Author: Maria Moulin-Stożek – Jan Długosz University in Częstochowa
Although socialization occurs mostly through primary institutions, criminal law, at least from the theoretical perspective, besides retributive has also a preventive role. Therefore, to a certain extent, if it does not react properly, it might indirectly facilitate certain actions, including hate speech. Facilitating factors, as defined in Work Package 3.2. Radicalization Trends of the D.Rad project, are specific elements in the political and socio-cultural environment of the individuals which enabled them to commit radicalized activities. Criminal law exerting its preventive function in radicalization gives a normative framework within which individuals form their views on acceptable and non-acceptable behaviours. Some people susceptible to radicalization might simply refrain from engaging in hate speech acts because they are illegal. As explored in the Polish D3.2. report,criminal law itself might encompass facilitating elements. For example, it was argued that the use of vague terms for legal excuses by the legislator might have such an effect. Circumstances excluding the unlawfulness of the act of hate speech include committing this act as part of an artistic, educational, collector’s or scientific activity. However, not defining these activities may result in their simulation and subsequent exclusion of liability. The same concerns also apply for the way forbidden symbols are presented. With inconsistency in jurisprudence about such symbolism it might be difficult to prove the incitement of hatred. It is also important to address existing legal lacunas. For instance, in the Polish system, although purchase of recordings and other items containing content promoting a fascist or other totalitarian system of the state or inciting hatred is criminalised, their disposal (for a fee or free of charge) is not punishable. Moreover, the condition for the criminality lies in the public nature of the perpetrator’s behaviour. Hence, some commentators suggested that using forbidden slogans or signs during private gatherings should also be criminalised. Finally, what could facilitate hate speech in the context of criminal law and criminal procedure law might also be the well-organized exchange of information and solidarity within extremist groups which is aimed at obstructing law enforcement procedural activities. This shows that they are able to react to modifications in criminal law and policies. It is important to note, however, that criminal law, although necessary for addressing criminal behaviour, is not enough to properly prevent it. Crimes in general, but in particular hate speech, might be committed based on certain impulses, emotions or while intoxicated and without a cost-benefit calculation. Modifications in sanctioning policies are unlikely to have an impact on this type of behaviours. Recently attention has been directed to much more promising findings from research on interventions aimed at improving equal opportunities, education and preventing abuse of young people at risk. In particular more research is needed on risk factors and valid measures for hate speech.