Zbornik Instituta za
kriminološka i sociološka istraživanja, 2025, Vol. 44, Br. 1–2, str. 109–138
Review Paper
DOI: 10.47152/ziksi2025126
UDK: 316.644:32(497.1-89)
323.23(497.1-89)
Hate Speech and Political Discourse in the Countries of the Former Yugoslavia: A Comparative Legal Analysis
Aleksandar Stevanović[1]
Institute for Criminological and Sociological Research, Belgrade, Serbia
This paper
aims to critically analyze the regulation of hate speech within political
discourse in the post-Yugoslav region. Emphasis is placed on two interconnected
aspects: the conceptual and normative foundations behind the idea of hate
speech, and a comparative review of legal frameworks and judicial responses
across selected jurisdictions. The first section conducts a normative and
theoretical analysis to clarify the legal and theoretical foundations of hate
speech and political expression in general. Using international human rights
instruments, relevant jurisprudence, and key theoretical literature, this
section outlines the definitional boundaries and core characteristics of hate
speech. Special emphasis is placed on the normative tension between protecting
political discourse, which is considered the foundation of democratic society,
and the legal limits used to protect individuals and groups from incitement to
discrimination, hostility, or violence. The analysis also tackles the
difficulties in differentiating hate speech from controversial or offensive,
yet legally acceptable, political expression, especially when discussing
sensitive topics like ethnicity, religion, or historical memory. The second
section uses a comparative legal approach to examine the regulatory frameworks
governing hate speech in the successor states of the former Socialist Federal
Republic of Yugoslavia. Although all these jurisdictions have officially
aligned their legal systems with international standards, especially those of
the Council of Europe, differences remain in how hate speech is implemented,
interpreted, and treated by courts. While Slovenia and Croatia, as EU member
states, are bound by the relevant acquis communautaire, the other states,
although still outside the EU, have pursued similar legislative paths in
anticipation of joining. This section, therefore, examines both the common
elements and jurisdiction-specific differences to identify patterns,
inconsistencies, and potential best practices. Special focus is given to
instances of hate speech that have been influenced by, and still reflect, the
ethno-political conflicts and wartime narratives of the 1990s. The main goal of
the research is to develop analytically based criteria for distinguishing hate
speech from protected political expression, considering the specific contexts
of post-conflict, transitional societies in the former Yugoslav countries.
KEYWORDS: hate speech / political discourse / freedom of expression / former Yugoslav countries / informed society
Introduction
Freedom of expression is
widely recognized as a cornerstone of a democratic society, and some
commentators even describe it as a sacred principle, essential for
safeguarding individual autonomy and ensuring the vitality of public discourse.
Nevertheless, the unrestrained exercise of this freedom inevitably raises
difficult questions: what costs does society bear, and what forms of harm may
result? These concerns are particularly acute in relation to hate speech.
Unlike mere offensive expression, hate speech threatens the dignity of targeted
individuals and groups, disrupts social cohesion, and, in its most pernicious
forms, may foster discrimination, hostility, or even violence. The enduring
dilemma for democratic systems, therefore, is how to reconcile the high regard
for free expression, which is sometimes elevated to the level of the sacred,
with the parallel duty to protect equality, human dignity, and the integrity of
the democratic order (Abrams, 1992).
Despite certain
differences between the so-called U.S. model and the European model, rooted in
the continental legal tradition, the prohibition of hate speech may nonetheless
be regarded as a form of ius cogens (Abrams, 1992, p. 743; Phillipson, 2015, p. 1). Viewed
through the lens of socio-cultural patterns, the content of the notion of hate
speech, as well as legal responses to it, is often shaped by the political,
religious, and cultural identities of a given society.[2]
Beyond this consensus,
however, disagreements are widespread, particularly concerning the fundamental
definition of “hate speech”, the scope and methods of its regulation, and the
suitable legal responses. These differences can be explained by the fact that
the boundaries of acceptable public discourse are shaped by a complex
interaction of sociocultural factors that together form a society’s “cultural
identity.” As noted in the literature, the most notable differences between
countries lie not only in how the meaning and importance of hate speech issues
influence policy responses but also in how that very meaning and importance are themselves shaped through specific historical,
political, legal, economic, demographic, social, and cultural contexts (Brown
& Sinclair, 2019). The expression of thoughts, opinions, and beliefs is
inherently fluid and resists any attempt at uniform regulation aimed at
enforcing dominant norms of acceptability (Stevanović, 2023). Therefore,
constitutional approaches to hate speech have been far from uniform, as the
line between impermissible hate speech and protected expression varies across
jurisdictions and is often dependent on context.
In the following sections,
we seek to articulate a foundational conceptual framework for ‘hate speech’
that is both precise and ethically robust across diverse political and cultural
settings.
The Content of the Term Hate Speech
The concept of hate speech
is relatively new (Stevanović, 2023). It took shape in academic, legal, and
public discourse from the turn of the twentieth century to the twenty-first, as
a response to the pressing need to regulate hostile and discriminatory language
directed against minority groups. Its emergence was strongly influenced by the
collective memory of the Nazi regime’s virulent anti-Semitic and racist
propaganda, which served as a tool for implementing racist and anti-Semitic
policies (Nikolić, 2018, p. 26). This historical context fueled a broader
normative project to legally address xenophobia and intolerance towards
historically marginalized and disenfranchised communities. The modern legal and
academic discourse on hate speech crystallized in the late twentieth century,
shaped by U.S. legal scholars who responded to the escalating wave of racially
charged and socially destructive expression. Finally, the rise of social media
has elevated hate speech into a pressing societal challenge that can no longer
be ignored (Hietanen & Eddebo, 2023, p. 441). Within digital spaces, the modes of its expression
and the forms of victimization it generates are simultaneously more immediate
and less susceptible to conventional oversight. This dynamic necessitates a
reevaluation of existing legal and regulatory frameworks, which must be
recalibrated to address the complexities of online communication.
From a sociological
perspective, hate speech is not limited to offensive words because it is a part
of a more complex discourse based on prejudices and stereotypes. In this
regard, the views of Michel Foucault and Manuel Castells help us understand how
discourse, and hate speech in particular, functions as a mechanism that
constructs hierarchies and a struggle for social power. Foucault noted that
discourse shapes reality, while Castells extended this concept to the level of
symbolic manipulation, explaining that hate speech is often a tool for
political and social domination (Nikolić, 2018, p. 31).
Accordingly, hate speech
should be conceptualized as an active
form of social expression that generates tangible harm, or,
as stated in the literature, it is a belief-formation
practice (Badino, 2024, p. 47). As such, it constitutes what legal theory
refers to as a performative utterance, which is speech that not only
conveys meaning but also acts upon the world. Reflecting this, the Supreme
Court of Canada has held that hate speech must blur the distinction between
speech and conduct to be actionable, thereby underlining its performative and
impactful nature.[3]
The key element of any
legal definition of hate speech, along with its performative nature, is its
grounds, that is, the characteristics or identities that such speech targets
(Stevanović, 2023). The scope and practical enforceability of hate speech laws
mainly depend on how broad and clear these protected grounds are. Common
categories included in both international and domestic legal laws are race,
ethnicity, nationality, language, religion, gender, sexual orientation,
political affiliation, social origin, and health status, among others.
Importantly, these categories are not fixed; they change in response to
shifting societal contexts (Stevanović, 2023).
The dehumanisation
of a targeted group is seen by some scholars as the fundamental characteristic
of hate speech. In this regard, Parekh similarly conceptualizes three key
features of hate speech, identifying discrimination,
derogation, and the exclusion of individuals or groups
(Parekh, 2012).
