5 Winter 2015-2016 The second agreement is the European Union Council Framework Decision 2008/913/JHA, on combating certain forms and expressions of racism and xenophobia by means of criminal law. This has enforcement powers from January 1, 2014, and requires EU member states to legislate against: publicly inciting to violence or hatred against a group of persons defined by reference to race, color, religion, descent or national or ethnic origin; publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes; publicly condoning, denying or grossly trivializing the Holocaust.4 The third agreement is the Framework Directive on Victims’ Rights, which reinforces existing national measures with EU-wide minimum standards on the rights and protection of victims of crime, and which requires that victims of crime are recognized and treated in a respectful, sensitive and professional manner according to their individual needs without discrimination. The preamble to the Directive notes inter alia that victims must be encouraged to report crimes in order to break the cycle of repeat victimization, and that a respectful, sensitive, professional and non-discriminatory response by the authorities will increase victims’ confidence in criminal justice systems and reduce the number of unreported crimes. A second introductory note states that the collection of systematic and adequate statistical data is an essential component of effective policy making and that states are required to publish relevant statistics on crime victims. While these provisions do not specifically apply to hate crime, another introductory note lists protected characteristics including race, religion, ethnicity etc. The Directive entered into force on November 15, 2012 with a deadline for transposition by member states of November 16, 2015.5 General Principles Underlying European Law on Incitement The authors of the European Convention on Human Rights (the Convention) sought to establish an institutional framework based on democratic values in order to overcome extremism, following the Second World War, although critics, including the UK government, are now pressing for the Convention to be updated in the light of recent history.6 The ECtHR was established in 1959 to consider cases initiated by organizations, states and individuals against any state that has signed the Convention. Parties must comply with its rulings although the ECtHR has no enforcement power, unlike the Luxembourg-based European Court of Justice. Over the years the ECtHR has identified a number of forms of expression that were considered offensive and contrary to the Convention including racism, xenophobia, antisemitism, aggressive nationalism and discrimination against minorities and immigrants. However, it has been careful to make a distinction in its findings between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb” others.7 While there is no universally accepted definition of the expression “hate speech,” the ECtHR case-law has established certain parameters making it possible to characterize “hate speech” in order to exclude it from the protection afforded to freedom of expression (Article 10 of the Convention) or freedom of assembly and association (Article 11).8 The ECtHR therefore excludes hate speech from protection by means of two approaches: (a) by applying Article 17 of the Convention (prohibition of abuse of rights) where the comments in question amount to hate speech and negate the fundamental values of the Convention, or (b) by applying the limitations provided for in the second paragraph of Article 10 and Article 11 of the Convention. This approach is adopted where the speech in question, although it is hate speech, is not apt to destroy the fundamental values of the Convention.9 4. Council Framework Decision 2008/913/JHA, Nov. 2008, O.J. (L.328/55), available at eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2008:328:0055:0058:en:PDF (last visited Sept. 9, 2015). 5. Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, 2012 O.J. (L.315/57), available at eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ: L: 2012:315:0057:0073: EN:PDF (last visited Sept. 10, 2015). 6. The Case for Change, p. 3, Protecting Human Rights in the UK - the Conservatives’ proposals for changing Britain’s human rights laws, The Conservative Party, 2015, available at https://www.conservatives.com/~/media/files/ downloadable%20Files/human_rights.pdf 7. Hate speech, ECtHR, June 2015, available at www.echr. coe.int/Documents/FS_Hate_speech_ENG.pdf (last visited Sep. 10, 2015). 8. European Convention on Human Rights, art. 10, para. 2, Nov. 1950, noting that the exercise of these freedoms (of expression) may be subject to restriction in the interests of national security, available at www.echr.coe.int/ Documents/Convention_ENG.pdf (last visited Sep.10.2015) 9. Ibid., art. 11, para. 2, noting that restrictions on freedom of assembly may be necessary for the prevention of crime or disorder.
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