62. The Ombudsman recommends that the Ministry of Economic De- velopment and Technology propose suitable (statutory) regulation of
2.12 FREEDOM OF EXPRESSION
2.12.1 General findings and assessment of the situation
The situation regarding freedom of expression remains distinctly related to cur- rent social developments in terms of number and content. We are still expected to publicly respond, whether directly or indirectly, to various publicly expressed opinions, particularly of politically exposed persons. The Ombudsman does not take a stand lightly in such cases due to the importance of the concept of free- dom of expression. The Ombudsman’s main guideline when assessing whether to publicly react in such situations is generally the constitutional prohibition (Article 63 of the Constitution) of any incitement to national, racial, religious, or other discrimination, and the inflaming of national, racial, religious, or other hatred and intolerance, as well as any incitement to violence and war. Many expectations regarding our public response frequently remain unfulfilled, but the reason for the Ombudsman’s assessment that an expressed opinion does not show signs of constitutional non-freedom of expression and does not require the Ombuds- man’s public comment is never motivated with a desire to contribute to the legitimacy of any form of inequality, hatred or intolerance.
CASES CONSIDERED RESOLVED AND JUSTIFIED
FIELD OF WORK 2018 2019 INDEX 19/18 NO. OF RESOLVED NO. OF JUSTIFIED SHARE OF JUSTIFIED AMONG RESOLVED
4. FREEDOM OF
EXPRESSION 54 35 64.81 31 2 6.5
4.1 FREEDOM OF
EXPRESSION 2 4 200.00 4 0 0.0
4.2 ETHICS OF PUBLIC
SPEAKING 39 20 51.28 16 0 0.0
4.3 ACCESS TO PUBLIC
INFORMATION 8 3 37.50 3 0 0.0
4.0 FREEDOM OF
EXPRESSION - OTHER 5 8 160.00 8 2 25.0
2.12 FREEDOM OF EXPRESSION2.11 VARSTVO DOSTOJANSTVA
Parliamentary elections constitute current social developments in any democrat- ic society. In view of the aforementioned, we were not surprised that we report- ed in our previous annual report on certain disputable posters from the election campaign related to the National Assembly elections58; we were equally not sur- prised when we received complaints about posters of the DOM – Domovinska liga political party (on their website, they state that they “strive for Slovenia in Europe, the homeland of freedom), which read “GO SLOVENIA Not Albania. VOTE FOR DOM” and “The mission of Slovenia is not concern for the welfare of the people of Afghanistan, Nigeria or Pakistan, but concern for the welfare and safety of Slo- venian citizens” during the campaign related to the election of representatives of the Republic of Slovenia to the European Parliament. To address this case, even the Ministry of Foreign Affairs contacted the Ombudsman after they received, due to the negative mention of Albania, its ambassador who expressed concern and emphasised the inadmissibility of such a message; he was contacted by several Albanian citizens living in Slovenia and journalists asking him for a comment; Slo- venian journalists also contacted the Slovenian embassy in Tirana. A complainant believed that such a message was “inappropriate and hostile towards a particular group of people” and that it spread “fear and prejudice”.
Pursuant to the ZVarCP, the Ombudsman has competences and powers only in relation to the authorities but not in relation to private law entities or political parties. Nevertheless, the Ombudsman has condemned obvious expressions of the constitutionally prohibited (Article 63) incitement to inequality and intol- erance and violence and war, although they could not be attributed to a state authority, local self-government authority or holder of public authority. Re- garding a Slovenian journalist’s tweet (“I’d let refugees approach only 500 metres from the Slovenian border, otherwise I’d shoot them”), we stated in a press re- lease59 that it undoubtedly exceeded freedom of expression, that it was unlawful and a morally twisted act; similarly, the Ombudsman condemned graffiti with unambiguous expressions of hatred against Christians (“Christians – we slaugh- tered you in 1945 – we will slaughter you in 2013”)), i.e. against a social group that is usually not classified as a vulnerable group60.
Regarding the election campaign posters to which we were alerted, we assessed that they could not be equated with the cases referred to in the preceding par- agraph. In them, we perceived a populist criticism of the migration and integra- tion policy of the EU, which can definitely be a reason for concern. After all, the Parliamentary Assembly of the Council of Europe recognised in Resolution 1889 (2012) that (point 4) during election campaigns certain candidates and political parties portray migrants and refugees as a threat to, and burden upon, the com- munity, which produces more negative reactions to them among the public, and then explicitly reiterated that politicians have a special responsibility to exclude negative stereotypes or stigmatisation of any minority or migrant group from the political discourse, which also applies to election campaigns. However, we do not
