tag:blogger.com,1999:blog-8704899696538705849.post4797138736284117335..comments2024-03-28T02:32:17.979-07:00Comments on EU Law Analysis: A Tale of Two Organs: Hate Speech Regulation in the European ContextSteve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-8704899696538705849.post-56125146489043892022016-10-30T14:09:39.628-07:002016-10-30T14:09:39.628-07:00part 3:
Perinçek also accepts that measures whi...part 3: <br /><br /><br />Perinçek also accepts that measures which criminalise such speech ‘carried out in a manner likely to disturb public order’ (FD Article 2) is also permitted by Article 10, (but in that context this is to be given the narrow meaning denoted by “the prevention of disorder” in the English text, as distinct from the possible wider notion argued for by the Swiss Goverment on the basis of the French language text). Since the Swiss Governments specific arguments on this ground were not able to point to the fact that the speech in the particular case was likely to provoke disorder” in the narrow sense, that part of their argument failed.<br /><br />Perinçek, also accepts that criminalization of speech of this kind which is threatening, abusive or insulting (FD Article 2)(and does not incite hatred or provoke public disorder) may be compatible with the convention, since <br /><br />'the negative stereotyping of an ethnic group was capable, when reaching a certain level, of having an impact on the group’s sense of identity and on its members’ feelings of self-worth and self-confidence. It could thus affect their “private life” within the meaning of Article 8 § 1 of the Convention' [Perinçek para 200 - relying on Aksu v. Turkey]. <br /><br />And the court concluded on the facts that <br /><br />‘statements bore on a matter of public interest and did not amount to a call for hatred or intolerance, that the context in which they were made was not marked by heightened tensions or special historical overtones in Switzerland, that the statements cannot be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland, ……., that the Swiss courts appear to have censured the applicant for voicing an opinion that diverged from the established ones in Switzerland, and that the interference took the serious form of a criminal conviction – the Court concludes that it was not necessary, in a democratic society, to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the present case.’<br /><br />You and I may disagree with this assessment but it does not in and of itself signify a difference between the position in EU Law and under the Convention. It is rather a specific decision of a court on its facts. The approach of the dissenting judges does not as such offer a different basis in principle to the majority, but rather indicates that they concluded differently as regards the proportionality of the measures in the light of their reading of the facts.<br /><br />Thus, the assertion which the article makes that the ‘Strasbourg Court continues to permit freedom of expression to be used as a catch-all defence’ arguably seriously over simplifies the process of reasoning adopted in resolving this case, and the many other cases referred in Perinçek, some of which went one way, and some of which went the other.<br /><br />The call which the article makes therefore for some sort of dialogue to arrive at some sort of agreed position seems strange because it is difficult to discern from the article what it that that the EU and ECHR differ on, which might be the focus of a dialogue, such as to produce a different rule/set of principles such as might definitively lead to different outcomes than the one arrived at in this case? Which part of the FD points to a situation where the conclusion in this case should inevitably lead to a finding that the conviction of Perinçek should be compatible with the Convention? Indeed the FD (Article 7), itself provides that the Framework decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression, referring both to Art 6 TEU, and the concept more generally (this would include article 10 ECHR - see 14th preambular para).<br />Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-22218498209038605102016-10-30T14:09:15.852-07:002016-10-30T14:09:15.852-07:00part 2:
But that was not the matter at issue in ...part 2: <br /><br />But that was not the matter at issue in Perinçek, which accepted that the Swiss law did not offend in the prescribed by law sense. Furthermore, Perinçek accepted that each category offence set out in the FD, is capable of being compatible with the Convention.<br /><br />Thus, Perinçek accepts that speech (such as genocide denial) which is carried out in a manner likely to incite to violence or hatred, may be criminalized without such criminalization being incompatible with the Convention. (see the provisions in the Framework Decision in Article 1 (a) to (d) are ok.). However in the instance case on the facts (for reasons explained below) the court concluded that the speech was not likely to incite violence or hatred.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-50152349098281163502016-10-30T14:08:23.511-07:002016-10-30T14:08:23.511-07:00Comment from Adrian Hunt, Birmingham Law School, U...Comment from Adrian Hunt, Birmingham Law School, University of Birmingham (part 1)<br /><br />Thanks for this thought provoking piece, Clotilde. I would like to make a comment on the premise of the article that the decision in Perinçek reflects a difference between the EU position as reflected in the Framework Decision [FD], and the position adopted under the Convention.<br /><br />It is not at all clear to me - and I cannot see where this article identifies - a clear division between the EU and the ECHR, as regards the relevant rules and principles in a situation such as this.<br /><br />The decision in Perinçek was, as this piece explains, based upon proportionality grounds. However the subsequent critique of it set out in the blog focuses not on proportionality, but rather on the "prescribed by law" requirement, which did not form the basis for the reasoning of the European Court of Human Rights in the case at all. The critique by the Council of Europe Secretary General referred to in blog post raised concerns about the method of internet censorship, and was primarily premised on the prescribed by law requirement; not the proportionality type issue considered in Perinçek. This is because some EU countries when dealing with speech on the internet have preferred to operate informal processes where public authorities contact ISPs etc expressing concern about particular types of content, “suggesting” the contents removal, which the ISPs may then often do. The interference with speech in such a way operates unofficially and arguably/obviously therefore presents problems in terms of the prescribed by law requirement.<br /><br />Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.com