european-union freedom-of-speech czech-republic
Is it legal under Czech and EU legal system to punish people with prison sentences for publicly expressing their political views?
<p><a href="https://balkaninsight.com/2022/03/01/czechia-mulls-penalising-support-of-ukraine-invasion/" rel="noreferrer">This site</a> claims that (my emphasis):</p>
<blockquote>
<p>The Czech Republic's chief prosecutor has warned that expressing support for
Russia’s attack on Ukraine could be a criminal offence, punishable by imprisonment.</p>
<p>[...]</p>
<p>Publicly backing the Russian invasion of Ukraine might be subject to <strong>custodial
sentences of up to three years</strong>, Czechia’s Supreme State Attorney Igor Striz said
in a statement on Saturday.</p>
<p>[...]</p>
<p>Striz’s statement cited <strong>sections 365 and 405 of the Czech Criminal Code</strong>, which
state that whoever publicly approves a crime or publicly praises the perpetrator
can be imprisoned for up to a year, and that anyone who “publicly denies,
questions, approves or seeks to justify Nazi, communist, or other genocide”
can face a jail sentence of up to three years.</p>
</blockquote>
<p>Is there anything in the Czech (e. g. its constitution) or the European legal system that would make such regulations (publicly expressing certain political views being punished with prison sentences) illegal?</p>

<p>For a challenge under the European Convention on Human Rights (to which Czechia is a signatory) the relevant articles are 10 and 17. Article 10, on the right to free expression, has the caveat that it:</p>
<blockquote>
<p>may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.</p>
</blockquote>
<p>This is analogous to Article 17(4) of the <a href="https://www.psp.cz/en/docs/laws/listina.html" rel="noreferrer">Charter of Fundamental Rights and Freedoms</a> of Czechia (which has constitutional force by virtue of Articles 3 and 4 of the <a href="https://www.psp.cz/en/docs/laws/1993/1.html" rel="noreferrer">Constitution</a>):</p>
<blockquote>
<p>The freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures essential in a democratic society for protecting the rights and freedoms of others, the security of the State, public security, public health, and morality.</p>
</blockquote>
<p>The Strasbourg court has often had to consider this exception in the case of hate speech, promotion of terrorism, and display of prohibited symbols. In extreme cases, ECHR Article 17 kicks in:</p>
<blockquote>
<p>Nothing in this Convention may be interpreted as implying for
any State, group or person any right to engage in any activity or
perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent
than is provided for in the Convention.</p>
</blockquote>
<p>This has been held to limit the possibility of an Article 10 claim when the speech related to incitement to terrorism, Holocaust denial, political ideas incompatible with democracy, and other examples. For example, in <a href="https://hudoc.echr.coe.int/eng?i=001-183289" rel="noreferrer"><em>Roj TV A/S v Denmark</em> [2018], no. 24683/14</a>, urging viewers to join the <a href="https://en.wikipedia.org/wiki/Kurdistan_Workers%27_Party" rel="noreferrer">PKK</a> and take part in guerrilla action was held to be over the line of Article 17. On the other hand, in <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-90662%22%5D%7D" rel="noreferrer"><em>Orban v France</em> [2009] no. 20985/05</a>, the banning of a book describing the author's participation in war crimes and lack of regret did <em>not</em> meet the standard, because the objective of the book was held to be contributing to a historical debate.</p>
<p>Paragraph 35 of the <em>Orban</em> judgement does admit that if there were an unequivocal goal of justifying war crimes such as torture or summary execution, then the result could have been different:</p>
<blockquote>
<p>Il n'est pas douteux que des propos ayant sans équivoque pour but de justifier des crimes de guerre tels que la torture ou des exécutions sommaires sont pareillement caractéristiques d'un détournement de l'article 10 de sa vocation.</p>
</blockquote>
<p>In a specific example of a prosecution and human rights claim based on the question, this is the kind of distinction which might be drawn, looking at the context of the prohibited speech. Results would depend on the speaker (journalist? politician? random person yelling in the street?), mode of speech, what they actually said, and so on.</p>
<p>If Article 10 were reached, then the court would examine whether the Czech law and its application were compatible with the caveat in all respects. A custodial sentence of three years might well be found to be excessive, as that is a significant interference with someone's freedom compared to (say) a fine. For example, in <a href="http://hudoc.echr.coe.int/webservices/content/pdf/001-61127" rel="noreferrer"><em>Cumpănă and Mazăre v Romania</em> [2004], no. 33348/96</a>, the Grand Chamber held (para 115):</p>
<blockquote>
<p>Although sentencing is in principle a matter for the national courts, the Court considers that the imposition of a prison sentence for a press offence will be compatible with journalists' freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence.</p>
