I. Existence and Implementation of Legal Provisions
8. In its third report, ECRI encouraged Latvian authorities to review and fine-tune criminal law provisions aimed at combating racism, in particular with respect to racially motivated speech.
9. ECRI is pleased that on 21 May 2009 a new Article 74(1) criminalising the justification/public glorification/public denial of genocide, crimes against humanity, crimes against peace and war crimes was introduced in the Criminal Code. Breach of this article is sanctioned with community service or a prison term of up to five years. ECRI also welcomes the amendment of Article 78, effective as of 17 July 2007, which included ethnicity as a prohibited ground of discrimination.
10. On the other hand, no specific provisions dealing with racist speech other than incitement to racial hatred have been introduced in the Criminal Code since ECRI’s third report5. ECRI notes that, given the absence of such provisions, certain cases of racist speech are exempt from punishment, including cases in respect of which direct intent to instigate national, ethnic or racial hatred is difficult to prove (see paragraph 16).
Footnote 5 More specifically, there are no provisions prohibiting public insults, defamation or threats on grounds such as “race” and ethnic origin or sanctioning public expression with a racist aim of an ideology which claims the superiority of/depreciates/denigrates a group of persons on grounds such as race, or national/ethnic origin, see ECRI’s General Policy Recommendation No. 7, § 18, points (a)-(d).
11. ECRI further notes that there are no specific provisions punishing the production, distribution, acquisition, transportation or storage of items that incite hatred on ethnic, racial or similar grounds or that contain otherwise manifestations of racist speech (as per paragraphs 18 a to e of ECRI’s General Policy Recommendation No. 7, hereafter GPR No. 7). The authorities have stated that Article 78 of the Criminal Code encompasses all activities which aim to instigate hate, including the distribution, production, acquisition, transportation and storage of items. They consider that spelling out the prohibited activities would limit the scope of application of this Article. ECRI however, is of the opinion that the wording of Article 78 of the Criminal Code is not broad enough; it does not cover the distribution, production, acquisition, transportation and storage of items that contain manifestations of racist speech that go beyond instigating, with direct intent, national, ethnic or racial hatred. Various incidents support this view (see paragraph 117) and show that in practice the distribution and storage of material with a racist aim is not prosecuted.
12. Lastly, whereas under Article 78 activities carried out by organisations aimed at discriminating or inciting hatred are sanctioned more vigorously than if carried out by an individual, Latvian criminal legislation does not sanction the creation of/support/leadership of/participation in a group which promotes racism. Latvian authorities have informed ECRI that Article 89 sentence 1 prohibits, in general, the setting up of a criminal organisation. ECRI is, in general, of the opinion that due to the insidious nature of racist crime, a specific provision targeting racist organisations should be included in criminal law. The case for doing so is particularly strong in a country such as Latvia where many instances of racist speech (as well as the production, distribution, acquisition, transportation or storage of items that incite hatred on ethnic, racial or similar grounds) do not constitute criminal offences.
13. ECRI recommends that the Latvian authorities amend the criminal law legislation aimed at combating racism by criminalising: racist speech (other than incitement to hatred which is already a criminal offence); the production, distribution, acquisition, transportation or storage of items that incite hatred on ethnic, racial or similar grounds; and the creation of/support/leadership/participation in a group which promotes racism. In this connection, ECRI refers to its GPR No. 7.
14. In its third report, ECRI strongly recommended that Latvian police and judicial authorities fully investigate and prosecute racially motivated offenses by acknowledging and taking into account the racist motivation of an offence.
15. As regards the application of the provisions against racism and racial discrimination between 2007 and 2011, ECRI notes a marked decrease in the number of investigations opened for breach of Article 78 (incitement to hatred)6. During the same timeframe, no investigations were opened for breach of Article 149 of the Criminal Code (prohibition to discriminate), whereas two investigations were opened for breach of Article 150 of the Criminal Code (incitement to religious hatred)7 . Five investigations were opened for breach of Article 74(1) of the Criminal Code, since its entry in to force. Finally, racist motivation has never been found to constitute an aggravating factor. ECRI notes that the figures are negligible; however, various cases described in this report show that racist motivation is not always taken into account (see paragraph 18) and point to persisting low awareness and sensitivity towards these types of offences.
