate is the decision by the local authority of Ústí nad Labem to construct a wall dividing houses inhabited by Roma from the rest of the settlement.Footnote ⁵² The decision was ruled as unlawful under anti-racist provisions before the regional and higher courts.

In another case, the Supreme Court was asked to award compensation to Romani individuals for refusal of service in a restaurant.Footnote ⁵³ In a similar case from 2005 the regional court in Ostrava decided in favour of Romani plaintiffs who had been refused service in a restaurant. The plaintiffs conducted an experiment on the restaurant premises. While the ethnic Czech customers were properly served, the Romani would-be customers were told that the restaurant was a private club and therefore they could not have access to any of its services. The Ostrava regional court awarded compensation of CZK 50,000 (approximately €2,000) to each of the plaintiffs. However, the High Court in Olomouc reduced the amount of compensation, following which the plaintiffs appealed to the Supreme Court. The Supreme Court annulled the decision of the High Court in Olomouc, holding that it was irrelevant that the plaintiffs were conducting situation testing when experiencing discriminatory treatment.Footnote ⁵⁴ The reluctance of the lower courts to frame anti-Roma utterances into the criminal construction of hate speech is further illustrated vividly by the case before the Constitutional Court involving the restaurant statue with the baseball bat, discussed above.Footnote ⁵⁵ Neither the regional nor the higher courts considered the inscription ‘Get the gypsies’ to be an incitement to hatred or aggression.

The ECRI report highlights another case, brought under the hate speech provisions by the deputy chair of the Government Council for Roma Community Affairs against an extreme right-wing party, followed by two judicial decisions of the lower courts in 2008 concerning neo-Nazi websites. The first decision upheld a three-year suspended sentence ‘for a supporter of a skinhead convicted of launching and running neo-Nazi web pages’. In the second decision, two men were sentenced to prison for two and three years respectively for running a neo-Nazi website that supported and promoted hateful movements.Footnote ⁵⁶

In synthesis, the Czech legislative and judicial approaches to hate speech illustrate the mainstreaming of constitutionalism based on the presumptions of militant democracy – the idea that certain freedoms (first of all, freedom of expression and freedom of association) should be limited to prevent the growth of authoritarianism through the unrestricted exercise of civil liberties. However, the case of anti-Roma hate speech reveals the unwillingness of the lower courts to frame anti-Romanyism into the core of the protective mechanism. The slow changes in the dominant policies are heavily influenced by the incentives from Strasbourg and Brussels. The hate speech sagas demonstrate that the outcome often depends on the persistence of social movements to proceed with a case up to the Supreme and Constitutional Courts.

3.1 The Social and Historical Background

Like the Czech Republic, Hungary descends from the Austro-Hungarian dual monarchy. Unlike Poland and the Czech Republic, it underwent Ottoman occupation in the sixteenth and seventeenth centuries. Until 1918, Hungary remained under Austrian Habsburg rule, experiencing only a relatively short period of independence before the installation of the communist regime in 1948.

The historical context explains the predispositions of contemporary nationalism in Hungary, as well as its ethnic composition. Towards the end of the nineteenth century, non-Hungarian nationalities living within the borders of the country constituted more than half of the population. Following the revision of the borders after the First World War, this proportion changed significantly. Some 33 per cent of Hungarians populating the Carpathian Basin (around 3 million people) found themselves outside the borders of the new country, while the number of minorities living within the borders of Hungary declined. As in the case of the Czech Republic and Poland, a very significant part of the Jewish (who often comprised half of an urban population) and Romani populations were tragically reduced during the Second World War. Under the post-war arrangements in CEE, Hungary was accused of acting as a Nazi satellite and lost a large part of its territory. Those arrangements provoked an enormous sense of nationalist victimhood among Hungarians, partly as a result of the large portions of the Magyar population left outside the country's borders, especially in Romanian Transylvania and the Slovak Republic. This peculiar victimhood has become a strong element of the Hungarian nationalist ethos, with explicit implications for the problems of hate speech and historical revisionism.Footnote ⁵⁷

Act LXXVII of 1993 on the Rights of National and Ethnic Minorities recognises 13 national minorities or ethnic groups. It proclaims the protection of their educational and linguistic rights and safeguards a system of local self-government. Among the ten million population of Hungary, Roma constitute the largest minority (around 400,000 to 600,000). Other recognised minority groups include Armenians, Bulgarians, Croats (around 90,000 to 100,000), Germans (around 200,000), Greeks, Poles, Romanians, Ruthenians (Rusyns), Serbians, Slovaks (around 100,000), Slovenians and Ukrainians.Footnote ⁵⁸ Unlike Poland, predominantly Catholic Hungary is a significantly less religious country, with a long tradition of religious tolerance and strong secularisation left over from the communist period.Footnote ⁵⁹

3.2 The Legislative Framework

The Hungarian Constitution grants protection to national and ethnic minorities: it ensures opportunities for their collective participation in public life, and enables such groups to foster their own culture and to use and receive school instruction in their mother tongue. Moreover, it protects their freedom to use their names as spelled and pronounced in their own language. The Constitution and Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (Ombudsman) provide for the institution of a Parliamentary Commissioner to protect the rights of national and ethnic minorities. The Office for National and Ethnic Minorities, established in 1990, is responsible for coordinating the implementation of the government's objectives. Furthermore, the Minorities Ombudsman is responsible for investigating any abuse of rights coming to her attention and for initiating general and individual measures to remedy such abuse. According to Hungarian constitutional scholar, Renáta Uitz, the Minorities Ombudsman was successful in prompting the Constitutional Court to remind Parliament about missing guarantees (or rules) for the adequate political representation of ethnic and national minorities at both the national governmental and local levels.Footnote ⁶⁰

