A Duty to Prosecute Hate Speech under the European Convention on Human Rights?

Stephanos Stavros - 9th April 2015

Freedom of expression is “one of the essential foundations of any democratic society” (Handyside) and recent events have shown that Europeans remain firmly committed to it. At the same time, hate speech remains a problem and the 24th February 2015 Karaahmed judgment of the European Court of Human Rights (the Court) shows that the failure to tackle it can amount to a breach of Council of Europe member states’ treaty obligations.

The Court has always recognised that (i) some forms of hate speech are not protected by Article 10 of the European Convention on Human Rights, which guarantees freedom of expression or (ii) this right may be subject to limitations to punish those who “spread, incite, promote or justify hatred based on intolerance” (Gündüz, referring to Jersild). The Court has rejected several cases brought by persons convicted for making statements that national judges had qualified as hate speech (e.g. Le Pen and Féret). Domestic courts are allowed to curtail hate speech, if certain conditions are met. They also have some margin of appreciation in this connection, since different European societies have different solutions for such delicate issues.

So much is clear from the case law. What people sometimes fail to understand is that by allowing states to punish hate speech Article 10 does not in any way require them to do so. To grasp this subtle distinction one must ask: Who is the primary beneficiary of the protection afforded by the provision? Article 10 may provide a shield for those who make questionable statements; however, it was not meant to protect those who are targeted thereby.

Most of the latter belong to a particular category of potential victims of human-rights violations: those who are not affected by actions taken by state authorities against them but whom the state fails to protect from other private individuals’ actions. It is well known that states should not only refrain from interfering with human rights; they also have positive obligations to secure their respect. To discharge the latter, they may have to make remedies available to alleged victims who want to sue others (X and Y v. the Netherlands).

These general considerations have concrete consequences for hate-speech cases, as shown by Aksu, a 2012 Grand Chamber judgment about a book and a dictionary entry on “Gypsies”. Although the Court ended up by accepting that these were not offensive for the Roma community, it unequivocally found that the failure to provide a remedy enabling one of its members to sue could have amounted to a breach of Article 8; this article guarantees the right to respect for one’s private life and, by extension, one’s social (and ethnic) identity.

Having established the above in Aksu, the Court felt comfortable to take the next big step in Karaahmed, a case concerning a demonstration against a mosque. The authorities had not adequately protected worshippers. Moreover, although national law criminalised religious hate speech, the altogether inadequate investigation focused “on physical acts of violence” as opposed to threats (§110). This, inter alia, led the Court to conclude that Article 9, which safeguards freedom of religion, had been violated.

The judgment clearly establishes that the failure to prosecute hate speech can amount to a breach of the Convention. Moreover, the reasoning employed in Karaahmed to protect religious groups under Article 9 can also be used in respect of ethnic groups under Article 8, as in Aksu.

The Court’s finding is welcome, as a first step towards aligning the Convention to two major UN human-rights instruments that oblige contracting parties to prohibit hate speech (see Article 20 ICCPR and Article 4 ICERD). While freedom of expression is unquestionably a key European value, human-rights law cannot ignore the weakest, who are often the victims of hate speech. And while there can little disagreement that criminal law should be used sparingly in the field of freedom of expression, one should not lose sight of the powerful message it conveys and the role it can play in shaping public opinion. This has always been the approach of another Council of Europe human-rights mechanism, the European Commission against Racism and Intolerance (ECRI), the General Policy Recommendations and practice of which the Court often cites in relevant judgments.

Author profile

Stephanos Stavros is the Executive Secretary to the European Commission against Racism and Intolerance (ECRI); he has worked for the European Court of Human Rights, as a référendaire; any views expressed are the author’s solely and do not engage the Council of Europe.

Citations

Stephanos Stavros ‘A duty to prosecute hate speech under the European Convention on Human Rights?’ (OxHRH Blog, 9 April 2015) <http://humanrights.dev3.oneltd.eu/a-duty-to-prosecute-hate-speech-under-the-european-convention-on-human-rights/> [Date of Access]

Comments

  1. Nikolaos Sitaropoulos says:

    The blog post raises a very significant socio-legal issue for today’s Europe: the rise and damaging effects of extreme racist organisations, including political parties, which thrive on hate speech in today’s Europe. The case at hand presented indeed a wondeful occasion for the Strasbourg Court to advance its case-law in this field and live up to its responsibilities as a “pan-European constitutional court”. My personal reading though of the judgment is that regrettably the Court did not take up the gauntlet.
    Surpisingly the judgment does not contain any reference at all to pertinent, major European or international standards such as the EU Council Framework Decision 2008/913 on combating racism by criminal law, the 1997 Council of Europe Committee of Ministers Recommendation (97) 20 on “hate speech”, and the UN CERD Rec No 35 on combating racist hate speech.
    Also the judgment’s reasoning (§97 ff) contains no reference to hate speech and exhausts itself in a factual analysis of the case avoiding any substantive analysis of even the “general (case-law) principles” referred to in §§91-96.
    In conclusion, the author rightly added a question mark to the title of this blog post. It is very hard to argue that Karaahmed established a state’s duty to prosecute hate speech, even though it indeed made a hint to this obligation which exists in the above-mentioned hard and soft law instruments. Hopefully in another case soon the Court will manage to accept this challenge, advance its relevant case-law and provide much-needed, concrete guidance to European states.

