The ‘Public Order’ Parachute in Combating Racism and Xenophobia

The European Commission has initiated infringement proceedings against virtually half of the Member States, accusing many of, inter alia, failing to take the necessary measures to ensure that racist and xenophobic hate crimes are effectively criminalised. The article looks at the right of a Member State to limit prosecution for incitement of violence or hatred to acts that are carried out in a manner likely to disturb the public order. The authors argue that application of the ‘risk to public order’ criterion if interpreted appropriately, will in most cases reduce the threat of ‘taking it too far’. They argue also that there is a risk of confusion between ‘public order’ and ‘public nuisance’, due to the national criminal courts being more familiar with the latter. This could lead to unreasonably loose application of criminal punishments and pose a risk breaching the nullum crimen nulla poena sine lege certa principle. Perhaps because of having suffered censorship and absence of fundamental rights under the Soviet Union, Estonian society voices strong concerns about criminalisation of hate speech. In the authors’ view, these concerns may be reduced by narrow interpretation of the ‘risk to public order’ notion.