Hate speech

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In Austrian criminal law, hatred is a criminal offense under Section 283 of the Criminal Code (StGB).

Offense

By the end of 2015

In § 283 StGB in the version valid until December 31, 2015, the offense of hate speech is defined as follows:

(1) Anyone who publicly in a manner that is likely to endanger public order, or who is perceptible to the general public to violence against a church or religious society or another according to the criteria of race, skin color, language, religion or ideology, nationality, descent or national or ethnic origin, gender, disability, age or sexual orientation or explicitly encourages or provokes a member of such a group because of his or her membership of this group is with To punish imprisonment up to two years.

(2) Anyone who is perceptible to the general public against a group referred to in Paragraph 1 or who insults them in a manner that violates human dignity and thereby seeks to make them contemptible shall also be punished .

Hate speech, which is punishable by law, is therefore directed in all cases against certain groups of people whom the perpetrator defines as belonging to a certain race, ethnic group, nationality or local churches and religious communities. According to paragraph 1, the perpetrator must publicly, i.e. so far perceptible to at least 150 people, call for or incite violence against the group concerned and thus endanger public order. According to paragraph 2, the offense can be committed by direct calls for hatred and contempt against a population group, which go beyond simply disparaging and insulting, or by statements that portray those affected as inferior beings (“ subhumans ”) and thus “impair their human dignity ".

Hate speech based on gender, skin color, age, sexual orientation (e.g. homosexuality), a possible disability or a certain ideology was included as a criminal offense in paragraph 1 on January 1, 2012.

Furthermore, the offense does not include the residence, economic and labor law discrimination of foreigners, the demand for stricter residence or labor law measures against certain groups of foreigners and agitation against "foreigners" who cannot be assigned to a specific state.

From January 2016

The 2015 Criminal Law Amendment Act, which was passed in July 2015 and comes into force on January 1, 2016, involves extensive changes to the Criminal Code in particular. Among other things, this also changes the offense of hate speech, which will be revised and expanded from 2016 (see Section 283 new StGB):

(1) Anyone who is public in a way that makes it accessible to many people,

  1. violence against a church or religious society or another based on the existing or missing criteria of race, skin color, language, religion or belief, nationality, descent or national or ethnic origin, gender, physical or mental disability, a group of people defined by age or sexual orientation or expressly encourages a member of such a group to belong to this group, or incites hatred against them, or
  2. with the intention of violating the human dignity of others, insults one of the groups referred to in item 1 in a manner that is likely to make this group contemptuous or belittled in public opinion, or
  3. Crimes within the meaning of Sections 321 to 321f, which have been legally determined by a domestic or international court, approves, denies, grossly trivializes or justifies, whereby the act is explicitly against one of the groups specified in item 1 or against a member of such a group is directed because of belonging to this group and is committed in a manner that is likely to incite violence or hatred against such a group or against a member of such a group,

is punishable by imprisonment for up to two years.

(2) Anyone who commits the act according to Paragraph 1 in a printed work, on the radio or in any other way, whereby the acts referred to in Paragraph 1 are accessible to the general public, shall be punished with imprisonment of up to three years.

(3) Anyone who, through an act according to Paragraph 1 or 2, causes other persons to exercise violence against a group referred to in Paragraph 1 No. 1 or against a member of such a group because of their membership in this group is subject to a prison sentence of six months to be punished for up to five years.

(4) Anyone who, if he is not involved in an act according to Paragraphs 1 to 3 ( Section 12 ), is threatened with a more severe penalty, writes material, images or other representations of ideas or theories that show hatred or violence against a person listed in Para . 1 no.1 or against a member of such a group because of their membership in this group, advocate, promote or incite them, in a printed work, on the radio or in any other way that makes them accessible to a broader public, in an approving or justifying way Widespread or otherwise publicly available is punishable by imprisonment of up to one year or a fine of up to 720 daily rates.

In the explanations of the government bill on the Criminal Law Amendment Act 2015 , the new version of § 283 u. a. justified with:

"[...] In the area of ​​protected groups, as a result of questions that have come to light in practice and through suggestions in the assessment process, by inserting the word sequence 'existing or missing' in paragraph 1 no. 1 it should now be expressly stipulated that the protected group both can be defined positively as well as negatively. In this sense, agitation against 'foreigners' or 'unbelievers' should now also be subject to the scope of Section 283 of the Criminal Code. Regarding the 'public threshold': With regard to the publicity required, § 283 StGB previously provided for two variants, namely (i) 'publicly in a way that is likely to endanger public order' (1st alternative of § 283 Paragraph 1 StGB) , and (ii) 'perceptible to the general public' (2nd alternative of Section 283 (1) StGB and both variants of Section 283 (2) StGB). [...] "

Furthermore, with the new version there is a “significant reduction in the public for whom the abuse must be perceptible” from the previous “broad public” (approx. 150 people) to “many people” (approx. 30 people) ”. With this “introduction of a qualified intentional component, namely“ insulting with the intention of violating the human dignity of others ”[is] a corrective to be created (exception of the so-called“ round table discussion ”). Only insults in which the perpetrator is also interested in violating the human dignity of others should be punishable according to Paragraph 1 No. 2. ”This also aims, among other things, at agitation in the new media .

The inclusion of the completely new offense of crimes within the meaning of §§ 321 to 321f, in paragraph 1 number 3 takes place “in implementation of international requirements”.

Delimitation from the Prohibition Act

In the event of incitement to hatred in accordance with Section 3g or Section 3h of the Prohibition Act 1947 ( National Socialist activity or denial or justification of the Holocaust ), Section 283 of the Criminal Code resigns.

Examples from case law

According to jurisprudence, agitation is a tendentious incitement to hatred and contempt, consisting of an appeal to feelings and passions. Spraying swastikas on a building with the words “HASS” and “Turks Raus” fulfills the act of agitation (OGH, January 28, 1999, 15 Os 203/98). The statement "Fucking gypsies , you should all be cleared away ..." denies the right to life of a group as an equal citizen, portrays them as an inferior or worthless part of society and thus affects them in the indispensable core area of ​​their personality (OLG Vienna, June 10, 1991 , 22 Bs 181/91). The statement "you have nothing against negroes , everyone should keep one" is hate speech (OLG Graz, 9 Bs 462/96). The entry “Why are there koane sperm donors in Turkey? ... because the whole Wixxa is with us. ”On a Facebook page is“ not yet an insult that violates human dignity ”. From the reason: The general public is (only) available from 150 people. Perceptibility is decisive. In the specific case, in the opinion of the court, there was already a lack of abuse in a manner that violated human dignity (OLG Innsbruck, April 30, 2013 11 Bs 110 / 13h).

See also

Individual evidence

  1. ↑ See § 283 StGB in the version from March 1, 1997 to December 31, 2011.
  2. ↑ Federal law amending the Criminal Code […] (Criminal Law Amendment Act 2015), Federal Law Gazette I No. 112/2015 , p. 15.
  3. ↑ a b Legislative procedure for the Criminal Law Amendment Act 2015 (689 dB) on the website of the Austrian Parliament. Here: 689 of Beilagen XXV. GP - Government draft - Explanations (PDF p. 41f.): "On Z 193 (§ 283 StGB): The proposed reformulation of § 283 StGB is intended to comply with Austria's international obligations on the one hand, and deficits in the offense of § 2 on the other hand due to current events. 283 are encountered. [...] "
  4. ↑ a b Sections 312 to 321f in Section 25 of the StGB are, in the currently valid version of January 1, 2015:
  5. ^ Bertel, Schwaighofer: Austrian criminal law. Volume II, 6th edition, Vienna 2005, pp. 189f.