Normative Approach and Analysis in the Context of Political Discourse
The legal
conceptualization of hate speech begins with a fundamental question about the
nature of its harm: Does speech cause harm, or does specific speech inherently
constitute harm? (Barendt, 2019). How this question is answered is critical, as
it is the starting point for defining the legal boundaries of speech.
As previously outlined in
an analysis of hate speech (Stevanović, 2023), international human rights law
does not offer a single, clear definition of hate speech. However, a commonly
accepted legal framework makes distinctions between expressions of hatred into
three specific categories based on their severity and the required response
from states. The first category includes severe forms of speech that must be
prohibited, such as incitement to violence or discrimination. The second
category, which states may choose to restrict, covers intermediate forms of
hate speech like threats or harassment. Finally, the third category consists of
speech that, while not illegal, raises concerns about intolerance and may
require a non-binding state response (Article 19, 2018).
Political speech is often
granted privileged protection in democratic societies. In Australia, the High
Court’s ruling in Theophanous provided a broad definition, stating that
political speech includes any communication relevant to a citizen’s formation
of public opinion. Similarly, in German jurisprudence, the Constitutional Court
has also emphasized the need for intensified protection of discourse on matters
of legitimate public interest, as seen in the Lüth
case (Barendt, 2009).
Political discourse, in
its broadest sense, may encompass virtually any matter of public concern (Van
Dijk, 1997, p. 25). To address this, scholars have proposed three main
approaches, as follows: the personal, realistic, and mixed principles
(Stevanović, 2023). The personal principle is a simple method that
identifies political speech based on the speaker's role, such as a public
official. In contrast, the realistic principle prioritizes the content,
and it defines political discourse as any speech on public matters, regardless
of who is speaking. The most effective model, however, is the mixed approach,
which combines both the speaker's identity and the content of the speech. This
strategy allows for a more balanced assessment that protects democratic
dialogue while also setting clear limits on harmful expression.
To clearly distinguish
between protected political speech and illegal hate speech, legal systems must
employ clear, objective standards. While international guidance like the Rabat
Plan of Action, adopted by UN human rights experts, provides a clear six-part
test for identifying hate speech, its application in the digital age presents
unique challenges. Overall, the test considers factors such as context,
speaker, intent, content, and form, as well as the extent of dissemination and
likelihood of harm, including imminence. This framework ensures that legal
restrictions on speech are applied only to the most severe and socially harmful
expressions of speech.
Context is indispensable
in determining whether particular speech constitutes
incitement to discrimination, hostility, or violence.
Judicial bodies consistently take into account the
historical, cultural, and political circumstances within which the expression
occurs. Germany, for example, in light of its singular
historical experience with Nazism, justifiably maintains more stringent
prohibitions on anti-Semitic expression (Rosenfeld, 2002, p. 1566). This move
has sparked concerns about the possible weakening of established hate speech
norms and underscored the need for consistent global standards in this area.
The content and presentation of speech can still indicate hate speech,
particularly when symbolic or historically charged language is used. A pertinent
example is the chant “For Home – Ready” (Za dom
– spremni), employed by certain Croatian
nationalist groups. Although seemingly innocuous, the phrase is historically
associated with the fascist Ustaše regime and its
genocidal actions. In Šimunić v. Croatia, the European Court of Human
Rights upheld sanctions against a football player who used the expression in
front of a stadium crowd, emphasizing the symbolic weight of the phrase, the
contextual circumstances, and the speaker’s influential role (Stevanović,
2023).
The speaker’s identity
plays a complex and ambivalent role. In many jurisdictions, lawmakers and
government officials enjoy parliamentary immunity, even when engaging in speech
that is deemed harmful or offensive. Public figures and individuals, regardless
of their profession, possess greater potential to influence public opinion, and
consequently, to incite or provoke hatred, among other effects.
Importantly, intent is a
necessary element for establishing incitement. As previously noted, a
distinctive feature of hate speech is its performative nature, which sets it
apart from mere insults.
The extent of a speech
act, its reach, audience size, and public accessibility, also increases the
likelihood of legal classification as hate speech. Widely disseminated speech
that meets other Rabat Plan criteria is more likely to provoke real-world harm
and warrant legal consequences. Hate speech can be expressed through any means
of communication; however, when disseminated via mass media, it carries a
significantly greater potential to cause harm and has often preceded
large-scale violent conflicts (Ćirić, 2006, p. 2013).
Furthermore, in that
regard, the immeasurable impact of the Internet and social media must be
acknowledged, as they have become platforms where hate speech is practiced
almost routinely (Pavlović, 2022). Such a state of affairs
has engendered an extensive and continuing debate that concerns not only the
accountability of internet platforms and online media outlets but also the
methods and approaches for eliminating hate speech from the public sphere. In
this context, it is of considerable importance to highlight the judgment
delivered by the Grand Chamber of the ECtHR on 19 June 2015, in the case of Delfi
AS v. Estonia.[4]
In this case, the Court determined that Delfi AS, as the operator of an online
portal, was held liable for defamatory speech that undermined the honor and
reputation of individuals, published by anonymous commentators on its platform.
Hate Speech – The Case of the Countries that
Emerged from the Former Yugoslavia
The countries that emerged
from the dissolution of the former Yugoslavia are marked by deeply rooted
socio-political complexities that continue to shape both the legal regulation
of hate speech and the broader contours of political culture and public discourse.
These complexities are historically grounded in the divergent legacies of the
Ottoman and Habsburg empires, whose respective legal, administrative, and
religious frameworks left a lasting imprint on the region's cultural and
institutional development.
While the constituent
nations of the former Yugoslavia maintained a form of relative cohesion under a
shared federal structure for over seven decades, the violent dissolution of the
federation in the 1990s gave rise to enduring collective trauma. War, without
question, stands as the most potent generator of negative emotions; emotions
which, in this context, were shaped and magnified by a shared sense of betrayal
and abrupt collapse of a once-common political and cultural identity. Hatred,
as expressed during and after the conflict, does not emerge as a singular
emotional state but rather as a complex, layered affective response. It often
manifests as anger, a need for distancing, self-protection, and ultimately,
through mechanisms of dehumanization (Sternberg, 2003). These affective
processes are deeply embedded in public discourse, where hate speech serves as
both a symptom and a catalyst of broader societal divides. Importantly,
doctrinal perspectives have long emphasized that hatred is rarely unilateral; rather,
it is often a form of reactive antagonism, or a counter-hatred, motivated by a
perception (real or imagined) of prior hatred emanating from the target group (Delić, 2015).
The Yugoslav Wars,
particularly the civil conflict from 1991 to 1995, played a transformative role
in exacerbating these latent tensions and entrenching hate-based rhetoric as a
salient feature of political communication. Without delving into the broader
geopolitical or ideological causes of the conflict, it is essential to
highlight the international community’s inadequate response, not only in terms
of preventing or halting hostilities, but also in addressing the structural
ruptures that the war exposed and exacerbated. This failure contributed to the
entrenchment of collective trauma, leaving societies susceptible to resurgent
hate speech in response to renewed political tensions or nationalist
provocations. It is often said, and history persistently confirms, that truth
is the first casualty of war. In the fog of armed conflict, facts are not
merely distorted but are systematically sacrificed on the altar of strategic
narrative-building. Competing sides do not merely exchange firepower, but also
unleash waves of disinformation and symbolic aggression, weaponizing language
itself to obscure realities, mobilize fear, and justify violence (Ćirić, 2015, p. 33).
