Lawyer on groundbreaking Czech court finding: Courts must consider hate crime victims' perspectives now

At the beginning of April the Czech media reported on a Constitutional Court decision in favor of the well-known Romani singer Radek Banga. According to his lawyer, Klára Kalibová, Banga had been excluded from the hearings in a case involving verbal assaults against him because the court concluded that the generally hateful comments posted to his private Facebook profile could not have affected him.

The comments were not addressed to Banga by name, and the perpetrator was convicted of having committed a crime purely from the perspective of the public interest. Kalibová, who works for the IN IUSTITIA non-governmental organization, points out that the recent Constitutional Court finding is, in many respects, a breakthrough and establishes how all criminal justice authorities must proceed in such cases henceforth.

“What has existed here so far has been an approach by the police according to which people cannot be considered injured parties with respect to several types of crimes, for example, the felony of expressing sympathy for a movement aimed at suppressing human rights and freedoms. The opinion has been that what is being infringed upon by that crime is just the public interest. The Constitutional Court, however, is now saying nothing of the sort exists,” she explains.

“The court is saying:  ‘Put the injured party at the center of your interest, not the perpetrator. It is through the injured party that you are to assess how serious the perpetrator’s behavior was,'” the lawyer describes.

The Constitutional Court’s standpoint also attributes great seriousness to hate crimes, including those committed on social media. “Verbal (or rather, written) attacks through the so-called social networks may represent something specific in terms of technique, but according to the Constitutional Court, what is inadmissible is the way in which the tools of previous totalitarian ideologies readily conform to this method of political combat. It is necessary to investigate to what degree communications of that kind through a so-called Facebook profile are different, for example, from graffiti on the display window of a shopkeeper who belongs to a minority in society,” the court stated.

“The Constitutional Court additionally, therefore, put this into the context of how the genocide against the Jewish community began, when the court said that we’ve lived through this once before, that today it’s happening in a different environment, and the target is predominantly a different community as well. However, we know what this is, and we must learn how to defend ourselves against it,” the lawyer commented.

Kalibová admits that the most effective punishments against the perpetrators of such crimes seem to be either fines or performing community service for institutions that commemorate the suffering caused by hate crimes. For now the courts have been handing down suspended prison sentences for such crimes, but according to her, such punishment does not have a sufficiently educational effect on the perpetrators.

Q: The Constitutional Court, at the beginning of April, agreed with your complaint about the case of the hateful commentaries addressed to Radek Banga. What was the issue there?

A: That was generally about in which cases the courts must take the experience of a bias crime victim into consideration as the injured party to a proceedings. It is necessary to state that the Constitutional Court has long said that not all people who feel they have been harmed by remarks or verbal assaults have the right to have their cases addressed through a criminal proceedings. That is a rather rigid approach by the Constitutional Court, and in my view its heyday is now over, because the rights of injured parties generally are making significant advancements. Unfortunately, the Constitutional Court still insists on the status of rights for injured parties as it was established 20 years ago.

Q: How is it even possible that, if somebody writes illegal commentaries on your personal wall on Facebook, you are then not, according to the court, harmed by that? Who is the injured party, therefore?

A: The basic argumentation of the Constitutional Court is that there does not exist an individual, subjective right to force the state to prosecute a crime. It is the decision of the state whether certain behavior will be assessed as problematic. We are in the area of public law, where the state decides whether criminal proceedings will be opened for this or that behavior. The Constitutional Court perceives the issue that way. In Radek Banga’s constitutional complaint, that kind of right of the injured party (the right to prosecution) was not at issue, though. What was at issue was whether certain remarks aimed at the injured party’s personal sphere are still criminal even if, for example, they do not specifically involve the use of that party’s name or are not addressed to that party. This was about the following comment:  “Yes, that’s how Nazism was applauded, now all that’s left to do is to disseminate it as far as it can go, because these black cocks, the Jews, etc., must leave our homeland, the white homeland, Europe, and fuck off. Or even better, they should be sent to the gas [chambers] like before.” That was the comment posted directly to the Facebook profile of the injured party and coincidentally, it was the first of those verbal assaults for which a perpetrator was convicted in August 2017, i.e., about nine months after that crime was committed.

