Der Schutz von Minderheiten als Schranke der Meinungsäußerungsfreiheit
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This article deals with the tension between freedom of expression and the protection of minorities in the European Convention on Human Rights (ECHR). It looks at three different constellations: the prohibition of blasphemy, the ban of xenophobic or racist hate speech, and the prohibition to deny certain international crimes, such as genocide. After a detailed analysis of the case law of the European Court of Human Rights (ECtHR) on these three matters, the article proposes a new normative conception to address these tensions. It develops the argument that the limitation of free speech in all three constellations is legitimate to the extent that the limitation aims at the protection of minorities. In practice, prohibitions of blasphemy or penalizations of denying certain historical facts do not always protect minorities. To the contrary, they are sometimes a pretext to pursue majority interests and to suppress minorities. For this reason, the ECtHR should vary the margin of appreciation that it affords to member states. If restrictions of the freedom of speech protect minority interests, the member states should have a wide margin of discretion. In contrast, the margin of appreciation should be much narrower when the state protects majority interests. If the jurisprudence of the ECtHR is evaluated based on this conception, it is not always convincing. This concerns, in particular, the judgments in Otto-Preminger-Institut and Wingrove on the issue of blasphemy and the recent Perinçek judgment regarding a Swiss criminal sanction against a Turkish politician for denying the Armenian genocide.