¹ The other two tests are the necessity test, and the proportionality in the narrow sense. See J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (2009), 69–70. J. Z. Fan, ‘Rethinking the Method and Function of Proportionality Test in the European Court of Human Rights’, (2016) 15 Journal of Human Rights 47, at 50–1.

² See S. Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’, (2009) 7 International Journal of Constitutional Law 468, at 474.

³ See Y. Arai-Takahashi, ‘Proportionality – A German Approach’, (1999) 19 Amicus Curiae 11.

⁴ See E. Brems and L. Lavrysen, ‘“Don’t Use a Sledgehammer to Crack a Nut”: Less Restrictive Means in the Case Law of the European Court of Human Rights’, (2015) 15 Human Rights Law Review 139, at 141.

⁵ See J. Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’, (2013) 11 International Journal of Constitutional Law 466–90, at 468.

⁶ See T. Harbo, The Function of Proportionality Analysis in European Law (2015), at 72.

⁷ Qualified rights refer to those rights that require a balance between the rights of the individual and other interests. With regard to this research, it includes mainly Arts. 8, 10, 11, and Art. 2 of Protocol No. 4. See Council of Europe, ‘Some Definitions’, available at www.coe.int/en/web/echr-toolkit/definitions.

⁸ Limited rights refer to those rights that can be limited under specific and finite circumstances. In this article, it involves mainly Arts. 5(1c), 5(2), 5(3), 5(4), 6(1), and 6(3). See A. Evans and I. McIver, ‘The European Convention on Human Rights in the United Kingdom’, (2015) Scottish Parliament Information Centre, at 5, available at archive2021.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_15-59_The_European_Convention_on_Human_Rights_in_the_United_Kingdom.pdf.

⁹ See Big Brother Watch and Others v. the United Kingdom, Judgment of 13 September 2018, [2018] ECHR, at 314.

¹⁰ The research includes Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002). See Christoffersen, supra note 1; Harbo, supra note 6; Gerards, supra note 5.

¹¹ See Harris et al., Harris, O’Boyle, and Warbrick: Law of the European Convention on Human Rights (2014), at 510–20. Van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (2006), at 333–50.

¹² The research includes P. De Hert, ‘Balancing Security and Liberty within the European Human Rights Framework. A Critical Reading of the Court’s Case Law in the Light of Surveillance and Criminal Law Enforcement Strategies after 9/11’, (2005) 1 Utrecht Law Review 68; A. Buyse, ‘Dangerous Expressions: The ECHR, Violence and Free Speech’, (2014) 63 International & Comparative Law Quarterly 491.

¹³ See J. Gerards and J. Fleuren (eds.), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-law: A Comparative Analysis (2014), 21–3.

¹⁴ Other types of document collections, such as decisions given by the former European Commission on Human Rights, are included when the literature or snowball method led me in that direction.

¹⁵ See European Court of Human Rights (ECtHR), HUDOC Database, available at www.echr.coe.int/Pages/home.aspx?p=caselaw/HUDOC&c=#n1355308343285_pointer. The reason for choosing the cases after November 2013, is to avoid duplication of the work done by the ECtHR’s Research Division in its national security case law report in November 2013. See Research Division of the European Court of Human Rights, ‘National Security and European Case-Law’, November 2013, ECtHR, available at rm.coe.int/168067d214.

¹⁶ The ‘keywords’ of Art. 8 include ‘national security’ and ‘economic well-being of the country’, those of Art. 10 include ‘national security’ and ‘territorial integrity’, Art. 11 ‘national security’, and Art. 2 of Protocol No. 4 ‘national security’.

¹⁷ Among others, the cases were collected on the basis of the ‘Case Law Guides’ and ‘Factsheets’. These documents are published by the ECtHR, and are updated constantly. As of 1 October 2020, the ‘Case-law Guide’ on Arts. 5 and 6 (criminal limb) was updated on 31 August 2020, and the ‘Factsheets’ on Terrorism were updated in September 2020. See European Court of Human Rights, ‘Guide on Article 5 of the European Convention on Human Rights: Right to Liberty and Security’, 31 August 2020, ECtHR, available at www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf; European Court of Human Rights, ‘Guide on Article 6 of the European Convention on Human Rights: Right to a Fair Trial (Criminal Limb)’, 31 August 2020, ECtHR, available at www.echr.coe.int/Documents/Guide_Art_6_criminal_ENG.pdf; Press Unit of the European Court of Human Rights, ‘Terrorism and the European Convention on Human Rights’, September 2020, ECtHR, available at www.echr.coe.int/Documents/FS_Terrorism_ENG.pdf.

