Montenegro has sufficient mechanisms for an effective fight against hate speech, and the problem cannot be solved by prescribing new criminal offenses if institutions are dysfunctional and laws are not properly implemented, according to MINA agency interlocutors.
The Ministry of Justice plans to introduce a new criminal offense into the Criminal Code – serious hate speech, which will be punishable by imprisonment of three months to three years.
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Project Coordinator of the Media Institute, Vesna Rajković Nenadić, assessed that Montenegro has a satisfactory legal framework for combating hate speech, although some solutions need to be further strengthened, especially so that there is a clear distinction between what is a misdemeanor and what is a criminal offense.
Lawyer Veselin Radulović said that this was not a good solution, stating that Montenegro has a problem with the implementation of the law.
"At the moment, we have enough mechanisms in the legal framework to effectively combat hate speech, but the problem is that we do not have functional institutions that have not yet ensured the implementation of that legal framework in practice," Radulović told the MINA agency.
According to him, this problem cannot be solved by amending the Criminal Code and prescribing new criminal offenses, but rather through functional institutions and proper implementation of the law.
"The government, unfortunately, for the umpteenth time, has resorted to a kind of political and populist story, where it tries to present itself to the public as if there is a will to solve this problem, and they always do so by proposing amendments to existing laws," Radulović said.
Radulović said that so far the Government has done nothing to ensure the conditions for institutions to implement the legal framework, which, in his opinion, has so far been sufficient to adequately respond to hate speech.
Radulović assessed that the key problem is that institutions are not implementing the laws as they should.
"This problem has never been solved anywhere by amending the law, but rather by implementing it in practice in a better and more efficient way," Radulović pointed out.
Rajković Nenadić believes that Montenegro has a satisfactory legal framework for combating hate speech, although some solutions need to be further strengthened, especially so that there is a clear distinction between what is a misdemeanor and what is a criminal offense.
She said that introducing a new criminal offense of serious hate speech could be a good solution if this provision is applied in practice.
"However, I believe that the problem is that even the current solutions are not applied in practice or are applied selectively, so that in the same legal matter an act is qualified as a misdemeanor and in another as a criminal offense," Rajković Nenadić told the MINA agency.
As she pointed out, hate speech in Montenegro is an integral part of several laws.
Rajković Nenadić explained that the Criminal Code, under Articles 370 and 443, prescribes prison sentences of six months to five years for the basic form of the offense, or up to eight and ten years for qualified forms of the offense under Article 370.
"Analysis by non-governmental organizations has shown that in practice, suspended sentences and sentences of three months to one year in prison have been imposed for the commission of these acts and their aggravated forms," said Rajković Nenadić.
She added that in misdemeanor proceedings for offenses under the Law on Public Order and Peace, which provides for a fine of 250 to 1,5 EUR or a prison sentence of 60 days, fines ranging from 150 to a maximum of one thousand EUR were imposed.
Rajković Nenadić reminded that the Ombudsman indicates in his reports that when qualifying a misdemeanor, the provision of the article of the Law on the Prohibition of Discrimination, which stipulates hate speech as a special form of discrimination, is taken into account, as well as that when determining the sanction for hate speech, aggravating circumstances are taken into account in the form of a motive for the commission based on prejudice, or the personal characteristics of the victim.
She said that citizens report most hate speech on online platforms.
"The internet space is still lacking adequate, or rather insufficiently efficient, control and administration of content, and hate speech and other illegal content are easily spread. This is particularly dangerous because attacks from online space can escalate into physical attacks," warned Rajković Nenadić.
As she stated, data from the Police Directorate shows that it was often not possible to determine the identity of the perpetrators based on reports of comments, which is why no sanctions were imposed in these cases.
"That's why I believe that education and the application of existing solutions in practice are much more important than introducing new criminal offenses," said Rajković Nenadić.
She said that the question is what hate speech is and how much the representatives of the judicial authorities know the practice of the European Court when it comes to freedom of expression, that is, where freedom of expression ends and where hate speech begins.
As she emphasized, not every objectionable speech (swearing, insults, inflammatory speech, etc.) reported by the media is necessarily hate speech.
"Hate speech is speech prohibited by law, while the limits of freedom of expression are established by international standards that have primacy over national legislation," explained Rajković Nenadić, emphasizing that any restriction on freedom of speech must meet certain conditions.
Radulović emphasized that hate speech is not protected under the Constitution of Montenegro, nor under the European Convention for the Protection of Human Rights and Fundamental Freedoms, nor under the practice of the European Court of Human Rights, and that institutions would have to react to such speech.
He positively assesses the binding instruction issued by the Supreme State Prosecutor regarding the conduct of state prosecutors in hate speech cases, which should be aimed at changing practices.
"If the instruction is applied indiscriminately, without exception in every case, it can contribute to better results when it comes to combating hate speech," concluded Radulović.
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