European Standard on Incitement

Legality Legitimate Grounds Necessity Proportionality Intent Imminence / Threat of Violence
Formal *1* Sufficient precision, accessibility, and foreseeability *2* a) National security, territorial integrity, or public safety *3* “OR” b) Prevention of disorder or crime *4* “OR” c) Protection of health and morals “OR” d) Protection of the reputation or rights of others “OR” e) Preventing disclosure of information received in confidence “OR” f) Maintaining the authority and impartiality of the judiciary Necessary in a democratic society *5* Narrowly tailored Cannot be achieved by other means Adequate relation of proportionality between the restriction and the nature of the legitimate aim pursued *6* Must generate the least interference with the right it is restricting Intent to incite violence *7* Direct & immediate connection between expression & threat *8*
1  Restrictions must be previously established by law

Sufficient precision, accessibility, and foreseeability: To be prescribed by law a restriction on expression must be “adequately accessible” and “formulated with sufficient precision to enable the citizen to regulate his conduct.” See the Sunday Times v. U.K., April 26, 1979, Series A. no. 30.

Article 10(2) of the European Convention on Human Rights: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
4 ECHR, Gutierrez Suarez v. Spain

 ECHR, Otegi Mondragon v Spain: “54. The Court observes that, while some of the remarks made in the applicant’s speech portrayed the institution embodied by the King in a very negative light, with a hostile connotation, they did not advocate the use of violence, nor did they amount to hate speech, which in the Court’s view is the essential element to be taken into account (see, conversely, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV). It also notes that neither the domestic courts nor the Government sought to justify the applicant’s conviction by reference to incitement to violence or hate speech. The Court further takes account of the fact that the remarks were made orally during a press conference, so that the applicant had no possibility of reformulating, refining or retracting them before they were made public (see Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000, and Birol v. Turkey, no. 44104/98, § 30, 1 March 2005).”

“59. The Court has previously held that, although sentencing is in principle a matter for the national courts, the imposition of a prison sentence for an offence in the area of political speech will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Bingöl v. Turkey, no. 36141/04, § 41, 22 June 2010, and, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). It refers in that regard to the guidance given in the materials of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe concerning prison sentences in the area of political speech (see paragraphs 30 and 31 above).