¹⁸ For example, see Van Dijk et al., supra note 11; Harris et al., supra note 11; Fan, supra note 1.

¹⁹ See Arai-Takahashi, supra note 10, at 2.

²⁰ See J. Callewaert, ‘Quel avenir pour la marge d’appréciation?’, in Mahoney et al. (eds.), Protection des droits de l’homme: La perspective Européenne: mélanges à la mémoire de Rolv Ryssdal (2000), 147, at 149.

²¹ See T. Mendel, ‘A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights’, available at rm.coe.int/16806f5bb3, at 5–6. A. Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (2012), at 90.

²² See 1950 European Convention for the Protection of Human Rights, ETS 5 (1953), Arts. 6(1), 8(2), 9(2), 10(2), 11(2), and 1963 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 46, Art. 2 of Protocol No 4.

²³ See Research Division of the ECtHR, supra note 15, at 40; Harris et al., supra note 11.

²⁴ See Gerards, supra note 5, at 473–81.

²⁵ See Christoffersen, supra note 1, at 170–91.

²⁶ See Gerards, supra note 5, at 467–8; Harris et al., supra note 11, at 510; Research Division of the ECtHR, supra note 15, at 27–38.

²⁷ See Tsakyrakis, supra note 2, at 469.

²⁸ Ibid., at 472.

²⁹ J. Waldron, ‘Fake Incommensurability: A Response to Professor Schauer’, (1994) 45 Hastings Law Journal 813, at 817.

³⁰ See Tsakyrakis, supra note 2, at 473.

³¹ See third paragraph of preamble of the 1950 ECHR, supra note 22.

³² The three factors can be summarized as ‘ordinary meaning’, ‘context’, and ‘purpose’. Art. 31(1) of the 1969 Vienna Convention on the Law of Treaties, UNTS 1155, reads: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’

³³ See A. Zysset, ‘Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of “Democratic Society”’, (2016) 5 Global Constitutionalism 16, at 38.

³⁴ See A. Zysset, ‘Freedom of Expression, the Right to Vote, and Proportionality at the European Court of Human Rights: An Internal Critique’, (2019) 17 International Journal of Constitutional Law 230, at 234.

³⁵ Ibid., at 233–5.

³⁶ I will elaborate case scenarios for both circumstances later in Section 4.

³⁷ Such a classification was inspired by Jonas Christofferson’s abstract analysis on the complex interaction between fact and norms inherent in the proportionality assessment. See Christoffersen, supra note 1, at 163–7.

³⁸ See Gerards, supra note 5, at 473.

³⁹ Stomakhin v. Russia, Judgment of 9 May 2018, [2018] ECHR, at 90.

⁴⁰ See Research Division of the ECtHR, supra note 15, at 19; Buyse, supra note 12, at 496–502. A recent case, for example, is Stomakhin v. Russia, supra note 39, at 92.

⁴¹ See Mukhin v. Russia, Judgment of 14 December 2021, [2021] ECHR, at 115.

⁴² Vereniging Weekblad Bluf! v. the Netherlands, Judgment of 9 February 1995, [1995] ECHR (Ser. A.), at 44.

⁴³ See Vereniging Weekblad Bluf! v. the Netherlands, supra note 42, at 45. Observer and Guardian v. United Kingdom, Judgment of 26 November 1991, [1991] ECHR (Ser. A.), at 66–70. The Sunday Times v. the United Kingdom (No. 1), Judgment of 26 April 1979, [1979] ECHR (Ser. A.), at 52–6.

⁴⁴ See Christoffersen, supra note 1, at 191.

⁴⁵ Gîrleanu v. Romania, Judgment of 26 June 2018, [2018] ECHR, at 94–5.

⁴⁶ See Gerards, supra note 5, at 468.

⁴⁷ See Observer and Guardian v. United Kingdom, supra note 43, at 68–9.

⁴⁸ For instance, in Dmitriyevskiy v. Russia, the government provided linguistic experts’ conclusions on the nature of the articles in question. See Dmitriyevskiy v. Russia, Judgment of 3 October 2017, [2017] ECHR, at 13.

⁴⁹ For instance, in Lustig-Prean and Beckett v. the United Kingdom, the government brough forward a report prepared by the Minister of Defence, which assessed the armed forces’ policy on homosexuality. See Lustig-Prean and Beckett v. the United Kingdom, Judgment of 27 September 1999, [1999] ECHR, at 44.

⁵⁰ Smith and Grady v. the United Kingdom, Judgment of 27 September 1999, [1999] ECHR, at 95.

⁵¹ Ibid.

