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1. Source of the legal provision

Section 151 of the Criminal Code [Karistusseadusti] as amended by the Act amending the Criminal Code, the Code of Criminal Procedure and the Code of Misdemeanour Procedure (incitement to hatred and hate crimes) 232 SE, entered into force on 12 June 2023 Available in the original language via The National Assembly [Riigi Kogu]; <https://www.riigikogu.ee/tegevus/eelnoud/eelnou/da6b6990-df0b-460d-aa87-447d656e184f/karistusseadustiku-kriminaalmenetluse-seadustiku-ja-vaarteomenetluse-seadustiku-muutmise-seadus-vaenu-ohutamine-ja-vaenumotiiviga-kuriteod/>

2. Legal provision in English

Incitement to hatred
  • For public incitement to hatred, violence or discrimination against a group of persons or a member of a group on the basis of nationality, race, colour, sex, disability, language, origin, religion, sexual orientation, political beliefs or property or social status in a manner that gives reason to fear an act of violence following the incitement or a significant threat to the safety of society, ‒ shall be punished with a monetary penalty or imprisonment of up to one year.
  • For the same act, if it is committed: 1) repeatedly, or 2) by the group – shall be punished with a monetary penalty or imprisonment for up to three years.
  • For the act provided for in subsection 1 or 2 of this section, if it has been committed by a legal entity, ‒ shall be punished with a financial penalty’.

3. Legal provision in the original language

Vaenu õhutamine
  • Avaliku õhutamise eest vihkamisele, vägivallale või diskrimineerimisele isikute rühma või rühma liikme vastu rahvuse, rassi, nahavärvi, soo, puude, keele, päritolu, usutunnistuse, seksuaalse sättumuse, poliitiliste veendumuste või varalise või sotsiaalse seisundi tunnuse alusel viisil, mis annab aluse karta õhutusele järgnevat vägivallategu või ühiskonna turvalisuse olulist ohtu sattumist, – karistatakse rahalise karistuse või kuni üheaastase vangistusega.
  • Sama teo eest, kui see on toime pandud: 1) korduvalt, või 2) grupi poolt – karistatakse rahalise karistuse või kuni kolmeaastase vangistusega.
  • Käesolevas paragrahvi lõikes 1 või 2 sätestatud teo eest, kui selle on toime pannud juriidiline isik, – karistatakse rahalise karistusega.

4. Key points

  • Estonia does not possess any specific denial ban, but denialism is covered by hate speech legislation (Section 151 Criminal Code) allowing, in its simple form, for sanctions of a monetary penalty or imprisonment of up to one year.
  • This lack of specific denial ban has been influenced by the fact that, while the Holocaust question remains prominent in Latvia and Lithuania due to the populous local Jewish communities that existed there in the pre-war era, it is less urgent in Estonia where the Jewish population was not sizable.[1]
  • The lack of specific denial ban, among other things, has led to an infringement procedure by the European Commission for not fully transposing EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’). These issues were partly solved in 2023 by the introduction of the new regulation of CC Article 151, however the infringement procedure by the European Commission is still pending as of October 2024, as “Estonia has not correctly transposed the provisions related to the definition of the offence of incitement to hatred or violence, including the condoning, denial or gross trivialisation of international crimes and the Holocaust.”

5. Background

While reconstituting their statehoods in the 1990s, the Baltic states all built their legitimacy around references to their period of independence between 1918 and 1940 – to negate and overcome the legacy of the Soviet regime. Estonia, Latvia and Lithuania rejected the Soviet regime as illegal, and consider the years under Soviet rule as occupation.[2] Thus, any denial of the criminality of the foundations of the Soviet regime was considered as undermining the legal continuity of the Baltic states and their legitimacy.[3] As the Soviet (and later Russian) narrative intensified after the 2000s – about how the Baltic States had supposedly voluntarily joined the USSR, the Baltics started searching for other ways to minimise this subversion of their national biographies. There were many other factors, such as the debate over the “Bronze Soldier” monument in Estonia in 2007,[4] the clash over the celebration of the end of the Second World War in 2005 in Moscow, as well as the ban on Soviet symbols in Lithuania in 2008,[5] all of which signalled increasing mnemonic hostilities. In 2002, the Estonian Criminal Code introduced new regulations on offences against political and civil rights, under the umbrella of offences against equality (Section 151).[6] The legal concept of this offence was very broad, as it included a prohibition to incite hatred, which in the memory-battle context can include the incitement of hatred against specific groups by asserting different views on certain historical events: “Activities which publicly incite to hatred, violence or discrimination on the basis of nationality, race, colour, sex, language, origin, religion, sexual orientation, political opinion, or financial or social status, if this results in danger to the life, health or property of a person, is punishable by a fine of up to three hundred fine units or by detention.”[7] Unlike its Baltic neighbours Lithuania and Latvia, which integrated the substance of the EU FD 2008 into their respective criminal law systems, Estonia initially incorporated EU FD 2008 by adopting the Equal Treatment Act to “ensure the protection of persons against discrimination on grounds of nationality (ethnic origin), race, colour, religion or other beliefs, age, disability or sexual orientation”.[8] Section 2, which defined the scope of application of the Act, stipulated, that: Discrimination of persons on grounds of nationality (ethnic origin), race or colour is prohibited upon: 1) establishment of conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, as well as upon promotion; 2) entry into employment contracts or contracts for the provision of services, appointment or election to office, establishment of working conditions, giving instructions, remuneration, termination or cancellation of employment contracts or contracts for the provision of services, release from office;  3) access to vocational guidance, vocational training, advanced vocational training and retraining, practical work experience; 4) membership in an organisation of employees or employers, including a professional organisation, and the granting of benefits by such organisations; 5) access to the services of social welfare, social security and healthcare, including social benefits; 6) education; 7) access to and supply of goods and services which are available to the public, including housing. In addition, unlike Lithuania and Latvia, which criminalised not only the denial of the Holocaust following EU FD 2008 legislation, but also the denial of Soviet crimes, Estonia decided not to include a specific denial ban into its national legislation.[9] Following an infringement procedure by the European Commission, the Criminal Code was amended in 2023 to include such hate speech that either causes a threat of violent act to take place, or that significantly endangers public security.[10]

