By Natalie Alkiviadou

Introduction

Article 17 of the European Convention on Human Rights (ECHR), commonly referred to as the ‘abuse clause,’ provides that:

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

This provision emerged in response to the historical context marked by the atrocities of World War II, with its fundamental purpose being to furnish democratic systems with the necessary legal mechanisms to prevent the recurrence of egregious acts perpetrated by past totalitarian regimes. This foundational rationale was reflected in the landmark 1957 case of KPD v Germany, in which the now-defunct European Commission on Human Rights sanctioned the prohibition of the German Communist Party. Over time, the Strasbourg organs extended the use of Article 17 to speech, which may not be associated with totalitarian groups but which, more broadly, ‘destroys’ Convention rights and freedoms. It is within this framework and given last year’s judgement in Lenis v Greece, which involved homophobic speech by a church officialthat a re-consideration of this provision and its use is warranted.

Development and Enforcement of Article 17

In relation to ‘hate speech’ cases, the ECtHR either excludes them from protection without the legal analysis conducted under Article 10. Article 10 grants the right to freedom of opinion and expression but subjects it to limitations on the grounds of, amongst others, protecting the rights and reputations of others. When a case is considered in the framework of Article 10, the Court conducts a multi-fold test through which it determines whether there is a pressing social need for the interference, whether it is necessary and proportionate and whether it is prescribed by law. Applying Article 17 to cases involving speech can have a chilling effect to one of the fundamental freedoms of a democratic society, that of freedom of expression. When Article 17 is relied on, issues such as legitimacy, necessity and proportionality are not considered by the Court. As early as De Becker v Belgium (1962), the Court acknowledged that Article 17 applies exclusively to individuals posing a threat to the democratic system of contracting parties. The case of Kuhnen v Germany (1988) further broadened the scope of Article 17 by extending its applicability to activities deemed contrary to the text and spirit of the Convention. The application of Article 17 has extended beyond threats to democracy, encompassing instances where individuals or groups exploit Convention rights in a manner which jeopardizes the ECHR’s “spirit” and also fundamental rights rather than endangering democratic governance.

There is also a certain hierarchy attached to the use of Article 17 when employing content-based ousting from Article 10 protection. Cases involving Holocaust denial and anti-Semitism have frequently (but not always) been handled through the utilization of Article 17. The divergence in the Court’s treatment of the Holocaust in comparison to other genocides, specifically the Armenian genocide adds another layer of complexity to the analysis.Perinçek v Switzerland (2015) involved expression which denied the occurrence of the Armenian genocide. Here, the Court did not follow the Article 17 route as it usually does in equivalent cases of Holocaust denial.

Furthermore, over time, the provision’s application has extended, albeit sporadically, to cases involving other types of speech, namely Islamophobia in 2003 and homophobia in 2023.

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