Lipšic defends free speech

JUSTICE Minister Daniel Lipšic will return to battle this month in parliament to see another version of his draft Penal Code amendment approved. He withdrew the previous bill in early February after MPs approved several alterations the minister believed would benefit organized crime; now, says Lipšic, emotions have cooled, and there is wider political support for this important legislation.

JUSTICE Minister Daniel Lipšic will return to battle this month in parliament to see another version of his draft Penal Code amendment approved. He withdrew the previous bill in early February after MPs approved several alterations the minister believed would benefit organized crime; now, says Lipšic, emotions have cooled, and there is wider political support for this important legislation.

The Slovak Spectator (TSS): Did your meeting with opposition leader Robert Fico on February 21, and your agreement to work together to have the Penal Code amendment passed, give you the leverage you needed later to win the support of your coalition partners for the amendment in the form you proposed it?

Daniel Lipšic (DL): We first have to come to an agreement in the coalition, and then keep that agreement, which to my way of thinking is even more important. Of course, the Penal Code amendment does not serve the coalition or the opposition, but is intended to provide citizens with a greater degree of security. That's why it is only a good thing if it also wins the support of part of the opposition.

Last year I wrote a letter to the chairs of all parliamentary caucuses that I wanted to meet and discuss controversial issues in the Penal Code amendment, and that I would be happy if the amendment won the support of a wider range of parties. It really does concern citizens and not politicians, from young people who can be tyrannized, to old people who can be attacked on the street, so it would be good if parliament focused on this common goal.

TSS: Before your meeting with Fico your coalition partners were unwilling to go along with some parts of your amendment. After the meeting they accepted both the clause assigning criminal responsibility to legal persons such as companies, and the preservation of aiding and abetting organized crime as an offence in the code. If your agreement with Fico didn't provide you with extra leverage, how did this change of mind come about?

DL: The chairman of the Smer party [Fico] approached me to request a meeting, saying he could imagine supporting the Criminal Code, so we met, and he informed me of his party's approach to the law. I welcomed this support.

TSS: But that doesn't answer the question. Why did your coalition partners suddenly agree to support your amendment after you agreed to specify which crimes companies could be held liable for, and what was meant by the terms "supporting" and "abetting" organized crime and terrorism? Why wasn't it possible to reach such a simple agreement weeks ago, when the bill was being debated in parliament?

DL: In parliament no one ever proposed defining "support" for a criminal group, because it was never a problem. The term "support" is used in other paragraphs of the Criminal Code, such as "support for or propagating a movement aimed at suppressing human rights". No one felt the lack of a definition because the courts in practice had no trouble defining it.

It was only after I withdrew the Criminal Code draft amendment, after the clause on support for a criminal group was removed [on the proposal of Peter Miššík, an MP from the ruling coalition Slovak Democratic and Christian Union party - ed. note] that the demand [for a definition] arose. The situation calmed down, and there was nothing easier than to suggest a definition that is used regularly in judicial practice.

But again, it wasn't until I withdrew the amendment from parliament that anyone came forward with such a demand. Originally, the demand was, on the proposal of MP Peter Miššík, that support for organized crime not be considered a criminal offence.

TSS: What did you have to give up to achieve this compromise?

DL: I agreed with the definition. I had no problem with it, because it's simply an expression of what the courts use now based on the currently valid text [of the Penal Code]. For that reason I regard this Penal Code amendment as equally good as the previous version.

TSS: Will the "Auschwitz lie" clause, which makes it a crime to deny or question that the Holocaust occurred, remain in the amendment you submit in March?

DL: Yes. But it's not just that. The debate [in Slovakia] focussed on this Auschwitz lie issue. The problem is wider, however. I originally proposed that any kind of verbal offences that don't abet or foment illegal activity not be considered a crime. For example, not even defamation of races, nations or faiths, which of course today is a crime. The question is where we set the boundary between forms of speech that are protected and those that aren't. I insist that the border should be between expressing ideas, which is protected, and initiating action, which isn't. That could in principle be the border.

I often ask my opponents to define for me an equivalent border between speech that is to be protected, and speech that will not be protected by freedom of expression. So far I haven't heard any other variation of this constitutional principle.

TSS: There is a move afoot in Europe, in countries like Belgium and The Netherlands, to have Auschwitz lie clauses embedded in their criminal codes, as they are in France and Germany. When you initially proposed in January to drop the clause, did you hear from your European counterparts?

DL: France and Germany do have these elements, you're right, but in Europe there are various approaches to the matter. Some countries punish the Auschwitz lie, others don't. In the European Parliament there was a debate about banning Nazi symbols. Some deputies from the right-wing side of the European Parliament argued that Communist symbols should be banned as well, an idea which I find quite appealing. But that just confirms the hypothesis that once the state begins to limit the freedom of expression, it doesn't stop. If this right is ever given to the state, it never gives it up.

TSS: But did you hear from your European counterparts?

DL: No. On February 24 in Brussels there was a debate at the Council of Ministers on the campaign against racism and xenophobia. Again the freedom of speech question was raised, and what activities should still be protected and what expressions should be criminally punishable. Both I and my Italian colleague, the Italian minister of justice, spoke out in favour of freedom of expression, that speech that did not incite others to illegal acts should not be a criminal offence.

TSS: Isn't that a rather liberal opinion for a conservative politician like yourself?

DL: The problem is that the Constitution has to be interpreted faithfully, not liberally or conservatively. Unfortunately, in Slovakia it has become common that if someone doesn't like something, especially for political reasons, he claims it is against the Constitution. Sometimes it seems to me, when a political party acts in this way, that the Constitution is an expression of their election program. Which of course it isn't.

If we interpret the Constitution without an ideological background, we wind up with an interpretation that is neither liberal nor conservative but consistent with the text of the Constitution.

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