Czech Constitutional Court finds lower instance was wrong not to consider Romani celebrity subjected to online hate an injured party

The District Court in Kladno, Czech Republic made an error, according to Constitutional Court justices, when it did not grant the Romani singer Radoslav Banga the status of the injured party in a criminal proceedings over racist online commentaries. The post in question was published directly to Banga's Facebook profile.

The person making the remarks was sentenced to 100 hours of community service for having displayed sympathy for a movement aimed at suppressing human rights and freedoms. However, it will no longer be possible to reopen the criminal case against the perpetrator even after the Constitutional Court finding.

The Constitutional Court has just "cleared up this unconstitutional, excessive legal act" and sent the lower courts a signal about how to deal with similar disputes in the future. They will have to more consistently investigate and reflect on the degree to which a commentary or other hate speech impacts a specific person - for example, whether it gives rise to feelings of endangerment and fear or harms the person's good name.

The District Court in Kladno was reproached by the Constitutional Court for immediately concluding that Banga could not be an injured party even before the evidence had been reviewed and without a thorough analysis of the case. The lower instance did not even take his testimony as a witness.

At the time, the lower court argued that the hateful post had been rather of a general character and had not been aimed at Banga specifically. "The court de facto first established its legal qualification of the facts and only then adapted its assessment of the facts to that qualification, including excluding the injured party from the proceedings," Justice Jan Filip, the Constitutional Court rapporteur, said.

Banga's attorney, Klára Kalibová: This is a breakthrough

The Constitutional Court finding has been welcomed by Banga's attorney, Klára Kalibová. "This is a breakthrough finding from the Constitutional Court, and one component of it is the acknowledgment that injured parties are distinct actors in criminal proceedings whose rights cannot be reduced just to recipients of compensation for damages, but that they are entitled to express themselves during the proceeding, to actively take part in it, and to implement their so-called participatory rights," she told news server Romea.cz, emphasizing that this is the first time the Constitutional Court has ever used the term "hate speech" and clarified that it is actually important to pay significant attention to this phenomenon, especially today.

"The court also said remarks on social media must be viewed very critically because they are identical to assaults committed in public and it compared them, essentially, to the remarks that previously, especially during totalitarian regimes, were graffitied or posted, for example, to the windows of shops owned by other groups in the population who were subsequently persecuted," the attorney said. Banga (37), who is also known by the stage name of Gypsy, is a lyricist, musician, rapper and singer of Romani origin.

In December 2016 the celebrity posted an explanation to his Facebook page for why he had left the auditorium during the "Czech Nightingale" (Český slavík) popular music awards ceremony. His gesture was a proest against the award given to the Ortel band, who are generally associated with the ultra-right.

Speaking in the auditorium as he left, Banga told his colleagues that they were applauding Nazis. David Šmíd, a student, reacted to Banga's post with hateful commentary, calling for a "white homeland" and saying it would be better to send members of other ethnicities "to the gas like they did before".

Testifying to the court in Kladno, the student denied sympathizing with Nazism and said he had been upset when he wrote the post. In a different case involving responses to Banga's post, the District Court in Prostějov gave Aleš Rozsíval a suspended prison sentence for his racially-motivated threats against Banga.

Rozsíval had also posted his racially-motivated, xenophobic commentary directly to the singer's profile. He threatened him with death "by a gas shower" or in the uranium mines.

Kalibová told the Czech News Agency that there are 10 similar court decisions altogether against the hate speech targeting Banga's profile. Two of the criminal proceedings are still underway.