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The study summarizes the international legal framework on hate speech and xenophobia and underlines the list of criteria identified in the European Court of Human Rights’ jurisprudence for judging what constitutes hate speech. The analysis also describes the national legal provisions applicable in the field of hate speech from Romania, France and the Republic of Moldova, for a comparative view.

In order to understand how these legal standards work or do not work in practice, the analysis includes nine criminal court judgments and nine decisions of the Romanian National Council for Combating Discrimination in relevant cases of hate speech considered in light of international human rights standards. Finally, the paper formulates a number of policy recommendations for improving the legal standards and their application.

Among the public policy recommendations, at the legislative level we identified the need to clarify which discourse constitutes administrative offence or criminal offence, to clarify and unify the jurisprudence of the National Council for Combating Discrimination with respect to what constitutes discriminatory discourse sanctioned by the Anti-discrimination Law, and to amend Article 369 of the New Penal Code in order to enumerate explicitly the list of grounds of discrimination sanctioned by the criminal offence of Incitement to hatred and discrimination.

At the level of the implementation of the existing legislation we recommend: training the judiciary and law enforcement on incitement to hatred and discrimination and the criminal offences of Government Emergency Ordinance (GEO) 31/2002 on banning fascist, racist or xenophobic symbols and organizations; raising awareness about the degree of social danger that these criminal offences pose to society, as well as establishing a list of criteria for the evaluation of their degree of social danger. It seems that an effective measure in practice is to organize thematic inspections of the courts and prosecutor’s offices carried out by the Judiciary Inspection of the Supreme Council of Magistracy with respect to how courts interpret and apply the legal provisions in the field of hate speech and promote good practices in the field. Another need identified at the level of the judiciary and the law enforcement, especially from Harghita and Covasna counties, is to clarify the issue of national extremism and the typology of acts that are actually sanctioned by GEO 31/2002 (extremist organizations as opposed to individual acts). Moreover, it is important to clarify, for the general public and the judiciary, the impact of the 2015 amendments to GEO 31/2002 regarding the sanctions for promoting legionary ideology and symbols.

The study can be downloaded here.

This study is part of the project „No disgRACE in this electoral race!” implemented by the Romanian Academic Society (RAS) and Policy Center for Roma and Minorities, with the financial support of the Think Tank Fund (TTF) – Open Society Foundations.