Criminalising Hate Crime and Hate Speech: The European Commission’s Proposal Through the Lens of Article 8 ECHR

This comment of the Young Meijers Committee’s Criminal Law subcommittee responds to the European Commission’s proposal to extend the list of EU crimes in Article 83 (1) TFEU to include hate crime and hate speech. It analyses the case law of the ECtHR regarding the right to respect for private and family life, considering how this could be valuable in respect of legal initiatives in this area.

In December 2021 the European Commission issued a proposal to extend the list of EU crimes in Article 83 (1) TFEU to include hate crime and hate speech. If the Commission’s proposal is followed, the EU will be able to make new directives containing minimum rules regarding hate crime and hate speech. However, the proposal does not give adequate consideration to the case law of the ECtHR regarding the right to respect for private and family life (Article 8 ECHR). On the basis of that right, the ECtHR has hinted at a positive obligation for states to prevent certain forms of hate crime and hate speech, including negative stereotyping of certain groups.

This comment analyses the ECtHR-case law on this positive obligation, to find out what the exact extent of this obligation is, and thereby aims to explore how the case law of the ECtHR can inform EU-level initiatives in this area. The key question is whether and how the ECtHR’s jurisprudence on positive obligations to combat hate speech and hate crime may inspire or guide the EU’s legislative approach.

Amongst other recommendations, this comment culminates by advising the Council to anchor Article 8 ECHR case law more explicitly in the preamble of the (potential) Council decision, and to limit criminalisation of hate crime and hate speech on the EU level to the protection of clearly outlined legal interests inspired by Article 8 ECHR case law.