During the war, political
leaders systematically misused domestic media[5] for
propaganda purposes, often portraying themselves as victims by fabricating
narratives of suffering and atrocities committed by the opposing side, aiming
to elicit sympathy and protection from the international community. A
frequently employed strategy in the context of the Yugoslav conflict involved
launching a coordinated media campaign to prepare the ground for war, followed
by a phase marked by the systematic demonization of the designated enemy. In
this stage, the enemy was deliberately dehumanized in public discourse, reduced
to an abstract embodiment of evil rather than recognized as individuals.
However, the narrative shaped by the international community, and particularly
Western one, was itself driven by strategic political interests, frequently at
the expense of truth and justice.[6]
In line with their foreign policy interests, Western powers sought to portray
one side, namely, the Serbian side as the sole aggressor and principal culprit
by relying on distorted claims about the war and its causes, or by exaggerating
specific military actions, in a manner that itself amounted to hate speech,
exhibiting all its constitutive elements.[7] Such a
narrative not only failed to contribute to the resolution of the conflict but,
on the contrary, served to inflame it further.
Such rhetoric, often
infused with overt chauvinism, not only impedes democratic consolidation but
sustains a volatile communicative environment in which hate speech remains a
powerful tool for political mobilization and social polarization in terms that they
are exploiting diversity of historical memory (Ramet, 2007, p. 26).[8]
This form of narrative deeply permeated the general population, thereby
multiplying the problem of hate speech in the years that followed.[9]
This is especially evident in the use of social media, which has become a
battleground for hate speech, particularly when private users comment on
certain phenomena and events. This reflects a universal problem regarding
online hate speech, as it transcends borders and presents significant
challenges for regulating and mitigating its impact on a global scale.
What is essentially at
play is the exploitation of deep-seated negative emotions present within
societies of the region, sentiments that had been simmering even prior to the
outbreak of the Yugoslav Civil War and were further amplified by the subsequent
chain of events. The Jasenovac camp was the largest concentration and
extermination camp on the territory of the Independent State of Croatia (NDH)
(today’s Croatia) during World War II. Established in August 1941, the camp
remained operational until April 1945. The Ustaše
regime administered it with the explicit aim of exterminating Serbs, Jews,
Roma, and political opponents of the regime, including communists,
anti-fascists, and other dissenters. During the Yugoslav conflict itself,
numerous events occurred that profoundly shaped the region’s collective memory,
such as Operation Storm, during which hundreds of thousands of Serbs
were expelled from what is now Croatia to the territory of present-day Serbia,
or the Srebrenica, in which a certain number of local Bosniak (Muslim)
civilians were killed. These and similar events have revealed the full
destructive force of war, not least in terms of the proliferation of hatred and
intolerance disseminated through public discourse. On one hand, numerous
representatives of the regime in Serbia issued overtly nationalist messages,
frequently resorting to hate speech and the incitement of interethnic
animosity.[10]
This rhetoric served to justify the fact that the population was subjected to
international sanctions, despite the reality that the majority of the territory
of present-day Serbia did not witness active combat during the Yugoslav Civil
War (Kojić, 2022). Instead, atrocities were primarily committed against ethnic
Serbs residing in the territories of what are now Croatia and Bosnia and
Herzegovina. A particularly emblematic example is an earlier statement by the
current President of Serbia in which he declared that for every Serb killed,
100 Muslims would be killed. On the other hand, representatives of the emerging
regimes, particularly in Croatia and Bosnia and Herzegovina, used anti-Serb
rhetoric and hate speech to justify military operations and the suffering
inflicted upon populations and territories under their military and political control .[11],[12]
Within the broader
framework of political discourse in the post-Yugoslav region, the normalization
of hate speech is often reinforced not only through political rhetoric but also
through cultural expressions that carry significant symbolic and emotional weight.
There are numerous instances in which state officials, during official
ceremonies and public events organized or endorsed by government institutions,
invite performers who have gained notoriety for promoting explicitly
militaristic and incendiary rhetoric through their music. Notably, such artists
often sell hundreds of thousands of tickets for a series of scheduled concerts,[13]
reflecting a deeply troubling level of societal normalization and, in some
cases, endorsement of war-mongering narratives.
Another pivotal event that
significantly shaped and intensified the narrative of hate speech, particularly
in relation to Serbia, was the unlawful 1999 NATO bombing of the Federal
Republic of Yugoslavia. As the bombing of Yugoslavia was conducted in direct
contravention of the rules of international law and without the requisite
authorization of the United Nations Security Council, and given that its
victims included innocent civilians, among them children, as well as
non-military civilian infrastructure, it has been widely criticized as a breach
of both the UN Charter and international humanitarian law. The critical stance
toward this event has, in some cases, escalated into hate speech directed not
only at proponents of the NATO intervention, but also at representatives of the
Kosovo Albanian community, who, in diplomatic terms, strongly lobbied for the
bombing. At the same time, their militant[14]
Organization, the Kosovo Liberation Army (KLA), opposed the legitimate
authorities by engaging in anti-Serb terrorist activities.
Regarding the legal
mechanisms for combating and preventing hate speech,
it can be stated that all states that emerged from the former Socialist Federal
Republic of Yugoslavia (SFRY) have an appropriate normative framework that, for
the most part, aligns with relevant international documents, notably the
Council of Europe’s legal framework. As Slovenia became a member of the
European Union in 2004 and Croatia in 2013, EU law related to the suppression
of hate speech has been applied in these countries. This framework also serves
as a reference for legislators in other republics that are candidates for EU
membership, as harmonization with EU law is one of the key elements in the
process of acquiring Union membership status.
Regarding
the criminal law response, which constitutes the most significant mechanism for
countering hate speech, it is possible to identify notable differences among
the successor states of the former SFRY. All of these countries, as a rule, criminalize
expressions aimed at inciting or inflaming national, ethnic, or religious
hatred and intolerance. However, distinctions emerge in terms of normative
interpretation and the systemic classification of these offenses. In Serbia and
Montenegro, such acts are categorized as offenses against the constitutional
order and state security; in North Macedonia, as offenses against the state;
whereas in Bosnia and Herzegovina, they fall within the framework of protecting
fundamental human rights and freedoms, and in Croatia and Slovenia, they are
treated as offenses against public order and peace.
These differences are also
reflected in the scope of potential passive subjects, ranging from individuals
belonging to specific socio-biological groups to entire nations and ethnic
communities residing within a given state. As for the conduct constituting the
offense, it typically consists of incitement (i.e., the creation of a new state
of hostility) or exacerbation (i.e., the intensification of an existing one) of
violence, hatred, or intolerance, and in some jurisdictions even discord. The
latter reflects the most stringent legislative approach, as exemplified by
Bosnia and Herzegovina and North Macedonia.
Despite being a socialist
and non-democratic state, the SFRY included in its criminal code the offence of
inciting national, racial, or religious hatred,[15] an
offence which, in substance, corresponds to contemporary hate speech
legislation widely accepted in liberal democracies, and which serves as a
notable example of high-quality legislative drafting, demonstrating a clear and
early understanding of the principles underlying what is now recognized as hate
speech. This is evident in the precise legal distinction drawn between mere
insults and hate speech, the latter being conceptually well-defined due to its
performative nature.[16]
In terms of the normative framework, all present-day countries that emerged
from the former Yugoslavia (Serbia, Bosnia and Herzegovina, Croatia, Slovenia,
North Macedonia, and Montenegro) have legal systems that, to varying degrees,
align with international standards, although there remains room for
improvement. It should not be overlooked that these states inherited a notably
well-developed legal framework for regulating hate speech from the legislation
of the former SFRY. However, the most pressing issue is the frequent
normalization and legitimization of hate speech by state actors, which in turn
influences judicial decision-making in hate speech-related cases and undermines
institutional capacity to combat online hate speech effectively.
