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  • Antoine Buyse (a1)

How should one balance the freedom of expression and the prevention of violence? This article delves into the grey zone between hate speech and incitement to violence by assessing the jurisprudence of the European Court of Human Rights in cases of allegedly dangerous speech. Rather than labelling this case law as simplistic, as some critics even within the Court have done, it is shown that the jurisprudence reveals cleavages within the Court on whether to adopt a more or less consequentialist approach on the links between speech and violence. Freedom of expression cases should preferably be assessed on the merits under Article 10 ECHR since this allows for a balancing of the various interests involved. The application of the abuse of rights clause of Article 17 ECHR is for that very reason undesirable, in addition to its inconsistent use by the Court.

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1 Vona v Hungary App No 35943/10 (ECtHR, 9 July 2013).

2 ibid, paras 53, 63, and 66.

3 Bonello, G, ‘Freedom of Expression and Incitement to Violence’ in Casadevall, J, Myjer, E, O'Boyle, M and Austin, A (eds), Freedom of Expression. Essays in honour of Nicolas Bratza (Wolf Legal Publishers 2012) 350.

4 OSCE/ODIHR, Hate Crimes in the OSCE Region – Incidents and Responses. Annual Report for 2007 (OSCE 2008) <> accessed 26 August 2013.

5 Baer, S, ‘Violence: Dilemmas of Democracy and Law’ in Kretzmer, D and Kershman Hazan, F (eds), Freedom of Speech and Incitement against Democracy (Kluwer 2000) 91.

6 F Schauer, ‘Speech, Behaviour and the Interdependence of Fact and Value’ in ibid 50–2.

7 Banton, M, ‘The Declaratory Value of Laws against Racial Incitement’ in Coliver, S (ed), Striking A Balance. Hate Speech, Freedom of Expression and Non-Discrimination (Article 19 and Essex University Human Rights Centre 1992) 357.

8 Vona, para 57.

9 S Coliver, ‘Hate Speech Laws: Do They Work?’ in ibid 363.

10 Barendt, E, Freedom of Speech (2nd edn, OUP 2005) 174–5.

11 Heinze, E, ‘Viewpoint Absolutism and Hate Speech’ (2006) 69 MLR 543, 573–4.

12 Ceylan v Turkey ECHR 1999-IV 25, para 34.

13 Hare, I, ‘Method and Objectivity in Free Speech Adjudication: Lessons from America’ (2005) 54 ICLQ 49, 82.

14 Council of Europe, Committee of Ministers, Recommendation No R (97) 20 on ‘Hate Speech’ [1997].

15 Handyside v UK (1976) Series A No 24, para 49.

16 See eg Özgür Gündem v Turkey ECHR 2000-III 1, para 43.

17 Ždanoka v Latvia App No 58278/00 (ECtHR, 17 June 2004) para 109. An example of application is: Kasymakhunov and Saybatalov v Russia App Nos 26261/05 and 26377/06 (ECtHR, 14 March 2013) paras 102–114.

18 Harris, DJ et al. , Law of the European Convention on Human Rights (2nd rev edn, OUP 2010) 649.

19 eg Garaudy v France (admissibility decision) ECHR 2003-IX (extracts) 369.

20 Ivanov v Russia (admissibility decision) App No 355222/04 (ECtHR, 20 February 2007).

21 ibid.

22 Hizb Ut-Tahrir and others v Germany (admissibility decision) App No 31098/08 (ECtHR, 12 June 2012) para 74.

23 Vona, para 38.

24 An example of the latter is: Vejdeland and others v Sweden App No 1813/07 (ECtHR, 9 February 2012). Note that judges Spielmann and Nussberger in their concurring opinion argued that art 17 would have been relevant.

25 Norwood v UK (admissibility decision) ECHR 2004-XI 343.

26 ibid.

27 ibid.

28 For a recent overview of case law, see ME Villiger, ‘Article 17 ECHR and Freedom of Speech in Strasbourg Practice’ in Casadevall et al (n 3) 321–9.

29 For more elaborate critiques of jurisprudential inconsistencies see Keane, D, ‘Attacking Hate Speech under Article 17 of the European Convention on Human Rights’ (2007) 25(4) NQHR 641; van Noorloos, M, ‘Foretelling the Future, Facing the Past: Hate Speech and Conflict Situations under the ECHR’ in Buyse, A (ed), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (Intersentia 2011); McGonigle, T, ‘A Survey and Critical Analysis of Council of Europe Strategies for Countering Hate Speech’ in Herz, M and Molnar, P (eds), The Content and Context of Hate Speech. Rethinking Regulations and Responses (CUP 2012).

30 Schimanek v Austria (admissibility decision) App No 32307/96 (ECtHR, 1 February 2000).

31 See eg Soulas and others v France App No 15948/03 (ECtHR, 10 July 2008) and Féret v Belgium App No 15615/07 (ECtHR, 16 July 2009). Even occasionally when the applicant himself invoked art 17 ECHR against the State: Seurot v France (admissibility decision) App No 57383/00 (ECtHR, 18 May 2004).

