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Judgement III. ÚS 3006/21 of 22 March 2022 - Protection of human dignity and private life of the victim of hate speech

Headnotes:

According to the case law of the European Court of Human Rights, the right to an effective investigation is associated with the right to protection of private and family life within the meaning of Article 8 of the Convention in the case of particularly serious interference with the personal integrity of the victim. Criminal sanctions addressing serious hate speech or incitement to violence are intended to serve as the last resort (ultima ratio) for the regulation of social relations. Serious attacks on personal integrity warrant protection by means of criminal law.

 

Summary:

I. The applicant is a lawyer and director of a non-profit organisation dedicated to the prevention of and assistance to victims of hate crime. The complainant is repeatedly the target of death and rape threats for practising her profession. In the period since June 2020, the intervener has sent a total of 114 e-mail messages of a harassing, pornographic or threatening nature to her work e-mail box. The intervener's conduct has been the subject of numerous criminal or misdemeanour charges. In all but one case, the public authorities have found that the conduct in question did not constitute an offence. From July to September 2020, the complainant was granted short-term police protection, and in October of that year the intervener was banned from contacting or seeking the complainant in any way, and only that measure put an end to three years of her intimidation. On 24 August 2020, the intervener was formally accused of crime of violence against a group of residents and against an individual, and for the offences of extortion and dangerous stalking. However, following the filing of the indictment, the District Court referred the case to the Prague 6 Municipal District Office for consideration, as the alleged offence was not a criminal offence and the defendant's act could be considered a misdemeanour. The Municipal Court subsequently dismissed the prosecutor's complaint. In her constitutional complaint, the complainant sought only a finding of a violation of her constitutionally guaranteed rights, i.e. a declaratory judgment. The General Courts repeatedly denied her, as a victim, the only protection that was obviously effective, i.e. criminal protection, against the same perpetrator.

 

II. According to the case-law of the ECtHR, the right to an effective investigation is also associated with right to respect for private and family life within the meaning of Article 8 of the Convention in the case of particularly serious interference with the personal integrity of the victim. Criminal sanctions, addressing also serious hate speech or incitement to violence, are intended to serve as the last resort (ultima ratio) for the regulation of social relations. Serious attacks on personal integrity warrant protection by means of criminal law.

Judgment Beizaras and Levickas v. Lithuania is the most relevant in this respect. In this judgment, the ECtHR examined the procedure of the Lithuanian state authorities in investigating hate comments on Facebook. However, in the case under review, the indictment was filed and decided by the criminal courts. Therefore, the conclusion on the subsidiarity of criminal repression was not the result of the Czech prosecutor's discretion, but was formulated by criminal courts after the hearing of the case. However, that difference is not material.

The Constitutional Court disagrees with the assessment made by the general courts, which essentially downplayed the seriousness of the intervener's conduct. Neither the fact that the intervener had behaved erratically nor the fact that he subsequently claimed before the court that he would not carry out his threats sufficiently justified the conclusions of the general courts. The aforementioned erratic or unpredictable nature of the author of the messages could not be interpreted unilaterally as evidence of his harmlessness. On the contrary, the complainant could have been reasonably concerned about the actions of a man who was erratic, who was or still is obsessed with the complainant and her activities, who repeatedly uses the symbolism of gallows or national tribunals in his reports and combines them with disgusting pornographic content, and who speaks of the execution of Muslims and 'traitors to the nation' who collaborate with them.

The allegation that the intervener has not carried out his threats may be objectively true, but the complainant, who was the target of his e-mail attacks, could hardly - given the nature of the messages sent - conclude without further ado that the intervener was really only a sort of harmless provocateur who was unable to go beyond verbal attacks on her. Even if the complainant had not considered that the intervener had actually attempted to harm her physically, the degree of fear and disturbance to her psychological well-being which she must have experienced as a result of his conduct must have been so great as to merit criminal law protection. Nor could the general courts' argument that, as a public figure, the applicant was obliged to tolerate a higher level of criticism be accepted.

The application of the principle of ultima ratio (or subsidiarity of criminal repression) by the general courts was incorrect, based on an erroneous assessment of the conflicting interests and, as a result, unconstitutional. Therefore, the Constitutional Court upheld the constitutional complaint in a declaratory judgment finding a violation of the complainant's fundamental rights.

 

III. Vojtěch Šimíček served as the Justice Rapporteur in the instant case. Justice Suchánek dissented.