Standing for Freedom of Expression: Understanding the Defense of Young Protesters in Estonia. FAQ

At the end of last year, EHRC went to court to defend four young people who were taken away from a demonstration in support of Palestine. The young people, who called for an end to violence against Palestinian civilians, were fined under a paragraph that accuses them of supporting and justifying international terrorism. At the heart of the debate is the phrase “From the river to the sea” – who, where, when, and under what conditions can or cannot use it. Read an overview of the court case and explore media coverage (in Estonian).

Understanding and explaining legal disputes tends to be complex. Since this case has generated a lot of feedback and lively social media discussion, we have compiled a list of the most frequently asked questions. We hope that at least some of these will find exhaustive answers below.

Frequently Asked Questions

What was the basis for fining four individuals who participated in the demonstration?

The young people were fined under the Penal Code (KarS) paragraph 151 prim, which pertains to the support and justification of international crimes. Specifically, under the same paragraph section 1: For publicly displaying a symbol related to the commission of an act of aggression, genocide, crime against humanity, or war crime in a supportive or justifying manner. The penalty for such an act is a fine of up to three hundred fine units or arrest.

It’s important to note that paragraph 151 prim of the Penal Code is not the same as the incitement of hatred (hate speech) provision KarS § 151. These are two separate compositions with different content and objectives.

What exactly does paragraph 151 prim of the Penal Code mean? When was it adopted? 

This is a relatively new provision in our Penal Code, adopted by the Riigikogu in April 2022. According to the explanatory memorandum, the creation of this provision was motivated by the Russian Federation’s attack on Ukraine’s sovereignty and territorial integrity. The aim of amending the Penal Code was to prohibit the public use of internationally widespread symbols intended to support the Russian Federation’s military operations in Ukraine.

How is the demonstration in Tallinn in support of Palestine related to Russia’s aggression and war in Ukraine?

Apparently, the Estonian state has started to interpret the law more broadly than its original idea. From the draft law, one can read about the purposes and motives for creating the provision: “The draft legislation is intended to make amendments to the Penal Code (KarS) related to the Russian Federation’s attack on Ukraine’s sovereignty and territorial integrity and to ensure an appropriate criminal law response in the event of joining the aggression and related hostile activities.”

How does the demonstration in support of Palestine in Tallinn relate to Russian aggression and war in Ukraine?

Apparently, the Estonian state has begun to interpret the law more broadly than its original idea was. From the draft law can be read about the goals and motives for the creation: “According to what is planned by the bill, amendments will be made to the Penal Code (KarS) related to the attack by the Russian Federation on the sovereignty and territorial integrity of Ukraine and ensure an appropriate penal response in the event of accession to aggression and related hostilities.”

Is it permissible to interpret the law more broadly than its original purpose of creation?

The intention of the legislator in creating and proclaiming the law is very important, but as society is constantly changing, interpretations also change. However, the change in interpretations must be necessary and understandable to people. In addition, the interpretation must never be arbitrary, exceed the powers of authority, or be surprising to those who are threatened with punishment due to the interpretation.

Why is the fine for using the phrase “From the river to the sea” problematic?

Before the demonstration on November 5, 2023, there was no debate in Estonia over the phrase “From the river to the sea.” Those who used the phrase at the demonstration could not have foreseen the police reaction and the subsequent fine. The Police and Border Guard Board’s decision to use paragraph § 151 prim of the Penal Code outside the context of the Russian aggression war was a surprise to the demonstrators.

How were the young people who used the phrase “From the river to the sea” supposed to know that it is forbidden in Estonia?

The absurdity of the punishment was evident, for example, in the courtroom, where the police officer who made the fine decision had to admit that he became aware of the phrase and its prohibition on the same day as the demonstration. Yet, the same police officer wrote in the fine decision that the prohibition of the sentence “is generally known.” It turned out that on the day of the demonstration, police officers were informed from the headquarters about what is and what is not a prohibited symbol.

How is the punishment of young people who used the phrase consistent with the principle of legal clarity?