Overall, the institutional structure of minority protection in Hungary appears to be more developed than it is in Poland and the Czech Republic, especially with regard to the current transposition of the EU equal treatment provisions. The enactment of Act CXXV on Equal Treatment and Promotion of Equal Opportunities in December 2003 introduced into Hungarian law a prohibition on discrimination in a variety of public and private law relationships, including racial origin, nationality or ethnicity, mother tongue and religious convictions, and the subsequent establishment of the Equal Treatment Authority in 2005. It provided individuals with a direct avenue of redress for violations of non-discrimination norms and generated considerable interest in Hungarian society, with nearly 500 complaints being lodged in the first year alone – a number that has risen steadily ever since.Footnote ⁶¹ In this respect, Hungary has been several steps ahead of the Czech Republic and Poland. In order to improve accessibility for individuals and NGOs outside Budapest, the Equal Treatment Authority signed a formal cooperation agreement with the Houses of Equal Opportunities that now operate in each of Hungary's 19 counties.

Most importantly, the Act also enables NGOs to act as plaintiffs (actio popularis) in cases where they consider a provision to be discriminatory, even though no individual has yet suffered any harm. The option of turning to the Equal Treatment Authority has empowered plaintiffs to request the fining of offending parties and to publish the names of bodies that have breached the requirement of equal treatment. Like the Czech Republic and Poland, at the time of writing Hungary has not yet ratified Protocol 12 to the European Convention on Human Rights,Footnote ⁶² nor the Additional Protocol to the Convention on Cybercrime concerning the criminalisation of acts of a racist or xenophobic nature committed through computer systems.Footnote ⁶³ Both of these instruments are highly relevant to hate speech within the Council of Europe. The 2009 ECRI report on Hungary notes that the Hungarian authorities envisaged serious incompatibilities for the Protocol with the Hungarian vision of freedom of speech:Footnote ⁶⁴

Like the analogous provisions in the Czech Code, Article 174B of the Hungarian Criminal Code defines specific offences as hate crimes on the grounds of national, ethnic, racial or religious affiliation. These offences are subject to more severe penalties than analogous offences (acts of violence, cruelty or coercion by threats) committed against persons not belonging to such groups. Article 269 of the Criminal Code contains a hate speech provision, several formulations of which have been consistently challenged before the Constitutional Court. Its current version prohibits incitement against a community (Article 269/B). In addition, several other provisions (on defamation, libel and desecration) provide certain scope for accusations of a hate speech nature before the courts.

In concluding this account of the socio-legal context of free speech legislation in Hungary, a recent symptomatic shift towards censorship should be mentioned. Following the victory of the conservative right under the leadership of the current Prime Minister, Viktor Orbán, in April 2010, the Hungarian Parliament passed a new media law in the autumn of 2010.Footnote ⁶⁵ The law establishes a government-controlled media council with the authority to supervise independent media, and issue decrees and fines. This law has attracted serious criticism from various organisations and constitutional scholars as threatening the democratic gains of the last 20 years.Footnote ⁶⁶

3.3 The Hate Speech Saga before the Constitutional Court

When describing the post-communist reform of Hungarian criminal law, Gábor Halmai noted that in 1989, in parallel with the comprehensive amendment of the Constitution, a modification of the 1978 Criminal Code lifted incitement to hatred from the category of crimes against the State and, with its criminal liability greatly reduced, placed it among the offences against public peace.Footnote ⁶⁷ The new clause was attributed to the taxonomy of incitement against the community. The Code detailed two crimes, initially under this title (Article 269): (1) incitement to hatred, and (2) an offence against a community in public or in the media. This two-fold construction by the Hungarian legislators has given rise to a lengthy judicial saga, in several parts, before the Constitutional Court.

Wojciech Sadurski quotes the words of Chief Justice László Sólyom (who later became President of Hungary from 2005 to 2010) who declared that the first decision on hate speech in 1992Footnote ⁶⁸ ‘opened the “Hungarian First Amendment” [sic] of the Constitutional Court, laying down at the start a liberal, extensive interpretation of the right to the freedom of expression’.Footnote ⁶⁹ The parallels with First Amendment adjudication do not end with this quote. Similarly, Hungarian scholar, Petér Molnár, has suggested that the prevailing argument behind the hate speech decisions of the Constitutional Court was the adoption of the American approach, which he characterises as ‘risky, but still the most prudent’.Footnote ⁷⁰ In Decision 30 of 1992, the Constitutional Court rejected a petition that sought a determination of unconstitutionality for the first part of Article 269 (incitement to hatred). Instead, it took a substantially different position with regard to the second part (offence against the community), essentially echoing the wording of American judicial practice.Footnote ⁷¹

The case was referred to the Constitutional Court by a judge of a lower court sitting in a hate speech case against a right-wing newspaper which had published statements denigrating a nationality. The petitioners sought an ex post facto review of the constitutionality of Article 269 of the Criminal Code. The first part of the article provided: ‘Anyone who, before a large public audience, incited hatred against the Hungarian nation, any other nationality, people, religion or race, or certain groups among the population commits an offence punishable by up to three years’ imprisonment'.