32 Zana v Turkey App No 18954/91 (ECtHR, 25 November 1997).

33 ibid, para 58.

34 Bingöl v Turkey App No 36141/04 (ECtHR, 22 June 2010).

35 The former European Commission of Human Rights could not even reach a decision in the same case, until its President cast the deciding vote.

36 Sürek v Turkey (No 1) ECHR 1999-IV 353, para 62.

37 ibid.

38 Halis Doğan v Turkey (No 3) App No 4119/02 (ECtHR, 10 October 2006) para 34.

39 Gül and others v Turkey App No 4870/02 (ECtHR, 8 June 2010), para 13.

40 ibid, para 41.

41 Vona, paras 60–62.

42 Erbakan v Turkey App No 59405/00 (ECtHR, 6 July 2006).

43 ibid, paras 64, 68–69.

44 Partially dissenting opinion of judge Steiner in Erbakan v Turkey App No 59405/00 (ECtHR, 6 July 2006).

45 As the Court remarked in Vona, an indication could be that an association can be reasonably regarded as a ‘hotbed for violence’ of which actual actions, such as the organized nature of the paramilitary marches in a threatening atmosphere, can be proof (para 63 of Vona).

46 Féret v Belgium App No 15615/07 (ECtHR, 16 July 2009).

47 ibid, para 73.

48 ibid, para 78.

49 Dissenting opinion of judges Sajó, Zagrebelsky and Tsotsoria in Féret v Belgium App No 15615/07 (ECtHR, 16 July 2009. The majority had pointed to the risks of eliciting feelings of hatred among the least informed public (‘le public le moins averti’, para 69), suggesting that certain groups in society were easily susceptible to be influenced.

50 Leroy v France App No 36109/03 (ECtHR, 2 October 2008) para 6. Author's own translation of the text: ‘Nous en avions tous rêvé … le Hamas l'a fait’. One may note that so shortly after the attacks, it was not yet conclusively clear that Al-Qaeda was responsible, but that others groups were still also thought capable of having orchestrated the acts of terror.

51 ibid, para 45.

52 For a more extensive analysis, see: Belavusau, U, ‘A Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech’ (2010) 16(3) EPL 373.

53 Vona, para 66.

54 Vajnai v Hungary App No 33629/06 (ECtHR, 8 July 2008) para 49. See also van Noorloos (n 29) 142. The same conclusions were reached in a similar case three years later: Fratanoló v Hungary App No 29459/10 (ECtHR, 3 November 2011).

55 Vona, paras 57 and 69.

56 ibid, para 71. In his concurring opinion Judge Pinto de Albuquerque even argued that there was a positive obligation upon the State to take such action.

57 Jersild v Denmark (1994) Series A No 298, para 35.

58 See eg Castells v Spain (1992) Series A No 236, para 43.

59 Prager and Oberschlick v Austria (1995) Series A No 313, para 38.

60 Sürek and Özdemir v Turkey [Grand Chamber] App Nos 23927/94 and 24277/94 (ECtHR, 8 July 1999) para 63.

61 Şener v Turkey App No 26680/95 (ECtHR, 18 July 2000) para 42.

62 In such situations, the call for violence would emanate from the State and might amount to threats to the right to life. See, mutatis mutandis, Osman v United Kingdom App No 23452/94 (ECtHR, 28 October 1998), which applied to death threats by a private person.

63 This includes the consideration that quotes should never be lifted out of their context and assessed by themselves, but should always be read in light of the wider text of which they are part: Faruk Temel v Turkey App No 16853/05 (ECtHR, 1 February 2011) para 62.

64 Gözel and Özer v Turkey App Nos 43453/04 and 31098/05 (ECtHR, 6 July 2010).

65 FJ Hampson, ‘Freedom of Expression in Situations of Emergency and Armed Conflict’ in Casadevall et al (n 3) 457.

66 To this effect, see eg Marshall Williams, A and Cooper, J, ‘Hate Speech, Holocaust Denial and International Human Rights Law’ (1999) 6 EHRLR 593, 613.

67 For two attempts to incorporate such insights from social sciences in legal considerations about dangerous speech, see Benesch, S, ‘Vile Crime or Inalienable Right: A Model to Distinguish Hate Speech from Incitement to Genocide’ (2008) 48 VaJIntlL 485 and: Pauli, C, ‘Killing the Microphone: When Broadcast Freedom Should Yield to Genocide Prevention’ (2010) 61(4) AlaLRev 665. See also Buyse, AC, ‘Words of Violence: Relating Violent Conflict Escalation to the Boundaries of the Freedom of Expression’ (2014 forthcoming) 36(4) HumRtsQ.

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International & Comparative Law Quarterly
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