6. Application

National case law concerning the 2002, 2008 and 2023 Estonian regulations has so far been very limited. One case concerning Section 151 of the 2002 Criminal Code illustrates how this law fails within the memory-issue context. In case No. 3-1-4-113-99, an Estonian national court discussed the issue in light of events oin January 1999, when Mr Bairas distributed the Nashe Otechestvo newspaper [‘Our Fatherland’], which was printed in St. Petersburg, from an apartment block in Tallinn. He invited people to subscribe to the paper, which contained antisemitic material.[11] He was accused of incitement to hatred, and the Tallinn Circuit Court found him guilty, a verdict that held on appeal to the higher court. The court stated that the distribution of materials inciting ethnic hatred cannot be justified with reference to economic motives or freedom of expression. This is one of the first cases where Estonia demonstrated its intent to combat the distribution of antisemitic materials. However, the main issue of the application of Estonian regulations so far concerns the EU law infringement proceedings levied against Estonia in 2020.[12] The European Commission considered that Estonia failed to transpose the criminalisation of specific forms of hate speech; namely, the public condoning, denying or gross trivialisation of international crimes and the Holocaust, when such conduct aims at inciting violence or hatred.[13] Additionally, Estonia omitted the criminalisation of public incitement to violence or hatred when directed at certain groups, and it had not provided for adequate penalties. Finally, the Estonian Criminal Code did not ensure that the racist and xenophobic motivations of such crimes are considered as aggravating circumstances – impeding the effective and adequate prosecution of such crimes.[14] Estonia responded with new information relating to the concerns raised by the European Commission. Having analysed this additional information, the Commission found further transposition issues – in addition to the concerns already raised in the letters of formal notice – that needed to be specifically addressed.[15] This issue remained unsolved during the pandemic in 2021, and in January 2023, the Commission opened five infringement procedures against Estonia, including failure to properly transpose requirements of the restriction of hate speech.[16] Thus, in June 2023, amendments were introduced.[17] The European Commission remains unsatisfied,  however, and sent a reasoned opinion in October 2024.[18] The infringement procedure is therefore still ongoing.

7. Controversies

The main controversy in Estonia regarding denial laws is linked with the transposition of EU FD 2008, as Estonia has failed to fully criminalise specific forms of hate speech, lacked adequate penalties for offences, and did not recognize racist motivations as aggravating circumstances in other crimes.[19]  Some of these issues were solved in 2023, but the reasons for the delay, and the reluctance to solve remaining issues, are not fully clear. Some of this is supposedly a result of “limited resources” and a reluctance to overcriminalise behaviour, but this remains uncertain.[20]

