Oldal 111 [111]
CRIMINAL LAW, HUMAN RIGHTS AND A PARADOX
or depenalization including watchdogs institutionalized by international treaties,
for example the Committee on the Elimination of Racial Discrimination.
PENALIZING HATRED AND PROTECTING FEELINGS
In the explanatory notes of the European Union’s Framework Decision 2008/913/
JHA on combating certain forms and expressions of racism and xenophobia by
means of criminal law multicultural and multi-ethnic diversity of European
societies is hailed as a positive and enriching factor” to be protected against
racist and xenophobic forms of conduct. Hate and discrimination as an object of
criminal law had been already raised as an issue in CEDAW in the 1960s before
hatred moved back to policy arenas from the 1990s on.
Three strands of debates on (various forms of) hatred and criminal law may be
noted. These strands pertain to incitement of hatred, blasphemy and sentencing
enhancements for hate motivated crimes.
German criminal law (and other European criminal code books) has adopted
the offence statute of “incitement to hatred or violence” against a national, racial,
ethnic or religious group suited to disrupt social (public) peace (§130 Criminal
Code). The roots of the offence of incitement to hatred are located in the 19
century when it was created to respond to political movements inspired by Marxist
thought (class struggle). This offence statute received in Germany a new field of
application in the wake of the holocaust and other crimes against humanity and
it was adjusted to respond to neo-fascist propaganda, denial of the holocaust,
display of swastikas and the like. §130 German Criminal Code penalizes also
attacks on human dignity of others (individual or groups) through defamation
or insult if social peace is at risk of disruption.” Criminalization extends then to
trivialization, condonement or denial of the holocaust (and other crimes against
humanity carried out under the Nazi regime). The latter must also be suited to
disturb social peace. German criminal law partially has served as a blueprint for
the 2008 European Union framework decision.” But, some European legislators
have opted for widening offence statutes in this field with declaring denial etc. of
genocide and other crimes against humanity in general a criminal offence (see Art.
°3. European Commission: Proposal for a Council Framework Decision on combating racism
and xenophobia. Brussels, 28.11.2001, COM (2001) 664 final, 2.
4 See in this respect the decision of the German Federal Constitutional Court (1 BvR 2083/15
— 22. June 2018) which held that incitement to hatred must be suited to provoke on the side
of those incited willingness to act or to intimidate those against whom hatred is expressed.
European Commission: Proposal for a Council Framework Decision on combating racism
and xenophobia. Brussels, 28.11.2001, COM (2001) 664 final, 8.
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