Q: If that was able to be pursued and the perpetrator was convicted, why is it necessary to deal with it further?

A: The point is that both the police and the prosecutor had approached Banga as the injured party the entire time. They asked him for his opinion of the incident and what he had experienced. They facilitated his access to the case file, he was able to add documentation to the file. The injured party has the right to speak during a proceedings and, at the same time – and this is exactly the innovation in the Constitutional Court’s finding – the right to be an initiator of the criminal proceeding. The finding says the court must take an interest in how the injured party comprehended the crime, what the injured party’s perception of it was, how that party was affected by it. That is important, at a minimum, to the way first-instance courts decide punishment.

Q: Do I understand correctly that in the case of Banga, the detectives and prosecutor were interested in him and the court was not?

A: Yes. The injured party was interrogated by police and informed by the prosecutor that she had filed an accusation against the alleged perpetrator. Then I opened the iDNES.cz news server one morning and read that the main hearing in the case had just begun in Kladno. At first I was horrified to think that I must have missed some deadline [laughs] so I hurried to look in our online data box and I found that nothing about it had ever arrived there for me, as the lawyer for the injured party, so I called the injured party, and he also had not been sent anything. Then journalists began calling me and asking me whether I knew about the hearing. Neither the injured party nor his legal representative had been informed that the hearing would take place, but all the media had been informed. I was, therefore, in a rather paradoxical situation – everybody was asking us why we weren’t there, and we told them we didn’t know, but that somebody must have forgotten about us. The court then issued a resolution stating that the injured party was being excluded from the proceeding because he could not have been affected by the remark at issue. That’s what the constitutional complaint was about which was developed for us by the attorney Petra Vytejčková. We did our best, in the complaint, to make sure the court would decide that even remarks not explicitly addressed to a particular individual actually can infringe upon his or her rights as protected by law. If the Constitutional Court had not agreed with our argumentation, that would have been an open door for all haters to be able to harm others by writing things like “Gypsies to the gas! Hang the Jews from the trees!” etc. on their social media profiles. The Constitutional Court found that our legal opinion is the correct one.

Q: Was that of any significance to Radek Banga himself?

A: For him personally it has no effect because the rights of the perpetrator are also protected – he has already been convicted, he probably has already served his punishment. From that perspective it would not have been absolutely legal to reopen the proceeding, it would have been too great an infringement upon the perpetrator’s rights.

Q: For whom, therefore, is this decision important?

A: The most important thing, from my perspective, is that many matters in our complaint were adopted by the court as its own reasoning, especially the argumentation that even verbal assaults not aimed at a particular individual can cause harm to an injured party. Therefore, the court must investigate such remarks within the context in which they were committed. What was described there was that if a remark is committed somewhere through social media in a zone that is indifferent, then it is likely that it would have borne no relation to either Radek Banga or anybody else Romani. However, in the situation where the assault is committed on his personal Facebook profile within the context of other comments, it is apparent that it was de facto addressed to him.

Q: The Constitutional Court issued yet another essential decision in this finding, yes?

A: In point 24 of the decision the court says that any and all grounds for suspecting the commission of a crime are also grounds for suspecting interference with an injured party’s rights. What does that mean, in lay terms? What has existed here so far is an approach by the police according to which people cannot be considered injured parties with respect to several types of crimes, for example, the felony of expressing sympathy for a movement aimed at suppressing human rights and freedoms. The opinion has been that what is being infringed upon by that crime is just the public interest. The Constitutional Court, however, is now saying that nothing of the sort exists. Any and all grounds for suspecting that criminal behavior has been committed are also grounds for suspecting that a person’s individual interests have been harmed. What does that mean for a person in reality? On the one hand it means that exactly such comments that are not addressed to a specific person, but that already essentially meet the definition, for example, of criminal defamation of a race, nation or conviction, which up to now has been perceived to just affect the public interest, can simultaneously infringe up on the rights of an individual injured party. In reality that could mean, for example, that Romani people living in a residential hotel in front of which haters hold a demonstration could seek legal protection if the haters chant slogans during their assembly such as “Gypsies to the gas [chambers]!” or “Gypsies are parasites!” Each individual person living at that residential hotel will now be able, in such a case, to allege that those remarks were aimed at her or him, and each of them will be able to seek legal protection. That is an enormous breakthrough.

