CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … protection against hate speech would be contrary to the above cited Committee of Ministers’ Recommendation No. R (97) 20 on Hate Speech. 34 As the Advisory Committee did not address the amendment to Section 266b of the Criminal Code in its fifth opinion on Denmark, it is not clear whether the amendment to the law was ultimately adopted. The Advisory Committee, however, took positive note of the new guidelines on Section 266b which had been issued by the Danish Director of Public Prosecution in 2017. Since the Advisory Committee’s opinion refers to the same guidelines in the context of hate crime and hate speech, the question of how to distinguish the two categories remains open. 35 Rather it contributes to the confusion of both concepts when it calls on leading politicians “to condemn all hate-motivated crimes, including hate speech”. Indeed, from this wording it can be inferred that hate speech should be treated as a sub-category of hate crimes. In addition to the publication of opinions on the implementation of the Framework Convention by the States Parties, the Advisory Committee has so far issued four so-called thematic commentaries in which some key concepts of European minority protection are explained, for example in relation to education and participation. The issues of hate speech and hate crime were discussed more in detail in the 2016 Thematic Commentary No. 4 on the scope of application of the Framework Convention. Under the heading “Protection against hostility and hate crime”, the Advisory Committee concluded that, in line with the obligations under Article 6 FCNM, “criminal codes must contain appropriate provisions that criminalise hate speech, threats and violence based on ethnic grounds as well as public incitement to violence and hatred”. It is striking how much emphasis the Advisory Committee places on the area of criminal law and how little attention is paid to other instruments for combating acts of discrimination. No attempt is made to distinguish measures of criminal law and administrative law (anti-discrimination law) or to coordinate measures on both levels. 36 The problem of the proportionality of sanctions and the principle of subsidiarity of criminal prosecution are not addressed at all. Thematic Commentary No. 4 also confirms a recurring motif in the Advisory Committee’s practice when it is appealing to “senior public figures” and “community leaders at all levels” to publicly condemn incidents of hate speech and hate crime. 37 Recently, in its 5 th opinion on Slovenia, the Advisory Committee confirmed that all expressions of racism or intolerance, including by politicians, must be firmly condemned by the authorities and effectively prosecuted and sanctioned in criminal cases,. The Advisory Committee urged the Slovak authorities “to combat stereotypes and prejudice against the minority communities exposed to hate speech, including through community-specific awareness-raising campaigns, as well as to publicly condemn anti-minority rhetoric and effectively prosecute and sanction all instances of hate speech, including in public and political discourse”. 38 Similarly, the Advisory Committee called on the Italian authorities “to condemn promptly and publicly instances of hate crimes, as well as hate speech relating to minorities, migrants or refugees in political discourse, the media and on social media”. 39

34 See the 4th ACFC opinion on Denmark (para. 50). 35 See the 5th ACFC opinion on Denmark (para. 67, 71 and 72). 36 ACFC Thematic Comment No. 4 (paras. 55–56). 37 Ibidem, para. 57. 38 See the 5th ACFC opinion on Slovenia (paras. 108 and 110). 39 See the 5th ACFC opinion on Italy (para. 95).

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