Footnote 6 With 16 investigations opened by the police in 2007 (8 were referred to the prosecutor); 9 investigations opened in 2008 (2 were referred to the prosecutor); 6 investigations opened in 2009 (3 were referred to the prosecutor); and 6 opened in 2010 (2 referred to the prosecutor).
Footnote 7 This was also the case for the period covered by ECRI’s third report.
16. In ECRI’s view, the lack of consolidated case-law on Article 78 and the narrow interpretation given to incitement to hatred, contributes to hindering its application. Only two cases brought under this provision have reached the highest instance at the domestic level8 . In one case, in the course of an antifascist meeting, a neo-Nazi9 had stated that Jews and Roma are not human beings and should be exterminated. He was initially sentenced to imprisonment for breach of Article 78, which, prior to 17 July 2007, prohibited incitement to hatred only on national and racial grounds. The Senate of the Supreme Court finding that the incriminated action constituted incitement to hatred on ethnic grounds acquitted the defendant. In a second case, the editor-in-chief and two journalists of a fringe newspaper10 were charged with breach of Article 78 for, inter alia, anti-Russian statements made in articles published in 2004 and 2005 (stating, inter alia, that “occupiers” should be deported). Three experts were called in order to verify whether these statements were apt to incite hatred. Certain experts concluded that the word “occupier” could not offend intellectually and linguistically advanced persons11. The regional court accordingly ruled that these statements were covered by freedom of speech and that direct intent to incite hatred could not be proved. The Senate of the Supreme Court maintained the ruling. Both judgements indicate that incitement to hatred is interpreted in a very narrow manner. More specifically, the second judgement shows that, for an action to qualify as incitement to hatred, very high evidence requirements are imposed.
Footnote 8 The Senate of the Supreme Court.
Footnote 9 Case of A.J of 22 February 2007
Footnote 10 The publication is called DDD (De-Occupation, De-Colonisation, De-Bolshevisation).
Footnote 11 The same conclusion was reached in respect of a word used for Jews.
17. Furthermore, in ECRI’s view, the calling of experts to qualify an act as incitement to hatred also hinders the application of Article 78 (see paragraph 26 of ECRI’s third report on Latvia and paragraph 22 of this report). Some sources have highlighted that the criteria for the selection of external experts are insufficiently developed and that, in this connection, the expertise of well known extreme right-wing activists have been sought in certain cases.
18. ECRI notes that racist motivation as an aggravating circumstance has never been applied even when the existence of such motive was self-evident. One egregious example is a case brought under Article 22812 of the Criminal Code concerning the desecration of graves in an old Jewish cemetery and of tombs of Soviet army soldiers (in Talsi). In this case, racist motivation was not applied as an aggravating circumstance even though the defendants had stated that they had been motivated by nationalist sentiment (see also paragraph 78). Another case concerned a website registered in the Unites States which published a “car occupants’ list” revealing personal data of persons living in Latvia whose cars were decorated with Russian symbols13; criminal proceedings were started for unlawful disclosure of private data and are on-going; however hateful motivation, as in the previous case, was not taken into account in the charges.
Footnote 12 Desecration of graves.
Footnote 13 Such as St. George’s Ribbon or Russian national emblems or colors.
19. Lastly, with the exception of few violent hate crimes which were punished with prison sentences, sanctions ordered for breach of provisions against racism and racial discrimination remain too lenient, consisting in most cases in suspended prison sentences or fines.
III. Racist Violence
77. In its third report, ECRI urged Latvian authorities to make further efforts to take a more comprehensive approach to the phenomenon of racist violence, inter alia, focusing on the implementation of criminal law provisions aimed at combating racist violence and identifying/addressing the causes underlying this violence.
78. According to NGOs, racist violent attacks are underreported, particularly when the victims are Roma, out of fear of the police. Since its third report, three racist violent attacks have been registered officially by the police and were directed against representatives of visible minorities, mostly Roma. In all three cases the defendants were identified as affiliated to a skinhead movement. Two incidents were committed by the same culprits and were joined and tried together by court. They concerned the attack of two Roma girls and of an Armenian couple, mistakenly perceived as of Roma origin. According to the authorities, the defendants were sentenced to suspended imprisonment because the leader of the group was a minor at the time, the defendants had no previous record and one of them had recently given birth. The third incident concerned the beating of a Roma man in Riga’s central bus station. As regards violent racist acts against property, on 4 July 2007 a memorial dedicated to Janis Lipke (J.L – who saved 55 Jews during the Nazi occupation), was vandalised. Part of another memorial dedicated to J.L was stolen from a graveyard in Riga. In this connection, two persons were convicted in March 2008 for vandalism36 and sentenced to three years in prison. On 27 February 2008, at the Rumbula Forest Memorial, swastikas were painted on certain monuments dedicated to the victims of the Holocaust. The Riga City Council intervened immediately and removed the swastikas; however, the culprits were not found. In December 2010, ten graves in the Jewish cemetery and the monument to J.L in Riga were vandalised. In the first case, the suspects were identified in January 2011.