The second part of Article 269 stated as follows: ‘Anyone in the same circumstances who uses an offensive or denigrating expression or commits similar acts against the groups above, commits an offence punishable by up to one year's imprisonment, corrective training or a fine’.

The difference between the two parts of the article thus essentially turned on the ‘incitement of hatred’ (arguably conceived in a mode similar to the clear and present danger test) on the one hand, and pure offensive and denigrating expression on the other. Theoretically, both constructions cover the domain of hate speech. When describing the background to the case, András Sajó noted that during the hearings ‘both the attorney general and the president of the Supreme Court argued that the “offensive speech” provision was constitutional, since it was regarded as a necessary means for protecting minorities and pubic order’. They suggested that democracy is not sufficiently stable and that extremist speech could therefore negatively affect the democratic order.Footnote ⁷²

The restriction of freedom of expression under Article 269(1) was justified by the historically proven harmful effects of incitement to hatred on certain groups, the protection of fundamental constitutional values and Hungary's compliance with international law. The Constitutional Court found that the first part of Article 269 was sufficiently precise and did not define too broadly the scope of behaviour subject to criminal sanction. The criteria of specificity, clear definition and demarcation (and by their virtue, proportionality) were thus met.

However, the Court held that Article 269(2) was unconstitutional. In rhetorical terms, the judges constructed freedom of expression in that case through the metaphorical lens of the ‘mother right to communication’.Footnote ⁷³ The Constitution guaranteed free communication as a manifestation of individual behaviour and as a social process. At this point, the Hungarian Constitutional Court launched two traditions of free speech construction, marrying the American test of content neutrality with Strasbourg adherence to the ideals of militant democracy. Article 269(2) merely tackled opinion on the basis of content. The message conveyed by certain utterances was so clearly linked to a given situation and cultural context (which was subject to change) that the abstract, hypothetical definition of an offensive or denigrating expression (in the absence of an actual breach of the peace) was just an assumption that did not sufficiently justify the restriction of the external boundary (the violation of another right), which itself was uncertain. Criminal sanctions could be applied for the defence of other rights and only when unavoidably necessary. They were not to be used as a means by which to shape public opinion or the matter of political debate. Consequently, although upholding the first part of Article 262(1), the second part of Article 262(2) was declared null and void.

In explaining the difference, András Sajó draws parallels between the Hungarian doctrine of ‘inciting words’ and the American ‘fighting words’ (as in cases such as Chaplinsky Footnote ⁷⁴ and Beauharnais Footnote ⁷⁵).Footnote ⁷⁶ However, Hungarian balancing is far from the American approach in Skokie Footnote ⁷⁷ and R A V,Footnote ⁷⁸ and even further from the case law concerning totalitarian insignia, described below.

According to Chief Justice László Sólyom, in its 1992 hate speech decision the Constitutional Court ‘has established a hierarchy of basic rights in which the freedom of expression ranks second to the right to life and human dignity’.Footnote ⁷⁹ Despite the implicit quotation of the ‘clear and present danger test’ in the Hungarian text in English (when reversing the crime of ‘offending a community’), Wojciech Sadurski described the case as more libertarian in its rhetoric than in its actual argument.Footnote ⁸⁰ On the one hand, Sadurski views the decision as ‘an impressive array of constructions supporting a very robust conception of freedom of expression’ and promoting an ‘expansive strongly libertarian theoretical construction’.Footnote ⁸¹ However, as far as the first and most important part of the judgment (assessing the crime of incitement to hatred) is concerned, Sadurski is not that optimistic about the libertarian potential of the Hungarian Constitutional Court:Footnote ⁸²

Consequently, Sadurski differentiates between incitement to hatred and incitement to violence. He maintains that the distinction is not evident in the judgment because incitement to hatred is characterised as ‘the emotional preparation for the use of violence’ and, as such, ‘an abuse of the freedom of expression’. Kim Scheppele draws attention to the Hungarian construction of dignity juxtaposed as a higher value to freedom of speech:Footnote ⁸³

The battle over Article 262 of the Criminal Code has continued since this case both in Parliament and within the government. Attempts to rebut the approach of the Hungarian Court have been impressively numerous. The rather neutral formulation of Article 262(1) permitted by the Court was criticised as being toothless in terms of providing an actual criminal basis for prosecution. Several redefinitions of Article 262, widening the scope of penalised hate speech beyond a clear and present danger test, have been suggested. However, in a subsequent series of judgments, the Constitutional Court of Hungary has declined the opportunity to broaden the scope of the prohibited ‘incitement’ to: ‘arousal of hatred’;Footnote ⁸⁴ ‘inflaming hatred’;Footnote ⁸⁵ ‘gestures reminiscent of a totalitarian regime and denigrating a member of a given group’;Footnote ⁸⁶ as well as an attempt to prescribe hate speech prohibition in the Civil Code.Footnote ⁸⁷

Somewhat symbolically, the figure of László Sólyom – at that time President of Hungary (2005–10) and formerly President of the extremely activist Constitutional Court (1990–98), and famous for his appraisal of the earlier constitutional decisions as the ‘Hungarian First Amendment’ – became prominent in the context of free speech adjudication. Before signing the bills proposed by Parliament, he initiated at least two cases before the Constitutional Court (Decisions 95/2008 and 96/2008). In his petitions, the President expressed concern that the amendments to the criminal and civil codes restricted the fundamental right of freedom of expression. In this rich jurisprudence of the Hungarian Constitutional Court one can deduce a very strong emphasis on the requirement for legal certainty (comparable to Normenklarheit in the practice of Bundesverfassungsgericht) as the most serious threshold in the assessment of the proportionality of free speech restrictions.

