Analysis: When the Czech Police contribute to disseminating hatred toward Romani people

Whoever publicly incites hatred of a nation, race, ethnic group, religion, class or other group of person, or incites the restriction of the rights and freedoms of the members of such a group, is supposed to be punished in the Czech Republic by up to two years in prison. That is the wording of the Criminal Code (Section 356), which also authorizes the same punishment in cases of rioting or conspiring to commit the offense of incitement to hatred.

Even stricter punishments are established here for those who incite such rancor using the publicly available computer networks, or who do so as part of active participation in the activities of a group, organization or association espousing discrimination or hate violence, whether motivated by race, ethnicity, class, religion, or any other criteria. These bans on public displays of hatred and incitement to hatred have applied since the beginning of 1992, when this country was still part of Czechoslovakia, and the Council of Europe managed to enforce their adoption despite the provincial, nationalist resistance of local conservative politicians (“left-wing” and right) and even despite the objections of some lawyers.

Those opposed to these punishments, of course, argued that they would restrict freedom of speech. “We” were said to have won that freedom through the 1989 revolution, and therefore we must not restrict it in any way, they argued.

However, in Europe, i.e., in Council of Europe Member States and European Union Member States, different rules and traditions apply today than obtain, for example, in the USA. In that country, what frequently applies is the principle of the opportunity (the pragmatic expediency) for criminal prosecutions that are undertaken by elected sheriffs and state prosecutors, and decisions of guilt or innocence in the courts are decided by the people, who are represented as jurors.

The Czech state is obligated to criminally prosecute every crime

In Europe, freedom of speech is always conditioned by accountability. What applies here is the principle of legality (legitimacy).

That principle was expressed long ago by the Fourth Basle Compactatum. In the Czech usage of the day, that document stated that “deadly sins” must be “halted and disciplined” (i.e., “punished”) irrespective of the social position of the sinner, and that this punishment must be enacted by those who “have the offices”, i.e., the worldly power – which today means the courts, prosecutors and police.

Ever since the days of the Austro-Hungarian Empire this principle has been expressed by the clause in the Code of Criminal Procedure (i.e., both in Czechoslovakia and now in the Czech Republic) stating that a prosecutor, (what today we call a public prosecutor) “is obliged to prosecute every criminal act of which he learns”. Exceptions to this rule in the area of physical violence concern, for example, necessary self-defense, extreme distress, or issues to do with a perpetrator’s legal capacity (for example, due to age or because of immunity or indemnity), and most of these exceptions are rather clearly stated already by the law and are not up to the public prosecutor or police to determine.

During the 25 years that this law has been used to prosecute incitement to hatred here, fortunately for us, the conditions of its use have been further clarified. I consider the most significant of these conditions to be the jurisprudence according to which the target of such hateful incitement can be considered not just somebody who is actually affiliated with the hated ethnic, racial, religious or social group at issue, but also somebody whose affiliation with that group is just alleged, assumed, or imagined by the perpetrator. 

Hate crimes

Perverse attitudes such as racism (including antigypsyism), nationalism, chauvinism, sexism or homophobia are not, of course, criminal in and of themselves, but during the lawful criminal prosecution of the behavior that flows from these attitudes (including the thorough prosecution of published statements), the criminal justice authorities frequently must decide whether, instead of just charging the perpetrator with the felony of “incitement to hatred towards a group of persons or of the restriction of their rights and freedoms” they should also charge the perpetrator with other offenses. Most frequently these other charges are misdemeanors (i.e., criminal acts where the possible punishment is up to five years in prison) such as “violence against a group of inhabitants and against individual members of such a group” (the usual form of this crime is a death threat or other violence), “making dangerous threats” and “stalking” (which can be either ethnically or socially motivated), or the misdemeanor of “defamation of a nation, race, or ethnic or other group of persons”, which existed here during the previous political regime also.

In more serious cases it is necessary to ascertain whether the verbal manifestations were felonious (deserving of more than five years in prison) or even an especially serious crime (with the upper limit of at least 10 years in prison) in the form of preparing an “attack against humanity”, preparing “apartheid and the discrimination of a group of people”, or the felony of “establishing, supporting and promoting a movement aimed at suppressing human rights and freedoms” or displaying sympathy for such a movement. Czech people have dovish natures, as is generally known, but despite this, sometimes we have cause to consider charges of felony “incitement to wars of aggression” and “relations threatening peace”, most of which flow from support for the geopolitical interests of the USA.

Antigypsyism in the Šluknov Foothills

I embarked among these musings about antigypsyist and otherwise racist felonies after reading an interview with Ida Kelarová published recently by the online newspaper Romea.cz. The children of her Čhavorenge chorus (which in Romani means “Children”) became the victims of hate attacks at a children’s summer camp this August.

The Romano Drom camp was held at Jiřetín pod Jedlovou in the Šluknov Foothills, not far from Krásná Lípa, the town where a school is segregating Romani children – apparently this is the genius loci of that area. I appreciate that the editors of Romea.cz augmented Ms Kelarová’s very moderate, unemotional description of what happened with another article about the incident by Adéla Gálová.

