Commentary by Petr Uhl: "The Jew Hilsner from Polná was unjustly convicted of the murder of the Christian, Hrůzová"

I have borrowed the headline for this commentary from yesterday’s news reports published by several Czech media outlets. The full headline was:  "Leopold Hilsner, a resident of the Jewish ghetto in Polná, was unjustly convicted of the murder of the Christian, Hrůzová."

Wasn’t that how it was? Today everyone, even the anti-Semites, acknowledges that Leopod Hilsner (Hülsner), the German-speaking Jew who was a graduate of the Jewish School in Polná, where the language of instruction was German, and who later become a "schnorer", i.e., a beggar and a vagrant, was sentenced to death in September 1899 in Kutná Hora (a sentence later commuted to life in prison by the Emperor) not on the basis of any evidence, but solely on the basis of a manifestly erroneous assessment by a court expert and "indirect" testimony.

The unjust conviction of Leopold Hilsner was required to satisfy public opinion, which at the time was being buffeted by a xenophobic (and therefore, of course, understandable) fear of the Jews – it was required as retribution for the belief that the Jews, as was then well "known", were adding the blood of Christian virgins to their Passover matzos (festive unleavened bread). Wasn’t 19-year-old seamstress Agnes Hrůzová from Věžnička u Polné a Christian virgin, and hadn’t she been murdered during the feast of Passover, which that year fell during the Christian season of Easter?

The "background" phrase about the murder of the Christian, Agnes Hrůzová, in these headlines is certainly, therefore, correct. Back then, with the exception of the Jews, perhaps all of the rural population here was indeed Christian, and Christianity as a lifestyle was also still prevalent in the cities.

At that time, both clerical and nationalist journalists (almost all of them!), as well as lawyers and politicians, presented the killing of Agnes Hrůzová as the Jewish murder of a Christian virgin while they incited the public to hate Jews. One defector from this opinion, the "optimistic" Professor Masaryk, was the only person who, as a far as I know, spoke out publicly against this anti-Semitic incitement, based as it was on such medieval, xenophobic superstition, and he was then regaled with the saying "Masaryk, you deserve to swing together with Hilsner!"

Such a response corresponds to the Czech proverb that "The Turk-lover is worse than the Turk", or the saying about those who "foul their own nest", concepts that have been used by this society to detect dissidents (whether from a party or a religion), provincial pests, and traitors. So:  Thanks to this formulation of a "Christian murder victim", the interpretive possibility remains available to this day that the girl was killed back then because she was a Christian.

This is, of course, absurd. However, it corresponds to the current media depiction of the contemporary conflicts associated with the current arrival of migrants and refugees to Europe, which references Christians and Muslims being absolutely welded to some sort of inherent "nature", with an emphasis on the fact that "our" culture and tradition are still Christian, after all.

The necessity of "solving the Jewish question"

"At this very spot, during Easter in 1899, an innocent girl, Agnes Hrůzová, was brutally murdered. The Czech nation rallied around her death, which demonstrated the urgency of the need for a solution to the Jewish question. To this day the Jewish question has not been satisfactorily resolved."

A sign with that inscription was placed last year on a symbolic grave near Polná by two anti-Semitic activists. Yes, in 1899 the "Czech nation" was indeed unified – to say nothing of pressed together into serried ranks.

Professor Masaryk notwithstanding, the Czech nation back then did indeed understand the necessity of "solving the Jewish question", which the German nation had been actually preventing for several decades.However, if I am to express myself without using sarcasm, both the second and the third sentence in the text on that sign are an incitement to hatred of Jews.

That third sentence, which refers to an allegedly unsatisfactory solution to the "Jewish question" may, in today’s Czech context, be construed as an apparently public approval of the Nazi genocide. Before Christmas, after a lengthy investigation, the relevant police authority began prosecuting both of the activists involved in this incident, Adam B. Bartoš and Ladislav Zemánek.

Bartoš and Zemánek are otherwise known as the chair and vice-chair of the National Democracy political party, which initially called itself (following the Polish model) "Law and Justice" before changing its name to "No to Brussels – National Democracy" in 2014. Zemánek, born in 1992, which is probably of most interest to psychologists, was a former member of the Bureau of the Central Council of the Union of Young Communists of Czechoslovakia, and then worked in Ladislav Bátora’s DOST initiative and, with Petr Hájek, established the web server Protiproud (Undertow).