⁵² For example, see Stomakhin v. Russia, supra note 39, at 98–123. Karataş v. Turkey, Judgment of 8 July 1999, [1999] ECHR, at 51–2.

⁵³ For example, see Affaire Union Nationale Turque and Kungyun v. Bulgaria, Judgment of 8 June 2017, [2017] ECHR, at 45–6.

⁵⁴ See Perinçek v. Switzerland, Judgment of 15 October 2015, [2015] ECHR, at 205–6.

⁵⁵ See Big Brother Watch and Others v. the United Kingdom, supra note 9, at 303–10, 385. A. Oehmichen, Terrorism and Anti-Terror Legislation: The Terrorised Legislator? A Comparison of Counter-Terrorism Legislation and its Implications on Human Rights in the Legal Systems of the United Kingdom, Spain, Germany, and France (2009), at 312.

⁵⁶ Big Brother Watch and Others v. the United Kingdom, ibid., at 385–6.

⁵⁷ O. Koch, Der Grundsatz der Verhältnismäßigkeit in der Rechtsprechung des Gerichtshofs der Europäischen Gemeinschaften (2003).

See Harbo, supra note 6.

⁵⁸ See Gîrleanu v. Romania, supra note 45, at 89.

⁵⁹ See Vereniging Weekblad Bluf! v. the Netherlands, supra note 42, at 40. Rotaru v. Romania, Judgment of 4 May 2000, [2000] ECHR, at 47.

⁶⁰ See, for example, Leas v. Estonia, Judgment of 6 March 2012, [2012] ECHR, at 78.

⁶¹ See, for example, Leander v. Sweden, Judgment of 26 March 1987, [1987] ECHR (Ser. A.), at 59.

⁶² Big Brother Watch and Others v. the United Kingdom, supra note 9, at 314.

⁶³ See Bartik v. Russia, Judgment of 21 December 2006, [2006] ECHR, at 49.

⁶⁴ Ibid.

⁶⁵ See Christoffersen, supra note 1, at 173–4, 176–8.

⁶⁶ A. Nieuwenhuis, ‘The Concept of Pluralism in the Case Law of the European Court of Human Rights’, (2007) 3 European Constitutional Law Review 367, at 370.

⁶⁷ See European Court of Human Rights, ‘Guide on Article 8 of the European Convention on Human Rights: Right to Respect for Private and Family Life, Home and Correspondence’, 31 August 2020, ECtHR, available at www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf. European Court of Human Rights, ‘Guide sur L’article 10 de la Convention Européenne des Droits de L’homme: Liberté D’expression’, 31 August 2020, ECtHR, available at www.echr.coe.int/Documents/Guide_Art_10_FRA.pdf. European Court of Human Rights, ‘Guide on Article 11 of the European Convention on Human Rights: Freedom of Assembly and Association’, 31 August 2020, ECtHR, available at www.echr.coe.int/Documents/Guide_Art_11_ENG.pdf. See Van Dijk et al., supra note 11; Harris et al., supra note 11.

⁶⁸ See Research Division of the ECtHR, supra note 15.

⁶⁹ See Nieuwenhuis, supra note 66.

⁷⁰ In regard to the political speech see, for example, Stomakhin v. Russia, supra note 39, at 88. As to the political party issue, see, for example, Zhechev v. Bulgaria, Judgment of 21 June 2007, [2007] ECHR, at 35, 59.

⁷¹ See Thorgeir Thorgeirson v. Iceland, Judgment of 25 June 1992, [1992] ECHR (Ser. A.), at 64; Dichand and others v. Austria, Judgment of 26 February 2002, [2002] ECHR, at 38.

⁷² See, for example, Observer and Guardian v. the United Kingdom, supra note 43, at 59.

⁷³ See, for example, Lustig-Prean and Beckett v. the United Kingdom, supra note 49, at 80, 82.

⁷⁴ See Legg, supra note 21, at 200–1.

⁷⁵ There is another approach the Court took in some cases in tackling political speech. Based on Art. 17 of the Convention, the Court held the applicant’s petition inadmissible as the freedom of speech was abused to undermine the Convention or democracy, for instance, by aiming to install totalitarian regimes. The approach is in its nature defending the security of a democratic government authorities. See K. Lemmens, ‘Hate Speech in the Case Law of the European Court of Human Rights’, in A. Ellian and G. Molier (eds.), Freedom of Speech under Attack (2015), 135, at 144–7. See Hizb Ut-Tahrir and others v. Germany, Decision of 12 June 2012, [2012] ECHR.

