CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … geopolitical changes and many new developments in the legal field. New communication technologies have changed our way of life and have posed a variety of challenges to democratic legal orders. This concerns, among other things, not only the way we disseminate and receive information, but also the number of verbal attacks and insults circulating in the virtual space. Since minority rights are considered an integral part of human rights protection, the Framework Convention are interpreted as a living instrument, and new developments in society must be duly taken into account. It is, therefore, not surprising that concerns about the prevalence of racist, offensive, and discriminatory speech have found their way into the opinions of the ACFC. While there have been only very few references to hate speech in the first monitoring under the Framework Convention, 43 the ACFC has been paying increasing attention to this concept since the second cycle. It appears that the Committee has raised this issue in relation to virtually all States Parties, including, for example, even the small Liechtenstein. 44 As our brief analysis has shown, this practice is characterized by a certain degree of ambiguity and inconsistency. The first problem is a conceptual one. In general, it is a rather thankless task for human rights bodies to call for criminal sanctions. Although the effective protection of some human rights may require the adoption of criminal legislation, the relevant legal provisions must be applied with regard to the concrete circumstances of a case and the principles of necessity and proportionality. Traditionally, rather than defining specific criminal sanctions, international human rights bodies assess whether a particular punishment has been carried out in accordance with fundamental rights standards. Of course, it cannot be overlooked that a number of international human rights treaties call for the inclusion of specific provisions in national criminal codes. 45 However, the application of such norms to individual cases is subject to a quite broad margin of discretion on the side of the competent national authorities. Especially when there are doubts about the independence of the judiciary in a country, it is certainly not appropriate to brush aside concerns about possible abuse of hate speech provisions by saying that hate speech is not protected by the ECHR. In the light of a 2016 report on Georgia 46 in which the Council of Europe Commissioner for Human Rights expressed concern about “allegations of politically-motivated measures targeting members of the opposition”, such an argument may seem almost cynical. In this context, it should also be noted that the Thematic Commentary No. 4 from 2016, cited above, which has a prominent position in the Advisory Committee’s more recent opinions, does not provide clear guidance on what constitutes a hate crime and hate speech. We agree with the statement that “violence based on ethnicity must be recognised as an especially nefarious form of violence that concerns and threatens society as a whole and must thus be resolutely opposed and prevented”. 47 However, the finding that “in order to address hate crime in a comprehensive manner, criminal legislation must contain provisions that 43 These references concerned Poland, Finland, Georgia and the then “Former Yugoslav Republic of Macedonia”. 44 In its 5th opinion on Liechtenstein (para. 22), the Advisory Committee noted that, in order to address hate speech, the Liechtenstein authorities repeatedly met with the editors-in-chief of the country’s daily newspapers and in 2019 organized a training on how to deal with hate speech in letters to the editor and online fora. for media representatives. 45 See, for example, Art. 4 of the International Convention on the Elimination of All Forms of Racial Discrimination from 1965. 46 CommDH(2016)2. 47 ACFC Thematic Commentary No. 4, para. 56.

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