8. Further reading

  • Karsten Brüggemann and Andres Kasekamp, ‘The Politics of History and the ‘War of Monuments’ in Estonia’ (2008) 36(3) Nationalities Papers
  • Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension between Normativity and Power in International Law (Martinus Nijhoff 2003).
  • Eva-Clarita Pettai, ‘Protecting Memory or Criminalizing Dissent? Memory Laws in Lithuania and Latvia’ in Elazar Barkan and Ariella Lang (eds.) Memory Laws: Criminalizing Historical Narratives (Routledge 2022).
  • Laurent Pech, ‘The Law of Holocaust Denial in Europe’ in Ludovic Hennebel and Thomas Hochmann (eds.) Genocide Denials and the Law (Oxford University Press 2011).
  • Memocracy Research Consortium, ‘Policy Briefs: country studies of the Baltic states; Germany; Poland and Hungary; Russia and Ukraine’ (2024) <https://memocracy.eu/policy-briefs> accessed 28 October 2024.
[1] Anton Weiss-Wendt, ‘Why the Holocaust Does Not Matter to Estonians’ (2008) 39(4) Journal of Baltic Studies 475. [2] Article 42 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land states that a “territory is considered occupied when it is placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”; see further: International Committee of the Red Cross, ‘Occupation and International Humanitarian Law: Questions and Answers’ [4 August 2004] < https://www.icrc.org/en/article/occupation-international-humanitarian-law-questions> accessed 28 October 2024. [3] See Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension between Normativity and Power in International Law (Martinus Nijhoff 2003). [4] Karsten Brüggemann and Andres Kasekamp, ‘The Politics of History and the ‘War of Monuments’ in Estonia’, (2008) 36(3) Nationalities Papers 425; David J. Smith, ‘Woe from Stones’: Commemoration, Identity Politics and Estonia’s ‘War of Monuments’ (2008) 39(4) Journal of Baltic Studies 419; Inge Melchior and Oane Visser, ‘Voicing Past and Present Uncertainties: The Relocation of a Soviet World War II Memorial and the Politics of Memory in Estonia’ (2011) 59 Focaal 33; Steven Lee Myers, ‘Tensions Between Russia and Estonia Escalate’, The New York Times (2 May 2007) <http://www.nytimes.com/2007/05/02/world/europe/02cnd-russia.html>  accessed 28 October 2024; Martin Ehala, ‘The Bronze Soldier: Identity Threat and Maintenance in Estonia’ (2009) 40(1) Journal of Baltic Studies 139. [5] Code of Administrative Offenses of the Republic of Lithuania of 2008 (Article 188-18: Distribution or display of Nazi or Communist symbols)’  (Infolex, 2015) <http://www.infolex.lt/ta/103787:str188-18>  accessed 28 October 2024. [6] Estonian Parliament [Riigikogu], ‘Criminal Code of the Republic of Estonia (consolidated)’ (State Gazette, 6 June 2001) <https://www.riigiteataja.ee/en/eli/522012015002/consolide> accessed 28 October 2024. [7] The background for this law was Section 12 of the Estonian Constitution: “Everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other beliefs, property or social status, or on other grounds. The incitement of national, racial, religious or political hatred, violence or discrimination shall be prohibited and punishable by law. The incitement of hatred, violence or discrimination between social strata shall also be prohibited and punishable by law”: People of Estonia ‘Constitution of the Republic of Estonia, Section 12’ (State Gazette, 03 July 1992) <https://www.riigiteataja.ee/en/eli/530122020003/consolide#:~:text=Rights%20and%20freedoms%20may%20be,is%20equal%20before%20the%20law> accessed 28 October 2024. [8] Estonian Parliament [Riigikogu], ‘Equal Treatment Act of the Republic of Estonia, Section 1’ (State Gazette, 11 December 2008) <https://www.riigiteataja.ee/en/eli/530102013066/consolide> accessed 28 October 2024. [9] JTA, ‘Estonian politician vows to legalize Holocaust denial’ (Times of Israel, 03 June 2017) <https://www.timesofisrael.com/estonian-politician-vows-to-legalize-holocaust-denial/> accessed 28 October 2024. [10] See Section “Legal provision in English”. [11] Supreme Court of the Republic of Estonia: Criminal Chamber, ‘Case No. 3-1-4-113-99’ (State Gazette, 14 December 2012) <https://www.riigiteataja.ee/akt/79425> accessed 28 October 2024. [12] European Union Agency for Fundamental Rights, ‘Antisemitism: Overview of Antisemitic Incidents Recorded in the European Union 2011‒2021’ (2022) <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2022-antisemitism-overview-2011-2021_en.pdf>, 12. [13] BNS, ‘European Commission Launches Infringement Proceedings against Estonia’ (ERR News, 30 October 2020) <https://news.err.ee/1153405/european-commission-launches-infringement-proceedings-against-estonia>  accessed 28 October 2024. [14] European Commission ‘October Infringements Package: Key Decisions’ (EU Press Corner, 30 October 2020) <https://ec.europa.eu/commission/presscorner/detail/en/inf_20_1687>  accessed 28 October 2024. [15] European Commission, ‘January Infringements Package: Key Decisions’ (EU Press Corner, 26 January 2023) <https://ec.europa.eu/commission/presscorner/detail/en/inf_23_142>  accessed 28 October 2024. [16] ERR News, ‘European Commission Opens 5 Infringement Procedures against Estonia’ (ERR News, 26 January 2023) <https://news.err.ee/1608864740/european-commission-opens-5-infringement-procedures-against-estonia>  accessed 28 October 2024. [17] See Section “Legal provision in English”. [18] European Commission, October infringement      package: key decisions, 3 October 2024, https://ec.europa.eu/commission/presscorner/detail/en/inf_24_4561. [19] Ibid. [20] ERR News, ‘Prosecutor General: I Oppose the Criminalization of Hate Speech’ (ERR News, 17 February 2021) <https://news.err.ee/1608112696/prosecutor-general-i-oppose-the-criminalization-of-hate-speech> accessed 28 October 24.
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