⁷⁶ See Buyse, supra note 12, at 491. See, for example, Bayar and Gürbüz v. Turkey, Judgment of 27 November 2012, [2012] ECHR, at 34. See Stomakhin v. Russia, supra note 39, at 93, 107.

⁷⁷ See, Dmitriyevskiy v. Russia, supra note 48, at 100.

⁷⁸ See Halis Doğan v. Turkey (No. 3), Judgment of 10 October 2006, [2006] ECHR, at 34; Hocaoğulları v. Turkey, Judgment of 7 March 2006, [2006] ECHR, at 39; Sürek v. Turkey (No. 3), Judgment of 8 July 1999, [1999] ECHR, at 40.

⁷⁹ See Halis Doğan v. Turkey (No. 3), supra note 78, at 35; Hocaoğulları v. Turkey, supra note 78; Sürek v. Turkey (No. 3), supra note 78.

⁸⁰ See Dmitriyevskiy v. Russia, supra note 48, at 99. Sürek v. Turkey (No. 4), Judgment of 8 July 1999, [1999] ECHR, at 60. Fatullayev v. Azerbaijan, Judgment of 22 April 2010, [2010] ECHR, at 116. Gözel and Özer v. Turkey, Judgment of 6 July 2010, [2010] ECHR, at 56; Nedim Şener v. Turkey, Judgment of 8 July 2014, [2014] ECHR, at 116; Şık v. Turkey, Judgment of 8 July 2014, [2014] ECHR, at 105. Dilipak v. Turkey, Judgment of 15 September 2015, [2015] ECHR, at 62.

⁸¹ Certainly, the hate speech can target an individual, a public official as well as a sector of the population. In the article, I am trying to focus on those that probably raise national security concerns.

⁸² For instance, in the Féret v. Belgium case, leaflets had discrimination content based on race, colour, and national or ethnic origin. The legitimate aim reviewed by the Court was ‘prevention of disorder’ and ‘protection of the reputation or rights of others’, instead of ‘national security’. In addition, the context of the case was Belgium’s election campaign. See Féret v. Belgium, Judgment of 16 July 2009, [2009] ECHR, at 59, 76. See also A. Ellian and G. Molier (eds.), Freedom of Speech under Attack (2015), at 121–216.

⁸³ See Dmitriyevskiy v. Russia, supra note 48, at 100.

⁸⁴ Such cases include Gürbüz et Bayar v. Turkey, Judgment of 23 July 2019, [2019] ECHR; Karatepe v. Turkey, Judgment of 31 July 2007, [2007] ECHR; Sürek v. Turkey (No. 1), Judgment of 8 July 1999, [1999] ECHR.

⁸⁵ See Stomakhin v. Russia, supra note 39, at 105.

⁸⁶ Ibid., at 96.

⁸⁷ Ibid., at 107.

⁸⁸ See Gürbüz and Bayar v. Turkey, supra note 84, at 43.

⁸⁹ See Karatepe v. Turkey, supra note 84, at 30.

⁹⁰ See Halis Doğan v. Turkey (No. 3), supra note 78, at 36; Hocaoğulları v. Turkey, supra note 78, at 41; Sürek v. Turkey (No. 1), supra note 84, at 63.

⁹¹ See Refah Partisi (the Welfare Party) and Others v. Turkey, Judgment of 13 February 2003, [2003] ECHR, at 102.

⁹² See Ignatencu et le Parti communiste roumain v. Romania, Judgment of 5 May 2020, [2020] ECHR, at 80; Yazar and Others v. Turkey, Judgment of 9 April 2002, [2002] ECHR, at 49; Refah Partisi (the Welfare Party) and Others v. Turkey, ibid., at 98.

⁹³ See Refah Partisi (the Welfare Party) and Others v. Turkey, ibid., at 99, 101.

⁹⁴ See D. Golubovic, ‘Freedom of Association in the Case Law of the European Court of Human Rights’, (2013) 17 International Journal of Human Rights 758, at 763; Ignatencu and le Parti communiste roumain v. Romania, supra note 92, at 96; Refah Partisi (the Welfare Party) and Others v. Turkey, ibid., at 101. Ždanoka v. Latvia, Judgment of 16 March 2006, [2006] ECHR, at 120.

⁹⁵ See Refah Partisi (the Welfare Party) and Others v. Turkey, ibid., at 116–36.

⁹⁶ Ibid., at 120–5.

⁹⁷ Ibid., at 117–19.

⁹⁸ Ibid., at 129–31.

⁹⁹ See Ignatencu and le Parti communiste roumain v. Romania, supra note 92, at 97.

¹⁰⁰ Ibid., at 98, 100.