Serbia
The Republic of Serbia is
the legal successor of the former Yugoslavia and the largest of its former
constituent republics. Although it is not a member of the European Union,
Serbia is a member of the Council of Europe, which significantly influences its
normative response to hate speech. As a member state, Serbia is bound by the
principles and provisions of the ECHR, particularly those relating to the
protection of freedom of expression and the prohibition of hate speech. This
framework is further shaped by the rulings of the ECtHR, which has developed
substantial jurisprudence on hate speech. In this regard, the provision of
Article 18, Paragraph 3 of the Constitution of Serbia[17] This
is significant, as it stipulates that the provisions on human and minority
rights shall be interpreted in favor of advancing the values of a democratic
society, in accordance with applicable international standards of human and
minority rights, as well as the practice of international institutions that
oversee their implementation.
In the legal system of the
Republic of Serbia, hate speech is primarily regulated through several key
legal instruments, each addressing different aspects of the issue. The Constitution of the Republic of Serbia,
in its Articles 21 and 49, guarantees the fundamental
right to freedom of expression but provides for its limitation in cases where
it undermines public order, the rights of others, or the values of a democratic
society.
Based on
the fact that hate speech
is criminalized in various ways in most modern legal systems, the primary
response to hate speech is typically realized through the criminal law
mechanism. Given the previously presented conceptualization of the term hate
speech, we consider that the criminal offenses most directly opposing hate
speech are prescribed in Articles 317 and 387 of the Criminal Code.[18],
because in both cases, the actus reus of the offense consists in inciting or
fanning hatred.[19]
An important general
feature of Serbian criminal legislation is that if a criminal offense is
committed out of hatred based on race, religion, national or ethnic origin,
sex, sexual orientation, or gender identity of another person, such a
circumstance must be considered by the courts as an aggravating factor in
sentencing, unless this motive is already an element of the criminal offense
itself, in order to avoid the impermissible double assessment of the same
circumstance.[20]
The Criminal Code of
Serbia explicitly criminalizes actions that incite hatred, as outlined in
Article 317, which prohibits the incitement and exacerbation[21]
of national, racial, and religious[22] hatred
among nations or ethnic communities living in Serbia.[23],[24]
For such acts, the law
prescribes a penalty of imprisonment from six months to five years. The
specificity of this incrimination lies in the fact that the passive subject of
the offense is the nations and ethnic communities (which should also be
understood to include national minorities)[25] living
in Serbia. This implies that nations and ethnic communities not officially
recorded in the population census as residing in Serbia cannot be considered
the passive subjects of this criminal offense. Consequently, even if all other
elements of the offense are present, it will not be regarded as a criminal act
in relation to those communities, since they do not fall within the scope of
legal protection provided by this incrimination.
Given that this criminal
offense is classified under the group of crimes against the constitutional
order and security of the Republic of Serbia, it follows that if the act is
directed solely at an individual with the intention of causing personal harm, the
offense in question will not be constituted. In other words, the criminal
liability under Article 317 arises only when the act is aimed at inciting
hatred against a collective, specifically a nation or ethnic community, rather
than targeting a person as an individual.[26] The
dominant interpretation in judicial practice holds that the offense is complete
once the conduct has the potential to incite or inflame hatred or intolerance
(abstract danger), regardless of whether such consequences actually occur
(Borka, 2024, p. 157).
There are also qualified
forms of this criminal offense, which depend either on the manner of
commission, such as through coercion, abuse, or threats to personal security,
or on the status of the perpetrator, particularly when the act is committed
through the abuse of official position or authority.
The criminal offense of
racial and other forms of discrimination,[27] as
defined in Article 387 of the Criminal Code of the Republic of Serbia, is
aligned with the International Convention on the Elimination of All Forms of
Racial Discrimination and the International Convention on the Suppression and
Punishment of the Crime of Apartheid.[28] This
broad model of criminalization has been further reinforced by the Council
Framework Decision 2008/913/JHA of 28 November 2008,[29] which
introduced the criminalization of public approval, denial, or gross
trivialization of certain serious international crimes, such as genocide,
crimes against humanity, and war crimes.
When it comes to the
regulation of hate speech in other sector-specific laws, in some cases, the
regulation of hate speech is done in a rather procedural manner, with hate
speech generally prohibited without specifying criminal or civil liability. For
example, the Law on Public Information and Media[30]
prohibits hate speech but does not foresee liability for media editors or
journalists if they violate this prohibition. In contrast, the Law on
Electronic Media[31]
provides for misdemeanor liability for violations of the rules prohibiting hate
speech. At the same time, the regulator may impose protective measures on
broadcasters that air content constituting hate speech.[32]
Slovenia and Croatia
Both Slovenia and Croatia, as successor states of the former SFRY and current
members of the European Union, have aligned their legal systems with European
standards in addressing hate speech. Their approaches are grounded in
international obligations, notably the ECHR, the Framework Decision 2008/913/JHA on combating certain forms and
expressions of racism and xenophobia by means of criminal law, and relevant acquis
communautaire. Nonetheless, each jurisdiction
incorporates additional domestic instruments reflecting its specific legal and
socio-political context.
In Slovenia, hate speech is criminalized under Article 297 of the Criminal Code,[33]
which penalizes public incitement to hatred, violence, or intolerance based on
national, racial, religious, or other personal grounds. This provision requires
that the incitement be committed in a manner likely to disturb public order or
pose a threat to public peace. A range of media and sector-specific legislation
provides for supplementary civil and administrative measures, particularly in
relation to media conduct and public discourse.
In one landmark and
influential case,[34]
the Supreme Court of Slovenia redefined the legal interpretation of the
criminal offence of public incitement to hatred, violence, or intolerance. The
Court concluded that the offender’s conduct does not need to result in an
immediate threat to public order; it suffices that the act is objectively
capable of creating a concrete danger to public order.
As has already been
established in Serbia, Slovenia took a more assertive stance toward curbing
hate speech with a 2023 amendment to its Criminal Code, introducing “hate
crime” as an explicit aggravating circumstance that the courts must take into
account in determining the punishment when the crimes are committed with
hateful or discriminatory motives (Kapelańska-Pręgowska
& Pucelj, 2023).
In Croatia, hate speech is addressed under Article 325 of the Criminal Code,[35] which
prohibits public incitement to violence or hatred against groups or individuals
based on race, religion, ethnicity, sexual orientation, or other grounds.
Furthermore, the Criminal Code imposes stricter penalties for certain types of
hate speech, such as directly and publicly inciting genocide, the crime of
aggression, and terrorism, as is also the case in the legislation of other
former Yugoslav republics.
In addition to criminal
provisions, a range of media and sector-specific legislation imposes
obligations on broadcasters and online platforms to refrain from and prevent
the dissemination of hate speech.
Croatian courts have shown
particular sensitivity in cases involving the legacy
of war-related rhetoric. This approach is evident in the Šimunić case discussed
above, where the courts underscored that expressions evoking fascist or
nationalist sentiment, especially in a post-conflict society, can be lawfully
restricted when they pose a risk to social cohesion and interethnic relations.
In the Miljak case, the Constitutional Court upheld
the convictions of the applicant, who, as the president of the Croatian Pure
Party of Rights, organized a commemoration in Slunj
honoring Ustaše officer Jure Francetić.
During the event, he made
a speech praising the NDH, the Black Legion, and Francetić’s wartime path.
Following his speech, he shouted “God and Croats, for
the homeland”, while another person in the group shouted “ready” and performed
a Nazi salute (Hlebec & Gardašević,
2021, p. 23). The court ruled that his actions publicly promoted unacceptable
political messages, incited the crowd to disrupt public order, and encouraged
hostile behavior, violating public peace.[36]
While both Slovenia and
Croatia maintain a dual-track approach, combining criminal sanctions with civil
and regulatory mechanisms, their legislative design reflects contextual
nuances. Slovenian law places particular emphasis on the condition that hate speech
must endanger public order and peace. In contrast, Croatian law includes
broader criteria and integrates post-conflict sensitivities more directly into
interpretation and enforcement.
