(Note: You can view and download a the PDF version of this text from the EU web site here
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12872-Hate-speech-hate-crime-inclusion-on-list-of-EU-crimes/F2231473)
Re: The European Commission (EC) roadmap consultation on the inclusion of ‘hate speech’ and ‘hate crime’ as EU crimes (Article 83(1) TFEU).[1]
April 20, 2021
Freedom for All is a human rights and public debate organization dedicated to the defense of personal freedoms. We have participated in cases and written legal opinions for the ECtHR, Bulgarian Supreme Courts, the Constitutional Court and the National Assembly and defended such opinions and views in the public square on various relevant topics.
A Summary of Our Response to the Road Map Proposal
As mentioned in the Road Map, the Commission’s initiative will aim to trigger a Council decision to extend the list of EU crimes in Article 83(1) TFEU to include hate speech and hate crime. It is our view that the Council of the European Union must abandon criminalizing free speech and establishing discrimination and privileges in criminal justice with the introduction of the categories “hate speech” and “hate crimes” in Art. 83 of TFEU. Otherwise, it is inevitable that the EU, in violation of its own founding principles and adopted human rights protection laws, will turn into a totalitarian bureaucracy which opposes individual freedom and punishes citizens for thought crimes. Arguments follow.
Why the Concept of “Hate Crimes” Should be Abandoned
The idea of a “hate crime” is a legal and philosophical misconception. No crime, especially the ones perpetrated against the person, as causing physical or property harm, is committed out of love and respect for that person. Hate is behind most and such crimes. To label some crimes against the person as “hate” is to justify all other crimes as less repugnant and worthy of criminal prosecution.
For the state and law enforcement to act as the judge of intent and morality and to impede on the idea that hate and love can be mandated by the state is absurd on its face. Morality and thought are a part of the individual’s freedom and they cannot be mandated or even strictly regulated by the state. The state in a democratic society can only regulate actions, and especially harmful actions. To mandate people what to think, and respectively, to exclude bias from their inner life is beyond the role of a state bureaucracy and law enforcement.
Those crimes addressed by the EU in this roadmap can be rectified not by creating a new penal category and new crime standards, but by applying proportionate penalty for the severity of the crimes committed. Creating new crime categories for crimes committed against each minority group will result in a fragmented and ineffective, and also highly discriminatory, criminal and prosecutorial system in the member states. Prosecution will inevitably also become politicized beyond any measure acceptable in a democratic and free society.
“According to the Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) hate crimes are “criminal offences committed with a bias motive”. This widely recognised definition is also the one used in this study.”[2] Even this definition shows how inept is the attempt to attach an emotional and worldview element to criminal intent and action. Are criminals who commit a certain crime not allowed to have bias? They have gone so far as to commit usually violent physical attacks on persons and property recognized as crimes, and yet we expect them to have the proper thought process to alleviate their punishment for the crime? If a “bias motive” should be included as an element of the crime, then re-education must be part of the punishment. This concept becomes especially dangerous when the so-called “hate speech” becomes the hate crime itself (as seems to be proposed in the Road Map). In such a case re-education prisons or concentration camps will become necessary to punish people for the wrong thought and expression, according to that one institution, body, or authority that defines what thoughts are hateful, and which are not.
“Hate crime” laws will only impose regulations in the criminal jurisprudence which are incompatible with the criminal system of a free society but rather fit a tyrannical regime. To legislate the “morality” of the day in a pluralistic society to such an extent as to define what the acceptable emotional feelings and judgments are, and regulate the psyche of the individual, is beyond the task of any democratic legislation.
Why the Concept Of “Hate Speech” Laws Should Be Abandoned
Firstly, hate speech laws will likely be in violation of Art. 6 of the Treaties of the European Union (TEU), which commits the Union to the value of the European Convention on Human Rights. Similarly misconstrued is the idea of, and the plan to introduce “hate speech” laws that criminalize expression. As per the above mentioned “hate crimes” can we empower the government to decide in a pluralistic society what is “hate” and what is “love?” Can the state, or even the majority in a democratic society, impose values and emotional conditions that are not accepted voluntarily by all, as to how all should feel, and what level of moral approval or outrage should all exhibit in regards to certain speech, without the state and that society ceasing to be democratic and free? Of course, it is the state that most likely will adopt this role of an “arbiter” of various views, and will have to establish a “state ministry of truth” to control who hates and who loves. People can be easily offended and they can easily accuse anyone of “hate” who does not espouse their view on a given subject. We have seen this, and continue to witness it today, many times over. The result is prolonged, unnecessary litigation that eventually ruins the lives of people.
Secondly, the criminalization of speech on the EU level will collide with laws and principles of guarding freedom of speech. The member states have already adopted internal and international laws that protect free speech. EU member states recognize the European Convention on Human Rights and the respective Court in Strasbourg. Many other international treaties protect the free expression of opinions and views. Adoption of EU regulation in this realm will go against the strict description of limitations on free expression of the European Convention.