58 See for example pp. 107 and 108 of the Annual Report for 2018.
59 Of 28 August 2015, available at http://www.varuh-rs.si/medijsko-sredisce/n-o-v-i-c-e/de tajl/varuh-o-pojavih-nestrpnega-sovraznega-govora-do-beguncev
60 More details are on pages 38 and 347 and 348 of the Ombudsman’s Annual Report for 2013.
2.12 FREEDOM OF EXPRESSION
doubt that certain people will continue to lead similarly provocative election campaigns to attain their objective. We should not dismiss the fact that such is the nature of politics. We should particularly not forget that voters have an op- portunity at elections to show with their vote what attracted or deterred them in a campaign and to vote accordingly. Pursuant to Article 21 of the ZUstS, the Consti- tutional Court of the Republic of Slovenia also decides on the unconstitutionality of the activities of political parties, whereby, pursuant to Article 68 of the said act, anyone may file a request for a review of the unconstitutionality of the activities of political parties. Unconstitutional activities of political parties may be prohibited with a decision in proceedings before the said authority.
Let us state, as an interesting fact, that we were among the addressees to receive
“a report of the suspicion of a violation of the Geneva Convention Relative to the Treatment of Prisoners of War adopted on 12 August 1949 and 1929” against a political party and the author of the poster which displayed a photo of soldiers (recruits) who were captured in Rožna dolina near Nova Gorica in 1991. This poster was used by the Social Democratic Party (SDS) to congratulate Slovenian citizens on Slovenian Statehood Day (25 June). We deduced that the sender also sent the report to the State Prosecutor’s Office. We do not know how the matter was de- cided (15.1-10/2019).
Also a constant is that the National Assembly has not yet adopted the ethics code of deputies or formed a tribunal that would respond to individual cases of hate speech in politics subject to public condemnation61. According to the availa- ble information, a dedicated working group met in 2019, but the code and tribunal are still non-existent.
Nevertheless, we can mention at least one significant change in the case law regarding hate speech: the Supreme Court of the Republic of Slovenia issued a judgment in case ref. no. I lps 65803/2012 regarding a criminal offence pursuant to paragraph one of Article 297 of the Criminal Code (KZ-1). The significance of this judgment of the highest court in the country lies in an interpretation of the criminalisation of the act referred to in the said article that is different to previous interpretations. According to this judgment, “the use of threats, abusive language or insults, if these are expressed publicly to promote or incite hatred, violence or intolerance, is in terms of intensity equal to the legal element of a potential threat to peace and public order; therefore this section of the statutory text must be interpreted in such a way that the two additional conditions are set alternatively and not cumulatively”. This means that it is not necessary for both conditions to be met, but rather the fulfilment of one of them will suffice (this had not previ- ously been the case). Undoubtedly, this is a significant change in case law regard- ing a criminal offence pursuant to Article 297 of the KZ-1, but we will have to wait for its actual effects in further criminal law practice. After all, a single court de- cision does not constitute established case law. An additional interesting aspect of the said case is a description of the criminal offence: in 2011, the perpetrator published a comment below an article entitled
61 In this regard see p. 103 of the Annual Report for 2018 and the references stated therein.
2.12 FREEDOM OF EXPRESSION
“Entrepreneur targeted in thefts and burglaries” on the online portal of Radio Krka, which read: “A few sticks of amatol, a few M75 bombs and a few AK-47s just in case, I think there’s no other way. Or one by one, this could also work to make them think. Radio Krka, I’d have a song request; Korado/Brendi, kam so šli vsi cigani (where did all the gypsies go?). Thanks.” Such public expression is no longer admissible according to the said court decision.
2.12.2 Realisation of the Ombudsman’s past
recommendations
Unfortunately, numerous past recommendations of the Ombudsman referring to freedom of expression remain only partially realised or even fully unrealised.
• recommendation no. 13 (2018)62 with which the Ombudsman recommended that all who participate in public discussions, particularly politicians in their statements and writing, avoid inciting hatred or intolerance on the basis of any personal circumstance, and when such cases occur, to respond and con- demn them immediately;
• recommendation no. 14 (2018)63 with which the Ombudsman proposed that the Ministry of Culture do everything possible within its power to determine the following in relation to the realisation of the provision on the prohibition of spreading hatred in the media (Article 8 of the Mass Media Act): 1. the man- ner of protecting public interest (inspection and minor offence supervision); 2.
measures to eliminate irregularities (e.g. immediate removal of unauthorised content), and 3. sanctions for the media that allow the publication of hate speech.
The online edition of the annual report available on the Ombudsman’s website includes additional substantive explanations regarding the (non)realisation of past recommendations.
62 Annual Report for 2018, p. 104.
63 Annual Report for 2018, p. 107.
2.12 FREEDOM OF EXPRESSION
2.12.3 The Ombudsman’s new
recommendations and activities
2.12.3.1 1. Recommendations
In the field of freedom of speech, the Ombudsman reiterates two recommenda- tions: