Discursos de ódio e o Tribunal Europeu dos Direitos Humanos: enfrentando os desafios à liberdade de expressão

Abstract

Starting from the analysis of cases related to the so-called hate speech, decided by the European Court of Human Rights, the article deals with one of the most important questions of constitutional thought: the limits of freedom of expression in face of these hate speeches. Hate speech imposes a complex problem, especially in modern multicultural societies, when it manifests open forms of extreme hatred. This debate, which is indeed crucial in modern constitutional democracies, instigates a reflection on how far a Democratic State may reach without refusing its own opening. The European Court of Human Rights has built some parameters to distinguish hate speech as a negative phenomenon and the right to freedom of expression guaranteed by the European Convention on Human Rights. The text shows that restrictions on the right to freely express oneself are subject to extremely stringent requirements. In other words, the limits of free speech are not mere restrictions, but they are also a condition of possibility of this fundamental right. Thus, freedom of expression cannot be translated as an instrument for oppression, being therefore subject to limits, but not censured. In sum, for the European Court, responsibility is the inseparable face of free speech. Here, the contributions of thinkers like Michel Rosenfeld and Jürgen Habermas were central. Finally, it should be noted that a critical-methodological line was adopted in this work.