CYIL vol. 14 (2023)

HARALD CHRISTIAN SCHEU CYIL 14 (2023) criminalise hate speech, threats and violence based on ethnicity as well as public incitement to violence and hatred” is highly problematic as it places hate speech and ethnic violence under the same concept of hate crime without distinguishing between different forms of hate speech. Furthermore, the Advisory Committee does not explain the difference between hate speech and public incitement to violence and hatred. The blurring of the different categories and the indiscriminate call for a broad range of criminal sanctions could be the result of a lack of expertise in the field of criminal law. Indeed, experienced criminal lawyers tend to be severely underrepresented in international human rights bodies such as the Advisory Committee. Therefore, instead of formulating ambiguous statements in this area and opening the door to a possible abuse of unclear legal concepts, the Committee should be more careful and consul the relevant parts of its opinions with criminal law experts and experts on freedom of speech. A thorough reading of the 2012 report of the UN Special Rapporteur on hate speech and incitement of hatred could lead to a critical reflection on the terms used by the Advisory Committee. Moreover, any attempt to criminalise hate speech should take into account the complexity of human language. Words and phrases can have more than one meaning and are subject to different interpretations. We may recall the HRC case in which the Greek government successfully defended its case by simply claiming that the complainants had provided a false or inaccurate translation of the challenged statements. We can also take the 5 th opinion on the Czech Republic as an example. According to the Advisory Committee, “hate directed at Roma has notably increased in social media during the last years” and “negative attitudes towards Roma prevailing in parts of society are also supported by statements by some politicians, including at the highest level, for example by referring to Roma as ‘inadaptable’ citizens”. In this respect, the Advisory Committee took note of a statement made by the Czech President in 2017, in which he referred to Roma as “inadaptable citizens”. 48 Regardless of the context of this statement which aimed to defend the Czech Republic against accusations of racial discrimination, we can state that the Czech word “nepřizpůsobivý” can be translated not only as “inadaptable”. 49 In its traditional use, the term had rather positive connotations such as “strong in character”, “creative”, and “diligent”. 50 Although today it very often serves as a racist code word for the Roma minority, 51 the specific meaning of the word may well depend on the context in which it is used and to whom it is addressed. We are not suggesting that the statement in question should not be carefully analysed or criticised. 52 However, it seems 48 See the 5th ACFC opinion on the Czech Republic (para. 93). 49 In academic literature, the term “nepřizpůsobivy” is also translated as “maladapted”. See, HUŠEK, P., TVRDA, K., The collective singularity of anti-racist actors: a case study of the Roma minority in the Czech Republic. Ethnic and Racial Studies . 2016, pp. 49–67. 50 See, for example, Jan Wirnitzer’s and Eva Vašíčková’s short article „Z pocty je nadávka. Lingvisté dumají, jak jinak říkat nepřizpůsobivým“ published at the news server IDnes on 13 November 2011 (https://www.idnes.cz/zpravy/ domaci/z-pocty-je-nadavka-lingviste-dumaji-jak-jinak-rikat-neprizpusobivym.A111024_151116_domaci_jw). 51 ČADA, K., Social Exclusion of the Roma and Czech Society. In: STEWART, M., (ed.) The gypsy „menace“: populism and the new anti-gypsy politics . London, 2012, pp. 67–79. 52 According to news server Aktualne.cz, the Czech President Miloš Zeman in 2017 responded to a UN report which was calling, among other things, for improving the integration of Roma into society. In this context, Zeman stated that there is no value in positive discrimination for Roma, because even positive discrimination is still discrimination. According to Zeman, there are „maladaptive“ people who refuse offered work, even if they are healthy. Zeman subsequently added that about 90 percent of them are Roma (https://zpravy.aktualne.cz/ domaci/romove-se-ohradili-proti-vyroku-milose-zemana/r~78131730c71311e79704ac1f6b220ee8).

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