There is an intriguing legal story from the Hungarian judicial saga on the prohibition of totalitarian (and, in particular, communist) symbols. One might compare it with the most famous of Hungarian dances, the czardas, which starts slowly but ends with a very fast tempo. The story of the criminalisation of totalitarian symbols in Hungary mimics this pattern. It started as long and fairly complicated legal proceedings before the Constitutional Court,Footnote ⁸⁸ developed into a case before national courts, at some point reached the Court of Justice of the European Union (CJEU) in Luxembourg (in its preliminary ruling, the Court rejected the case as falling outside ratione materiae)Footnote ⁸⁹ and ended up in Strasbourg, where the European Court of Human Rights produced a rather fast and disputable judgment, overturning the national constitutional perspective on the issue. Hungary took by far the most legally explicit position among the CEE countries on the issue, penalising the use of communist and Nazi symbols.Footnote ⁹⁰ In the case under consideration, the criminal proceedings were brought against Mr Attila Vajnai, Vice-President of the Hungarian Worker's Party, for displaying a five-point red star on his jacket during a demonstration held in Budapest on 21 February 2003. A police officer on duty requested that he remove the symbol, which he agreed to do. In its judgment of 11 March 2004, the Central District Court in Pest found Mr Vajnai guilty of having used a ‘totalitarian symbol’ in violation of Article 269/B(1)(b) of the Criminal Code. Unexpectedly for many, the Strasbourg Court in Vajnai v Hungary not only refused to reject the case instantly for incompatibility with Article 17 ECHR, but went as far as to find a violation of Article 10 ECHR (freedom of expression). The Court therefore held that the ban was overly broad in view of the multiple meanings of the symbol.Footnote ⁹¹ In 2013, the newly formed Constitutional Court of Hungary had no other choice but to ‘revise’ the provision on totalitarian symbols as unconstitutional.Footnote ⁹²

3.4 An Overview of the Current Hate Speech Issues

The 2009 monitoring report on Hungary by the European Commission against Racism and Intolerance maintains that the very high level of constitutional protection afforded to freedom of expression has made it impossible for the authorities to legislate effectively against racist expression:Footnote ⁹³

This observation appears to be somewhat simplistic, in particular for explaining the available avenues of legal mobilisation for social movements. As has been previously demonstrated, the approach of the Hungarian Constitutional Court has actually been far more sophisticated and the general non-acceptance of the incitement to hatred remains in line with dominant ‘Strasbourg’ visions of militant democracy: the prohibition of incitement to hatred of certain groups is still prescribed by statute, in the Criminal Code. That ‘incitement’ clause has been occasionally invoked in criminal proceedings by national courts. Nonetheless, there is some substance to ECRI's ‘invisible’ argument. The hate speech decisions of the Hungarian Constitutional Court have made ordinary courts extremely reluctant to apply Article 269 of the Criminal Code.

Three categories of hate speech are particularly pertinent in the Hungarian context: anti-Semitic, anti-Roma and homophobic utterances. Once an important hub for Central European Jews, Budapest remains a significant cultural centre for Hungarian Jews, living both in the country and in diaspora abroad. The Nazi invasion of Hungary in 1944 led to the murder of approximately 600,000 Hungarian Jews, with considerable collaboration by the Hungarian authorities.Footnote ⁹⁴ In 1994, the fiftieth anniversary of the Holocaust in Hungary, the government officially apologised for Hungarian complicity in the Shoah.

After a rally by several hundred skinheads in Budapest in 1996, the police questioned a neo-Nazi leader, Albert Szabó, about an anti-Semitic speech he gave as an alleged incitement against a community. A year earlier, the Attorney General had initiated a lawsuit against Szabó and charged him with racial incitement against Roma and Jews. At his trial in March 1996, despite general public expectations and to the consternation of many, Szabó was acquitted. The court concluded that there had been no incitement to racial hatred and that the defendant had merely availed himself of the right of freedom of speech.

A story similar to the Czech legal controversy surrounding the publication of Mein Kampf arose also in Hungary when, in the 1990s, the book was published in a Hungarian translation. Unlike the Czech (Michal Zítko) case – in which the publisher provided a genuine disclaimer in the book denying any allegations of hate speech ab initio – the Hungarian publisher, Áron Monús, was openly anti-Semitic and even had a previous conviction for his book Conspiracy: the Nietzschean Empire. The latter publication (which echoes the sentiments expressed in The Protocols of the Elders of Zion and Mein Kampf) was confiscated by the authorities. A Hungarian émigré, Monús claimed that Mein Kampf belonged to universal cultural heritage and should be made available in Hungarian ‘to set things straight’. A court overturned the ban after Monús appealed on the basis of freedom of speech.Footnote ⁹⁵

The intensification of anti-Roma hate speech is another troublesome phenomenon in the Hungarian public discourse. As in the case of the similarly titled Czech organisation (Národní garda), this trend can be illustrated with the rise of the radical right-wing Hungarian Guard (Magyar Gárda). Since its creation in 2007, the Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations. Despite apparently innocuous articles of association, amongst the group's chief messages is the defence of ethnic Hungarians against so-called cigánybűnözés (Gypsy crime). Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with Nazi insignia and flags.Footnote ⁹⁶ Furthermore, the recent anti-Roma violence of 2012 and the recurrent anti-Semitism following the rise of right-wing parties in Hungary are alarming facts.Footnote ⁹⁷ In 2010, 17 per cent of the population voted for the explicitly anti-Semitic and anti-Romani Jobbik party.Footnote ⁹⁸

