Hate speech

Hate speech can be defined in the most general sense as an expression that contains messages of hatred or intolerance towards a racial, national, ethnic or religious group or its members. As the wars in the former Yugoslavia have shown, hate speech is a powerful tool for inciting lynching, discrimination, violence, hostility and cruel behavior, war crimes, genocide and other anti-civilizational events and stereotypes that are the basis of a criminal offense. Therefore, the personal characteristics of a certain person, or membership in a certain vulnerable group, such as ethno-national affiliation, are of essential importance for determining the concept of hate speech. All international documents that speak of human rights and freedoms, and therefore of the need to combat racism and racial discrimination, also speak of preventing “hate speech”.

Hate speech is also prohibited by the national legislation of Montenegro. As part of anti-discrimination measures, the fundamental document, the UN Convention on the Elimination of All Forms of Racial Discrimination (1965), should be particularly highlighted. Article 4 of that convention states that the parties are obliged to "declare as a criminal offence any dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, any act of violence or incitement to violence against any race or group of persons of a different colour or ethnic origin..."

The 1997 Recommendation of the Committee of Ministers of the Council of Europe on “hate speech” R(97) 20 calls on member states to take appropriate measures to combat hatred, defining hate speech as any form of expression which spreads, incites, incites or perpetuates racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed in the form of aggressive nationalism and ethnocentrism, discrimination and hostility towards minorities, migrants and persons with an immigrant background”. The recommendation further calls on governments, authorities and public institutions at all levels not only to “refrain” from “hate speech”, particularly in the media, but also to “establish legal frameworks for the treatment of “hate speech”, within civil, criminal and administrative law, which will enable judicial authorities to reconcile respect for freedom of expression with respect for human dignity and the protection of the reputation of others”.

The Council of Europe Committee Recommendation R(97) 21 on the media and the promotion of a culture of tolerance stipulates that the problem of intolerance requires consideration both in the public and within media outlets. The Recommendation points to the need for reporting based on facts and truthful data on racism and intolerance, on caution in reporting on intercommunal tensions, on avoiding derogatory stereotypes when describing members of cultural, ethnic or religious communities, and on the need for the media to draw public attention to the evils of intolerance.

Due to the frequent use of the Internet as a means of spreading racial, national, religious and other hatred, the Council of Europe adopted an additional protocol to the Convention on Cybercrime in 2003 on the criminalization of acts of a racist and xenophobic nature committed through computer systems. In this regard, the Council of Europe expresses its concern “at the risk of misuse of computer systems for the purpose of spreading racial and xenophobic propaganda”. This document prohibits the distribution of racist and xenophobic material via computer systems.

The Constitution of Montenegro stipulates: “Montenegro guarantees and protects rights and freedoms. Rights and freedoms are inviolable. Everyone is obliged to respect the rights and freedoms of others” (Article 6). “Inciting or inciting hatred or intolerance on any grounds is prohibited” (Article 7). “Any direct and indirect discrimination on any grounds is prohibited” (Article 8, paragraph 1). The Law on the Prohibition of Discrimination of Montenegro (Article 9a) stipulates: “Hate speech is any form of expression of ideas, claims, information and opinions that violates, incites, incites or justifies discrimination, hatred or violence against persons or groups of persons on the basis of their personal characteristics, xenophobia, racial hatred, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed in the form of nationalism, discrimination and intolerance against minorities.

Criminal law protection against discrimination was strengthened and supplemented by the Criminal Code in 2013, which established a general aggravating circumstance clause for acts committed out of hatred based on race, religion, national or ethnic origin through a new Article 42a. However, the existence of rules prohibiting discrimination and “hate speech” in a constitution and law does not mean that it is actually prohibited and does not exist. In addition to legal assumptions, this also depends on the political will, the general social climate, political and legal culture, civic awareness, as well as the existence of democratic capacities and human resources of a given society and state.

On the contrary, Montenegro is experiencing widespread discrimination, hate speech and insults, intolerance, political tensions and threats on national, religious and political grounds. There are also dangerous manifestations of nationalism, chauvinism and clericalism, which manifest themselves in various ways, primarily in public spaces, at sports stadiums, on social networks and portals.

In this regard, a major problem is that the competent state institutions: prosecutors' offices, courts, ombudsman, etc. (which should do their job in the field of protecting human and minority rights, prohibiting discrimination, spreading hate speech and intolerance, nationalism and chauvinism) are insufficiently prepared and equipped, determined and effective, efficient and functional to tackle the above-mentioned dangerous social phenomena and tendencies and to adequately protect the human rights and fundamental freedoms of citizens of Montenegro, as well as the rights of foreigners residing in our country, in accordance with national legislation and international law.

The author is an academician