The Bulgarian Community for Liberal Democracy (BOLD) is an association of citizens that aims to increase public support for democracy, human rights and fundamental freedoms, and to help consolidate liberal democracy in Bulgaria. With this position BOLD participates in the formation of public attitudes and public policies in the field of hate speech. This is an area of conflicting legitimate interests in which international standards are underdeveloped. The problem has been particularly acute in Bulgaria in recent years, in which hate speech against various vulnerable groups has risen sharply amid growing nationalist, xenophobic, extremely conservative and populist attitudes. Hate speech is used particularly intensively for political mobilization during elections. Bulgarian legislation and law enforcement related to hate speech contains serious deficits. Due to all this, the liberal-democratic community in Bulgaria needs to clarify its attitude to this complex phenomenon and its manifestations in Bulgaria, as well as to formulate recommendations in the field of public policies.
In recent years, Bulgaria has been repeatedly criticized by a number of international human rights bodies and institutions for the widespread and unpunished commission of crimes motivated by prejudice, also known as hate crimes, as well as for the unjustified tolerance of hate speech affecting various vulnerable groups in Bulgarian society. According to one of the findings in the last published report on Bulgaria of the European Commission against racism and intolerance from 2014:
“Racist and intolerant hate speech in political discourse is increasing; now its main target is refugees. Manifestations of racism and xenophobia against foreigners, Turks and Muslims are common in the media and on the Internet; the same is true of offensive language when it comes to Roma. There is also a significant amount of hate speech aimed at sexual orientation. There are more and more ultranationalist/fascist groups and political parties in Bulgaria.”
Similarly, in its concluding observations following the November 2018 review of Bulgaria’s obligations under the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated:
“The Committee is concerned at reports of heightened acts of hate speech and hate crimes, especially against the Roma community, members of religious minorities, lesbians, gays, bisexuals, transgender and intersex people, migrants and asylum seekers, including non-racist and racist speech on television, in the media and on the Internet, by top-level government officials and in election campaigns. “
These grim findings are complemented by several studies conducted by the Open Society Institute, dedicated specifically to the prevalence, objects and effects of hate speech in Bulgaria. They show high levels of its performance and a tendency to increase until 2016, with a slight decrease in 2018. Its targets are mainly Roma, LGBTI, Turks, Muslims and foreigners. In 2018, negative speech towards women, as well as towards people of different sexual orientations, intensified in the context of the campaign against the ratification of the Istanbul Convention.
A number of international treaties, practices and recommendations of international bodies and organizations require states to combat hate speech, in some cases by means of criminal law, as it constitutes an encroachment on human dignity, democratic rule of law and the right to privacy. of the persons affected by it. Some international legal acts even require the criminalization of some of its forms. This struggle generally involves restricting the right to freedom of expression, another fundamental human right that is highly respected in the liberal-democratic community. How to balance these two important interests? This is a question to which the international human rights community, including the European Court of Human Rights, has not yet offered a clear answer.
The most up-to-date and perhaps most comprehensive definition of hate speech at the international level is given in the Explanatory Memorandum to the European Commission’s General Policy Recommendation № 15 on Racism and Intolerance (ECRI). According to it:
“Hate speech […] includes the use of one or more forms of expression – namely, preaching, encouraging or inciting humiliation, hatred or defamation of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threats of treatment of such person or persons and any justification for all such forms of expression based on a non-exhaustive list of personal characteristics or statuses, including ‘race’, skin color, language, religion or belief, nationality or national or ethnic origin. origin as well as the origin, age, disability, gender, gender, gender identity and sexual orientation. “
The definition covers a wide range of forms of expression. They must be understood not only from a functional point of view, as what they cause, but also from a formal point of view – as covering both expressive forms directly related to the word and those related to gestures, images, music and more. Many personal characteristics are included in the definition. This in itself raises a number of questions related to the equality of forms and the hierarchy of characteristics. Adding to the criminalization obligations, these issues become even more so.
Liberal democracy, a system of public order based on ideological and political pluralism, majority rule and the guarantee of fundamental human rights and freedoms, recognizes the detrimental effect of hate speech and allows the restriction of other fundamental rights, such as freedom of expression, in peaceful assembly. , of association and of religion in order to limit these effects on the human person and his free development. No one’s freedom can be exercised at the expense of the freedom of others. The victim of hate speech, even when not mentioned in person, should have the right to be constituted as a victim in criminal proceedings, as well as to make an individual complaint in other types of proceedings against persons and groups that are sources of such speech. In all cases, she should be entitled to an effective domestic remedy to protect her infringed rights.
Recognizing the detrimental effects of hate speech on personal dignity and the right to privacy, as well as the discriminatory nature of hate speech, together with the tolerance, breadth of views and respect for all human rights inherent in a mature democracy, it requires a differentiation of forms of social control over all kinds of deviant behavior, including hate speech. Where a necessary and sufficient response to such behavior is a simple reversal of the head of the other party or a verbal remark, there is no need to resort to formal social control, much less to criminal sanctions. For example, when in the company of Bulgarians someone starts talking “how thieving are the gypsies”. International standards for combating hate speech require such only where it affects the key identity of the victim and when hate speech is particularly harsh and virulent. For example, when a party leader from the parliamentary rostrum in a live broadcast on national television said that Roma women had “street bitch instincts” and called for their child benefits to be stopped. The choice of an appropriate means of combating it should be subject to the assessment of any sanction or restriction in the light of a number of factors, such as:
– The nature of the statements made – whether they raise in some, albeit acute form, issues of legitimate public interest, or do not go beyond the humiliating labeling and stereotyping of groups of people because of some of their characteristics;
– The extent to which the statements affect the dignity and rights of the target group, which includes, inter alia, a realistic assessment of the group’s social status, vulnerability, history of persecution and discrimination against individual members of the group as a whole;
– The status of the speaker in society – whether it is, for example, a marginal public figure, whose speeches are usually the object of ridicule, or a person who attracts a certain public trust and whose words are spread among a wide audience;
– The scope of hate speech – whether the affected audience is relatively limited due to the forms and means by which hate speech is expressed, or it is wide because it is spread by popular media, is spoken from the parliamentary rostrum so that the affected person or a group cannot help but perceive it;
– The nature and severity of the punishment that the law provides as a reaction to certain forms of hate speech. It should always be borne in mind that a punishment that is disproportionate in severity may constitute a violation of the right to freedom of expression and, where it is excessively mild, leave victims of a particular hate speech and society with a sense of underestimating its hatred maliciousness.
