Austria / Supreme Court / 15Os33/18v ECLI:AT:OGH0002:2018:RS0132087

Country

AustriaAustria

Title

Austria / Supreme Court / 15Os33/18v ECLI:AT:OGH0002:2018:RS0132087

View full Case

Year

2018

Decision/ruling/judgment date

Wednesday, May 23, 2018

Crime type(s) concerned/related

Incitement to violence or hatred

Related hate bias motivation

Religion Migrant status

Groups affected

Muslims Refugees & Asylum seekers

Court/Body type

National Higher Court

Court/Body

Supreme Court (Oberster Gerichtshof)

Key facts of the case

The case concerns online incitement to hatred and violence. From March to July 2016, H. F. posted several statements against persons seeking international protection and persons who follow the Islamic faith on Facebook. These comments included prejudice, slander and verbal abuse and were visible for at least 1.094 Facebook users. The public prosecutor's office discontinued the investigation proceedings against him, because the statemetns would not amount to incitement to hatred according to the public prosecutor's office. The General Procurator's Office filed a nullity appeal for observance of the law against the public prosecutor's decision.

Main reasoning/argumentation

The Supreme Court found that the statements posted on Facebook do amount to incitement to hatred against refugees and Muslims. The defendant described the groups in question generally as, for instance, "brutal invaders" who "want to finance their life at our expense, hate us and impose their medieval ways of life" and do not have a "feeling for normal human values", so that they have to be met with "far more brutal force". These expressions aim to cause negative emotions based on a bipolar pattern of interpretation ("we" - "you"). This is further underlined by the emotionalizing wording ("2-fronts war", "enslavement") and typeface (distinctive use of exclamation marks and capitalization).

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

Statements such as the ones posted by the defendant on Facebook do amount to incitement to hatred pursuant to § 283 Criminal Code.

Results (sanctions, outcome) and key consequences or implications of the case

The Supreme Court found that the public prosecutor's decision to discontinue the investigation proceedings had violated the law. This finding serves mainly the clarity and uniform application of the law. The decision of the Supreme Court has no effect on the defendant.

Key quotation in original language and translated into English with reference details

Die [...] rechtliche Beurteilung, die Äußerungen stellten weder ein Auffordern zu Gewalt noch ein Aufstacheln zu Hass dar (§ 283 Abs 1 Z 1 StGB), erweist sich jedoch als verfehlt.
The legal assessment [...] according to which the statements neither constitute a call for violence nor incitement to hatred (§ 283 Abs 1 Z 1 of the Austrian Crminial Code), prove to be wrong.

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