THE QUALIFICATION PROBLEM OF INCITEMENT AGAINST ANY NATION, RACE, ETHNIC, RELIGIOUS OR OTHER GROUP OF PEOPLE IN LITHUANIAN CRIMINAL LAW

Abstract

In Lithuania most pre-trial investigations into incitement to hatred are terminated before reaching the court, and in the courts, a large part of persons who are accused of incitement to hatred are acquitted without identifying the elements of incitement to hatred in their actions. Therefore, this study discusses the issue of the qualification of incitement to hatred in the practice of Lithuanian courts. The purpose of this study is to evaluate the application of criminal responsibility for these crimes in the context of the European Court of Human Rights (ECtHR) jurisprudence and the principle of ultima ratio, after performing a systematic analysis of the criminal act of incitement to hatred.

The conducted research showed that neither in Lithuania nor internationally there is a common definition of incitement to hatred, but it can be described as spreading, promoting, or justifying any form of hatred directed against a person or a group of persons distinguished by a certain characteristic. Incitement to hatred is enshrined in both Lithuanian legal acts and international documents as a criminal act, which must be punished by means of criminal law. In Germany, the United Kingdom, and Denmark, incitement to hatred can be manifested by insulting or humiliating a person, but in Germany, incitement to hatred must also disturb the public order. Meanwhile, in Latvia, incitement to hatred can manifest itself through the restriction of the rights of individuals or the granting of privileges. Similarly, incitement to hatred is assessed in France, where it can manifest itself in the form of discrimination against individuals, but it is necessary to prove that incitement to hatred has caused real dangerous consequences - discrimination, hatred, or even violence. The qualification of incitement to hatred in Lithuania does not fully correspond to the practice of the ECtHR, since in Lithuania, specific and directly inciting statements are considered to be incitement to hatred, while the ECtHR recognizes hate speech as indirect incitement to hatred. Moreover, contrary to the practice of the ECtHR, in Lithuania, in most cases, one hateful comment is not enough for the application of criminal liability, because the application of criminal liability for hate crimes in Lithuania is perceived as an ultima ratio measure, when the danger of acts of hate is justified by their systematicity and a real threat to the values ​​protected by the criminal law.