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The New Regulation against Hate Speech in Greece: Strengths and Weaknesses

0 Comments 🕔20.Feb 2015

This article is part of our Genocide Denial and the Law feature.

Armenian Genocide Monument in Nicosia. Photo Credit: Alexander-Michael Hadjilyra

 

by Ioanna Tourkochoriti

Law 4285/2014, enacted on September 9, 2014,[1] implements within the Greek legal order the European Council Framework Decision 2008/913/JHA, “On combating certain forms and expressions of racism and xenophobia by means of criminal law.”[2] The focus of the legislation is to criminalize activities which are carried out in a manner likely to disturb public order, and which are threatening or abusive and not merely insulting.[3] It makes a criminal offence the public incitement – either orally or through the press or Internet – to violence or hatred or any other act of discrimination against a person or a group of persons which can be identified in reference to race, color, religion, genealogical origins, national or ethnic origin, sexual orientation, gender identity or disability, in a way that endangers the public order or contains a threat for the life, the freedom, or the bodily integrity of the above-mentioned persons.[4]

The clause foresees heavy penalties, which range from imprisonment of three months to three years and a fine of 5,000 to 20,000 euros.[5] In the case of imprisonment of at least one year, an additional legal consequence is the deprivation of a person’s political rights for one to five years.[6] The same penalties also apply to whoever creates or participates in an organization or union of persons that seeks to accomplish the previous acts.[7] If the incitement results in the committing of any of those acts, the imprisonment should last at least six months and the penalty will be between 15,000 to 30,000 euros.[8] It also foresees heavier penalties in cases where any of these acts were committed by a public official or other government employee during the exercise of his or her duties.[9] These heavier fines and penalties for public officials or employees are aimed at combating incitement of racism among the police forces, a matter discussed during the elaboration of the legislative proposal.[10]

The same legislation amends the existing Criminal Code clauses foreseeing heavier criminal sanctions for hate crimes.[11]

This article discusses the strengths and weakness of the implementation of the European Council Framework Decision 2008/913/JHA within the Greek legal order. Among various options allowed under the directive, the Greek legislator decided to criminalize a rather narrow category of hate speech: the incitement of hatred and violence against a group of persons. Although the criminalization of this kind of speech seems justified, this article criticizes the criminalization of the contestation of historical facts. It argues that it is not appropriate for the law to make claims concerning historical facts. Truths considered as fundamental should not be enforced through the law.

European Court of Human Rights. Photo credit: CherryX

European Court of Human Rights. Photo credit: CherryX

Despite the delay in its implementation,[12] the regulation against hate speech and hate crimes in general can serve an important role on the level of the expressive function of the law in a country, which is at the moment in the midst of an economic and social crisis. Studies by various human rights non-governmental organizations indicate that hate crimes are on the rise in the past few years.[13] Prosecution is pending against the head and other leading members of the extreme right-wing party Golden Dawn, under article 187 of the Greek Penal Code, which makes it a criminal offence to create or participate in an organization which acts to commit felonies punished in a number of articles of the criminal code. The prosecutorial finding attributes to members of the organization numerous hate crimes on the basis of their neo-Nazi ideology.[14] In this general context, re-elaborating the existing legislation concerning incitement to crime in a way that focuses in particular on hate crimes fulfills a very important social, political, and pedagogical role, reaffirming the values of equality and social inclusion that are so important in any society, especially in times of crisis. In this respect, it fills an important gap in Greek legislation. It has been criticized, however, as not going far enough in providing for its effective application. Criticisms stress that the law does not foresee a parallel process of protection for victims who are undocumented immigrants.[15]

The law also implements article 1.1.(c) of the European Council Framework Decision, which requires the states to criminalize the denial of genocide and other crimes against humanity. It defines the offense as “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes, the Holocaust and the Nazi crimes that have been recognized by decisions of international courts or the Greek parliament, when the speech is turned against a group of persons or a person which can be defined in reference to race, color, religion, genealogical origins, ethnic or national origins, sexual orientation, gender identity or handicap, and when this speech manifests itself in a way that can incite violence, or hatred, or has a threatening aim, or aims to slander a group or a member of such a group.”[16]