In 2008, the Prosecutor General initiated court proceedings to ban the Gárda, alleging that its activities differ from its memorandum of association. The case was delayed several times. On the first day of litigation, members of the Gárda physically blocked journalists from entering the court, leading to a change in court rules and creating an atmosphere of terror. On 16 December 2008, the Metropolitan Court of Budapest (Fővárosi Bíróság), as the court of first instance, dissolved the organisation. It held that the activities of the organisation were discriminatory towards minorities. The Gárda appealed against the judgment, but on 2 July 2009 the Metropolitan Court of Appeal (Fővárosi Ítélőtábla) upheld the judgment of the first instance court. Following the judgment, the Guard's representatives announced that they would apply for review by the Supreme Court and ultimately challenge the judgment before the European Court of Human Rights in Strasbourg.Footnote ⁹⁹

To sum up, Hungary is a perfect example of a transitional democracy importing free speech transplants from both Western Europe and the United States. The legislative framework in Hungary is certainly illustrative of the classical concerns of militant democracy. However, the Hungarian case demonstrates an unusual attempt to marry the continental Volksverhetzung (incitement to popular hatred, central to the constitutional ethos of militant democracy) and the American doctrines of content-neutrality, fighting words and the clear and present danger test. This contradiction has led to an exceptionally rich jurisprudence for the Constitutional Court, which in numerous judgments had to restrict Parliament's attempts to flesh out the core of the criminal provision. Against the backdrop of the provision's constant challenge in the Constitutional Court, the lower courts became unwilling to prosecute the virulent haters. However, there were quite a few examples in which the higher courts did side with the concerns of militant democracy (for example, in the Vajnai and Gárda cases). Anti-Semitic, anti-Roma and homophobic hate speech underline the rhetorical fallacies of the ever-strong radical right in the landscape of Hungarian politics, the media and social life.

4.1 The Social and Historical Background

Paradoxically for a country that itself remained a splinter of a multinational empire, Poland is often said not to shelter any significant national minority exceeding 0.5 per cent of the population. However, the characterisation of Poland as a mono-national state is simplistic. It is impossible to adequately comprehend the hate speech issues in this country without a link with the historical specificities that sustain Polish political and religious populism.

Until the eighteenth century, Poland was a multinational commonwealth (the first Rzeczpospolita) in association with the Grand Duchy of Lithuania, comprising a grouping of pre-modern ethnicities for Poles, Lithuanians, Belarusians and Ukrainians (all of which developed their national states) on the one hand, and Jews, Roma, Tatars, etc., on the other.Footnote ¹⁰⁰ After three partitions of the Commonwealth in the eighteenth century, the country ceased to exist for almost two centuries and found its lands divided between Austria, Prussia and Russia. The whole intellectual tradition of Poland is intimately connected with the memory of the deprivation and the regaining of national statehood.Footnote ¹⁰¹ In 1918, Poland restored its sovereignty as a multinational state. The interwar period of Polish independence is celebrated in national history, with increasingly authoritarian state practices (including those affecting freedom of expression), especially with regard to national minorities, often neglected in populist discourses. The Second World War led to a further partition of Poland between Nazi Germany and Soviet Russia, as well as to a loss of approximately six million Polish citizens. Half of those who died were Jewish, whose population was almost exterminated from 3,000,000 pre-war to 300,000 at the war's end. A significant group of the Germans from Silesia were forced to leave the country after the post-war division of Europe. Furthermore, Poland had to exchange with the Soviet Union the population of the so-called Kresy Wschodnie (eastern part of the first Rzeczpospolita, comprising the then Soviet Republics of Belarus, Lithuania and Ukraine). Both of these factors, along with the annihilation of the Polish Jewry and Roma, led to the remarkable homogeneity in the ethnic composition of the country. According to the 2002 census, 96.74 per cent of the citizens consider themselves Poles. The largest minorities include Germans and Silesians, who live relatively compactly in the western parts,Footnote ¹⁰² and Belarusians who densely inhabit eastern Poland. Other minorities include the autochthonous Kashubians (in the north), Ukrainians, Lithuanians, Russians, Roma, Jews, Slovaks and Tatars. However, much larger Polish communities live in the neighbouring Belarus, Ukraine and Lithuania, where they constitute significant minority groups.Footnote ¹⁰³

This apparent ethnic homogeneity is, however, no barrier to xenophobic hate speech. The traditional nationalist populism in Poland has been nourished by a Catholic messianism, strong anti-Semitic rhetoric, anti-Roma ostracism, anti-Germanic narratives and victimhood of the lost Kresy (the eastern borderlands). As demonstrated in a remarkable sociological survey by Sergiusz Kowalski, the main addressees of hate speech in Polish media are Jews, Roma, socialists, the LGBT community, Germans and their eastern neighbours (foremost Russians and Ukrainians), as well as liberal politicians, feminists, atheists and advocates of European integration.Footnote ¹⁰⁴ The Polish hate speech narratives have been fostered by peculiar rhetoric that alleges various collaborative practices between these groups. Representative in this regard is the alleged partnership of the so-called Żydokomuna (Judeo-communism), a pejorative anti-Semitic stereotype, which came into use between the two world wars, and which blamed Jews for the rise of communism in Poland.Footnote ¹⁰⁵