In all cases where there is a need to sanction hate speech, an assessment is needed in the light of the specific context. In addition to the above factors, the personal characteristics affected by this speech should also be assessed. Current international legal standards when it comes to sanctioning hate speech by criminal law currently limit these characteristics to nationality, race, ethnicity, religion and origin. These are the signs that the international community has, on the one hand, presumed to be elements of the key identity of the person or group whose involvement is particularly painful and, on the other hand, has accepted that they are a basis which, when affected by in a particularly aggressive and virulent way, it can lead to serious breaches of public order, violence and even mass killings, which the recent history of Europe and the world has repeatedly witnessed in the last century. Not in vain, the most serious of the crimes that the criminal justice systems have formulated, genocide, is limited to these very signs.
Today, however, this approach is outdated. The list of signs that should be presumed to affect a person’s key identity needs to be expanded. There is no reason to exclude, for example, gender, sexual orientation and gender identity. Moreover, whether an identity is key or not should be assessed in the light of the specific circumstances of the case. One cannot a priori rule out the possibility that even political beliefs, a sign against which international law generally allows sharp and offensive verbal attacks, in some cases constitute a key identity of a particular person or group of people as important as religious beliefs or even ethnicity. Legislation governing the sanctioning of hate speech should, therefore, take a flexible approach to the definition and provision of remedies.
Bulgarian legislation contains a number of deficits in the regulation of criminal sanctions for hate crimes and hate speech. On the one hand, it makes it possible to impose such sanctions even when hate speech is not made public. On the other hand, it limits the grounds on the basis of which such speech can be sanctioned only to race, nationality, ethnicity and religion. There is no possibility of a criminal sanction for hate speech based on other features related to key identities. Administrative and civil remedies allow such protection on much broader grounds, as set out in the Protection against Discrimination Act. But even there, there are no such signs as gender identity and professional affiliation. The Bulgarian criminal law doctrine treats the crimes related to hate speech as “formal crimes”, which are prosecuted only in the general order and therefore does not allow the constitution of a victim in such cases.
An even more serious problem is law enforcement. The Bulgarian criminal justice system, as well as the one for protection against discrimination, does not recognize hate speech, tolerates aggressive racist, xenophobic and homophobic incitements, applies a double standard to minorities and the majority and thus contributes to maintaining poisonous environments in vulnerable groups. Bulgarian society. Media regulation of hate speech is scarce, extremely rare and almost never used against people in power. In violation of Article 4a of the International Convention on the Elimination of All Forms of Racial Discrimination, the Bulgarian state funds political parties that systematically incite racial/ethnic hatred and discrimination.
Law enforcement issues reflect on the media environment, which, free from the threat of sanctions and restrictions, often provides a platform for messages inciting hostility, discrimination and violence on various grounds. This is even more true of many Internet-based platforms, which provide anonymous individuals with almost unlimited freedom of hate speech. Such a social environment severely limits the ability of liberal civil society to resist prejudice and incitement. Moreover, its representatives are often insulted and stigmatized, and in some cases even subjected to unpunished physical aggression.
As a liberal community, we are convinced of the need to strike a balance in upholding two groups of fundamental human rights in a democratic society – the right to freedom of expression, on the one hand, and the right to protection from discrimination, privacy, honor and dignity. another. Recognizing, together with the inherent tolerance, breadth of views and respect for all human rights in a developed democracy, requires the differentiation of forms of social and institutional control over all forms of aggression against them, including hate speech, we make the following recommendations for active civil and institutional opposition to it:
RECOMMENDATIONS FOR OPPOSITION OF HATE SPEECH
– Reforming the Bulgarian legislation by expanding the features substantiating the sanctioning of hate speech under criminal, administrative and civil law and differentiating the sanctions according to the nature of the features and the degree of their impact;
– Take effective criminal measures against the public use of hate speech, which constitutes incitement to violence, threats, hostility or discrimination, provided that no other, less restrictive measure has proved effective, while respecting the right to freedom of expression. expression;
– Providing effective domestic remedies for victims of hate speech in all types of proceedings, including by constituting them as victims in criminal proceedings;
– Ensuring effective implementation of the legislation related to the sanctioning of hate speech in the media by the media regulators and promotion of the mechanisms for self-regulation of the media;
– Support by expressing solidarity, counseling and legal assistance to victims of hate speech;
– Taking measures to inform the public about the harms of hate speech, promoting intercultural dialogue and combating misinformation;
– Development of special education programs for children and youth, aimed at intercultural communication, tolerance and combating prejudice;
– Termination of financial support by the state to political parties and organizations that use hate speech or are unable to impose sanctions for its use by their members;
– Ratification by Bulgaria of the Additional Protocol to the Convention on Cybercrime of the Council of Europe, as well as of Protocol № 12 to the European Convention on Human Rights;
– Establish a system for collecting data on hate speech, which should not be limited to the criminal justice system.