Other texts published on the Internet by Bartoš express hatred towards homosexuals, immigrants living in the Czech Republic, Jews and Roma. He also produces and publishes lists of people to create scandal.

The Czech Interior Ministry has registered National Democracy as a political party under registration number II / s – OS / 1-7643 / 9  and reports that the most recent amendment to its statutes was registered on 20 November 2015. The state attorney who is carrying out the pre-trial supervision of the investigation of these men will certainly consider the possibility of the criminal liability of National Democracy as a legal entity in this case as well.

More than one legal path to remedy

The prosecution of Bartoš and Zemánek was first reported in a Christmas Day blog post by the judicial activist Tomáš Pecina, known for his dispute with the online news server Britské listy, for revealing the communist pasts of sitting judges and state prosecutors, and for attacking the Sudetoněmecké krajanské sdružení (the Sudetendeutsche Landsmannschaft) by founding an association with a very similar name. According to another blog close to these anti-Semitic activists, the police see signs of criminal conduct in the publication of the text on that sign that meet the definition of two offenses, both defamation of a nation, race, ethnic or other group of persons under Section 355 of the Penal Code, and the concurrent offense of incitement to hatred against a group of persons or restrictions of their rights and freedoms under Section 356.

In my opinion, because both of the accused have actively participated in the activities of the National Democracy group, which for years has been preaching ethnic, homophobic and racial hatred, both the accused anti-Semites, if they have been correctly informed about the prosecution of their peers, are now apparently facing imprisonment ranging from six months to three years if convicted. In this context, I must note that the obligation not to disclose certain facts in order not to compromise the clarification of a case, or to prevent complicating an investigation (possibly including not describing the actions at issue, the names of the accused, or remaining silent for another legitimate reason such as protecting personal information, particularly that of minors) must never be confused with keeping the legal status of a criminal case secret, including which offense is at issue and the current legal qualification of the facts.

The police here frequently proceed erroneously in this respect, not providing even that information to which the public (and of course the media) have a constitutional right. Of course, I would not be afraid to also charge these men with approving and justifying the Nazi genocide, as the anti-Semitic text on the sign cannot be interpreted as anything other than an expression of regret that the fate of the "Jewish question" was not "satisfactorily" resolved.

It is both advisable and possible to consider such actions the promotion of a movement aimed at suppressing human rights and freedoms, which is punishable by up to 10 years in prison, and the expression of sympathy for such a movement, which is punishable by up to three years’ imprisonment. In my opinion another appropriate, feasible legal recourse would be to dissolve National Democracy through a decision of the Supreme Administrative Court (Nejvyšší správní soud – NSS).

That could be undertaken either in parallel with the criminal prosecution or separately. Such a decision would not require a conviction under the Penal Code, just evidence that the party poses a direct threat to democracy.

An NSS decision would also render void any possible appeal to a higher court, as there are no other extraordinary remedies to seek beyond the NSS here, and it is not possible to ask for a pardon or use amnesty to annul such decisions. The NSS acts on the basis of a Government motion, and if the Government does not put forward a motion within 30 days of such a complaint being filed (and anyone can file such a complaint), then the President of the Republic may submit such a motion to the court.

This country has experience from the years 2009 and 2010 with a proceedings on the dissolution of a political party whose activity is shown to pose an imminent risk and threat to democracy – the NSS initially refused to authorize the Government’s 2009 motion to dissolve the Workers’ Party and then, one year later, after the gathering of evidence through a fairly complex procedure, the party was ultimately dissolved. In the case of that party, what was at issue was far from just its behavior toward Romani people, even though its incitement to hatred towards them was particularly frequent and significant.

The Workers’ Party had also targeted foreigners, homeless people, homosexuals, Jews, etc. However, in 2010 the state sent the message that democracy can defend itself against such dangers, although both the Czech Government and the Interior Ministry were amazed that their first motion to the NSS failed and that the court demanded proof of an imminent threat.

A criminal prosecution, of course, mainly makes sense in that it may result in legal findings from a court of appeal, or from an appellate court, or from the Constitutional Court that will be generally applicable, so-called case law or rulings. These have a considerable degree of binding authority when it comes to other cases of initiating prosecutions and other decisions in proceedings about the crimes of disrupting coexistence and crimes against humanity.