Olga Wysocka gives an interesting explanation of Polish political populism, sustained by xenophobic discourses. She links it to the nineteenth century Russian movement of ‘narodnichestvo’ (народничество),Footnote ¹⁰⁶ based on the strong binary opposition of the peasant people (a concept excluding Jews and Roma) vis-à-vis the nobility in the Russian empire. Similarly, the never fulfilled Polish lustration after the fall of communism (unlike in the Czech Republic) has been a powerful supporting factor for hateful discourses. Wysocka concludes that a specific element in Polish nationalist populism is the anti-establishment emphasis that derives from dissatisfaction with the settlement of accounts with communism. This dissatisfaction is rhetorically materialised in the concept of a ‘network’ that links post-communist bureaucrats and compromised opposition forces.Footnote ¹⁰⁷ Adam Bodnar suggests that the return of right-wing politicians to government after EU accession (in the ultra-conservative government of Lech Kaczyński), coupled with a still vulnerable civil society and media, were particularly fruitful events for Polish hate speech. He concludes that, as a result of the crisis following the failure of the Constitutional Treaty, the EU failed to address the situation in Poland and showed ‘a lack of capability in dealing with [the] “step-by-step” road towards liberal democracy in Poland’.Footnote ¹⁰⁸

4.2 The Legislative Framework

After the fall of communism, Poland made considerable advances in safeguarding European standards of the right of freedom of speech and the liberal vision of media space. Public television and radio are regulated by a government agency, known as Krajowa Rada Radiofonii i Telewizji (the National Radio & TV Committee). A number of private and public television and radio channels, along with diverse publications and electronic sources in Poland, make it one of the most versatile media markets in the EU. Along with freedom of speech, the Polish Constitution guarantees non-discrimination, based on a very broad provision in Article 32:

For anyone found guilty of promoting a fascist or other totalitarian system or of inciting hatred based on national, ethnic, racial or religious differences, or for lacking any religious denomination, Article 256 of the Polish Criminal Code imposes a fine, a restriction of liberty or imprisonment for a maximum of two years. For anyone found guilty of publicly insulting a group or a particular person because of national, ethnic, racial or religious affiliation or because of the lack of any religious denomination Article 257 imposes a fine, a restriction of liberty or imprisonment for a maximum of three years. The construction of a hate speech clause beyond incitement, which failed in Hungary, had not been challenged before the Constitutional Tribunal in Poland until very recently, and it covers insults.

As in the case of the other countries discussed here, Poland has not ratified the Protocol to the Cybercrime Convention.Footnote ¹⁰⁹ A Government Plenipotentiary for Equal Treatment has recently been appointed and the National Program for Counteracting Racial Discrimination, Xenophobia and Related Intolerance (which this appointee coordinates) has been extended until 2013. Similarly, the process of transposing EU equality directives has taken much time.Footnote ¹¹⁰

4.3 Amendments to the Criminal Code

Considering the particular problem of hate speech in Poland, several NGOs and governmental agencies have drafted amendments to the Criminal Code. For instance, LGBT organisations, drawing on Swedish and Canadian experiences, suggested the addition of sexual orientation to the bases to be protected against hate speech.Footnote ¹¹¹ Thus, the inclusion of sex, gender identity, age, disability and sexual orientation in Article 119(1) was proposed to define a hate crime, along with the ‘traditional’ grounds of nationality, ethnicity, race, as well as political and religious beliefs. It was also proposed that sexual orientation should be brought within the scope of Articles 256 and 257.Footnote ¹¹² In drafting the proposals, NGOs and scholars noted the need for amendments to bring the Code into line with the EU anti-discrimination directives.

As in the case of the Hungarian discussion of the criminal clause in relation to hate speech, the very wording of ‘incitement’ (nawoływanie do nienawiści) in Article 256 of the Criminal Code was questioned as ‘enigmatic’. A scholar of criminal law, Lech Gardocki, has suggested that it is not clear why the legislator does not penalise the very fact of calling for hatred (wywoływanie nienawiści).Footnote ¹¹³

In 2008, the Polish Parliament discussed a project to amend the hate speech legislation, based on a clause structured in four parts. On 26 November 2009, the conservative President of Poland, Lech Kaczyński, signed the bill, which came into force on 8 June 2010. A new version of Article 256 of the Criminal Code contains a clause, constructed in an essentially different mode from its counterparts in Hungary and the Czech Republic, that links hate propaganda and totalitarian symbols:

Thus, section 1 of the amended Article 256 of the Criminal Code actually constitutes the incorporation of the previous variant of the article. It was perhaps to be expected, but it is nonetheless unfortunate that the conservative Polish legislator ignored the proposals of the NGOs and omitted the suggested grounds of age, gender, sexual orientation and disability from protection against hate speech. Considering the enormous scope of homophobia in Polish political populism and the aggressive role of a number of Catholic organisations and priests on this issue, the legislator's response leaves much to be desired. Section 2 of the Article is drafted in a characteristically clumsy and populist manner. What the Polish legislator performed is essentially the copying-and-pasting of an analogous clause, on pornography, from Article 202 in the Criminal Code. This approach neatly illustrates the misunderstanding among political authorities of the problem of hate speech. It is unclear how the possession (especially understood in its classical civil law meaning) of ‘hateful items’ contributes to the incitement of hatred.Footnote ¹¹⁴ In addition, the insertion of the clause on fascist and communist (as well as the unclear and overly broad ‘other totalitarian’) symbols in the scope of the article on hate speech is in itself disputable. It appears even more disputable in light of the recent judgment of the European Court of Human Rights on Hungarian communist symbols (the Vajnai case) referred to above.Footnote ¹¹⁵ It is unclear, for example, if wearing a T-shirt with an image of Che Guevara or a symbol of the North Korean Republic becomes a criminally punishable offence under the clause.