The criminalization of the denial of historical facts is in itself a sign of the need to establish consensus around a fact that is so profoundly appalling as a genocide or other instances of massive extermination of entire parts of the population. At the same time, it is vulnerable to criticisms, which concern whether it is appropriate for the law to establish historical truths whose denial will be sanctioned.[17] No matter how condemnable some historical actions are, immunizing them from contestation by using the state mechanism of constraint seems to be establishing some formal official truths, which cannot be denied. It, thus, raises questions concerning the extent to which it can fit well into a general context of legislation against racism and xenophobia, which would be acceptable in a contemporary liberal democratic regime. This overuse of the function of state constraint in the area of criminal law – in other words, over-criminalization – runs the risk of depriving the entire project of regulating hate speech of its legitimacy.

The article in question refers to “genocides which have been recognized by decisions of international Courts or the Greek Parliament”[18] to define the types of denial that would lead to criminal responsibility. The question emerges here regarding to what extent it makes sense for a Parliament to enact in its legislation an official truth about a historical event. Does a formal recognition of a genocide make sense as a claim about history? The law must enact legal rules which are on the level of the “ought,” express normativity, that is, rules that concern how human beings ought to behave, and not on the level of the “is,” that is, decide on what exists or not. This is something that the French Constitutional Council rightly noted in its decision pronouncing on the unconstitutionality of the French legislative proposal to criminalize the denial of the Armenian Genocide.[19] In other words, it does not belong to the law to make claims about historical facts.

The public debate in a liberal democracy should allow the contestation of truths that we consider fundamental. This should be the case not because we consider these facts as not important enough, but because as a matter of principle we should allow human beings to adopt different perspectives and to make their claims about the world and the facts that compose it. In making claims about the world and history, it is impossible to distinguish between the subjective contribution of the person who interprets the facts and the ‘objective’ facts themselves. Thinking about history involves making sense of historical events, which implies an evaluation of facts. We inter-subjectively agree on the meaning that some facts have for us and for the most important values of humanity. We should not, however, negate for others the possibility to give another meaning or to entirely negate facts that we consider important, as the fundamental principle that justifies state intervention in a liberal democratic regime, the harm principle, does not seem to be met in this case. Durkheim noted that the use of criminal law serves to assure and to reaffirm social allegiance around some fundamental values indispensable for the very survival of any society.[20] In a liberal democratic regime, even the contestation of those values should be allowed to the extent that no harm to others is caused. Our societies are not insecure to the point of needing to affirm allegiance through the use of criminal sanctions against the denial of our fundamental truths.[21]

Is there harm in the denial? The causal link does not appear to be so tight. When a person is insulted on the basis of one of the characteristics of his or her identity or membership in one of the groups that the legislation is defining, there can be direct harm. When, however, a person makes a comment about a fact concerning the world, then this does not necessarily affect or cause harm to how others see the world. They also can exercise their liberty to see the world otherwise. In the case of Holocaust denial, the harm results from the offense that some people feel from having others deny facts that concern members of their family. There is, however, a qualitative difference between insulting a person due to a characteristic that he or she has and making a claim about a fact in the world. In the latter case, the agent does not directly attack the person who feels offended.

The regulation in the Greek legislation associates Holocaust denial with incitement of hatred against a group of persons. The definition of the reprehensible act associates the denial or gross trivialization of crimes against humanity with a behavior that has a threatening or insulting character. It is worth asking whether the value that the clause seeks to protect – incitement to hatred – cannot be covered by the previous clause against incitement to hatred in itself, and whether the association with the denial of historical facts really adds something to the relevant regulation. In this respect, it has the advantage of criminalizing the denial only in narrowly defined circumstances, when the denier aims to incite violence or hatred, or threatens or insults a concerned group. If the incitement of hatred is what the law aims to prevent, then it can do so very well by virtue of the first clause, which punishes incitement of hatred on the basis of characteristics that a person possesses. The offense that others feel from a claim that a person makes about a historical fact is not direct or important enough to justify by itself the criminalization of the relevant behavior. The criminalization of the denial of historical fact is problematic to the extent that, as a matter of principle, there is something difficult in enforcing through the law some truths that we consider fundamental. Even if the contestation of historical fact is based on what we consider to be “misrepresentations” or “pure fabrications,”[22] there is something wrong with having the law intervene in the process of representing historical fact.