North Macedonia and Montenegro
Both North Macedonia and Montenegro, as post-Yugoslav states
and Council of Europe members, have adopted legal and institutional frameworks
to combat hate speech, aiming to align with international standards, including
the ECHR and the Framework Decision
2008/913/JHA. Although not EU members, both countries have undertaken
legal harmonization as part of their respective EU accession processes.
In North Macedonia, hate speech is criminalized under Article 319 of the Criminal Code,[37]
which penalizes incitement to national, racial, or religious hatred, discord,
or intolerance.[38]
The provision applies to acts committed through the press, broadcasting, or
other public means and carries heavier penalties if committed via computer
systems. Additionally, a range of media and sector-specific legislation imposes
obligations on broadcasters and online platforms to refrain from and prevent
the dissemination of hate speech.
In Montenegro, hate speech is addressed through Article 370 of the Criminal Code,[39]
which prohibits the incitement to violence and hatred based on nationality,
race, religion, or ethnic affiliation. The actus reus under this criminal
provision is defined more narrowly than in the observed comparative
jurisdictions, as it pertains solely to incitement (a term that may
semantically encompass both provocation and instigation) of violence and
hatred, but not of intolerance or discord. Similar to
North Macedonia, the law includes enhanced sanctions if the act is committed
through the media or public gatherings. Complementary regulations can be found
in sector-specific legislation that prohibits the dissemination of hate speech
in print, broadcast, and digital formats.
There are examples in
Montenegrin case law where the courts have demonstrated a readiness to sanction
hate speech, particularly in politically or ethnically sensitive contexts. A
notable example includes the 2019 case
before the Basic Court in Podgorica,[40] in
which a journalist was fined for using pejorative language targeting a
religious group. The court reasoned that journalistic freedom does not extend
to speech that incites hatred or undermines social cohesion. The Constitutional Court of Montenegro,
invoking Article 47 of the Constitution,
has affirmed that freedom of expression may be restricted to protect the rights
of others, including protection against hate speech.
Both jurisdictions rely on
a combination of criminal law, anti-discrimination frameworks, and media regulation to address hate
speech. While North Macedonia
emphasizes the protection of interethnic relations in a multiethnic society, Montenegro’s approach reflects its
sensitivity to tensions between religious and national identities. In both
cases, the balance between free expression and social cohesion is framed within
the broader post-conflict and transitional context of the region.
Bosnia and Herzegovina (BiH)
Bosnia and Herzegovina
(BiH), as a state with a uniquely complex constitutional structure stemming
from the Dayton Peace Agreement,[41]
operates through a highly decentralized legal system composed of two entities (the Federation of BiH
and Republika Srpska), the Brčko District, and multiple cantonal jurisdictions. This fragmentation extends to the criminal
law domain, resulting in the coexistence of three separate criminal codes, one at the state level, and one
each for the two entities, each containing its own provisions on hate speech.
At the state level, hate speech is regulated
under Article 145a of the Criminal Code
of BiH,[42]
which criminalizes incitement to national, racial, and religious hatred,
discord, or hostility among the constituent peoples and others. This provision
is generally reserved for acts that cross entity borders or threaten the
sovereignty and integrity of the state.[43] In
addition to criminal law, sector-specific legislation also prohibits the
dissemination of hate speech in print, broadcast, and digital formats.
The multiconfessional and multiethnic character of BiH,
enshrined in the Constitution through the recognition of Bosniaks, Croats, and
Serbs as constituent peoples, makes the legal and social regulation of hate
speech exceptionally sensitive. Public discourse is often shaped by the legacy
of the 1990s conflict, with religious
and ethnic identity deeply intertwined with political representation and social
narratives. Consequently, hate speech often emerges in political
rhetoric, media, and online platforms, targeting groups along ethnic or
religious lines.
One illustrative case is Smajić v. BiH,[44]
adjudicated at all domestic levels and ultimately before the European Court of Human Rights, where
a Bosnian lawyer was convicted for online incitement of national and religious
hatred. The domestic courts upheld the conviction, emphasizing the public nature of internet communication
and the potential to disrupt
interethnic relations. The ECtHR confirmed that the conviction did not
violate Article 10 of the ECHR, reinforcing the principle that speech
threatening post-conflict reconciliation may be legitimately restricted.
In summary, while BiH has incorporated international
standards on hate speech into its legislation, the institutional fragmentation, combined with deep-rooted ethno-religious sensitivities,
presents enduring challenges in ensuring consistent, depoliticized, and
effective enforcement of anti-hate speech norms.
Conclusion
Even decades after the end
of the Yugoslav conflicts, hate speech remains deeply embedded in political
discourse across the former Yugoslav republics. The wars of the 1990s appear to
have profoundly shaped the dominant narrative of hate speech in the region.
However, this does not mean that other protected grounds are not
also frequently encountered in the context of hate speech narratives. A
key feature of the local context is that such discourse is largely initiated
and fueled by political elites, who exploit divisive rhetoric to construct a
putative enemy. In doing so, they govern through fear, emphasizing the need for
security and protection, while manipulating public emotions for their own
political gain. To that end, pro-government media outlets are often established
to perpetuate this narrative continuously. Public resources often fund these
outlets despite their routine violations of journalistic codes of ethics.
Following the dissolution
of the SFRY, the newly formed states were not only transitioning from socialist
to liberal democratic systems but also shifting from a centralized to a
decentralized structure. However, they also needed to update their legal frameworks
to reflect the changing political and social
conditions. In terms of hate speech, it is notable that the criminal code of
the former Yugoslavia already criminalized conduct that closely aligns with
modern standards for criminal law responses to hate speech. Over time, through
a continuous process of legal development, these new states have largely
aligned their national laws with international norms in this area.
Structurally, their legal systems are quite similar and generally include
constitutional limits on freedom of expression. At the same time, criminal laws
prohibit acts that incite or promote hatred and intolerance based on
traditionally protected grounds. Additionally, media laws and various
sector-specific regulations have been created to explicitly ban hate speech
across different forms of public communication. However, as is often the case
with efforts to fight hate speech and broader rule of law issues, the main
challenge lies in implementing existing, well-crafted legal provisions. This is
primarily due to the state’s implicit or explicit acceptance of hate speech
narratives, which leads to selective enforcement of the applicable laws.
Another important factor
contributing to the current state of affairs in this
field is the inadequate response of the international community, which, in some
cases, has even actively complicated regional dynamics by lobbying and
promoting its own political interests at the expense of truth and genuine
social reconciliation. Finally, it is important to note that among the peoples
of the former Yugoslav republics, there is a significantly higher number of
individuals, particularly within the younger population, who are immune to the
narrative of hate speech or who are increasingly freeing themselves from its
effects. This provides optimism that the situation regarding hate speech,
fueled by the wartime events of the 1990s in the former Yugoslav space, will
continue to improve at an accelerated pace.
Acknowledgement
This paper represents the result of
the author's engagement following the Working Plan and Programme of
the Institute of Criminological and Sociological Research for the year
2025 (based on contract No.
451-03-136/2025-03/200039) with the
Ministry of Science, Technological Development and Innovation.