There are other concerns about “hate speech laws,” besides the clear contradiction with ECHR and other laws protecting freedom of expression and thought.
Who decides what “hate speech” is? Such laws require the judicial assessment of the content of certain speech, but the criteria for such assessment is unclear (moral and legal). The wording “hate speech” is vague, fluid, and subject to arbitrary interpretations and applications, resulting in injustices through the legal process.[3]
In this regard we must emphasize that “hate speech” laws are essentially subjective and work through approximations. The Council of Europe’s definition of hate speech employs such ambiguous concepts like “promote,” “justify,” “other forms of intolerance,” “hostility,” and “aggressive.” “Hate speech” is labeled such by the hearer and relies on his or her perceptions and feelings which makes it vague and elusive. No respectful democratic society will impose limitations on one of the main pillars of freedom, free thought and expression, by basically criminalizing opinions and a robust public debate.
“Hate speech” will increase state power by bestowing on state authorities to use those vague definitions to arbitrarily decide with what falls into the category of “hate,” and thus to justify policing of people’s opinions and even thoughts.
The adoption of “hate speech” laws on such a broad and far-reaching scale, criminalizing speech, not actions, and imposing such an ominous standard on the member states within the EU will starkly pave the road for the EU turning into a sinister force for oppression as a totalitarian super-state. The EU was never created with the intention to abandon reason, legal tradition, and individual rights in favor of establishing a monstrous bureaucratic thought-control machine.
Any adoption of regulations on “hate speech” will be an unnecessary imposition of non-democratic principles onto a societal environment which needs robust and honest discourse. Criminalizing “hate speech” under Art. 83 of TFEU will be a heavy blow against the very principles on which the EU is built: of protection of democratic principles and individual rights as the stalwart of a free and democratic society.
Our Recommendations
Ideas and opinions should be freely expressed in a democratic society, as it is inevitable that individuals or groups will be offended by ideas they fundamentally disagree with. Any limitation of speech and expression has to be narrowly-defined, clearly defined, proportionate, legitimate, pursuing a clear aim and must ensure that less restrictive means do not exist. To make speech a crime, not physical actions and attacks, is a step toward policing indiscriminately the thought life and the freedom of expression of people.
Thus, no legislation limiting or criminalizing the so-called “hate speech” should be adopted. Speech must be regulated only when it is used to cause and/or incite imminent physical harm to others.
Any limitation on speech should be assessed objectively, by including the context in which it was carried out, and not take into consideration the subjective elements such as the perception of the hearer.
Any limitation on speech may not include the vague concepts of “incitement to discrimination or hatred.” So called “offensive” and “disturbing speech” should not be banned but allowed for a meaningful public debate and to engage citizens in the democratic process.
For similar reasons, as per the arguments listed above about “hate speech” the idea of elevating the status of so-called “hate crimes” must be abandoned.
Conclusion
In general, the Road Map poses a threat to individual freedoms as it aims to criminalize free speech beyond any tradition and principle of democratic societies and impose control on free thought by using the fluid and vaguely defined category of “hate speech.” Any regulations based on the ideas in the document will be in contrast and in possible violation of already adopted laws and treaties.
In regards to “hate crimes” the inclusion of the worldview (bias of motive) of the perpetrator of these crimes will further and unnecessarily deprive the judiciary of objective criteria on which to establish the extent of the crime, its effect on the victim and society, and a proportionate punishment. The rule that in a democratic society the state punishes actions, not thoughts, will be abandoned as a solid legal principle.
Thus, the Road Map paves the way to establishing harmful laws and regulations that will further erode essential individual freedoms which are the pillars of a free and democratic society. The Road Map, if implemented, will inevitably propel the EU toward becoming a massive totalitarian super-bureaucracy police state which eventually will lead to its rejection by the peoples of Europe.
Viktor Kostov, Ph.D.
lawyer, missiologist
Freedom for All
(Correction: A previous version stated "Council of Europe" in paragraph 3. It was corrected to read "Council of the European Union." This correction should be kept in mind when accessing the PDF report submitted to the EC.)
[1] See Hate speech & hate crime – inclusion on list of EU crimes (europa.eu).
[2] Hate speech and hate crime in the EU and the evaluation of online content regulation approaches, a Study requested by LIBE, July 2020, p. 22, Access at: https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655135/IPOL_STU(2020)655135_EN.pdf.
[3] An example of the fluidity of thought behind the term “hate speech” is this attempt at a definition in the study requested by LIBE committee of the EP: “The term "hate speech" is used inclusively according to its everyday meaning, covering all expressions and manifestations of racism, xenophobia, homophobia, etc., and for distinction of the legal category "criminal hate speech" or specifically "incitement to hatred" is used.” See Hate speech and hate crime in the EU and the evaluation of online content regulation approaches, a Study requested by LIBE, July 2020, p. 20, Access at: https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655135/IPOL_STU(2020)655135_EN.pdf.