The Scientific Advisory Commission of the Greek Parliament has recommended in this respect the addition of a constitutional exemption concerning the protection of artistic and academic freedom.[23] As the law was enacted in the absence of an explicit constitutional exemption, it belongs to the judge to evaluate ad hoc whether the exercise of a constitutionally protected freedom can be a reason to exempt the application of the enacted clause. The Council Framework decision in itself foresees that the application of the framework decision shall not have the effect of modifying the obligation to respect fundamental rights and legal principles, including freedom of expression and association, as well as freedom of the press and expression in other media.[24] Allowing the matter to be decided by the judge ad hoc, however, does not seem to be an optimal solution for the protection of a liberty that should not have been limited by criminal legislation in the first place.

In regulating hate speech, the European Union opted in favor of a very restrictive approach. This approach can be contrasted with the dominant one in the United States, where limitations to similar activities are not acceptable.[25] However, the solution to the debate on regulating hate speech can be more nuanced. In this respect, other legal orders which have chosen in-between approaches may be very instructive. For instance, the Canadian solution to the hate speech regulation presents the advantage of punishing hate speech that is directly offensive to the sensibilities of a person, while allowing the freedom to contest historical facts.[26] The Supreme Court of Canada held that section 181 of the Canadian Criminal code, which foresees criminal responsibility for publishing false statements, tales or news, is unconstitutional.[27] The same court has found that section 319(2) of the Criminal Code, which punishes the communication of “statements other than in private conversation” that “willfully promote hatred against any identifiable group,” is constitutional.[28]

To conclude, although incitement of hatred on the basis of a characteristic like color, religion, genealogical origin, ethnic origin, sexual orientation, gender identity or disability is an offense that can be prosecuted, the prosecution for the denial of historical facts can be less easily justified. The Greek legislation implementing the Council Framework Decision in this respect reproduces the weaknesses and the difficulties that this decision carries in itself.

 

Ioanna Tourkochoriti is currently a lecturer at the National University of Ireland Galway. She was previously a lecturer at Harvard University and a Visiting Professor at the Law Department of Carleton University Canada. She studied at the EHESS – Paris, France. She is interested in issues of constitutional liberties and human rights from a comparative and international perspective.

 

This article is part of our Genocide Denial and the Law feature.


[1] Official Journal 191 A’/10.03.2014.

[2] Official Journal L 328/55, 6.12.2008.

[3] According to article 1.1. of the Council Framework decision, Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive, or insulting.

[4] Article § 1.1 of the law modifying article 1 of law 927/1979.

[5] Law 4285/2014 article 1 § 1, amending Law 927/1979 § 1.

[6] Law 4285/2014 article 1 § 3, amending Law 927/1979 § 1.

[7] Law 4285/2014 article 1 § 4, amending Law 927/1979 § 1.

[8] Law 4285/2014 article 1 § 3, amending Law 927/1979 § 1.

[9] These penalties are imprisonment of six months to three years and a fine of 10,000 to 25,000 euros in the case of incitement of hatred, and imprisonment of at least one year and a fine of 25,000 to 50,000 euros in the case where the incitement results in the committing of a crime. See Law 4285/2014, article 1 § 5, amending Law 927/1979 § 1. This clause was inspired by the need to limit incitement of hate crimes and crimes themselves committed by the police authorities. According to an Amnesty International Report, a large number of police abuse, ill-treatment, and torture cases concern immigrants. Amnesty International 2013 report, available at <www.amnesty.org/en/region/greece/report-2013>.

