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

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.