Moreover, rather oddly, the reference to the collecting activity in section 3 as a legitimate mode of possession and purchase of totalitarian material gives the green light to what is officially prohibited in France and several other EU states, namely the trade in Nazi memorabilia. The protection of the artistic use of hateful utterances or symbols in section 3 remains ultimately vague. Would it, for instance, mean that in the Polish context, the Czech case involving criminal sanctions against the leader of a neo-Nazi bandFootnote ¹¹⁶ would have failed because the hateful utterances also constituted artistic activity?

4.4 The Constitutional Tribunal

Unlike the position in the Czech Republic and Hungary, the Polish Constitutional Tribunal entered the debate on hate speech only very recently, in 2011. Although in 2008 it found another provision in the Criminal Code to be unconstitutional – the so-called ‘slander of the Polish Nation’ (pomówienie Narodu Polskiego) clause – the judgment does not deal directly with hate speech and the decision to strike out the clause was based exclusively on procedural grounds rather than per se incompatibility with freedom of speech.Footnote ¹¹⁷

In its 2011 judgment, the Tribunal was asked to assess the compatibility of the latest version of Article 256 of the Criminal Code.Footnote ¹¹⁸ While sections 2 and 3 of Article 256 (cited above) were upheld as constitutional, the part of Article 256(2) containing the wording ‘fascist, communist or other totalitarian symbols’ was ruled to be unconstitutional. Moreover, the Tribunal undertook a remarkable exercise in summarising the militant narrative of various European courts (citing primarily German and Hungarian case law, but also providing legal examples from Albania, Lithuania, Russia, Belarus and Slovakia), including the latest judgment of the European Court of Human Rights on totalitarian symbols in Vajnai.Footnote ¹¹⁹ The Tribunal specifically considered the similarity between legal regulation in Hungary and Poland. Making reference to the judgment in Vajnai, the Tribunal stated that the use of symbols which have multiple meanings may not be subject to criminal liability.Footnote ¹²⁰ Furthermore, the Tribunal considered the chilling effect of the specific provision on totalitarian symbols as overly broad, vague and capable of strengthening extremist political factions by enabling them to use examples of the state's repressive methods to gather new supporters.Footnote ¹²¹

4.5 An Overview of Other Hate Speech Issues before Courts

Following this analysis of the amendments to the Criminal Code, it is important to underline that the main problem with the country's response to hate propaganda lies not in inadequate legal drafting but rather in its indecisive implementation by Polish courts and prosecutors. It is arguably scandalous that the country's most aggressive, enormously influential and highly visible hate propagandist, Radio Maryja, an ultra-Catholic radio station and media group, not only continues to operate, but has to date avoided criminal prosecution.Footnote ¹²²

Founded in 1991 in Toruń, Radio Maryja has been run by Tadeusz Rydzyk, a highly controversial individual whose statements have been met with concern even by the Vatican. This radio station, with an audience of millions, has become known for the expression of nationalist, anti-Semitic, anti-Roma, anti-socialist, anti-German, anti-EU, anti-feminist and homophobic prejudice. A report of the Council of Europe (CoE) stated that Radio Maryja has been spreading explicitly (although less openly in recent years) anti-Semitic remarks.Footnote ¹²³ However, the National Broadcasting Council's investigation into Radio Maryja and related media found no case to answer.

The CoE report noted that although the National Broadcasting Council operates a complaints mechanism, it has had to deal with only one case of racial discrimination, which involved a pun on the name of a football club and the word ‘Jew’.Footnote ¹²⁴ The Council took action on this matter. Nonetheless, the dearth of complaints concerning matters related to racism and intolerance reflects a lack of confidence in the complaints mechanism or a lack of awareness of its existence.

One of the most striking features of the Polish hate speech situation in general is the unwillingness on the part of the authorities (mainly prosecutors) and resistance by the courts to proceed with cases involving Catholic priests or organisations.Footnote ¹²⁵ The Catholic church in Poland is effectively a sacred cow and benefits from a disproportionate level of protection under freedom of speech and religion. The level of obscurantism perpetrated by many priests and religious public figures, as well as the degree of popularity of political movements appealing to religious morality in Poland, is truly remarkable for a twenty-first century secular state in the EU.Footnote ¹²⁶ In a 2008 interview with one of the Polish channels (TV Polsat) during a meeting organised against a demonstration by LGBT organisations in Kraków, a priest, Rafał Trytek, announced that he ‘hopes that Poland will return to the bright days when faggots were burned at the stake in the market’. Typically, he has never been prosecuted under the criminal clause on incitement to hatred, despite the fact that the video with his interview is still easily downloadable on the internet.Footnote ¹²⁷

