The End of Freedom of Expression in Europe

We’ve written numerous times in this space about the European Union’s “framework decision on combating racism and xenophobia”, which was implemented last November and became binding on the member states of the EU. Austria has now passed a law to meet the requirements of the framework decision. The new law will remove what little remains of free speech in Austria, especially as it concerns immigration and Islamization.

On October 19 Andreas Unterberger wrote a strongly-worded dissent against the new law. Elisabeth Sabaditsch-Wolff sends this introduction to Mr. Unterberger’s piece:

In November 2010, only a year ago, I said the following at a conference hosted by IFPS:

A milestone in this ominous totalitarian trend will be reached tomorrow, 28 November 2010, when the member states of the European Union are required to implement an innocuous-sounding legal provision known as the “Framework decision on combating racism and xenophobia”, or, more fully, the “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.” According to the final article of the Framework Decision, “Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 28 November 2010.”

This nightmare has become reality ten days ago here in Austria, when parliament passed the new Anti-Terrorism law. The passage of this law was sped up by the Breivik massacre in Norway with the ÖVP (the [formerly] Conservative Party).

We have been silenced. God help us. There is no democracy without freedom of speech.

However, mark my words: As I said in my intervention at yesterday’s OSCE conference, I will continue to speak out. I will not be silenced.

Many thanks to JLH for the translation:

The End of Freedom of Expression: The EU is Responsible, but not Alone

by Andreas Unterberger

Everything bad comes from the EU: This rapidly growing feeling among European citizens is being further strengthened this week by the Austrian parliament. Over the objections of the opposition, it could decide on the most severe restrictions of basic rights and freedoms which have been imposed on Austrians in the last 60 years. It is true that there were talks up to the last minute about alleviating — or for now only partly enacting — the so-called Terrorism Prevention Law, combined with strengthening of the Incitement Paragraph — which in truth proves to be a Support-of-Islamists Paragraph. It could just stay substantially the same. Every representative you talk to regretfully says with a shrug of the shoulders: We have to do it because of the EU…

Is this excuse correct? Only partly. In truth, in Austria — as in many other countries — there is a great deal of complicity in this law.

It is about extreme toughening of so-called incitement. Anyone who “makes contemptible or attempts to make contemptible” members of a certain group will in future be sentenced to up to two years in prison.

Thus, crimes purely of opinion are punished with prison, as in a dictatorship, even if the things expressed are the absolute truth.

And so, completely indeterminate terms like “make contemptible” are entered into the criminal code as crimes.

This damages the principle of equal treatment, since one may continue to make many groups contemptible, because they are not listed. It is permitted to make contemptible, for instance, entrepreneurs, farmers, priests, the rich, aristocrats, students, families, capitalists, Rotarians, fraternities, teachers, or Freemasons, but not groups defined by race, skin color, language, religion (including the most obscure sects), philosophy, citizenship, ancestry, national or ethnic origin, gender, handicap, age, or sexual orientation (camouflage word for homosexual).

With this, political correctness, which until now has only been concerned with nonsense like “daughter-son” becomes diktat, armed with the sharpest weapons of the state.

Herewith the otherwise taboo concept of “race” enters our law books, which promises some entertaining lawsuits. Until now any scientist or journalist who even used this abominated word was instantly flattened.

The coalition — with the minister of justice the prime culprit — cites the authority of a framework decision of the EU minister of justice of November, 2008 “on legally combating certain forms and expressions of racism and xenophobia.”

Therefore: Unfortunately, nothing can be done — at most, leave the EU? Which, despite all the mistakes involving Greece etc., would still cause much damage. Aside from the fact that this framework decision together with the current Austrian law will in fact encourage the sympathy for leaving the Union, it is just a lie to say that Austria and the other member states are mere helpless victims of the EU. For many reasons:

1.		That framework decision could only be enacted with unanimous consent. It is clear that Austria’s minister of justice expressly so agreed in November, 2008. On the basis of the internal constitutional situation, this agreement must have come at least tacitly from the ÖVP, as well and not just from the provisional minister of justice, Maria Berger (who must also live with the fact that, in her time as minister, a charge against her domestic partner was brought by the state prosecutor under dubious circumstances).
2.		This framework decision was consciously routed past any public debate by the politicians. They were completely concentrated on the after-effects of the elections. In the parliament, too, where many ridiculous minutiae are discussed, the decision caught no one’s attention. Most of the media have to this day not comprehended that they are very much victims of this law.
3.		Such frameworks are, according to EU law, by no means to be adopted on a one-for-one basis.
4.		This framework from 2008 explicitly offers the possibility of protecting groups other than those mentioned. An expansion to all social groups would at least have prevented damaging the equality principle of the Austrian constitution.
5.		An EU framework decision does not have the legal quality of an EU guideline or an EU ordinance. In contrast, it came about without the involvement of the EU commission and the EU parliament. Unlike them it is not directly legally actionable.
6.		The text of the framework decision allowed the states “to make punishable only actions which were carried out in such a way as to disturb public order or which represent threats, slanders or insults.” This restriction, too, was not implemented by the law-spinners in the ministry of justice, so in Austria in the future, even truth will be punishable.
7.		The framework decision would also have made it possible for Austria to set a maximum sentence of one year instead of two.
8.		The Austrian government also made no study of how restrictively or extensively other EU states were enacting this framework decision.
9.		The government made no effort to analyze such a drastic restriction of constitutional rights, at least according to the remittal of the framework decision.
10.		The framework decision explicitly emphasizes “the obligation to respect constitutional rights and the rule of law, including freedom of expression and assembly.” But there is no mention of this important qualification in the Austrian law. Naturally, the constitution is not negated by this silence. But this omission is a clear signal that the lawmaker is consciously trying to limit freedom of expression.
11.		The Austrian government is disguising this limitation of constitutional rights by inclusion in an anti-terrorism law, although it has absolutely nothing to do with combating terror.

All these serious sins by Austria indicate a targeted ideological impetus on the part of the Ministry of Justice, in which leftist lawyers have set the tone for decades. And the ÖVP, which is presently leading the ministry, is absolutely incapable of restoring even a suggestion of its one-time juridical competence — from a Walter Hauser through a Felix Ermacora to a Michael Graff. Instead of their like, the ministry is being led for the second time by a token woman. But even among the male colleagues in the ÖVP, there are no qualified jurists.

With a certain schadenfreude, the observer is convinced that many of the representatives who voted for this law will most likely in the coming years be victims of green as well as blue criminal complaints. These charges will provide them a long period of unease.

Independent of these points of national blunder, the decision of the EU minister of justice is itself a scandal. Pure thought-crimes — even the mere mention of real facts — shall bring you before a judge. The EU very likely intends a massive restriction of freedom of expression. If not, then the whole framework decision would have been superfluous — at least where it is directed not only against deeds but against words.

Does anyone still remember that the Union took its place as a protector of basic freedoms and a counter-force to a dictatorship that suppressed freedom of expression?

PS: The first sentence of this text — “Everything bad comes from the EU” — was used by Hugo Portisch (whom I value greatly) at a press conference for the introduction of his new book. Actually, only to distance himself from it. Portisch is of a polar opposite opinion. For him, everything good comes from the EU. With all respect to Portisch: This point of view was still justified in the 1990s. Not any more. And it is exactly an all-too-apologetic and one-sided defense of the EU that puts the Union today in a bad light. And it robs of their credibility all those who think that “Europe” is still sensible in spite of everything.