CYIL vol. 14 (2023)

HARALD CHRISTIAN SCHEU CYIL 14 (2023) their purpose if the two concepts are conflated and if these terms are not used in the national legislation of the country concerned. Less often, the Advisory Committee refers to General Policy Recommendation No. 15 on combating hate speech, 32 adopted by ECRI in 2015. This reluctance seems understandable, considering that the mandate of ECRI is not based on binding treaty norms and ECRI does not refer to specific legal norms in its definition of hate speech. However, a certain inconsistency remains, as it is not clear why General Policy Recommendation No. 15 serves as a point of reference in some cases and in others not. Recommendation No. R (97) 20 of the Committee of Ministers to Member States on “Hate Speech” seems to play a more prominent role in the Advisory Committee’s opinions. On the other hand, it is not entirely certain to what extent the reference to a policy document from 1997 is still relevant today or whether the Advisory Committee should advise the Committee of Ministers on a more contemporary definition of hate speech that takes into account recent developments in online media. It is noteworthy that while the 1997 definition of the Committee of Ministers referred to terms such as racial hatred, xenophobia, anti-Semitism, aggressive nationalism, and ethnocentrism, which are not mentioned in the 2015 ECRI definition, ECRI newly introduced for example the terms harassment, negative stereotyping, and stigmatization. In any case, in the interest of better comprehensibility, it would be appropriate if the Advisory Committee avoided a multitude of different definitions and agreed on a single source. Apart from the problem of coherence, it seems more important that the Advisory Committee takes a rather restrictive approach to the scope of freedom of expression as defined in international human rights documents. The views exchanged between the Advisory Committee and Georgia during the third monitoring cycle highlight the problem. In response to some of its interlocutors who felt that, in the absence of proper judicial controls in Georgia, further criminalisation of hate-speech could pose a threat to the freedom of expression, the Advisory Committee replied that hate speech is not protected by freedom of expression under Article 10 ECHR. 33 This statement is partly true, but ignores the fact that the ECtHR has not sufficiently clarified which unwanted speech shall fall under Article 17 ECHR, i.e., it is not protected at all, and which expressions are to be examined in the light of Article 10 ECHR, i.e., restrictions and limitations of such expressions have to be assessed in terms of their legitimacy and proportionality. Moreover, as mentioned above, the case-law of the ECtHR does not provide a definition of hate speech which could serve as a reliable guide for national criminal legislation. In its 4 th opinion on Denmark, the Advisory Committee expressed its concern about a proposed amendment to the Criminal Law (Section 266b) “which would decriminalise insulting and degrading speech and criminalise only statements leading to disturbance of the public order”. According to the Advisory Committee, such further weakening of the 32 According to ECRI General Policy Recommendation N°15 of 2015 on combating hate speech, “hate speech is to be understood (…) as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of “race”, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status”. 33 See the 3rd ACFC opinion on Georgia (para. 66).

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