Q: That was not possible until now?

A: Until now it was the case that the injured party had no way to use private law considerations to seek protection. The person could not be considered affected because what was affected was the public interest, which means the interest of the state that such remarks not be made in the public space. However, what is also new here is the relationship between the remarks and the person who is present during their commission. That means, for example, that if I’m walking down the street and somebody begins giving the Nazi salute to my face, silently, with the aim of insulting or intimidating me, that would have been classified, before this Constitutional Court finding, as expression of sympathy with a movement suppressing human rights and freedoms, and while I would have been able to file a criminal report about it, I would not then have been awarded the status of an injured party to the criminal proceedings because the state would have said that I was not affected. Now, however, the Constitutional Court finding says that is not the case. It is necessary to investigate each moment of how the gesture or the remarks affected that person if it was committed in her personal sphere, whether that be in physical space or on social media.

Q: Is it even necessary to seek that when the person is going to be convicted of the crime all the same? What difference does it make?

A: I believe it makes a great deal of difference. Many injured parties need to hear somebody else agree that the behavior targeted them. The decisions, when they are allowed to participate as injured parties, serve the important function of delivering satisfaction. Somebody else says:  “Yes, somebody chose to target you because you look different and they harmed you.” Even if the threat was not made directly to me face to face, it would be good if the court told me:  “Yes, you were affected, and we see it, and we will protect you.” My experience is that this is important for all injured parties so that they can cope with the situation. There is also the option to ask for compensation for damages, but that is not the main motivation for victims of bias violence to join a proceedings. For the people whom we have represented, their main motivation was to hear some authority say that such behavior should not be committed and can be considered criminal.

Q: Is this finding from the Constitutional Court binding on anybody?

A: All criminal justice authorities – i.e., the police, the prosecutors and the courts – will have to follow it. The rights of injured parties have therefore been significantly strengthened. The court is saying: “Put the injured party at the center of your interest, not the perpetrator. It is through the injured party that you are to assess how serious the perpetrator’s behavior was.” This is actually a breakthrough verdict if the criminal justice authorities will know how to deal with it the right way.

Q: Is this finding testament to a positive trend in the justice system as far as bias crime and especially online attacks go, which until recently were not perceived to be serious at all?

A: Let’s say rather that it’s like the first robin of spring. In addition to this finding, there still exists the other opinion of the Constitutional Court that I mentioned, which is that injured parties do not have a subjective right to court protection if the state does not assess it as necessary. The Constitutional Court has also, for the very first time, used the term “hate crime” in this new finding, and defined it as significant criminal activity that, while it may involve few victims, endangers all of society. The court has said hate crime is dynamic, develops abruptly, and that the role of the lower courts is to pay attention to it. The court also said: “The Constitutional Court is aware that the political and social dimension of these criminal acts, the ‘inventiveness’ of their perpetrators and the almost incomprehensible developments in the communications technology for committing them makes the courts’ duty significantly difficult.” After that, the court writes the following: “Verbal (or rather, written) attacks through the so-called social networks may represent something specific in terms of technique, but according to the Constitutional Court, what is inadmissible is the way in which the tools of previous totalitarian ideologies readily conform to this method of political combat. It is necessary to investigate to what degree communications of that kind through a so-called Facebook profile are different, for example, from graffiti on the display window of a shopkeeper who belongs to a minority in society.” The Constitutional Court has additionally, therefore, put this into the context of how the genocide against the Jewish community began, when the court said we have lived through this once before and that today it is happening in a different environment, and the target is a predominantly a different community as well. However, we know what this is, and we must learn how to defend ourselves against it. The most important aspect then is probably the final sentence:  “The courts, however, cannot avoid the difficult situations mentioned, and above all not by avoiding hearing the voices of these potentially injured parties by preventing their being heard through procedural approaches.” That means the courts can’t just allow situations where the voice of the injured party is never heard.

