Summary

This article addresses the legal interest that is protected by the compulsory elements that constitute the crime of incitement of hatred. The author focuses on Estonian and German law. German law is examined not only as it serves as an important example for Estonian law, but also since the incitement of hatred is a highly interesting topic within the German legal system. Germany serves as one of the best examples of how the predominant mentality within society can influence penal law, and just how far a state can go in the criminalization of various forms of incitement of hatred. In addition, Germany is the most vocal supporter of a pan-European anti-denial law. And finally, supporters of amendments to the legal definition of incitement of hatred in the Estonian Penal Code have often cited the German regulation as justification for the need to enact such amendments.

The legal definition of incitement of hatred is currently relevant for two legislative reasons. First, a bill was submitted to the Estonian parliament in 2007 which would amend the current regulation of incitement of hatred and secondly, at the European Union level, an initiative has been launched to criminalize the denial, approval or incitement of the Holocaust and other mass crimes.

The article does not seek to address all aspects of the incitement of hatred in the Estonian and German legal systems, but rather focuses on the legal right or interest that is protected by the compulsory elements of this offence. Focus is placed on the legally protected interest since this is central to any criminal law, but also since this is one of the most important and problematic aspects of incitement of hatred as a criminal offence.