Footnote 36 This represents another example where the racist motive of the crime does not appear to have been considered.
79. In its third report, ECRI also urged the Latvian authorities to monitor the situation as regards the presence and activities of the right wing extremist and skinhead groups in Latvia and to address this problem in a proactive way including through educational initiatives at school.
80. The criminal activity described in paragraph 78 demonstrates the need for Latvian authorities to continue monitoring the activity of skinheads and counter these groups’ growth. ECRI has been informed by the authorities that skin head groups are considered a great threat; 200 people have been identified as affiliated to such groups and that their contacts with other European or Russian groups of the same type, are growing. Further, ECRI was informed by representatives of NGOs, that a surprising amount of ammunition was confiscated from one such group in connection with investigations into recent grave desecration. ECRI is not aware of any specific educational activities having been carried out by the authorities to counter right wing extremism (see footnote 22 for an indication of some activities carried out aimed at raising the public’s awareness of discrimination). However, one project aimed at identifying signs of radicalisation, and involving the police, has been implemented.
81. ECRI reiterates its recommendation that the Latvian authorities monitor the situation as regards the presence and activities of right wing extremist and skinhead groups in Latvia and address this problem, inter alia, through educational initiatives at school and awareness raising activities.
IV. Climate of Opinion, Public Discourse and Media
Climate of opinion and public discourse
82. In its third report, ECRI recommended that the Latvian authorities adopt ad hoc legal provisions targeting the use of racist discourse by representatives of political parties, including legal provisions allowing for a ban in the pre-election period on free access to public radio and television for those political parties whose members are responsible for racist acts or speech. ECRI also recommended that the Parliament amend its Code of Ethics (the Code) to expressly ban incitement to racial or religious hatred by Members of Parliament (MPs) and provide for adequate sanctions.
83. ECRI has been informed by the authorities that in 2010, a provision was introduced whereby an MP’s speech may be interrupted in case of breach of the Code. As stated in ECRI’s third report (paragraph 105), the Code contains a general prohibition on the use of, inter alia, “race”, gender, skin colour and nationality to support MP’s arguments and sanctions the violation of this norm with the exclusion from one or more parliamentary sessions, subject to a vote of the Parliament. According to the authorities, the sanction has been applied twice – albeit not for racist statements. However, other sources have highlighted that the above provision has frequently been breached by MPs who have directed intolerant statements against particular groups in society, especially Russian speakers, non Latvians and “non-citizens”. Further, it would appear that in recent elections racist remarks about Slavic culture were made when referring to certain political opponents.
84. ECRI reiterates its recommendation to amend the Parliament’s Code of Ethics to ban expressly incitement to racial or religious hatred by Members of Parliament. ECRI further recommends that the Parliament’s Code of Ethics be enforced more vigourously.
V. Vulnerable/Target Groups
117. There have been incidents involving antisemitic remarks and hate speech on the Internet and during public meetings (see paragraph 16). In addition, ECRI was informed that the Protocols of the Elders of Zion53 and other antisemitic books54 have been sold in one of the largest bookstores in Riga. ECRI discusses the absence of legal provisions prohibiting the distribution/production of written works with a racist aim in paragraph 11 of this report.
Footnote 53 The Protocols of the Elders of Zion is a fraudulent, antisemitic text purporting to describe a Jewish plan for achieving global domination. It was first published in Russia in 1903.
Footnote 54 Including the book Beilisiad (on the 1913 trial against Beilis, a Ukrainian Jew accused of ritual murder), speculating and building on an antisemitic myth of Jewish ritual murders.
Document data: CRI(2012)3 adopted 09.12.2011 published 21.02.2012 Link: https://rm.coe.int/fourth-report-on-latvia/16808b58b6 Also available in Latvian at https://rm.coe.int/fourt-report-on-latvia-latvian-translation-/16808b58b8