Q: What kinds of sentences are being handed down for such crimes? Do they seem adequate to you?

A: In the case of Radek Banga, just 20 Facebook profiles from which the verbal attacks were posted were investigated, despite the fact that hundreds of Facebook users committed such attacks against him. Of those, 10 perpetrators were sentenced, mostly with suspended prison sentences. One sentence was in the form of community service work. That same kind of sentence was handed down, for example, in the case of the verbal assault against the newborn in Třinec or the verbal assault against a worker for the HateFree Culture campaign. There is also a case where the verdict has yet to take affect and may be appealed. From my perspective, the fines that the courts are beginning to hand down would be much more effective in combination with compensation to the injured parties for damages, which would be paid from the perpetrator’s fine. For the time being, however, that is unfortunately not happening, injured parties, save for a few exceptions, are instructed to undertake a civil proceedings if they want compensation for damages to be awarded. That represents a further burden upon them and frequently even their re-victimization. First-instance courts are absolutely easily able to make decisions awarding compensation for damage to dignity during a criminal proceeding, though. The kinds of remarks that I am discussing here are remarks wishing somebody’s death or serious bodily harm. Those remarks, objectively, would affect anybody and it is appropriate, therefore, to compensate them directly during the criminal proceedings.

Q: What about community service? Isn’t that a good way make the perpetrator realize what he or she has done?

A: Those sentences have two pitfalls. On the one hand, in the database of the district courts, an organization must be listed that will make it possible for these perpetrators to perform community service. Most of the time these are municipalities where the convicts sweep up some public space. That, from my perspective, does not correspond to the nature of the bias crimes committed. The sentences should correspond to the way in which the crimes were perpetrated. If community service is meant to correct the person’s relationship toward what he or she has done, then in relation to bias crime it would be necessary to involve these people in working at an institution or on a project that is involved, for example, with commemorating the harmful consequences of hatred or prejudice. Of course, that means such institutions must actively work to be registered as organizations where community service can be performed. That, again, is rather a question for the state, because most of the institutions involved with such commemoration are contributory organizations that are funded by the state. Working with perpetrators of such crimes could certainly fall within their activities. I could imagine, in the case of the Central Bohemian Region, where several such convicts live, two institutions where they could perform that kind of work – the memorials at Lidice and Terezín. I think those environments alone would have an impact on them, if nothing else. Community service should not just be about a person sweeping up dirt somewhere and then it’s over. There should be an educational element involved.

Q: These trials against the authors of hateful online commentaries are being publicized, generally. Is that having any impact?

A: I think the media presence during some of the main hearings in the Radek Banga scandal have had an effect in that the perpetrator had to deal with his actual face being publicized in that context, with what he actually did being publicized, and with the punishment being publicized. That can partially act to correct his future behavior in the sense of shaming him. That can impact other people in a similar situation.

Q: Does such publicity also affect the broader public?

A: I would really love to believe that it does. However, unfortunately, because more and more such assaults are happening, I believe the preventive effect is rather an individual one. It is likely that Radek Banga in particular will never have to endure this again, because people know he has defended himself in the past and will defend himself in the future. It would be purely irrational, therefore, to commit similar behavior against him again. The question is whether this generally works with respect to other people who have been verbally attacked. Here it is necessary point out that they should all defend themselves. If journalists, for example, have long been subjected to such assaults, my opinion is that they are a super-privileged group who should stop pretending that these attacks are normal and that they should actively take charge of their situations. Basically they would be defending all of society by defending themselves. The Radek Banga scandal is a good one in that he took his own fate actively into his own hands, for two years he grappled with those 10 cases, and eventually he won. His commitment was enormous. He did it with the intention of hearing somebody authoritatively and finally say that such remarks are illegal and even criminal. His case, therefore, has de facto significantly influenced an entire area of criminal proceedings. However, the situation is not saved by just one case. We have come a long way, but we must continue for something to actually change here.

First published on the HateFree Culture server.