    Dr Nikolaos Sitaropoulos

    1. L.J. Middleton says:

      This Hate Speech Junk Science is just so much absurd nonsense. How does making some people special as “Protected People” do anything except encourage these protected people to take advantage over others. This is what we are seeing in North America today. Islamophobia is being exacerbated by the Muslim community by attacking itself through Muslim individuals or groups for the purpose of complaint about Islamophobia. All Hate Crime does is allow those minorities to initiate and exacerbate Hate Crimes against themselves by actually forcing White, Christian and Jewish citizens to try to protect their own hegemony over Western lands. This makes the minorities angry over ideas of White Nationalism that they are exacerbating within mainstream White society through their protected status. I’ve many times where Natives, Muslims, Blacks, Hindus and other minorities complain about non-existent Hate Crimes. Recently there was an indicent with a young Muslim girl making an Islamophobic complaint that she later confessed she made up, but media, academia and politicians white-washed the idea that she did anything wrong. Now we have incidents every day where Muslims incite anger against themselves by saying some very racist and hateful remarks to White people, then they complain of Racism and Islamophobia. So, Hate Crimes are unnecessary in scope because who defines what is a Real Hate Crime? It’s impossible because the legal idea is so arbitrary and the human idea of hate crime is just about anything the minorities want it to be, and use it to be. Hate itself is just an emotion based on what we have learned through many means. So, how can we make emotions a crime? Is Love a crime? Is anger a crime? Is any emotional outburst a crime? If that is so the Western World is in a heap of trouble. But, the truth of implementing a Hate Crime is just out of political correctness by politicians, media and academia toward minorities. It’s purpose is to silence dissenting voices of a political, religious or societal nature. If only some people would shut up about what the government Hates, which should be the Real Hate Crime, is people going against their political policies. Speak about immigration, Islamism, Qur’an, Muhammad, Muslims, minorities, black people’s groups, multiculturalism in any negative way and that is the arbitrariness of this Hate Crime law. But, speak out against White people, Christianity, Nationalism, and Judaism in the same manner and no one cares. Because Hate Crime only works one way and for only protected groups, which by the way throws out the book on equality. We cannot be equal if some people are protected as better. The West seems to be on the fast track to making Islam the preferred religion. Schools refuse any form of Christianity or Judaism, Hinduism, Buddhism, but Islam is permitted by secular institutions to be allowable as the preferred faith. This is on all levels of schooling. The Hijab is accepted even though it is not religious garb, but Christian and Jewish kids cannot reference their own faiths outwardly. If a Christian kid is caught with a Cross on a chain around his neck he can be expelled from school, but a Muslim kid can wear a scarf depicting Hamas, Hezbollah, and Fatah colours. And if we say anything contrary to this we can be targeted by the legal system? There is only one reason for legally disallowing freedom of speech and expression, and that is a real form of Hate Crime: We call it Libel.

  2. ferdinand Rammelt says:

    I will refrain from legal and legalistic arguments and will not refer to Court rulings or national policies. I strongly believe that freedom of expression, if taken serious, can never be subject of restrictions of any kind. Not that I am happy to listen to the provocative nonsense of le Pen cs. But the whole day I have to listen, and read nonsense of so many. It is up to me to decide how to react to it. Our society is aparently so unsure that we can handle le Pen cs. that we want to look for means to limit their ideas to circulate. It would be nice if by forbiding expressions of racist nature society would solve the problem of racism! I prefer to know that these opinions exist and being expressed by whom. To confront these ideas in public and let each person decide what he accepts and what he rejects. `Let us not comfort with the utopic idea that by forbidding expression of rejectable opinions we solve the problem. No way, we open the door to many regims, some of them being member of the council of Europe, to name them, Russia and Turkey, to legitamise persecuting or worse of persons expressing opinions un welcome to them.

  3. ferdinand Rammelt says:

    I strongly believe that freedom of expression, taken serious, can never be subject of restrictions. Not that it pleases me to listen to the provocative nonsense of le Pen cs. But the whole day I have to listen, and read nonsense, that sometimes hurts. It is up to me to decide how to react to it. I argue with persons expressiong ideas I believe to be wrong. Our society is aparently so unsure that we can handle le Pen cs. that we want to look for means to limit their ideas to circulate. It would be nice if by forbiding expressions of racist nature society would solve the problem of racism! I prefer to know that these opinions exist and being expressed by whom. To confront these ideas and let each person decide what he accepts and what he rejects. `Let us not comfort with the utopic idea that by forbidding expression of rejectable opinions we solve the problem. No way, we open the door and legitimise regims, some of them being member of the council of Europe, to name them, Russia and Turkey, persecuting persons expressing unwelcome opinions.

  4. Andrew Turek says:

    The UK and many other countries have laws allowing candidates for Parliament or local councils a mail-shot to the voters at public expense. How could any such duty conceivably be said to exist in respect of material which the State is bound to deliver?

    There are also people who think the Satanic Verses constitutes hate-speech. Should there be a duty to prosecute the publishers?

    (And think of some older works . . . The Merchant of Venice, Othello, the Taming of the Shrew. The mind boggles!)

    1. L.J. Middleton says:

      What you missed is that the Bible or any scientific data might be forcibly destroyed because the politicians might find such things offensive when it goes against their views. Whose views do we accept? Only those views that are politically desireable to our leaders, or should truth and evidence be taken into consideration. Hate Crimes aren’t about stopping Hate, they are about stopping views deemed politically incorrect. The biggest reasoning we have today for Hate Crime is Islamophobia. North America has adopted Islamophobia though at this time not as legislation to stop criticism of Islam and Muslims, but it’s getting pretty close to our leaders putting forth the suggestion of legislation. When we determined we were going to set up certain protected people that’s when we lost all validity for equality. The political will has to determine which is more important to them: freedom and equality versus tyranny and Hate Crime. They cannot have it both ways.

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