Criminal legal protection of the equality of citizens: the limits of criminalization

The article is devoted to the analysis of methods of criminal legal prohibition in the field of combating discrimination of people on any grounds. It is established that Art. 161 of the Criminal Code, which provides for criminal liability for violation of the equality of citizens, has been repeatedly amended. Many draft laws on amendments to this article were not submitted for consideration by the Verkhovna Rada due to the significant number of evaluative concepts contained in them. The Recommendation CM/Rec(2022)16 of the Committee of Ministers to member states on combating hatred of May 20, 2022, and in particular the interpretation of the concept of “hate speech”, legal and non-legal methods of combating manifestations of hatred and their correlation with the protection of other rights and, in particular, the right to freedom of expression, is analyzed. The Committee of Ministers stresses the need to strike a balance between the right to freedom of expression and the right to be free from discrimination when developing national laws aimed at combating hatred. However, the use of evaluative concepts in legislation significantly complicates this balance. An analysis of the practice of applying European laws against “hate speech” indicates a significant restriction of freedom of expression. This applies most of all to religious views, which also entails a violation of the right to freedom of religion and discrimination on the basis of religious affiliation. According to Recommendation CM/Rec(2022)16, criminal law methods of combating manifestations of hatred should be a last resort and be applied only for the most serious manifestations of hatred. It has been concluded that the use of evaluative concepts in criminal legislation is unacceptable. Criminal law measures to combat violations of the equality of citizens should be directed exclusively against specific manifestations of violence, damage to property, pogroms, discrimination against individual citizens or groups of persons on any grounds, as well as public calls for such specific acts. The prohibition of “hate speech” in its abstract, vague sense, which is contained, among other things, in Recommendation CM/Rec(2022)16, leads to a violation of the right to freedom of expression.