CYIL vol. 14 (2023)

CYIL 14 (2023) HATE SPEECH – AN UNCLEAR LEGAL CONCEPT IN THE UNCLEAR PRACTICE … that the Advisory Committee did not have sufficient information and the linguistic expertise to assess the individual case in all its aspects and it has too easily categorized it as hate speech. Very interestingly, in its 5 th opinion on the Czech Republic, the Advisory Committee urged the authorities to “intensify their efforts to combat stereotypes and prejudice against the minority groups most exposed to hate speech in society, including through minority specific awareness-raising campaigns, as well as to publicly condemn and, in cases of criminal relevance, effectively prosecute and sanction all instances of hate speech and anti-minority rhetoric in the public and political discourse”. 53 This means that, on the one hand, hate speech is linked to the problem of stereotypes and prejudices and, on the other hand, only some forms of hate speech are seen as relevant under criminal law, while the other forms are to be publicly condemned by the authorities. The Advisory Committee also called for criminal prosecution of “anti-minority rhetoric”. In light of the above cited 4 th Thematic Commentary, this differentiation may cause additional confusion. It would also need to be clarified whether the dissemination of all stereotypes, including positive and true stereotypes, shall qualify as hate speech or anti-minority rhetoric. We can conclude that the Advisory Committee’s approach is not only inconsistent in some respects, but also opens the door to possible abuse by neglecting important aspects of criminal law and freedom of speech. In light of the history of human rights protection which shows that it has mostly been undemocratic and authoritarian regimes that have called for restrictions on freedom of expression, a more self-critical and self-restrained approach to the problem would be appropriate. In any case, we believe that the Advisory Committee should avoid problems related to the definition of hate speech. It would, therefore, be advisable to base a country-specific opinion mainly on the terminology officially used in the national Criminal Code. Considering the relevant international and EU obligations we can assume that the criminal codes of States Parties to the FCNM contain relevant provisions on incitement. Calling on the State party to effectively apply these provisions would respect the necessary discretion of the competent national authorities who are better placed to assess the specific circumstances of a statement and its impact on a minority. Furthermore, the Advisory Committee should avoid appearing biased on issues of hate speech. Since Article 6 FCNM aims at mutual respect, understanding and cooperation between all persons living in the territory of a State Party, irrespective of their ethnic, cultural, linguistic or religious identity, the Advisory Committee should not be blind to cases where persons belonging to national minorities spread hatred against the majority. From a social perspective, it may be true that minorities are more vulnerable to the effects of unwanted speech that the majority. However, as the Advisory Committee has repeatedly emphasised that genuine integration of society is a two-way process encompassing all segments of society, majorities and minorities alike, 54 this process should not be undermined by the application of double standards. In other words, if persons belonging to national minorities shall be protected against offensive speech and insultations, the same rules must apply to members of the majority.

53 See the 5th ACFC opinion on the Czech Republic (para. 97). 54 See, for example, the 5th ACFC opinion on Germany (para. 86).

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