Undersecretary: What can and cannot be said not an exact science

Markus Kärner.
Markus Kärner. Source: Ministry of Justice

Markus Kärner, deputy secretary general in charge of criminal policy of the Ministry of Justice, tells ERR in an interview that it is impossible to absolutely define in hate speech legislation what can and cannot be done. He says he cannot think of anyone from the last decade that could have been punished based on Estonia's incoming hate speech bill.

Prosecutor General Andres Parmas recently opined that the Justice Ministry's phrasing of the new hate speech bill is unfortunate where it describes as punishable hate speech that could pose a threat to public order. That this would see the same term used in different meanings and only add to legal confusion. Do you agree?

The Penal Code already uses the term "public order" in two different meanings. Talking about expulsions, public order reflects its meaning in EU law. But when talking about offenses against public order, we really mean public order in the sense of civil public behavior.

And if the bill, as proposed by the Ministry of Justice, adds another explanation for what is meant by "public order," we have no reason to believe bodies conducting proceedings will be terminally confused by it.

But why use the term in the first place? The prosecution is proposing we use the phrasing that you offer as the definition of public order in this instance. The prosecution's wording would only make it possible to punish people for incitement of hatred if there is reason to believe an act of violence and serious danger to public safety would follow. Why can't we just omit public order?

Precisely. The prosecution arrives at the same solution the ministry did in the end. The difference is one of drafting norms, and they ask whether the term "public order" needs to be introduced in the first place.

But the term is also tied to EU law. We can use it to clearly demonstrate that the elements of the criminal offense as outlined in our legislation correspond to what is required by EU law. But I agree that, in the end, it is rather a matter of drafting norms and technicalities. The prosecution proposed the exact same thing phrased slightly differently.

Please explain again why we need the term "public order" there?

Talking about how the hate speech framework decision defines the concept of incitement of hatred, there are limitation criteria. One such limitation is, "if the act has been committed in a way that could likely harm public order."

And because the framework decision does not go into further detail, we should populate it with content based on EU law. It is a narrower concept that we are defining for ourselves in the law. But we also want to make sure we have adopted the framework decision's requirements in our legislation.

Does that mean that we could have it in legislation that we understand breach of public order, for example, as a situation where a person's life, health and property are in danger? [It is currently only possible to punish someone for hate speech when it causes a threat to life, health or property – ed.]

That is a good question, and I do understand where you're going with this. But since infringement proceedings have been brought, the European Commission has not considered this definition of concrete danger to be the same as public order.

But what if we made it clear in the law that we consider it to be breach of public order?

EU law, talking about its adoption, is not just making high-sounding declarations. In the end, what is measured is whether the spirit of the law matches the EU law context or not.

Figuratively speaking, we cannot just go ahead and define endangering public order as incitement of hatred if solar and lunar eclipses coincide with northern lights. This could prove an unsuccessful argument in the infringement process.

However, I would emphasize that we're mainly talking about requirements pursuant our own Constitution. It's simply that the bill also takes us into compliance with the framework decision.

Andres Parmas said that the prosecution's phrasing is far from ideal too. That it remains rather abstract and will need to be fleshed out in court practice. Please describe, for each phrasing, how a citizen should understand what they can and cannot say and in what context? Where is that line?

The line is where a public call for hatred, violence or discrimination against persons or groups is perpetrated in a way that could realistically result in negative consequences. An act or acts of violence or a decline in the level of public safety.

It is an important and rather high bar. Now, if someone wants to criticize the bill by suggesting that we need a fine line in the sand and a lexicon of terms of what you can or cannot say, that is unthinkable. The bill does not ban specific expressions or ways of expressing oneself. It all depends on context.

There are cases of threatening every year. Threatening murder, grievous bodily harm or extensive destruction of property is punishable if there is reason to believe the threats may be carried out. If an elderly person who is not offered a seat on a bus says, "I'll kill you, punks," how are they to know whether they just made a criminal threat? We need to consider whether there was reason to believe the threat may be carried out.

Naturally, the bill's phrasing is abstract to a point. We see a measure of abstractness in other countries' legislation. And relevant concerns are valid in that elements of criminal offenses need to be as clear as possible. But elements that would leave absolutely no room for interpretation would be so narrow as to be rendered useless.

I'm not criticizing everyone who says we should strive for maximal clarity. Of course we must, which is why the bill includes the notion of "considerably compromising public safety." These should be thresholds where an objective bystander would understand that expressions made in a such a way and aimed at such groups might result in consequences.

And they should exclude such expressions regarding which an objective bystander would say that while someone did say something on Facebook or during a rally that may constitute incitement of violence or hatred, it did not have any real potential for harm.

You suggest that we cannot draw a fine line. But how should an ordinary citizen see any line at all? There are no court precedents. How should we know where the line is?

How else should we get court precedents? Without elements of an offense, there cannot be any relevant court practice. We wanted to see whether there would be more constructive proposals when we sent the bill out for approval. These things have been mulled for the last 15 years at the least. We've played around with the concepts of public order, public peace. We all understand more or less where we're going with this.

Several comments point out that penal law should be amended on a needs basis. That it is amended only when a new offense that should merit a punishment comes to the public's attention. Can you give an example from the last decade of someone having said something and escaped punishment, while they would be punished after we changed this law in the proposed way?

The elements of the criminal offense have been phrased quite narrowly, and I must admit I cannot think of any such example.

But why are we doing it if there is no problem to solve?

Looking at the rest of the world, looking at what is happening in Ukraine, we see the potential that incitement of hatred has for violating people's rights and the consequences this can have.

Also, can we really say that criminal offenses we've defined but haven't prosecuted are excessive? For example, violent action aimed at overturning the constitutional order. Such criminal conduct has been defined and has a deterrent effect. /.../

Let us imagine a situation where very pro-Russian people start inciting systematic hatred against ethnic Estonians in eastern cities. Right now, if we can prove that a single Estonian's life was in danger because of such calls, we can fine the inciter the same we would fine a truck driver for a tachograph violation.

Or perhaps we should say that we cannot allow such things, and that maybe incitement of hatred could have serious consequences that would not have to be tied to particular cases on the level of cause and effect.

Andres Parmas suggests that hateful opinions in society are a matter of public debate culture. "It is necessary to reduce public aggressiveness and promote tolerance toward different ideas. Penal law is not a suitable way of combating aggressive sentiment in society," the prosecutor general said. Do I have it correct that you feel penal law is appropriate in this context?

It is not my feeling but rather the letter of the Constitution. But it is necessary. Penal law protects the foundations of legal order, the most important legal rights.

Of course, I agree that it is first and foremost a matter of upbringing and tolerance. And it is a core tenet of free speech that everyone can express their opinion. Freedom of speech also means having to tolerate insults and for someone's opinion to be hurtful, which is not something the Justice Ministry is looking to change.

However, there is a line after which we need to be able to tell the people who fall victim to hate speech that their country protects them. You asked me for the problem we're trying to solve. It's giving people certainty that their state will protect their rights instead of just throwing its arms up. Instead of just saying, yes, calls to murder people of your religion are okay, you are not the same as everyone else.


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Editor: Marcus Turovski

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