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Govor mržnje i politički diskurs u zemljama bivše Jugoslavije: Komparativna pravna analiza*
Aleksandar
Stevanović
Institut za kriminološka i sociološka istraživanja,
Beograd, Srbija
Cilj rada je kritička analiza pravnog regulisanja govora mržnje u kontekstu političkog diskursa na prostoru bivše Jugoslavije. Poseban fokus usmeren je ka dva međusobno povezana aspekta i to konceptualne i normativne osnove pojma govora mržnje, kao i uporedni pregled zakonodavnih okvira i sudske prakse u odabranim zakonodavstvima. U prvom delu rada izvršena je normativna i teorijska analiza posmatranih pitanja radi obuhvatnijeg sagledavanja pravnih i teorijskih temelja govora mržnje i političkog izražavanja uopšte. Polazeći od međunarodnih pravno-političkih instrumenata za zaštitu ljudskih prava, relevantne sudske prakse i značajnih doktrinarnih stavova, u ovom delu rada se izlaže o pojmovnim određenjima i suštinskim karakteristikama govora mržnje. Posebna pažnja posvećena je svojevrsnoj normativnoj tenziji između zaštite političkog diskursa, koji se smatra osnovom demokratskog društva, te pravnih ograničenja usmerenih na zaštitu pojedinaca i grupa od podsticanja diskriminacije, neprijateljstva odnosno nasilja. Analiza je, takođe, upravljena i na problematiku razlikovanja govora mržnje od kontroverznog ili uvredljivog, ali pravno dopuštenog političkog izražavanja, naročito kada je reč o osetljivim temama poput etniciteta, religije ili kolektivnog sećanja na istorijske događaje. U drugom delu rada se daje pravno komparativni prikaz načina na koje se zemlje bivše Jugoslavije uredile pitanje zabrane govora mržnje. Iako su načelno posmatrane države to pitanje regulisale u skladu sa međunarodnim standardima, a naročito onim uspostavljenim u okviru Saveta Evrope, primećuje se različit pristup sudova u pogledu tumačenja i primene odredbi koje se odnose na govor mržnje. Slovenija i Hrvatska, kao članice EU, manje-više su uskladile svoju regulativu sa tzv. acquis communautaire, ali su i druge posmatrane države usled procesa pridruživanja EU na tragu takvog načina kreiranja pravnog okvira koji se odnosi na govor mržnje. Stoga, razmotreni su zajednički elementi i specifičnosti predmetnih jurisdikcija kako bi se identifikovali obrasci postupanja, nedoslednosti i moguće najbolje prakse. Posebna pažnja posvećena je pojavama govora mržnje koje su oblikovane etno-političkim sukobima i ratnim narativima devedesetih godina prošlog veka, a koji i dalje snažno utiču na savremeni politički diskurs na prostoru bivše Jugoslavije. Osnovni cilj istraživanja jeste razvijanje analitički utemeljenih kriterijuma za razlikovanje govora mržnje od političkog izražavanja, uz uvažavanje specifičnih izazova postkonfliktnih i tranzicionih društava na prostoru bivše Jugoslavije.
KLJUČNE REČI: govor mržnje / politički diskurs / sloboda
izražavanja / zemlje bivše Jugoslavije / informisano društvo
PRIMLJENO:
27.08.2025.
REVIDIRANO:
14.09.2025.
PRIHVAĆENO:
23.09.2025.
Correspondence:
aleksandar.stevanovic993@gmail.com
[1] ORCID
[2] For example, countries where
national identity is closely tied to a dominant religion frequently enact
legislation that prioritizes the protection of that religion. The Afghan Law on
Mass Media, for instance, prohibits content that contravenes the principles of
Islam, offends other sects, or promotes non-Islamic religions. Likewise,
Iranian media law forbids the publication of material that violates Islamic
codes or public rights. See more in: Global Handbook on Hate Speech Laws, https://futurefreespeech.com/global-handbook-on-hate-speech-laws
[3] R. V. Keegstra 3 SCR 697, 748
(1990).
As
previously noted in the paper on the analysis of hate speech (Stevanović,
2023), the United States and Europe have historically adopted different
approaches to the legal regulation of hate speech. While U.S. jurisprudence,
shaped by landmark cases like Schenck v. United States and Brandenburg
v. Ohio, has focused on protecting even offensive speech unless it
constitutes a direct incitement to imminent unlawful action, the European
approach is more restrictive. European legal systems are founded on the principle
that certain forms of speech can be inherently dangerous and must be
prohibited, even without a clear link to a specific unlawful act (Heinze, 2006,
p. 555).
[4] Delfi As v. Estonia, 64569/09.
[5] As noted in Mark Thompson’s Forging War: The Media in Serbia,
Croatia and Bosnia-Hercegovina, propaganda played a pivotal role in shaping
national narratives during the conflicts of the 1990s: “In Belgrade, it enabled
the Serb authorities to encourage all Serbs to see themselves as the tragic,
blameless scapegoats in an international conspiracy to destroy the Serb people
and their homeland. In Croatia, it permitted the government to portray itself
(falsely) as the last bastion of Western ‘democratic’ values. At the same time,
it enabled the Muslim-dominated government of Bosnia to present itself as an
innocent victim, which it has not always been.” (Thompson, 1996).
[6] In accordance with the principle
of political opportunism, when it comes to external communication, there is no
informational pluralism, as there is no plurality of interests (Vuković, 2009,
p. 42).
[7] Helmut Kohl was explicit when, in
early 1998, he reportedly declared that “the Serbs should drown in their own
stench.” Similarly, the European of October 5, 1998, offers a stark example of
what constitutes hate speech: “The Serbs are a pariah people—the rotten apples
in Europe’s barrel. They must be neutralized.” Such statements can hardly be
interpreted as anything other than incitement to hatred, if not genocide
itself. This becomes even more disturbing in the context of the 1999 NATO
bombing campaign, during which the London-based The Sun published a headline
reading: “Bomb them like dogs!” (Ćirić, 2015, p. 34).
[8] It is therefore not surprising
that, even decades after the end of the conflicts, many politicians continue to
employ chauvinistic rhetoric and hate speech targeting other ethnic groups from
the former Yugoslav republics. This discourse often glorifies unlawful military
and paramilitary actions while relativizing or denying their criminal nature,
frequently using language that dehumanizes others. For instance, Croatia
officially commemorates Operation Storm every year on August 5, marking it as
the Victory and Homeland Thanksgiving Day and the Day of Croatian Defenders.
The state holds ceremonies in Knin with top officials, military honors, and
public events. While celebrated in Croatia as a symbol of liberation, the
operation is viewed in Serbia and among many Serbs as a day of mourning due to
the mass exodus and crimes committed against Serb civilians. In Serbia, certain
public gatherings, most frequently sports events, are often marked by chants
such as ‘Nož, žica,
Srebrenica,’ a slogan with an explicitly hostile and threatening connotation
toward the Bosniak population.
[9] For instance, the European Court
of Human Rights unanimously held that the applicant’s conviction for inciting
national, racial, and religious hatred did not violate Article 10 of the
European Convention on Human Rights. Mr. Smajić, a Bosnian lawyer, had posted
comments on a publicly accessible website speculating about potential actions
by Bosniacs in the event of renewed conflict and the
secession of Republika Srpska. Domestic courts—the
Basic and Appellate Courts of the Brčko District—found that the forum, although
requiring registration to post, was publicly accessible and therefore
constituted a public space. They concluded that the applicant’s statements were
objectively capable of inciting interethnic hatred and could not be protected
under the right to freedom of thought or opinion, as they amounted to hate
speech. The Constitutional Court of Bosnia and Herzegovina upheld these
findings, ruling that the restriction on expression complied with Article 10(2)
of the ECHR. The ECtHR confirmed that the interference was lawful, pursued a
legitimate aim, and was necessary in a democratic society. The judgment
underscores the principle that freedom of expression may be restricted where it
poses a threat to interethnic tolerance in post-conflict societies. Also, on
June 17, 2022, the Oversight Board ruled that Meta had wrongly upheld a
Facebook post depicting ethnic Serbs as rats. The post, which was shared by a
Croatian news portal, featured an edited Disney video with the city of Knin
overrun by rats, symbolizing ethnic Serbs. Initially, Meta did not remove the
content, claiming it did not violate the Hate Speech policy. However, after an
appeal and further review, Meta conceded that the post breached both the Hate
Speech and Violence and Incitement standards, as it was dehumanizing and could
incite harm. The Board emphasized the need for content removal to prevent
further harm, aligning with Meta’s human rights responsibilities.
