Hate speech publicly promotes hatred or violence against individuals or groups, based on certain attributes, and can be lawfully punished. However, a distinction should be made between hate speech and hate crimes.
Distinction between hate speech and hate crimes
There is no comprehensive legal framework to provide protection against hate speech and hate crimes in Estonia. Estonian Penal Code does not include hate crime as a specific type of crime, nor bias motive as an aggravating circumstance. Hate-motivated criminal incidents are investigated and prosecuted under the general provisions of Penal Code. Estonian Penal Code includes a provision for “incitement to hatred”, however, since the provision requires the existence of “danger to the life, health or property of a person”, it is not effective in practice. Since there is no adequate hate speech and hate crime regulation in Estonia, hereinafter the information presented about hate crimes and hate speech refers to international standards and practice.
Almost any offense established in law could be considered a hate crime, if it has the two elements needed – it must be recognized by law as an offense and it must have a biased motive. Whereas, hate speech is a specific type of offense. This is a public expression which spreads, incites, promotes or justifies hate or violence towards an individual or group of people, based on certain attributes such as, for example, race, ethnicity, gender, age, sexual orientation, beliefs or health condition, with the motive of undermining their dignity. Unlike hate crime, hate speech does not have the element of the “base offence”. This means that if the hate speech does not contain the biased or intolerant motive, there would be no criminal offence to be punished. It is only an expression by a person. This means that hate crime, as a concept, is much broader than hate speech.
important Hate speech and hate crimes have certain similar characteristics, namely, both are motivated by hatred or intolerance against individuals or groups based on certain attributes. Sometimes during the hate crime, perpetrator may also publicly express hate or violence based on the victim’s ethnicity, religion or other characteristics.
Hate speech is not protected by freedom of expression.
Read more about hate speech.
Elements of hate speech in hate crimes
Elements of hate speech can sometimes be noticed before, during or after the commitment of a hate crime and the state has an obligation to include such elements in the investigation.
example If witnesses say that they heard the perpetrator shouting homophobic slurs before attacking a gay couple, this should be considered during the investigation and further actions.
If the perpetrator possesses such items as books, music or posters that suggest bias or prejudice, this also should be considered during the investigation.
example If, during a search, the police find xenophobic posters in the perpetrator’ residence after the perpetrator’s attack on a group of foreigners, this should be taken into account.