Similarly, Polish nationalist organisations (All Polish Youth, League of Polish Families and Polish National Rebirth, to name a few) often appeal to ultra-Catholic rhetoric, exploiting the stereotypes of xenophobia, anti-Semitism, anti-Romanyism and homophobia. Prosecutions under the criminal ‘incitement to hatred’ clause have been rare. In one such case an anti-Semitic campaigner, Kazimierz Świtoń (also known as an opposition activist during the communist epoch) was found guilty by the Regional Oświęcim Court of inciting hatred of Jews and Germans. In January 2000 he received a six-month jail sentence, suspended for two years, for distributing anti-Semitic leaflets at Auschwitz two years earlier. The case had been brought not by the prosecutor but by a local NGO. In June 2000 his punishment was reduced to a mere month-long suspended sentence. In December 2000 Mr Świtoń was acquitted of earlier charges. On leaving the court he pledged to continue his struggle against ‘Jewish chauvinists’.Footnote ¹²⁸

The 2010 ECRI report criticises a judgment of February 2007, in which the Supreme Court (Sąd Najwyższy) decided that holding a placard reading ‘We shall liberate Poland from [inter alia] Jews’Footnote ¹²⁹ did not amount to an offence under Article 256 of the Criminal Code. To reach this conclusion the Court referred to Article 54(1) of the Constitution – that is, to the constitutional protection of freedom of speech. The ordinary meaning of the word ‘liberate’, and the use of the indicative as opposed to the imperative, showed no intention to incite national hatred, according to the Court.Footnote ¹³⁰ In its ruling, the Supreme Court clarified the wording of Article 256 of the Criminal Code, in particular the term ‘nawoływanie’ (incitement), constructed in all three countries under examination in a way similar to the German term ‘Volksverhetzung’ (literally ‘incitement to popular hatred’):Footnote ¹³¹

Thus, the Court placed the emphasis in the definition of incitement on the concrete intention (dolus directus).

In March 2002 the Supreme Court clarified the notion of ‘propagate’ or ‘promote’ (propaguje) in Article 256 of the Criminal Code. A regional court referred to the Supreme Court for an opinion, inquiring whether the lexical change in the wording had legal consequences. The former Article 270(2) of the Criminal Code 1969 referred to the verb ‘pochwala’ (literally ‘appraise’) rather than ‘propaguje’. The case before the regional court was brought against neo-fascists who organised a meeting in a local club, during which Nazi symbols were used and the dissemination of totalitarian propaganda took place. The participants used symbolic greetings with the right hand, accompanied by salutes of ‘Sieg Heil’ and ‘Heil Hitler’. The court inquired if the notion of ‘promotes’ covers the approval (pochwalanie) of fascist or other totalitarian orders, apparent in the demonstration of the swastika, gestures of fascist greetings and so on, only when it is accompanied by the public popularisation of such an order (meaning propaganda). In its Resolution, the Supreme Court noted that everything depends on the unique circumstances of a specific event, which, as in this case, determines whether particular conduct constitutes a public presentation of an order and whether it is taken with the intention of the explicit popularisation of this system.Footnote ¹³² The crime can be committed only with an intention to publicise approval of such a system. As a result, the Court held as follows: ‘To “promote”, within the meaning of Article 256 of the Penal Code, means any conduct consisting of a public presentation of a fascist or other totalitarian system of the state, with the intent of persuading the public.’Footnote ¹³³

The Court also mentioned that it is indisputable that hate speech should be regarded as an exception to the constitutional protection of freedom of expression, with regard, inter alia, to the practice of the European Court of Human Rights. Thus, ‘Strasbourg law’ (with its militant ethos of the right of freedom of expression) was positioned as a mandatory free speech model for Poland.

Unlike the position in the Czech Republic and Hungary, until very recently the Constitutional Tribunal of Poland had not been involved in clarifying the hate speech provisions. However, Polish case law has involved a number of attempts to prosecute hate speech on the internet. Rafal Pankowski and Marcin Kornak detail at least three investigations – in Kielce, Łódź and Rzeszów – regarding anti-Semitic material on the internet. One such investigation, in October 2000 in Kielce, ended with a trial and a ten-month suspended sentence for the perpetrator. Nonetheless, the authors argue that to date there have been no coordinated efforts to curb hate speech on the internet.Footnote ¹³⁴

Yet the hate speech jurisprudence of lower courts appears to be inconsistent. In this respect the District Court of Wrocław recently delivered a peculiar judgment.Footnote ¹³⁵ The defendants – members of the far-right organisation, National Rebirth of Poland – were sentenced by the Regional Court Wrocław-Środmieście for inciting racial, ethnic and national hatred, by shouting and presenting slogans during a demonstration, including ‘White power’, ‘Europe for Whites, Africa for HIV’. They also displayed Nazi symbols and symbols promoting a totalitarian system. The District Court ruled that the defendants had not violated Article 256 of the Criminal Code, as their behaviour was motivated only by patriotic feelings, by their wish to emphasise that while various races are equal to each other they are nevertheless different, and by their fascination with the ideas of race theorists such as Arthur Gobineau. The defendants were found not guilty. The verdict overruled the judgment of the first instance court – the Regional Court Wrocław-Środmieście of 1 June 2010.

To sum up, the Polish case demonstrates a belated engagement of the Constitutional Tribunal in the issue of hate speech (unlike in the Czech Republic and Hungary), as well as the confusing drafting of the incitement clause in the latest version of the Criminal Code. Hate speech in Poland is often informed by religious obscurantism in addition to the rhetoric of the nationalist right, while the practice of lower courts has been inconsistent in prosecuting the virulent haters.