</blockquote>
<p>Another important safeguard in Article 10 is the requirement that restriction must be &quot;prescribed by law&quot;, which entails that a law must be &quot;formulated with sufficient precision to enable citizens to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail&quot; (<a href="http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&amp;id=001-111399&amp;filename=001-111399.pdf" rel="noreferrer"><em>Centro Europa 7 S.R.L. and Di Stefano v Italy</em> [2012], no. 38433/09</a>). It might be argued that the law prohibiting approval of a &quot;committed criminal offence&quot; is not clearly applicable to actions in the international sphere where there has not been a criminal conviction.</p>
<p>In the same way, restrictions might be justified on the grounds of preventing disorder, or not: it would depend on whether there really is a public order danger. In <a href="https://www.icnl.org/wp-content/uploads/CASE-OF-VAJNAI-v.-HUNGARY.pdf" rel="noreferrer"><em>Vajnai v Hungary</em> [2008], no. 33629/06</a>, wearing a prohibited Communist symbol (a red star) was held not to trigger &quot;actual or even remote danger of disorder&quot;. Restrictions have been upheld for actions during protests where there was such a danger. Similar observations apply to the other potential grounds, such as national security or protecting the rights of others.</p>
<p>In summary, application of the Czech law <em>could</em> be found incompatible with the Convention rights, depending on the circumstances. The law is not incompatible on its face but it's the situation in a specific case which matters.</p>

<p>The <a href="https://www.ejtn.eu/PageFiles/6533/Criminal%20Code%20of%20the%20Czech%20Republic.pdf" rel="nofollow noreferrer">Czech Republic Criminal Code</a> says:</p>
<blockquote>
<p>Section 365 Approval of Criminal Offence</p>
<p>(1) Whoever publically approves of a committed criminal offence or whoever publically
extols an offender for his/her crime, shall be sentenced to imprisonment for up to one year.</p>
<p>(2) The same sentence shall be imposed to anyone who with the intention to demonstrate a
consent with a criminal offence</p>
<p>(a)rewards or compensates an offender or a person close to him/her for the imposed
sentence, or</p>
<p>(b)organises a collection for such reward or compensation.</p>
</blockquote>
<blockquote>
<p>Section 405 Denial, Impugnation, Approval and Justification of Genocide</p>
<p>Whoever publicly denies, impugns, approves, or attempts to justify Nazi, Communist or
any other genocide, or other crimes of the Nazis and Communists against humanity, shall be
sentenced to imprisonment for six months to three years.</p>
</blockquote>
<p>Insofar, that the invasion of Ukraine might have genocidal streaks, §405 makes denying such illegal and criminal. Genocide is best described by the <a href="https://en.wikipedia.org/wiki/Genocide_Convention#Definition_of_genocide" rel="nofollow noreferrer">Genocide Convention</a> as:</p>
<blockquote>
<p>acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, [by] (a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.</p>
</blockquote>
<p>Separately, approval of <strong>any</strong> criminal offense is banned under §365, and under the rules of war, intentionally or deliberately killing <strong>any</strong> non-combatant is murder and a war crime, both of which are criminal offenses. Similarly, the use of certain weaponry is a war crime. However, do note that civilians can be combatants.</p>
<p>As a result, statements like &quot;It's not an invasion&quot; <strong>could</strong> be considered to approve of criminal offenses or genocide, especially if one has other statements that would point to specific instances that constitute crimes (think <a href="https://en.wikipedia.org/wiki/Wartime_sexual_violence" rel="nofollow noreferrer">Rape</a> or Murder), violations of <a href="https://en.wikipedia.org/wiki/Law_of_war#International_treaties_on_the_laws_of_war" rel="nofollow noreferrer">the laws and customs of war</a> (esp. <a href="https://en.wikipedia.org/wiki/Hague_Conventions_(1907)" rel="nofollow noreferrer">Hague</a> and <a href="https://en.wikipedia.org/wiki/Geneva_Conventions" rel="nofollow noreferrer">Geneva conventions</a> I-IV &amp; protocols I- III), or breaches of the <a href="https://en.wikipedia.org/wiki/Genocide_Convention#Definition_of_genocide" rel="nofollow noreferrer">genocide convention</a>.</p>
<p>Banning such statements is not about the <em>political</em> message in the sentence, it's about simply violating either of these two specific restrictions that ban a certain type of content to be stated in any way, no matter what the political ideology is. To keep this on a level where no human is involved: the two laws say you are neither allowed to say &quot;The <a href="https://memory-alpha.fandom.com/wiki/Khitomer_Massacre" rel="nofollow noreferrer">Khitomer massacre</a> never happened&quot; (§405) nor may you advocate &quot;SWATting Romulans is Good&quot; (§365).</p>