[10] See, for example, the discussion of April 10, 2014, <www.hellenicparliament.gr/Vouli-ton-Ellinon/ToKtirio/Fotografiko-Archeio/#dfdd639d-0ca2-48c9-903a-683fbb86216d> [in Greek].

[11] Article 10 § 2 of law 4285 adds a clause 81A in the Criminal Code defining hate crimes as crimes that are committed “out of hate due to the race, color, religion, genealogical origins, ethnic or national origins, sexual orientation, gender identity or disability of the victim.”

[12] A first attempt to implement the Framework decision in 2011 was not successful.

[13] See for example the press release of the Hellenic League of Human Rights of January 7, 2013, noting a substantial increase in the number of hate crimes, <www.hlhr.gr/index.php?MDL=pages&SiteID=1013> [in Greek].

[14] For an analysis, see Ioanna Tourkochoriti, “Bans of Political Parties and the Case of Golden Dawn’s Right Wing extremism in Greece,” VerfBlog, October 31, 2013, available at <www.verfassungsblog.de/en/bans-of-political-parties-and-the-case-of-golden-dawns-right-wing-extremism-in-greece-2/#.VHoJMous43g>.

[15] A concern present in the discussion of the law was that, upon their hospitalization for having been injured, victims of hate crimes who happen to be illegal immigrants are imprisoned in view of their deportation, once they report the attack. See speech by Member of Parliament Vassiliki Katrivanou during the discussion of April 10, 2014, <www.hellenicparliament.gr/Vouli-ton-Ellinon/ToKtirio/Fotografiko-Archeio/#dfdd639d-0ca2-48c9-903a-683fbb86216d> [in Greek]. The effective application of the law would instead require that they be accorded a protected status until the end of the judicial proceedings under the legislation.

[16] Law 4285/2014 article 2, amending Law 927/1979 article 1 § 1.

[17] In this respect, see the analysis of Professor Vivian Curran, “Evolving French Memory Laws in Light of Greece’s 2014 Anti-Racism Law,” CritCom (forthcoming).

[18] Law 4285/2014 article 2, amending article 2 of law 927/1979.

[19] Conseil Constutionnel Decision No 2012-647DC, Feb. 28, 2012, Rec. 139 (Fr.). For an analysis, see Ioanna Tourkochoriti, “Should Hate Speech be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States, Columbia Human Rights Journal 45 (2014): 552.

[20] Émile Durkheim, The Division of Labor in Society, Engl. trans. W. D. Halls (New York: The Free Press, 1984).

[21] Nietzsche had also noted that the use of the criminal function of the state is a sign of insecurity on its behalf. The more secure a state is, the less it needs to resort to the criminalization of acts; see the Genealogy of Morality. See Friedrich Nietzsche, On the Genealogy of Morality, Engl. trans. Maudemarie Clark and Alan J. Swensen (Indianapolis and Cambridge: Hackett, 1998).

[22] See, for example, the dissenting opinion of Justices Cory and Iacobucci in R. v. Zundel, Supreme Court of Canada [1992] 2 S.C.R.: 838.

[23] Report available at <www.hellenicparliament.gr/UserFiles/7b24652e-78eb-4807-9d68-e9a5d4576eff/t-xeno-epi.pdf> [in Greek]. As the committee notes, the German Criminal Code foresees an exemption to the application of criminal legislation when the relevant acts aim for the enlightenment of citizens or artistic, scientific, and other academic purposes.

[24] Article 7.

[25] For an analysis, see Ioanna Tourkochoriti, “Should Hate Speech be Protected?”

[26] In R. v. Zundel [1992] 2 R.C.S. The case concerned the publication of a 32-page booklet denying the Holocaust.

[27] Ibid.

[28] R. c. Andrews [1990] 3 R.C.S. 870. The case concerned the publication by members of the Nationalist Party of Canada of materials offending persons on the basis of color and religion.

 

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