¹⁰¹ ECtHR, ‘Guide sur L’article 10’, supra note 67, paras. 344–345.

¹⁰² For example, Gîrleanu v. Romania, supra note 45, at 87.

¹⁰³ For example, Bucur and Toma v. Romania, Judgment of 8 January 2013, [2013] ECHR, at 103; Observer and Guardian v. the United Kingdom, supra note 43, at 61, 69.

¹⁰⁴ For example, in Pasko v. Russia, the applicant intended to disclose to Japanese media classified information concerning military exercises, which was not of any public interest. See Pasko v. Russia, Judgment of 22 October 2009, [2009] ECHR, at 86–7. In Hadjianastassiou v. Greece, the state secrets in question were ‘general information concerning the guided missile’, which did not contribute to any public debate or reveal official misconduct. See Hadjianastassiou v. Greece, Judgment of 16 December 1992, [1992] ECHR (Ser. A.), at 9, 45.

¹⁰⁵ See Gîrleanu v. Romania, supra note 45.

¹⁰⁶ Ibid., at 8, 89; Vereniging Weekblad Bluf! v. the Netherlands, supra note 42, at 41.

¹⁰⁷ For example, in the Vereniging Weekblad Bluf! v. the Netherlands case, the information contained in the impugned report was deemed ‘of a fairly general nature’, because it was designed mainly to inform BVD (de Binnenlandse Veiligheidsdienst) staff and other officials who carried out work for the BVD about the organization’s activities. See Vereniging Weekblad Bluf! v. the Netherlands, ibid., at 8–9, 41.

¹⁰⁸ See Gîrleanu v. Romania, supra note 45; Vereniging Weekblad Bluf! v. the Netherlands, ibid., at 41.

¹⁰⁹ See Press Unit of European Court of Human Rights, ‘Sexual Orientation Issues’, February 2021, ECtHR, available at www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf, at 13–14.

¹¹⁰ See Lustig-Prean and Beckett v. the United Kingdom, supra note 49, at 90–2.

¹¹¹ Ibid., at 93.

¹¹² See Brems and Lavrysen, supra note 4, at 142.

¹¹³ The case was lodged with the ECtHR in 2000. See Segerstedt-Wiberg and Others v. Sweden, Judgment of 6 June 2006, [2006] ECHR, at 15–22, 33–7.

¹¹⁴ Ibid., at 90.

¹¹⁵ See Turek v. Slovakia, Judgment of 14 February 2006, [2006] ECHR, at 115; Bobek v. Poland, Judgment of 17 July 2007, [2007] ECHR, at 57.

¹¹⁶ See Bartik v. Russia, supra note 63.

¹¹⁷ Ibid.

¹¹⁸ See Soltysyak v. Russia, Judgment of 10 February 2011, [2011] ECHR; Berkovich and Others v. Russia, Judgment of 27 March 2018, [2018] ECHR.

¹¹⁹ See ECtHR, ‘Guide on Article 5’, supra note 17, paras. 195, 198, 200, 203; Research Division of the ECtHR, supra note 15, at 28–9; Grubnyk v. Ukraine, Judgment of 17 September 2020, [2020] ECHR, at 116–30.

¹²⁰ See ECtHR, ‘Guide on Article 6’, supra note 17, paras. 281–292; Welke and Białek v. Poland, Judgment of 1 March 2011, [2011] ECHR, at 73–9; Belashev v. Russia, Judgment of 4 December 2008, [2008] ECHR, at 79–88; Engel and Others v. the Netherlands, Judgment of 1976, [1976] ECHR (Ser. A.), at 89.

¹²¹ See ECtHR, ‘Guide on Article 6’, ibid., paras. 433–439; Press Unit of the European Court of Human Rights, ‘Terrorism and the European Convention on Human Rights’, October 2020, ECtHR, available at www.echr.coe.int/Documents/FS_Terrorism_ENG.pdf, at 17-22; Salduz v. Turkey, Judgment of 27 November 2008, [2008] ECHR, at 55–7; Brennan v. the United Kingdom, Judgment of 16 October 2001, [2001] ECHR, at 28, 46; Ibrahim and Others v. the United Kingdom, Judgment of 13 September 2016, [2016] ECHR, at 276–9.

¹²² See Belashev v. Russia, supra note 120, at 22.

¹²³ Ibid., at 84.

¹²⁴ See Welke and Białek v. Poland, supra note 120, at 8, 32–3, 76.

¹²⁵ Ibid., at 76–7.

¹²⁶ See Koch, supra note 57, at 207.

¹²⁷ See Brems and Lavrysen, supra note 4, at 142.