The approach chosen by the state is in conflict with the principle of legal clarity. This is an important principle that reminds us that the addressees of a legal norm are people. According to the Supreme Court’s explanation, the norm must be understandable to a “person of average abilities.” In this case, there is reason to doubt whether on 5.11.2023, the content, context, and alleged prohibition of the phrase “From the river to the sea” were generally recognized in Estonia.

What does the phrase “From the river to the sea” actually mean? Is its use prohibited anywhere? Why?

Since the phrase has different interpretations and has been approached differently regarding criminalization in other European countries, it is difficult to give a definitive answer. For example, similar discussions to what we now have in Estonia have taken place or are taking place in the Netherlands, Germany, Finland, the United Kingdom. There have been decisions that find the phrase should be banned, but also those that place it under freedom of speech.

Likely, a semiotic expertise of the expression will be produced during the current court case, i.e., an analysis by scientists about the historical context of the sentence and its perception in today’s Estonia. At EHRC, we believe that no new restriction on freedom of speech should start with a fine.

When was the use of the phrase “From the river to the sea” banned in Estonia? Who decided this?

It is difficult to assess the exact moment of prohibition, as this information is not known to the public. The fine was imposed by the Police and Border Guard Board.

How can I know if the use of a certain phrase is prohibited in Estonia or not?

A very good question, to which, unfortunately, there is no good answer. Paragraph 151 prim of the Penal Code, i.e., the support and justification of international crimes, was originally created to limit Russia’s aggression war in Ukraine, but now the state has extended it to the Israeli-Palestinian conflict as well.

It is difficult to say or foresee how the state will interpret so-called prohibited phrases or symbols in some future domestic or international conflict.

You have stood for the regulation of hate speech, which is essentially a limitation of freedom of speech. Now you stand for freedom of expression. How do these two things relate to each other?

In regulating hate speech, EHRC’s goal has been to achieve legal clarity and a provision in the Penal Code that actually works. Today it is not the case. Just last October, we expressed satisfaction that the state is finally creating a legal framework for hate speech, which has the potential – unlike today’s regulation – to prevent and punish incidents of inciting hatred.

Hate speech is a phenomenon with a long history, and there is a consensus in Europe about the need to limit it. Specifically, hate speech is criminally regulated in most European Union countries. In addition, the European Court of Human Rights has repeatedly stated that hate speech does not fall under freedom of speech.

The state’s obligation to limit hate speech comes directly from our constitution. Paragraph 12, section 2 of the Constitution states: “The incitement of national, racial, religious, or political hatred, violence, and discrimination is prohibited and punishable by law. Likewise, the incitement of hatred, violence, and discrimination between social strata is prohibited and punishable by law.”

The annotated edition of the Constitution explains, based on the interpretations of the Supreme Court, that the more distant goal of limiting the incitement of hatred is to prevent the fragmentation of society and to avoid social tensions that can significantly hinder the functioning of the constitutional order and even lead to the violent change of the constitutional order.

Incitement of hatred has fueled several human rights catastrophes, from the Holocaust to the Rwandan genocide. History does not have to go very far – for example, in Myanmar, the genocide against the Rohingyas gained momentum thanks to hate speech spreading on social media. In 2018, UN experts sent to investigate the situation noted that hostility, especially prevalent on Facebook, played a decisive role in escalating the conflict. Later, Facebook owner Meta itself admitted that it did not make enough effort to stop the hate directed against the Rohingyas.

In addition, UN Special Adviser on the Prevention of Genocide Wairimu Nderitu has emphasized before the UN Security Council in discussing the war in Ukraine that hostile narratives can have a devastating impact on societies.

Rampant hate speech is dangerous on several levels. In addition to the mentioned risk of violence, unlimited hate speech reduces the opportunities for minorities to actively participate in society, as it creates a distorted image of them and stigmatizes vulnerable groups.

In a society that respects human rights, clear legal regulation is necessary to limit hate speech. However, it must be remembered that any restriction must be clear, the punishments foreseeable, and each restriction proportional, i.e., taking into account the context, the person, and the extent/impact of the specific case.

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