More
details on: https://globalfreedomofexpression.columbia.edu/?s=Oversight+Knin.
[10] Vojislav Šešelj, leader of the Serbian Radical Party,
was indicted before the International Criminal Tribunal for the former
Yugoslavia (ICTY) for inciting hatred, violence, and discrimination, with a
particular focus on his role in spreading hate speech during the wars of the
1990s. In the 2018 ruling, Šešelj was sentenced to 10
years in prison, although the sentence was reduced for the time he had already
spent in detention. The court found that his public speeches, particularly
those targeting ethnic and religious minorities, were inciteful in nature,
contributing to an atmosphere of hatred and ethnic persecution. Šešelj was convicted for inciting persecution, including
forced displacement, deportations, and inhumane treatment of Croats and Muslims
(Bosniaks) in Hrtkovci in 1992, within the broader context of the Yugoslav
wars. For more details, see Kojić, T. (2022). Govor mržnje u sferi javnog obraćanja. U Z. Pavlović
& M. Ljubičić (Ur.), Govor mržnje (str. 131–154). Institut
za kriminološka i sociološka istraživanja .
[11] In the case of Prosecutor v.
Dario Kordić, the International Criminal Tribunal for the former
Yugoslavia (ICTY) found Kordić, a high-ranking political leader of the Bosnian
Croats, guilty of crimes against humanity and violations of the laws and
customs of war, particularly for his role in the ethnic persecution of Bosniak
civilians in Central Bosnia. While the judgment did not explicitly isolate hate
speech as a standalone offense, it highlighted the instrumental role of
inflammatory nationalist rhetoric and propaganda in legitimizing and inciting
violence against the Muslim population. Kordić’s political speeches and public
statements were cited as part of a broader campaign that fostered an
environment conducive to mass atrocities, notably the massacre in Ahmići. Thus, the case exemplifies how political discourse,
when infused with ethno-religious animosity, can function as a vehicle for
incitement and be legally relevant in establishing intent and participation in
a joint criminal enterprise.
[12] During the 1991–1995 armed
conflict in Croatia, instances of hate speech directed against Serbs were
documented in both political rhetoric and the media. Slogans such as “Serbs
to the willows” (“Srbe na
vrbe”), a historically loaded incitement to
violence and expulsion, were used at public rallies and in graffiti. Public
discourse frequently conflated Serbs with “Chetniks” and aggressors, framing
them collectively as enemies of the state. This rhetoric intensified during
unlawful military operations such as Operation Storm and was often
reflected in statements by public officials and nationalist politicians
(Amnesty International, 1996). In parallel, media outlets and various local
radio stations published dehumanizing portrayals of Serbs, depicting them as
“butchers,” “aggressors,” or even “genetically defective.” These narratives
contributed to the stigmatization of the Serb population and fostered an
atmosphere of ethnic hostility (Human Rights Watch, 1999 .
[13] https://velikeprice.com/en/society/baja-vs-thompson/,
Accessed May 1st, 2025.
[14] In Serbia, the Kosovo Liberation
Army (KLA) was officially designated as a terrorist organization, while certain
U.S. officials similarly characterized the group as such. The United Nations,
through Security Council Resolution 1160 of 1998, condemned the violent acts
occurring in Kosovo, including those perpetrated by the KLA, yet refrained from
formally classifying the organization as a terrorist entity.
[15] Restrictions on freedom of expression in the Socialist
Federal Republic of Yugoslavia (SFRY) can also be analyzed through the lens of
Article 134 of the ex Federal Criminal Code, entitled “Incitement of National,
Racial, and Religious Hatred, Discord, or Intolerance”: “Anyone who, through
propaganda or in any other way, incites or stirs up national, racial, or
religious hatred or discord among the nations and nationalities living in the
SFRY shall be punished by imprisonment for a term of one, to ten years.
Anyone
who, by insulting citizens or otherwise, incites national, racial, or religious
intolerance shall be punished by imprisonment for a term of three months to
three years.
If
the act referred to in paragraphs 1 or 2 is committed systematically, by abuse
of position or authority, in a group, or if it results in disorder, violence,
or other serious consequences, the offender shall be punished for the act under
paragraph 1 by imprisonment of not less than one year, and for the act under
paragraph 2 by imprisonment ranging from six months to five years.”
[16] It is also noteworthy that the
prescribed penalty is twice as severe as the corresponding criminal provisions
in the legal systems of the successor republics of the former SFRY.
[17] Constitution of the Republic
of Serbia, Official Gazette of the Republic of Serbia, Nos. 98/2006 and
115/2021.
[18] Criminal Code of the
Republic of Serbia, Official Gazette of the RS, Nos. 85/2005, 88/2005 –
corr., 107/2005 – corr., 72/2009, 111/2009, 121/2012, 104/2013, 108/2014,
94/2016, 35/2019, and 94/2024.
[19] In addition to the above-mentioned offenses, there
exists a range of other criminal provisions aimed at protecting honor and
reputation, as well as the freedoms and rights of individuals and citizens,
whose protected legal object may also be harmed or endangered through the
expression of hate speech.
[20] Art. 54a of the Criminal Code of the Republic of Serbia.
[21] The relevant incrimination does
not explicitly require that expressions amounting to incitement or exacerbation
of hatred be made publicly, as is the case with corresponding provisions in the
criminal legislation of Croatia, Bosnia and Herzegovina, or Montenegro.
However, it is to be understood that such expressions, by their very nature,
are communicated in a manner that places them outside the private sphere
[22] Although the title of the offense
explicitly mentions it, the legal description fails to list religious groups as
potential passive subjects of the act, despite the fact that religious
affiliation is not necessarily tied to ethnic or national identity.
[23] The Republic of Serbia is a
multi-ethnic country, home to a diverse array of nations and ethnic
communities. The largest ethnic group in the country is the Serbs, who comprise
more than 80% of the population. Alongside the Serbs, several minority communities
contribute to the ethnic diversity of Serbia. These include the Hungarians,
primarily located in the Vojvodina region, particularly in the Banat area, and
the Bosniaks, who predominantly reside in the southeastern part of the country,
particularly in the Raška region. Croats, although a
smaller group, are also present in Vojvodina and certain central regions of
Serbia. Other notable ethnic groups in Serbia include the Albanians, who are
concentrated in the Preševo Valley and in the
southern part of Serbia, specifically in the autonomous province of Kosovo, as
well as the Roma, a significant community present in urban areas across the
country. Additionally, there are smaller communities of Montenegrins,
Macedonians, Slovaks, Rusyns, Bulgarians, Russians, and Ukrainians, with the majority of these groups residing in Vojvodina or
southeastern Serbia. In addition to these, Serbia is home to other smaller
ethnic communities, such as Czechs, Italians, Jews, Arabs, and others, all of
which contribute to the country’s multicultural makeup.
[24] Incitement refers to any activity
aimed at generating ethnic, racial, or religious hatred or intolerance—implying
that such hatred or intolerance did not previously exist among the peoples or
ethnic communities living in Serbia. In contrast, ‘inflaming’ denotes
activities that intensify or deepen pre-existing hatred or intolerance,
suggesting that animosity or hostility already existed, albeit in a latent or
lower-intensity form, prior to the act.
