Carri Ginter, Anneli Soo. The ‘Public Order’ Parachute in Combating Racism and Xenophobia
We took some time and focused on the Framework Decision (FD) on Combating Racism and Xenophobia (2008/913/JHA) together with associate professor Anneli Soo. How do you understand the “public order” exception in the framework decision? To us, it seems to refer to a serious threat, not simply a nuisance. If so, most of the infringement proceedings can be quickly dealt with.
In October 2020, the European Commission decided to send letters of formal notice to #Estonia and #Romania. According to their assessment, the national laws do not fully and accurately transpose the EU rules on combating certain forms of expression of racism and xenophobia through criminal law. By the end of 2021, similar proceedings had been started against 13 Member States, or 48.15% of them all, and the list may not yet be complete. Among those the Commission has decided to open infringement proceedings against are #Germany, #Hungary, and #Luxembourg. One of the general accusations presented by the Commission is a failure by the Member State to take the necessary measures to ensure that racist and xenophobic hate crimes are effectively criminalised.
The fight against racism and xenophobia and its relationship with other freedoms has been a hot topic both in academia and at family dinners. Newspapers report that an Austrian man, Helmut Griese, at the age of 63, was fined approx. 700 euros by a local judge for yodelling while mowing the grass in his back yard. The accusation was of this being ridiculing of the religious beliefs of the Muslim family living next door. In 2021 a Belgian quartet was convicted of hate speech after wearing a ‘Stop Islamisation’ banner at the market of Mechelen. Basing the decision on Belgian criminal law, the ‘Correctional’ Court of Mechelen convicted four members of the right-wing organisation Voorpost to six months in prison for inciting hate and violence during a protest last year. The people in question had banners with the following text (freely translated): ‘Is this the future of Flanders? No, thank you!’ and ‘Stop Islamisation’. The banners also showed women wearing a burka or niqab. Combining these two slogans and the women displayed on the banners was a bridge too far for the Belgian court. The warning label ‘[C]ontains language and attitudes of the time that may offend some’ at the beginning the beloved BBC comedy ‘Allo ‘Allo! caused bewilderment among nostalgic TV viewers.
Upon careful reading of the framework decision, the freedom of expression might not be in danger after all. It seems that the Member States agreed to criminalize only the more serious forms of racism and xenophobia. In that case, misdemeanours and civil liability can be sufficiently effective to deal with the rest.
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