Czech Constitutional Court sides with attorney Klára Kalibová: The criminality of hateful e-mails cannot be downplayed by the courts
Long-term harassment through hate speech cannot be downplayed, and serious cases of invasion of privacy and violation of human dignity should be dealt with by the criminal courts, not just by local misdemeanor commissions, according to a ruling of the Czech Constitutional Court. That court has ruled that the criminal courts violated the rights of attorney Klára Kalibová, who has long been helping victims of bias violence and other hate crimes through the non-profit organization In IUSTITIA.
The case of a man who had long persecuted Kalibová with hate speech only ended in a misdemeanor proceedings instead of going to trial. Kalibová's constitutional complaint about that decision was aimed at defending her right to protect her personal dignity and her personal and private life, and expressed her opposition to the decisions of the courts in this case, which did not consider the defendant's hate speech as rising to the level of a crime.
The Constitutional Court has ruled in Kalibová's favor and confirmed that the Prague courts violated her right to protection of her human dignity and also her right to protection against unauthorized interference with her private and family life. According to Kalibová, this is a crucial decision, especially for publicly active women, who often face attacks based on misogyny, i.e., hatred of women.
"I welcome the decision of the Constitutional Court. This means that massive attacks on professional women in public life must not be tolerated in the future and victims should be provided with criminal law protection. I believe my case will be used for the benefit of other women in a similar position - journalists, academics, scientists, lawyers and human rights leaders," the attorney who was subjected to the attacks said.
"People who are in a similar position and have been intensively persecuted for a long time will also be able to base their rights in a criminal proceedings on this Constitutional Court finding," Kalibová told the Czech News Agency. Over a period of three months in 2020, she received 114 messages of a threatening, intimidating, defamatory and pornographic nature by e-mail.
The messages used the symbolism of a gallows or national tribunals, mentioned executions of Muslims and the "traitors of the nation" who cooperate with them, but also - in the words of the Constitutional Court ruling - included disgusting pornographic content. "The day will come when we will get you," one message said.
The court also cites other examples of the e-mails in its finding. "Even if the complainant did not believe that the other participant in this proceedings had actually ever tried to harm her physically, the level of fear and the disruption to her psychological well-being that she had to experience as a result of his conduct must have been so high that she deserved criminal law protection," Judge-Rapporteur Vojtěch Šimíček said.
Neither the District Court for Prague 6 nor the Municipal Court of Appeal in Prague ever punished the man. "It is appropriate to ask what else, according to the court, could the conduct of the other participant in this proceedings have been but a persistent, systematic contacting of the complainant in an effort to change her usual way of life and endanger her mental stability," said Šimíček.
Even after this judgment, the Prague courts do not have to reopen the case. At the instigation of Kalibová, the constitutional judges have just found that her rights were violated.
Kalibová did not demand the annulment of the disputed resolution to transfer the case for a misdemeanor proceedings. According to her, even a "declaratory" finding will help change criminal law practice in the Czech Republic.
For the time being, the hate speech case remains in a misdemeanor proceedings where, according to Kalibová, a decision has not yet been made. The Constitutional Court ruling was adopted by a three-member senate with a majority of two votes.
Judge Radovan Suchánek took a different view from his colleagues, pushing for the refusal or rejection of Kalibová's complaint. "In the criminal court proceedings concerning the acts in question, it was established that the other participant to the proceedings never compelled the complainant to do anything (not even by threatening violence), and therefore his actions could not, according to the courts, objectively raise a reasonable concern for the complainant's health or life or that of any group in the population," Suchánek wrote.
The overruled judge also pointed out that the Constitutional Court's finding did not deal with its own earlier rejection of a similar complaint by Kalibová. In that resolution, the Constitutional Court stated that working in a non-profit organization that helps crime victims and protects human rights is worthy of respect, but requires civic bravery.
According to the Constitutional Court's rejection of Kalibová's previous complaint, those working in this field must count on exposure to what it called the "interests of people of limited vision" who are "frustrated and immature". However, Kalibová has pointed out that this recent finding has more weight than the previous resolution; she considers the previously-expressed position of the Constitutional Court to have been incorrect, and she now considers that opinion to have been superseded.
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