The absence of any such ruling is one of the greatest debts owed by our young (25-year-old) Czech democracy. This causes difficulties for the activities of both the Supreme Court and the NSS, which have a legal obligation to "monitor and evaluate the final decisions of the courts and, on the basis of their interest in the consistency of court decisions, to deliver opinions on judicial decision-making in matters of a certain kind", which in this instance are findings of guilt in cases of incitement to hatred.

The lower courts, however, are not making such findings, and the absence of case law and rulings in matters of this kind is not an excuse – in a criminal proceedings, the courts may only act after an indictment has been brought forward, and it is the police and the prosecutors who are "merely" responsible for determining whether they see this or that behavior as constituting a certain offense. For example, does the chanting of slogans like "Roma get to work!" or "To hell with the migrants!" constitute incitement to hatred against migrants or Roma?

If so, why? What about the slogans "Bohemia for the Czechs!" or "Nothing but the nation!", aren’t those hate speech too?

Is it possible to prosecute people for their opinions?

Zbyněk Petráček of the Lidové noviny newspaper has expressed his view of the prosecution of Bartoš and Zemánek. This commentator believes that very anti-Semitic attitudes, no matter how ugly, should never be punished, as apparently a democratic, liberal society must be strong enough to withstand even silly speech, stupid jokes, and ugly words.

According to Petráček, even in those places where there is now incitement against migrants and Muslims, there is still a big enough respect for the Jewish state, and that is what is important to him. He writes that Europe, especially Western Europe, has recently been jealously guarding its monuments to dead Jews and punishing those who would deface them but taking a lax approach when it comes to living Jews, especially to Israel.

In his view the Czech Republic is, in this sense, solid, because it is indulging in a refusal to turn Israel into the punching bag of the West. I mention Petráček’s geopolitical position here because it is a European political rarity (although unfortunately not a Czech one) – it is despicable anti-Semitism, according to him, that is the foundation of any repugnance felt toward today’s state of Israel, to say nothing of any criticism of Israel’s policies toward the Palestinians.

This view, of course, has nothing to do with the rule of law in a constitutional, democratic state which, according to its own laws (as well as to the international treaties it has concluded, declared itself a party to, and that are binding upon it) is obliged to prosecute all acts of incitement of hatred towards any group of people. Such a contradiction of the democratic human rights order, however, is typically central to any geopolitical stance taken here, and not only when it comes to Israel or punishing incitement to hatred – Petráček’s generation, after all, was liberated by Reagan and Thatcher.

A more democratic position on this issue has been adopted by commentator Josef Koukal, who writes for the daily Právo that to date the state authorities seem to have taken up a stray interpretation of the law according to which only those statements that call for violence are to be prosecuted as incitement to hatred, not those that are "merely" offensive. This bothers Koukal, and he at least gives the USA as an example, where prosecution for incitement to hatred is possible if a victim of it complains.

America, however, is not Europe, where a prosecutor or public prosecutor in principle is obliged to prosecute all the crimes of which he learns. I would be concerned that replacing the principle of legality with the principle of opportunity (and the American way leads to that) would be a possible source of corruption, and I also would not want to prove to a Czech court that incitement against Jews, refugees or Roma had personally damaged me.

I have rejoiced most at the opinion of the historian Michal Stehlík who, among other things, was Dean of the Faculty of Arts at Charles University in Prague at the turn of the nineties and the "zero" years, and who originally was a Christian Democrat. Let’s be glad we have, as he writes in his blog on ihned.cz "some politicians who so far have not abandoned their principles and are adhering to the basic principles of civil society and democracy. Let us then beware those who do the opposite and keep their popularity alive by invoking fear and hatred. It is, after all, characteristic of politics in a democracy that both kinds of people are present in it. In our case, however, some manage to cross over into Government and the legislature… Bartoš’s ex tempore in Polná is undoubtedly a provocation balancing on the edge of farce. However, it does look back to the past for an event that resulted in a great wave of hatred, and it does so at a time when the long-term comfort of the Czech basin has been relativized by some sort of immigration danger that is potentially inviting us to commit some sort of ‘healthy, natural vigilance’ – to hate. At such moments, such a farce is just one small step in the direction of tragedy. We should not, therefore, underestimate such provocations or dismiss them. No new Masaryk will save us from hatred by taking up the onerous burden of unpopular truths – we ourselves must be capable of bearing it."

So says an historian of the younger generation – he will be 40 years old this year, and his historia magistra vitae has given him a wise attitude toward life. And for that he didn’t even need any knowledge of the law (I say to myself, self-ironically).