In December 2013, ARTICLE 19 provided comments to the consultations organised by the Assises de la Justice on shaping the European Union’s justice policy over the coming years.
In the submission, ARTICLE 19 outlined how the EU policies on combating certain forms and expressions of racism and xenophobia by means of criminal law comply with international standards on the right to freedom of expression and information and the right to equality.
ARTICLE 19 strongly believes that the right to freedom of expression and the right to equality are complementary and mutually reinforcing human rights. We are concerned that the current EU policies in this area – stemming from the Framework Decision the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, 2008/913/JHA (the Framework Decision) fail to comply with international standards on the right to freedom of expression and the right to equality.
In particular, we are concerned that the Framework Decision fails to recognise the full extent of States’ obligations to combat intolerance and discrimination on all grounds recognised under international human rights law, including on the grounds of sex, sexual orientation, gender identity, and disability. Moreover, the Framework Decision does not fully elaborate on the need for States to take comprehensive measures to promote both the right to freedom of expression and the right to equality, including positive policy measures.
ARTICLE 19 finds that the focus on criminal sanctions for combating “hate speech” is seriously problematic for the right to freedom of expression and the right to equality. The criminal offences themselves are drawn far too broadly and are inconsistent with the obligations placed on States by international human rights law. The Framework Decision also provides insufficient guidance to States to identify severe forms of incitement that warrant prohibition. At the same time, excessive faith is placed in the criminal law as a tool for promoting the right to equality; alternative mechanisms for redress in the civil and administrative law are overlooked, even those that would be more beneficial to victims and less intrusive on the right to freedom of expression. Lastly, the requirement that condoning, denying or grossly trivialising historical crimes be punished through the criminal law is wholly unnecessary, and contradicts international standards on freedom of expression.
For these reasons, ARTICLE 19 recommends that the Framework Decision be substantially revised to ensure that both the right to freedom of expression and the right to equality can be fully realised. Further, the EU justice policy should be comprehensive and should require a variety of legal means to be used to prohibit incitement, primarily through the civil and administrative law; criminal sanctions should only be used exceptionally and as a last resort.
Summary of recommendations
ARTICLE 19 calls on the Assises de la Justice to highlight the concerns outlined in the submission in the future EU justice policy. In particular, we call on the EU to:
- Protect against intolerance and discrimination on all grounds recognised under international human rights law, including but not limited to: age, sex, political or other opinion, sexual orientation, gender identity, and disability, in addition to the grounds already covered;
- Provide specific guidance to member states on their positive obligation to promote both the right to freedom of expression and the right to equality through non-punitive policy measures;
- Ensure that any prohibition on “incitement” reflects both the requirements of Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), and complies with the three-part test for restrictions on expression under Article 19(3) of the ICCPR;
- Ensure that States are given sufficient guidance to consistently interpret their obligations under international human rights law in prohibiting the advocacy of hatred constituting incitement by adopting the 6-part test set out in the Rabat Plan of Action;
- Require that States provide a variety of legal means for prohibiting incitement, primarily through the civil and administrative law. Only in the most serious cases of incitement should the use of criminal sanctions be considered, and imprisonment should only be available as a sanction in exceptional circumstances;
- Ensure that States are given adequate guidance in respecting fundamental rights and freedoms online when interpreting or enforcing the Framework Decision;
- Not require that States prohibit the condoning, denying or grossly trivialising of historical events.