Deficiencies of Penal Policy of the Prosecutor’s Office of B&H and the Court of B&H in the Cases of Hate Crimes and Hate Speech

Abstract

Reason(s) for writing and research problem(s): Hate crime and hate speech represent significant harms for sensitive communities’ relations in B&H’s society due to their substantial potential to impede the process of reconciliation and magnify the existing inter-communities’ frictions. Notwithstanding the fact that both of these criminal phenomena are enshrined in the criminal legislation in force in all four jurisdictions of B&H, the lack of understanding of these contemporary legal concepts and little importance given to their adequate prosecution and sanctioning are evident.

Aim of this paper and methodology/design: Given this, in this paper through the analysis of existing case law on a State level in B&H (in the period 2014-2016) the authors will try to determine the extent of adequate or inadequate application of the existing legal framework (using the six elements test - the Article 19) and the extent of inadequate application of the criminal sanctions in legal framework by prosecutors and judges.

Research paper limitations: The general limitation of this paper lies in the fact that there were only two verdicts in the analyzed period.

Results/Findings: The results of conducted analysis show that state judges and prosecutors use inadequately existing legal framework when dealing with hate crime and hate speech.

General conclusions: The results of the analysis lead to the conclusion that most of the practitioners on the state level do not understand very concepts of hate crime and hate speech even though existing legal framework offers possibilities for prosecution of the acts of hate crime as well as the acts of the aggravated forms of hate speech in different ways and with different legal consequences. Furthermore, it can be freely established that the Court of B&H basically “pardons” hate as a motive and that the Court does not treat those criminal offences with due seriousness that they warrant.

Research/paper validity: Beside the identification of the problems in prosecution of hate crime and hate speech on State level the authors offer possible solutions for overcoming of these issues.