Romani celebrity files complaint with Czech Constitutional Court over lower court rejection of his victimization by racist threats

News server iDNES.cz reported last week that the singer Radek Banga has filed a complaint with the Czech Constitutional Court against a decision by the District Court in Kladno. That first-instance court ruled that it did not consider him to have been harmed by hateful remarks against minorities that were posted to his Facebook profile.

“This complaint was filed because the lower court denied the damaged party his right to participate in a proceedings in the position of somebody who has been harmed,” the In IUSTITIA organization’s Klára Kalibová, who is Banga’s legal representative, told news server Romea.cz. “In lay terms, the court has alleged that people whose personal, publicly-accessible social media profiles are used by third parties to post threats that do not specifically target another individual are incapable, under the law, of feeling that their rights have been affected such that they have grounds to launch a criminal proceeding.”

Judge Petr Sedlařík, who decided the case, justified his stance by saying that Banga had not been damaged because the commentaries posted to his personal social media profile did not specifically name him as their target. “Those harmed are all Romani people, all Jewish people, all dark-skinned people,” he explained to iDNES.cz.

The In IUSTITIA organization argued against that perspective last summer. “In this case, the generally-phrased threats were unequivocally aimed at the individual who was harmed and impacted by them, and they constituted a violation of his personality rights. The right to an effective investigation, as that has been adjudicated by the European Court of Human Rights, includes the right of a specific individual to see that the perpetrators of criminal activity have been punished for what they actually committed,” the organization’s representatives said.

Thousands of hateful messages flooded the personal Facebook profile of Romani singer Radek Banga one year ago after he used his profile to explain his position on the “Czech Nightingale” pop music awards for 2016. Banga had protested against the neo-Nazi past of the singer Tomáš Ortel, who won two “Silver Nightingales”, by leaving the audience during the live broadcast of the ceremony.

Those subsequently writing to Banga on his personal social media profile made death threats in their posts. After a year of police investigating, most of those who posted harmful commentaries to his profile have not been charged, convicted or sentenced – a single criminal verdict has been handed down, as well as several fines.

The only criminal verdict in the matter was handed down by the District Court in Kladno, which in August 2017 decided that student David Šmíd should perform 100 hours of community service work as punishment for his felony. Miroslava Sedláčková, spokesperson for the Constitutional Court, confirmed to iDNES.cz on 28 December 2017 that the court received Banga’s constitutional complaint at the beginning of November and is currently reviewing it.

What would follow should the complaint succeed is not yet clear. “In the extreme case, the court can decide to abolish the District Court’s decision with its own finding. In that case, the main hearing would probably have to be repeated,” Kalibová told Romea.cz.

Any decision by the Constitutional Court, in Kalibová’s view, will primarily be meaningful in the future, as it would determine whether written attacks that are not addressed to a specific individual are still able to cause others the kind of damage that guarantees them a criminal proceedings. “If the Constitutional Court decides negatively, that will open up room here for threats to be made that will affect and harm others who will be unable to seek protection through a criminal proceedings. That is the current interpretation of the position of such an injured party according to the decision by the District Court in Kladno,” she said.

Overview of the sentences known to date in the Banga hate speech cases

FELONY

The speech posted: “Yes, this is how Nazism is applauded. Now all we have to do is expand it as much as possible, because these black [expletive deleted], Jews, etc., must leave our homeland, our white homeland, Europe, and [expletive deleted], or even better, be sent to the gas like before.”

SENTENCE: 100 hours of community service work

MISDEMEANORS

The speech posted: “Did I [expletive deleted] you, [expletive deleted]? Here’s an ax. Kill yourself.” SENTENCE: CZK 500 [EUR 20] fine

The speech posted: “You’re a black swine. Zyklon B.” SENTENCE: CZK 400 [EUR 16] fine

The speech posted: “Black [expletive deleted]. If he weren’t singing he would be on welfare like all the black swine. His grandparents should have been killed in that camp. At least then he wouldn’t be here to be such a goody-goody.” SENTENCE: CZK 100 [EUR 4 ] fine

The speech posted: “Send that [expletive deleted] to the gas.” SENTENCE: The author is waiting to learn the amount of the fine.

The speech posted: “To call you a black swine would be flattery. You’re just disgusting filth, [expletive deleted] and [expletive deleted] and the gas would be too easy for you, we’ll cut your throat Muslim style.” SENTENCE: The author is waiting to learn the amount of the fine.