CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … Advisory Committee seems to be in a perfect position to address the problem of hate speech as a phenomenon negatively affecting minorities and their members. It is therefore appropriate to briefly recall the relevant legal bases. Essentially, we can refer to three articles of the Framework Convention which are related to the problem of hate speech. Firstly, Article 4 FCNM enshrines the principle of equality and the prohibition of any discrimination based on belonging to a national minority. States Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political, and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. There is little doubt that, in certain circumstances, hate speech and other manifestations of intolerance and hostility can be understood as a form of discrimination as they make the equal enjoyment of rights more difficult. However, in the practice of the Advisory Committee we can find only very few mentions of the problem of hate speech under Article 4 FCNM, mostly in relation to the situation of Roma minorities. 28 As the relevant sections of the ACFC opinions contain cross-references to Article 6 FCNM, it seems that Article 6 FCNM is understood as a lex specials in relation to Article 4 FCNM. In a similar direction, Doris Angst suggested that anti-discrimination legislation within the meaning of Article 4 FCNM has to be applied in order to prosecute public incitement, hate speech, and racist libelling falling under Article 6 FCNM. 29 Nevertheless, Article 6 FCNM that deals mainly with the issues of tolerance, mutual respect and intercultural dialogue goes beyond the framework of anti-discrimination law, as it does not exclude measures in the area of criminal law. Article 6 FCNM explicitly obliges States Parties to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility, or violence as a result of their ethnic, cultural, linguistic, or religious identity. Although neither the Framework Convention nor its Explanatory Report use the term hate speech, it is clear that Article 6 FCNM has the greatest potential to provide a legal basis for the fight against hate speech. In the absence of its own definition of hate speech, the Advisory Committee sometimes relies upon definitions provided by the OSCE, ECRI, and the Committee of Ministers of the Council of Europe. 30 In the context of Article 6 FCNM, the Advisory Committee sometimes refers to a definition of “hate crime” introduced in the so-called OSCE (ODIHR) Hate Crime Reporting, but without clarifying to what extent these reporting criteria are also relevant for “hate speech”. 31 Since the two phenomena of hate crime and hate speech are regularly dealt with in one joint chapter of the ACFC opinions, it would certainly be welcome if both terms were more precisely delimited and the terminology used was also adapted to the terms used in the criminal law of the State Parties. In other words, the Advisory Committee’s recommendations on measures against hate speech and hate crimes may not always serve 28 See, for example, the 5th ACFC opinion on the Czech Republic, the 5th ACFC opinion on Spain, the 5th ACFC opinion on Cyprus and the 4th ACFC opinion on Ukraine. 29 ANGST, D. Article 6. In: Hofmann R., Malloy T., Rein D. (Hrsg) The Framework Convention for the Protection of National Minorities. Commentary. Leiden, 2018, pp. 148–166, 151. 30 ANGST, op. cit., 159. 31 For quite recent examples from the 5th monitoring cycle, see, for example, the 5th ACFC opinion on North Macedonia (para. 62), the 5th ACFC opinion on Germany (para. 97) and the 5th ACFC opinion on Slovakia (para. 13).

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