I am now joining their efforts with the following analysis of the criminal legal context of what happened. As both Ms Kelarová and others who were present have related, the alleged behavior of the man who was shouting vulgar racist abuse, threatening people with death, and firing a weapon undoubtedly bears all the signs of the felonies I have described above.

What is much more serious, however, is how the Police of the Czech Republic, i.e., the state body entrusted with suppressing crime (“halting” and “disciplining” it), dealt with the announcement that this criminal conduct had occurred. Because I always make sure my articles reach more than 100 lawyers (including public prosecutors), I consider my civic duty to report the felonies of which I learn in a credible way to have been fulfilled by my writing and distributing this piece. 

When there is neither democracy nor law

This case is so flagrant that I cannot imagine that the public prosecutors, the General Inspectorate of the Security Services, the Police of the Czech Republic and the Interior Ministry would fail to investigate the criminal liability of the local police force members (who said they “have their procedures”) from the perspective of the possible commission of a felony by those officials, whether intentionally or through negligence. Then again, we do not actually have democratic political forces in this country.

I cannot consider the current political forces democratic because of their xenophobic stances, whether taken by those in Government, from which we have the gems produced by Czech President Miloš Zeman, Czech Finance Minister Andrej Babiš, Czech Interior Minister Milan Chovanec or Deputy Ombudsman Stanislav Křeček, or the pearls of wisdom offered by the opposition, whether that be the Communists, the Civic Democratic Party (ODS) or the openly ultra-right. When it comes to their stance toward asylum-seekers, foreign nationals and Romani people, the Government and the opposition are all but identical.

I have also observed, in the online discussions that transpired beneath the articles about this incident on Romea.cz, many dozens of delusions being expressed about the law, the kind that are usually brandished here in the fierce struggle against both domestic and EU legislation in order to target Roma, refugees, the homeless, people living with disabilities, Muslims, gays, and even women, especially feminists. In these blandishments, any attempt to ameliorate the disadvantage of persons from these most vulnerable groups is rejected as undeserved “advocacy” or “favoritism” that disrupts the alleged equality of all before the law.

According to the online discussers, such amelioration is “positive discrimination” or reverse racism. Their argument is demagogic nonsense.

In Czech law, the following applies:  “Special measures taken exclusively to ensure the proportionate development of racial or ethnic groups or individuals who need such protection shall not be considered racial discrimination, as such measures can be essential to guaranteeing the equal enjoyment or performance of human rights and fundamental freedoms to such persons.” Similar legislation applies here not just to Romani children, who are one of the most-threatened groups in this society, but to other groups as well. 

Freedom does not mean freedom to disseminate hatred

The rights and freedoms guaranteed by the constitutional order and ensured by statute, as well as by European and international legal norms and the obligations of individual states (with the exception of Great Britain, which “wisely” has no constitution), always have their legal limits. They proportionately protect the rights and freedoms of other persons, as well as public goods such as order, safety, health, morals and the general welfare.

The most significant human rights are the right to life and human dignity, the right not to be tortured or subjected to discrimination, the right not to be illegally imprisoned or subjected to forced labor, the right to freedom of speech, the right to freely practice religion and belief, the right to freedom of movement and residency, the freedom to peacefully assemble and freely associate, as well as the right to a proper, fair court proceedings (including administrative proceedings) – and the law can restrict these most significant rights to much less of an extent than it can restrict rights where legislators find it more difficult to strike a balance (for example, the balance between the right to information vs. the right to protection from the publication of one’s personal information, or the right to own property vs. the protection of the public interest). What about the differences between European and American law in this regard?

There are many such tensions between Europe and the rest of the world. For example, there is the marked difference between the British and the continental concepts of law, the difference between countries with customary law and Napoleonic traditional, written law. Europe and the rest of the world are heading towards conversion in this regard, unifying even as they maintain differences that are mainly cultural (but not so much legal).

These tensions have contributed greatly to the current Brexit, which in my view is unfortunate because it is setting Europe back 50 years. This unification, however, will not take place – at least, we hope it will not happen by bringing Europe closer to US law, with its clientelistic power of money, its surviving death penalty, and its still-prevailing retributive concept of punishment.

The experiences of the final quarter of the 20th century have been alarming ones in political terms. A part of Europe has turned away from democracy (whether parliamentary, participatory, or direct).

The East European (also Central Asian and other) states have thrown out the baby with the bathwater. They have overcome their state-socialist dictatorships through the gradual adoption of undemocratic principles of “leadership” (in American jargon), the kind that used to be called единоначалиe (“one-man management”) in the Soviet model, and on a statewide scale they have created quasi-presidential or even fully presidential systems with “direct elections”.

In every country – Ukraine, the Russian Federation, the Visegrad Four countries, France, Germany, Greece, Turkey – a struggle is being waged over democracy, which is to say, over the rule of law and a legal state guaranteeing fundamental freedoms. In this struggle, Ida Kelarová and the editors of Romea.cz are on the right side.