ABSTRACT
In Chapter 4, restrictions on freedom of expression to spare religious feelings were analysed. First, the European Court of Human Rights has held that laws against hate speech can be compatible with the ECHR. Claims usually reach the Court when someone has been convicted for hate speech or for incitement to hatred or violence and then claims that this is a breach of their freedom of expression under article 10. However, the Court does not always examine such cases under article 10 but applies article 17 instead. Article 17 contains an abuse of rights clause: the Convention rights cannot be used to perform acts aimed at destroying any of the rights and freedoms laid down in the Convention. Which article is used by the Court is important, because if it uses article 10(2), it applies the three part justification test but it does not do so when article 17 is applied. In other words, if the Court uses article 17, it does not require the state to prove that the interference is justified. This has been criticised in the literature as was seen in Chapter 4. Therefore, article 17 should only be applied in very limited circumstances where the fundamental democratic principles and values of the state are at stake. Supervision by the Court and a balancing of all the interests involved under the three part justification test of article 10 is to be preferred to stop states from arbitrarily imposing restrictions on expressions, especially expressions of dissent. The factors taken into account when the Court applies the three part test were analysed in Chapter 4.