[25] For a more detailed explanation,
see Stojanović, Z. (2022). Commentary on the Criminal Code. Službeni glasnik, p. 998.
[26] Judgment of the Court of Appeals
in Belgrade under the case number Kž1 250/14.
[27] „Whoever on grounds of race, colour,
religion, nationality, ethnic origin or other personal characteristic violates
fundamental human rights and freedoms guaranteed by universally accepted rules
of international law and international treaties ratified by Serbia, shall be
punished with imprisonment of six months to five years.
The
penalty specified in paragraph 1 of this Article shall be imposed on whoever
persecutes organisations or individuals due to their
commitment for equality of people.
Whoever
propagates ideas of superiority of one race over another or propagates racial
intolerance or instigates racial discrimination, shall be punished with
imprisonment of three months to three years.
Who
spreads or otherwise makes publicly available texts, images or any other
representation of ideas or theories advocated or encourages hatred,
discrimination or violence against any person or group of persons based on
race, colour, religious affiliation, nationality,
ethnic origin or other personal property, shall be punished with imprisonment
of three months to three years.
Whoever
publicly approves of, denies the existence or significantly impairs the gravity
of genocide, crimes against humanity and war crimes committed against a group
of persons or a member of the group designated on the grounds of their race, colour of skin, religion, origin, state, national or ethnic
affiliation, in the manner that may lead to violence or inciting hatred towards
such a group of persons or a member of such a group, where such criminal
offences are determined by a final judgement of a court in Serbia or of the
International Criminal Court, shall be punished with imprisonment of six months
to five years.
Whoever
publicly threatened that, against a person or group of persons because of a
particular race, colour, religion, nationality,
ethnic origin or because of other personal property, committed a criminal
offence punishable with imprisonment of four and more years, shall be punished
with imprisonment of three months to three years.“
[28] International Convention on the Elimination of All Forms of Racial
Discrimination, adopted 21 December 1965, entered into force 4
January 1969, 660 UNTS 195.
[29] Council Framework Decision 2008/913/JHA of 28 November 2008 on
combating certain forms and expressions of racism and xenophobia by means of
criminal law, Official Journal of the European Union,
L 328, 6.12.2008.
[30] Law on Public Information and Media, Official
Gazette of the RS, Nos. 83/2014, 58/2015, 12/2016 – authentic
interpretation, 54/2019, 52/2021, and 92/2023.
[31] Law on Electronic Media, Official Gazette of the RS,
Nos. 83/2014, 6/2016 – authentic interpretation, 129/2021, and 92/2023.
[32] In addition to the mentioned
laws, other legal acts in Serbia also contain provisions aimed at combating
hate speech. For instance, the Law on the Prohibition of Manifestations of
Neo-Nazi and Fascist Organisations and Prohibition of
the Use of Neo-Nazi and Fascist Symbols and Marks prohibits the production,
dissemination, glorification, or storage of propaganda materials, symbols, or
insignia that incite or spread hatred or intolerance based on citizens’
affiliations, or on racial, ethnic, or religious grounds. The Law on Public
Assembly, in Article 8, stipulates that assemblies may be prohibited if their
purpose includes incitement to racial, ethnic, religious, or other forms of
hatred, inequality, or intolerance. Similarly, the Law on Political Parties
forbids political party activities that involve incitement or promotion of
racial, ethnic, or religious hatred (Borka, 2024, p. 156).
[33] Criminal Code, Official Gazette RS, št.
50/12—official consolidated text, 6/16—corr., 54/15, 38/16, 27/17, 23/20,
91/20, 95/21, 186/21, 105/22—ZZNŠPP and 16/23.
[34] Vrhovno
sodišče Republike Slovenije, Sodba II Kp 65803/2012.
[35] Criminal Code of the Republic of
Croatia (Official Gazette, Nos. 125/11, 144/12, 56/15, 61/15, 101/17, 118/18,
126/19, 84/21, 114/22, 114/23, 36/24).
[36] The decision of the
Constitutional Court of the Republic of Croatia, U-III-1296/2016, dated May 25, 2016
[37] Criminal
Code of the Republic of North Macedonia (Official Gazette of the Republic of
Macedonia, Nos. 37/96, 80/99, 4/02, 43/03, 19/04, 81/05, 60/06, 73/06, 7/08,
139/08, 114/09, 51/11, 135/11, 185/11, 142/12, 170/13, 27/14, 199/14, 226/15,
97/17, 248/18, 198/18, etc.).
[38] The
Criminal Code of North Macedonia currently does not recognize hate- or
bias-motivated offenses as distinct criminal acts, nor are they classified as
qualified forms of basic offenses carrying stricter criminal sanctions, or as
aggravating or enhancing circumstances explicitly tied to the motive of the
perpetrator. The introduction of hate crimes into Macedonian criminal
legislation began with the 2009 amendments to the Criminal Code, which
established a general sentencing provision in Article 39, paragraph 5. This
provision obliges courts to take into account certain
motives of bias and discrimination based on the victim's membership in a
particular social group when determining sanctions. Specifically, Article 39(5)
unequivocally stipulates that, in sentencing, courts shall give special
consideration to whether the offense was committed against an individual, a
group of individuals, or property, directly or indirectly, due to their sex,
race, skin color, gender, membership in a marginalized group, ethnic origin,
language, nationality, social origin, religion or belief, other types of
belief, education, political affiliation, personal or social status, mental or
physical disability, age, family or marital status, property status, health
condition, or any other ground established by law or ratified international
treaty (Nicević & Dečković, 2024).
[39] Criminal Code of Montenegro
(Official Gazette of the Republic of Montenegro, Nos. 70/2003, 13/2004 – corr.
and 47/2006, and Official Gazette of Montenegro, Nos. 40/2008, 25/2010,
32/2011, 64/2011 – other law, 40/2013, 56/2013 – corr., 14/2015, 42/2015, 58/2015
– other law, 44/2017, 49/2018, and 3/2020).
[40] The decision of the
Constitutional Court of Montenegro, U-III-6/2016.
[41] General Framework Agreement
for Peace in Bosnia and Herzegovina (signed 14 December 1995, entered into
force 14 December 1995) 35 ILM 75 (1996).
[42] Criminal Code of Bosnia and
Herzegovina (Official Gazette of BiH, No. 3/2003, as amended by Nos.
32/2003 – corr., 37/2003, 54/2004, 61/2004, 30/2005, 53/2006, 55/2006, 8/2010,
47/2014, 22/2015, 40/2015, 35/2018, 46/2021, 31/2023 and 47/2023).
[43] In the Federation of BiH, hate
speech is addressed under Article 163 of the Criminal Code, while the Criminal
Code of Republika Srpska contains a similar provision
under Article 359. Both criminalize public incitement to hatred, discord, or
intolerance on national, racial, or religious grounds. The Brčko District also
mirrors these standards in its own criminal code (Article 160). However, there
is no unified judicial practice or prosecutorial policy across the entities,
which has led to inconsistent enforcement and divergent interpretations of what
constitutes hate speech.
[44] Smajić v. BiH, 48657/16.
* Predloženo citiranje:
Stevanović, A. (2025). Hate Speech and Political Discourse in the Countries of
the Former Yugoslavia: A Comparative Legal Analysis. Zbornik Instituta za kriminološka
i sociološka istraživanja, 44(1–2), 109–138. https://doi.org/10.47152/
ziksi2025126
©2025
by authors
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article is an open access article distributed under the terms and conditions of
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International (CC BY-NC 4.0).