Recently, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) has received several initiatives drawing attention to publicly said or written thoughts containing expressions of intolerance and hatred or even open threats, which can be treated under the common term “hate speech.” Some initiators expect the Ombudsman to react publicly, and reproach her with applying unequal criteria in this matter.

The Ombudsman as an institution, along with the Ombudsman herself were obviously recognised by the public to have the obligation to react publicly to these incidents. Without a doubt, such an expectation is also a consequence of the way the Ombudsman’s office has treated “hate speech” in the past – in regular annual reports as well as in individual statements. According to Article 9 of the Human Rights Ombudsman Act (ZVarCP), the Ombudsperson may also deal with wider issues that are important for human rights, fundamental freedoms and legal security of the citizens of the Republic of Slovenia. At its work, the Ombudsperson is independent and autonomous (ZvarCP, Article 4) and cannot be held responsible for any opinion or suggestion expressed while performing his/her function (ZvarCP, Article 20). However, the Ombudsperson’s competences are limited. In case of “hate speech,” particularly when created or published by a private citizen, the Ombudsperson cannot act directly. Therefore, it is important to know in what way and especially in which case the Ombudsperson should act in order to limit the incidence of hate speech and prevent its destructive effect.  

The Ombudsman is not a body responsible for judging whether signs of a criminal act are present in individual cases of statements or messages. Prosecutors and judges are competent for such judgments. Criminal prosecution is only the last resort of reacting to incidents of expressing hatred and intolerance. At least equally important is public response and public condemnation of unacceptable practices. To expect such a reaction only from the Ombudsperson, who has no special competence in such cases, would also shift attention away from those who do have the responsibility to act (the police, prosecution). It is also important that the response be immediate, particularly in cases in which unacceptable statements have been repeated. If hate speech appears in politics, it is the politicians who should react; if it appears in forums, participants should react, etc.

The Ombudsman condemns all forms of publicly expressed hatred and intolerance directed against individuals or individual groups due to their personal circumstances. Unfortunately, we observe that there are many obscurities and unrealistic expectations in understanding these phenomena. We wish to explain that every case of “hate speech” is not a criminal act of public incitement of hatred, violence or intolerance, as defined by the Penal Code. Due to the protection of freedom of expression and particularly freedom of media, the conditions for criminal prosecution of spoken or written words are justifiably very strict. In Slovenia, case-law examples covering this issue are so few that we can hardly speak of it.

The Ombudsman is in no position (neither in terms of staff availability nor in technical terms) to monitor all published texts, particularly on the Internet. Although the Ombudsperson generally does not publicly present his/her positions regarding individual published contributions, the office responds to every received initiative. It publicly raises its voice according to its own judgment and usually in cases in which it is obvious that individuals or groups with no access to the public and the media are affected. While doing this, it tries to be as unbiased as possible since it is aware that people have different preferences and values, which means that their perception of various statements is not uniform. So far, the Ombudsman’s office has taken a stand in favour of various groups with various personal circumstances in its reports. The Ombudswoman’s statements are available at www.varuh-rs.si.

Because the Ombudsman is aware of inefficiency in prosecution of authors of texts as well as media that publish and spread “hate speech,” we will prepare a public round table about this issue in the near future. The Human Rights Ombudsman Zdenka Čebašek-Travnik PhD expressed her expectation in the professional Case-law review (Pravna Praksa) (1/2012) that we will able to continue the debate about this issue “by taking into account mutual respect and, particularly, based on concrete starting points, standpoints, concepts and rules to which individuals will be able to respond.” On the basis of such debates, guidelines and proposals for amending legislation could be prepared, which would enable more efficient limitation of "hate speech".