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Article

Beizaras and Levickas v. Lithuania

Recognizing Individual Harm Caused by Cyber Hate?

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords hate speech, verbal hate crime, cyber hate, effective investigation, homophobia
Authors Viktor Kundrák
AbstractAuthor's information

    The issue of online hatred or cyber hate is at the heart of heated debates over possible limitations of online discussions, namely in the context of social media. There is freedom of expression and the value of the internet in and of itself on the one hand, and the need to protect the rights of victims, to address intolerance and racism, as well as the overarching values of equality of all in dignity and rights, on the other. Criminalizing some (forms of) expressions seems to be problematic but, many would agree, under certain circumstances, a necessary or even unavoidable solution. However, while the Court has long ago declared as unacceptable bias-motivated violence and direct threats, which under Articles 2, 3 and 8 in combination with Article 14 of the ECHR, activate the positive obligation of states to effectively investigate hate crimes, the case of Beizaras and Levickas v. Lithuania presented the first opportunity for the Court to extend such an obligation to the phenomenon of online verbal hate crime. This article will first address the concepts of hate speech and hate crime, including their intersection and, through the lens of pre-existing case law, identify the key messages for both national courts and practitioners. On the margins, the author will also discuss the issue of harm caused by verbal hate crime and the need to understand and recognize its gravity.


Viktor Kundrák
Viktor Kundrák has worked for the OSCE Office for Democratic Institutions and Human Rights (ODIHR) as a Hate Crime Officer since 2018. He has been responsible for ODIHR’s hate crime reporting, trained police, prosecutors and judges, and provided legislative and policy support at the national level. He is also a PhD candidate at Charles University in Prague. The views in this article are his own and do not necessarily represent those of ODIHR. Some of the opinions are based on an article published in Czech earlier this year (see V. Kundrák & M. Hanych, ‘Beizaras and Levickas v. Lithuania (Verbal Hate Crime on Social Network and Discriminatory Investigation)’, The Overview of the Judgments of the European Court of Human Rights, Vol. 3, 2020.

    The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.

Mark Walters
Mark Walters is Professor of Criminal Law and Criminology, University of Sussex, Brighton, UK. Contact author: Mark.Walters@sussex.ac.uk.
Case Notes

Limitations of the Physical Expression of Opinion

Decision No. 14/2019. (IV. 17.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords freedom of expression, expression of opinion, Constitutional Court of Hungary, political freedom, conflict between fundamental rights
Authors Gábor Kurunczi
AbstractAuthor's information

    The present case note tries to answer the question whether Article IX of the Fundamental Law of Hungary protects the physical expression of opinion, by analyzing the jurisprudence of the Constitutional Court. The protection of freedom of expression has been a priority for the Constitutional Court from the outset. In the 21st century, however, as far as freedom of expression is concerned, it is not enough for the Constitutional Court to rely solely on doctrines. Increasingly, courts are faced with cases where those expressing their opinion do not express their message in words, but in a physical way. And these acts (e.g. dousing a statue with paint or just painting a crack in a sidewalk in four colors) are very often in conflict with other fundamental rights (e.g. with the right to property), raising the question of the illegality of the action expressing the opinion. In 2019, the Constitutional Court dealt with three such cases. This case note analyzes the Decision No. 14/2019. (IV. 17.) AB of the Constitutional Court. In essence, the Constitutional Court had to answer three questions: (i) What are the criteria for deciding whether an act can be included in the constitutionally protected scope of freedom of expression (and how are the actions of the petitioners to be judged)? (ii) If an act can be included within the constitutionally protected scope of expression, how to balance it with other fundamental rights, in particular to the right to property? (iii) Where are the boundaries between constitutionally protected expressions and criminal acts? The aim of the present case note is to raise some new aspects to allow for further reflection on the topic.


Gábor Kurunczi
Gábor Kurunczi: visiting lecturer, Pázmány Péter Catholic University, Budapest; senior lecturer, National University of Public Service, Budapest.
Article

Restorative justice capacities in Middle Eastern culture and society: towards a hybrid model of juvenile justice in Palestine

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords Hybrid model, restorative justice, non-state justice, Palestine, Middle East
Authors Mutaz Qafisheh and Ali Wardak
AbstractAuthor's information

    Alongside the state juvenile justice system, various forms of non-state justice providers are strongly prevalent in Palestine. Although the state juvenile justice has evolved into a modern system, it lacks adequate human, professional and infrastructural capacities to provide effective justice to all children. This field research has identified key non-state justice providers in Palestine and reveals that they are more accessible and speedy and also place more emphasis on peacemaking and reconciliation than the state justice system. It also reveals that in the processes of justice dispensation, occasional violation of children’s rights takes place within some of the male-dominated non-state justice providers. In order to minimise rights violation, while capitalising on the restorative capacities of non-state justice providers, a ‘hybrid model of juvenile justice in Palestine’ has been developed and is proposed. It is argued in this article that the ‘hybrid model’ not only promises to provide a coherent framework of links between Palestinian state juvenile justice and non-state justice providers, but also has the capacity to minimise rights violation through proposed internal and external oversight mechanisms. It is further maintained that translating the hybrid model into practice may result in the provision of more accessible, inclusive and restorative juvenile justice to all children in Palestine.


Mutaz Qafisheh
Mutaz Qafisheh is Dean and Associate Professor of International Law, College of Law and Political Science, Hebron University, Hebron, Palestine.

Ali Wardak
Ali Wardak is Professor of Criminology, University of South Wales, Pontypridd, United Kingdom.
Article

Access_open The challenges for good practice in police-facilitated restorative justice for female offenders

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Restorative justice, police, female offenders
Authors Birgit Larsson, Gillian Schofield and Laura Biggart
AbstractAuthor's information

    This article reports on the uses of police-led restorative justice (RJ) for female offenders by one constabulary in England from 2007 to 2012. The study consisted of (1) quantitative analysis of administrative police data on 17,486 participants, including 2,586 female offenders, and (2) qualitative analysis of twelve narrative interviews with female offenders sampled from the database. Quantitative data demonstrated that the majority of female offenders committed low-level offences and that the majority of participants experienced street RJ. Female offenders reported mixed experiences with RJ in qualitative interviews. On the whole, women did not understand what RJ was, leading to complications as many felt their victims were mutually culpable. Some felt that the police forced them to apologise and treated them like criminals while others felt the police gave them a second chance. The study raises questions about what the police can bring to RJ in relation to vulnerable women.


Birgit Larsson
Birgit Larsson is a lecturer at the School of Social Work, University of East Anglia, Norwich, UK. Contact author: b.larsson@uea.ac.uk.

Gillian Schofield
Gillian Schofield is a Professor at the School of Social Work, University of East Anglia, Norwich, UK.

Laura Biggart
Laura Biggart is lecturer at the School of Psychology, University of East Anglia, Norwich, UK.

András László Pap
Research Chair, Head of Department for the Study of Constitutionalism and the Rule of Law, Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies, Budapest, Hungary, SASPRO-Marie Curie Fellow, Slovak Academy of Sciences Institute for Sociology, Bratislava, Slovakia, Professor of Law, National Public Service University, Budapest, Hungary, Adjunct (Recurrent Visiting) Professor, Central European University, Nationalism Studies Program, Budapest, Hungary
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