Who’s Afraid of the New Norms against Hate Speech?

| Emil Cohen,

On April 13, the Bulgarian Parliament approved two important amendments to the Criminal Code (CC), relating to “hate speech”. The first amendment to paragraphs 1 and 2 of the current Art. 162 [1] introduced a minimum mandatory sentence of one year in prison – until now, there had been no such required minimum sentence. The second change created a new Art. 419a, which relates to the introduction of criminal responsibility for those “who condone, deny or grossly trivialize crimes against peace and humanity” [2]. Until April 13, the Bulgarian Criminal Code, in the chapter dedicated to crimes against humanity, only criminalized war propaganda. Yet the far more frequently encountered denial of the extermination of the Jews, known as the Holocaust, and of every extermination of people in general, as well as direct or indirect praise of mass killings, of enslavement, of deportation or the forcible resettlement of people, of torture of mass rape and coercion into sexual slavery, of the persecution of any group whatsoever based on political, racial, ethnic, cultural, religious or gender motives, of the forcible disappearance of people, or of Apartheid [3] is now a crime – as it has long since been in almost all the older members of the European Union.

Last fall, when it became known that the government was planning to introduce these changes in Parliament, grumbling voices piped up, claiming that such laws would “put a muzzle on the press” and that the parliamentary majority wanted to seriously restrict freedom of speech. When the amendments were approved – with almost complete unanimity, i.e. with the support of the opposition – those same voices piped up yet again. Ognyan Zlatev, director of the Center for the Development of the Media, wrote on April 14 in the newspaper 24 Hours that “the introduction of such text into the Criminal Code cannot in any way be defined as a European practice. Even stranger still is its appearance in the 21st century. This means that an attempt is being made to assert control over the new media and the Internet, which is not only not a European practice, but is characteristic only of countries which can be counted on the fingers of one hands and which rank last in terms of freedom of speech.” The interesting point is that Mr. Zlatev is talking about the current text of Art. 162 of the CC, which is not at all new, even though it has undergone a series of editorial changes, the last of which took place in 2009. The only thing Parliament added to the already existing norm was the introduction of a minimum sentencing requirement – it again calls for a sentence of up to four years in prison, but of no less than one. Thus, Zlatev’s conclusion – “I find it illogical and flat-out wrong to have a specific text that targets journalists and people in general who deal with speech – this is a direct restriction of their freedom. And freedom of speech is a basic human right and it cannot be restricted by the laws of a country which is a member of the EU and which pretends to respect all human rights” – is, to put it mildly, neither here nor there. Because the change to this norm in Bulgaria’s Criminal Code, i.e. the introduction of a minimum sentencing requirement, comes precisely as a demand from the European Union. More than three years ago, on November 28, 2008, the Council of the European Union, its highest body (i.e. an assembly of prime ministers and presidents of member states which is the supreme body of the EU), adopted Framework Decision No. 913 [4] “on combating certain forms and expressions of racism and xenophobia by means of criminal law.” Art. 3, para. 2 of this act states that “each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1 [5] is punishable by criminal penalties of a maximum of at least between one and three years of imprisonment.” The decision stipulates that member states shall make the necessary changes to their laws within two years, by November 28, 2010.

Near the end of his article, Ognyan Zlatev summaries: “It is not normal for such restrictions to be imposed in the 21st century, in this time of new technologies, when we want people, especially young people, to form opinions on what is happening around them and to express these opinions freely. I find [these restrictions] inopportune and incorrect. This is not a European practice; more likely it will give someone free reign and will lead to negative consequences for journalists and the media.” Clearly this is a case either of basic lack of informedness, since this is a European practice, or of an objection in principle to the very idea of hate speech being criminalized. It could possibly be the latter, although from this hastily written article, which demonstrates a flawed knowledge of the existing Bulgarian legislation regarding hate speech, a clear conclusion cannot be drawn about the author’s positions on matters of principle.

However, the rejection of the very idea of criminalization of hate speech can be found in an article by the well-known journalist Martin Karbovski, entitled “Regulations Against Discrimination Will Gag Media and Politicians,” published in the newspaper Standart on April 16. The idea of this piece is that “bureaucrats want to drag us back to the place we ran away from. The prison of difficult expression. Back to Aesop.” The current situation, according to Karbovski, is very bad, because “today, when there is a problem with one part of society, somebody doesn’t want us to deal with it and takes our words away. And so the problem festers.” In the end Karbovski – who owes his fame to his ability to dig around in the shady, wretched, criminal and quasi-criminal fringes of life, from whence he parades criminals, losers, wretches and misfits before an audience wallowing in the deep self-satisfaction of not being “like them” – arrives at the brave conclusion that “politically correct speech is the new fascism. The media and politicians are distancing themselves from the speech of the people who have problems with stray dogs, gypsies, church denominations and thieves. The scissors are opening ever wider and they will eventually break apart.” While agreeing that “slander and insult should be punished harshly,” just as the preaching of violence should also be punished, the author dramatically concludes that “in fighting for their rights, the minorities stripped us of ours.”

I know how nice this conclusion must sound to the soul of the average Joe, at whom Karbovski’s message is aimed. That average Joe, cowering in his family castle, is in any case already convinced that “gypsies are dirty, lying thieves” and that “the gypsies and Turks have gotten loads of privileges,” that “being gay is big business these days,” that the “‘Revival Process’ started well but ended badly,” and that “we’ve got to sweep all of these foreigners out of our country.” But now, don’t you see, they are publicly forbidding him from cursing all these good-for-nothings and free-loaders: gypsies, Turks, Jews, gays, people with disabilities and all the other ne’er-do-wells who are “eating up his bread” and “terrorizing honest and upright people.”

But let’s stop and ask what is really being said here. Nothing more and nothing less than an incitement towards “racial, national and ethic hostility or hatred or towards racial discrimination.” Does this mean that the problems concerning Roma, Evangelists, foreigners and gays cannot be discussed? Of course not. But one has to ask why, if someone says something insulting about the intellectual capacity of anyone at all, for example, Mr. Karbovski, that person should immediately be sued for slander, but if he makes an insulting or slanderous generalization about a whole group, he should not be held responsible? Both international human rights law and the authors of the Framework Decision simply adhere to the principle that groups – ethnic, religious, racial or national, as well as the disabled – have dignity. Violations of this dignity are charged with blood and tears; history is full of more than enough examples of conflicts between peoples which ended in mountains of corpses, conflicts provoked by the fact that the dignity of a group – be it racial, ethnic religious or national – was systematically attacked. Preaching hate is not the equivalent of discussing problems, it is a pernicious leap from the fact that, say, one Roma has killed a Bulgarian, to the general conclusion that “all Roma are criminals.” And we all know how criminals should be dealt with – “zero tolerance” and as much isolation from “the healthy body of society” as possible. The secret dream is “to be able to throw all of this scum out of Bulgaria,” and if possible, for it to be “eliminated” as well. By the way, the attack on the Jehovah’s Witness’ place of worship in Burgas on April 17 unambiguously shows what the language of hate can lead to. In this city, the incitement of hatred against members of this religious community through lies, slander and insults has a more than ten-year history, stemming from the days when TV host Valentin Kasabov heaped abuse on religious sects on the now defunct television channel Rent. Rent may be no more, but its place has been successfully taken over by SKAT.

Thus, complaints about the “new” regulations are, in fact, a complaint about the disappearing possibility to freely shower abuse, realized in the form of “that’s what the people say, we’re only reflecting their thoughts and expressions.” Just how effective Art. 162 of the CC will be is another question entirely. As far as I am aware, only one person has been convicted under this article – a Roma man who cursed Bulgarians. When we see how freely hate speech flows in the media, it becomes clear to us that the existence of a legal norm in and of itself does not mean anything. What is needed is a culture of tolerance, on the one hand, and decisiveness on the part of the political class to conduct a policy of zero tolerance against hatred, against incitement, against fomenting discrimination and violence, on the other. But these things are lacking in Bulgaria. The parties and the authorities – both the current as well as previous ones – stubbornly avoid condemning expressions of hatred and violence on the basis of race, religion, ethnicity and nationality. They do this because they are making mercantile calculations about votes in the upcoming elections and keep quiet for fear of causing some particularly hell-bent group of voters to go and join the ranks of Volen Siderov, rather than voting for the “traditional parties.”

Of course, some extremes of political correctness are ridiculous and even absurd, such as, for example, inventing awkward linguistic phrases to avoid mentioning the gender of a parent so as not to accidentally offend a same-sex couple. Every ideology can become fundamentalist. But we should not forget that a recent historic event – the election of a man of color as the president of the United States –was made possible to a large extent thanks to two things: the politics of so-called “positive discrimination” towards people of color and political correctness.

The introduction of Art. 419а to the CC fulfils the requirements of the Framework Decision from November 28, 2008. Paragraphs (c) and (d) of Art. 1 of that act state that member states must criminalize “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, color, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;” members must also designate as a crime “publicly condoning, denying or grossly trivializing the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, color, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.” The newly adopted Bulgarian law is more general and thus less precise. While the Framework Decision requires the criminalization of condoning and praising genocide, war crimes and crimes against humanity, the Bulgarian Art. 419а is content with crimes against humanity alone. On the other hand, it should not be forgotten that the Bulgarian Criminal Code has long since stipulated punishment for war propaganda, fomenting armed attacks against a foreign country and for aggression and war crimes besides. Thus the praising and condoning of crimes against humanity are the activities which from now on will be punished. In practice, this article should put an end to public denials of the extermination of six million European Jews and of one million gypsies by the Nazis during the Second World War, which is found, for example, in books by the leader of the Ataka party, Volen Siderov.

There are certain things that cannot be debated. The Holocaust is so monstrous in its senselessness that discussions of whether there really were death camps and whether the number of victims is really so high is a serious affront to the very essence of human dignity. No, regulations such as this do not forbid academic research on such issues. They erect an ethical barrier against the banalization of monstrous crimes committed by the Nazis, a banalization which in and of itself serves to justify the crimes, which can never be justified in any way. And for those insufficiently reigned in by the imperatives of conscience and who for this reason do not cease to praise and condone the greatest human crimes in our history, they also erect the barrier of criminal prosecution. Maintaining this ethical barrier helps us remain human. Stepping beyond it means providing an opportunity for the infinite horror of extermination to happen once again.



[1] Art. 162, Art. 1 and 2 of the Criminal Code states: “(1) Anyone who through words, print or other means of mass information, through electronic information systems or in another way propagates or incites racial, national or ethnic hostility or hatred, or racial discrimination, shall be punished with up to four years’ imprisonment and with a fine of 5,000 to 10,000 leva, as well as with public censure.
(2) Anyone who uses violence against another or harms his property due to his nationality, race, religion or due to his personal political beliefs shall be punished by four years’ imprisonment and  with a fine of 5,000 to 10,000 leva, as well as with public censure.” [back]

[2] Here is an explanation of the formulation of the new article according to an official message on the Bulgarian Parliament’s website (the wordings of the law have not yet been promulgated in the State Gazette, thus we must be content with this information): “The MPs also imposed punishment on people who condone, deny or grossly minimize crimes committed against peace and humanity. Anyone who in any way condones, denies or grossly minimizes a crime committed against peace and humanity and in so doing creates the danger of violence being committed or of hatred being fomented against individuals or groups of people united by race, skin color, religion, origins, national or ethnic belonging, shall be punished with a sentence of one to five years in prison. For incitement to such a crime, the punishment is imprisonment for up to one year.” [back]

[3] The acts listed constitute a list of crimes against humanity as they are given in Art 7, para. 1 of the Rome Statue of the International Criminal Court. [back]

[4] This can be read in Bulgarian translation in the online publication of the Official Gazette of the EU at the following address:
http://eur-lex.europa.eu/Notice.do?mode=dbl&lng1=bg,en&lang=&lng2=bg,cs,da,de,el,en,es,et,fi,fr,hu,it,lt,lv,mt,nl,pl,pt,ro,sk,sl,sv,&val=484518:cs&page=&hwords=null [back]

[5] Here is a list of those related to the sphere of applicability of Art. 162 of the CC: а) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, color, religion, descent or national or ethnic origin; (b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material”. [back]