CYIL vol. 14 (2023)

HARALD CHRISTIAN SCHEU CYIL 14 (2023) However, it should not be overlooked that the decision was not unanimous and some HRC members questioned the majority’s ruling in their individual opinions. According to the Argentinian member Fabián Omar Salvioli, the impugned statements had been insufficiently assessed, as they constituted advocacy of hatred, which should have been sanctioned in order to duly guarantee the rights of the authors of the present communication. The French member Olivier de Frouville criticized the HRC for confining itself too much to a purely formal review of whether there was a criminal offence and the national legal order provided for legal remedies. According to de Frouville, the HRC, making its own assessment of the nature of the impugned statements, should have reached at the conclusion that the impugned statements fell within the scope of Article 20. De Frouville found that the statements reduced people of Moroccan origin to stereotypes and made them objects of despise, discrimination, or hostility. In addition to the above-mentioned cases concerning the alleged hatred against religious minorities (in combination with some elements of ethnicity and gender), the HRC had the chance to consider a case involving the Roma minority in Greece as an ethnic or national minority. In the case of Maria Vassilari et alii v Greece , 20 the authors of the communication draw the HRC’s attention to a public letter in which non-Roma residents living in the vicinity of a Roma settlement collectively accused the Roma of criminal behaviour, called for their eviction by the State, and threatened militant action if the Roma were not evicted. In the opinion of the authors of the communication, the national authorities failed to recognize the letter’s racist nature and to ensure the prohibition of advocacy of racial hatred. In its submission on admissibility and the merits, the Greek government stated that the authors of the complaint had provided an inaccurate English translation of the impugned statements in the letter, as the terms “eviction” and “militant action” did not appear in the original letter. Following the arguments presented by Greece, the HRC concluded that, in relation to Article 20 ICCPR, the complainants had not sufficiently substantiated the facts for the purposes of admissibility. While the HRC has begun to treat Article 20 ICCPR as a positive right of hate speech victims, recognizing the duty of States Parties to punish perpetrators of advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, the European Court of Human Rights (ECtHR) is very well known for its ad hoc balancing approach aimed at finding the right equilibrium between conflicting rights. Such an approach, based on a thorough assessment of the particular circumstances of a case, normally does not lead to detailed definitions of legal terms and does not precisely determine the necessary content of national legislation. Nevertheless, in the jurisprudence of the ECtHR, we can identify a number of elements that should be taken into account when assessing a statement as hate speech. Thus, the Court has repeatedly addressed the speaker’s role as a prominent public figure such as a politician or a sportsman. In cases concerning genocide denial it has also reflected on relevant geographical and historical links between the state where the genocide was denied and the state in which the genocide was committed. 21 Moreover, the ECtHR has – not 20 Communication No. 1570/2007, CCPR/C/95/D/1570/2007 (2009). 21 For more details, see BAYER, J., BARD, P. Hate speech and hate crime in the EU and the evaluation of online content regulation approaches, 2020, pp. 34–39. This study which was requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) is availabe online at http://www.europarl. europa.eu/supporting-analyses.

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