The Constitution of the Republic of Slovenia prohibits any incitement to discrimination and intolerance and any incitement to violence and war (Article 63). The Slovenian penal legislation reflects this prohibition in the Criminal Code (KZ-1) with the criminal offence of Public Incitement to Hatred, Violence or Intolerance (Article 297), which can be labelled as hate speech in a narrow criminal law sense, with criminal offences against honour and reputation (Chapter 18 of the KZ-1), and several criminal offences against life and limb (Chapter 15) and against human rights and liberties (Chapter 16). The Constitutional provision is furthermore reflected in the minor offences legislation prescribing harsher sentences for offenders acting with discriminatory motivation (»hate speech in a broad penal law sense«). The paper positions the Anglo-Saxon notion of “hate speech” in the Slovenian (continental) criminal legal doctrine and shows how Slovenian legislators decided to implement the European Council Framework Decision 2008/913/JHA by using all available options to define hate speech as narrowly as possible in order to allow a wide scope of the freedom of expression. The paper then analyses jurisprudence related to Article 297 of the KZ-1 and shows state prosecutors’ and courts’ misplaced argumentation of the Article 297 of the KZ-1. It concludes by claiming that the combination of an extremely narrow definition of “hate speech in a narrow sense” in the Article 297 of the KZ-1 and a factually and legally incorrect interpretation of the Article leads to a denial of the constitutional protections as stipulated in the Article 63 of the Constitution of the Republic of Slovenia.
